CRIMINAL LAW 1

Criminal Law- is that branch of law which defines crimes, treats of their nature and provides for their punishment. (12 CYC 129 & Lacson vs. Executive Secretary, 102 SCAD, l999) It is a branch of public law because it treats of acts or omissions of the citizens which are deemed primarily as wrongs against the State more than against the offended party.

Different branches of laws: Political Law, Mercantile Law, Commercial Law, Constitutional Law, Civil Law & others. Crimes: Theft (Article 308)-committed by any person who, with intent of gain but without violence against, or intimidation of persons nor force upon things, shall take the personal property of another without the latters consent

 Rape (Article 266-A ( as amended by RA 8353) is committed by a man who shall have carnal knowledge with a woman : through force, threat or intimidation, x x x . Punishment Theft depends on the amount of the thing stolen ex. Amt. is over 200 pesos but does not exceed 6,000 penalty is Prision Correccional in its minimum and medium periods ( 6 mos. and 1 day to 4 yrs.& 2 mos.

 Penalty for Rape committed with the use of deadly weapon or by two or more persons, the penalty is Reclusion Perpetua to Death.

CRIME
What is crime (Book of Reyes ) is an act committed or omitted in violation of a public law forbidding or commanding it. Crime is the commission or omission by a person having capacity, of any act, which is either prohibited or compelled by law and the commission or omission of which is punishable by a proceeding brought in the name of the govt. whose law has been violated. (Whartons Crim. Law)

DIFFERENT NOMENCLATURE OF CRIME

Crime punished by the Revised Penal Code is called FELONY. Crime punished by special laws is known as OFFENSE. Crime punished by an Ordinance is known as INFRACTION.

 Power to define and punish an act as a crime- Only the State, through the Legislative Department where the legislative power is vested. Exception; Chief Executive through an Executive Order may perform this prerogative in the exercise of emergency power. This is provided under the l987 Constitution.

SOURCES OF CRIMINAL LAWS

1) Revised Penal Code Act 3815 as amended (January 1, l932); 2) Special Penal laws passed by the Philippine Commission, Philippine Assembly, Congress of the Philippines, and the Batasang Pambansa. 3) Presidential Decrees.

CHARACTERISTICS OF CRIM.LAW
A) Generality That the law is binding upon all persons, who reside or sojourn in the Philippines, irrespective of age, sex, color or personal circumstances. Exceptions: 1) Provided by Public International Law Art. 14 Civil Code & Schneckenburger vs. Moran 63 Phil. 250) Sovereigns, heads of states, ambassadors, ministers plenipotentiary

 Ministers- resident, charges daffairs and attaches. As regards consuls and viceconsuls, their exemption will depend upon a treaty stipulation, except an Honorary Consul. 2) Treaty Stipulations; (Ex. PI & US Military Bases Agreement & Visiting Forces Agreement)

 RA 75 extends immunity to the domestic servants of duly accredited ambassadors, if registered in the DFA, if in the country of the ambassadors, also provided similar protections to duly accredited ambassadors of the Phils.

 Does immunity from suit of officers of international bodies include that of defamation? (Liang vs. People-ll9 SCAD- January 2000)Petitioner is an economist working with ADB. For allegedly uttering a defamatory words against his fellow ADB worker, he was charged before the MeTC w/ 2 counts of Grave Oral Defamation. The judge received an offer of protocol from the DFA stating that Liang is covered by immunity from legal process under

 Sec. 45 of the Agreement between the ADB and the Phils. Based on said protocol, the judge without notice to the prosecution dismissed the case. First courts cannot blindly adhere and take on its face the communication from the DFA that petitioner is covered by any immunity. The DFAs determination that a certain person is covered by immunity is only preliminary which has no binding effects in courts. In receiving

 ex-parte the DFAs advice and in motu proprio dismissing the cases w/o notice to the prosecution, the latters right to due process was violated. It should be noted that due process is a right of the accused as much as it is of the prosecution. Mere invocation of the immunity clause does not ipso facto result in dropping the charges

Second Under Sec. 45 of the Agreement, the immunity therein is not absolute but subject to the exception that the act was done in official capacity. Thus the prosecution should have been given the chance to rebut the DFA protocol and it must be accorded the opportunity to present its controverting evidence, should it desires.

 Third slandering a person could not possibly be covered by the immunity agreement, because our laws do not allow the commission of a crime, such as defamation, in the name of official duty. This is ultra vires and cannot be part of official functions. It is a settled principle that a public official may be liable in his

 personal capacity for whatever damage he may have caused by his act done with malice and in bad faith beyond the scope of his authority or jurisdiction. Fourth Under the Vienna Convention on Diplomatic Relations, a diplomatic agent enjoys immunity from criminal prosecution of the receiving state except in the case of an action relating to any professional or

 commercial activity outside of his official functions. As mentioned, the commission of the crime of defamation is not part of his official duty.

 3) Laws of Preferential ApplicationsConstitution- Ex. Members of Congress are not liable for Libel or Slander in connection with any speech delivered on the floor of the house during a regular or special session ( Art. IV, Sec. 11, l987 Constitution)

 B)TERRITORIALITY Article 2, RPC provs. of the RPC shall be enforced within the Philippine Archipelago, including its atmosphere, interior waters and maritime zone( before it was 3 miles from the outermost coastline. But now, under the Archipelagic Doctrine adopted in the new Phil. Const. and the Conference of the Law on the Sea, this distance is now 12 Nautical Miles from the baselines. Beyond the maritime zone, is the high seas, which are beyond our territorial jurisdiction.

 The national territory comprises the Philippine Archipelago with all the islands and waters embraced therein, and all other territories over which the Phils. has sovereignty or jurisdiction, consisting of its terrestrial, fluvial and aerial domains, including its territorial sea, seabed, subsoil insular shelves and submarine areas.

 The waters Around, Between, and Connecting the islands of the archipelago regardless of their Breadth and Dimensions, form part of the internal waters of the Philippines (Archipelagic Doctrine- Art. 1, l987 Constitution).

 Our criminal law has also an EXTRATERRITORIALITY chars. Article 2, RPC: 1) Should commit an offense while on a Philippine ship or airship- this must be duly registered under the Phil. Laws and considered an extension of the Phil. National Territory, But if said Phil. Vessel or aircraft is within the territory of a foreign country when the crime is committed, the laws of that country will apply.

 But if the accused in a registered Philippine vessel committed homicide on board said vessel while in the territorial waters of a foreign country, like Vietnam, was not prosecuted before the Vietnam Court, he could be tried before our Court, following the provs. of Rule 110 of the Revised Rules of Criminal Procedures (Pp. vs. Togoto- CA- 68 Off Gaz. 8317)

 If the Phil. Ship is not registered and a crime is committed in the high seas, our rules will not apply as said law clearly provides that only duly registered vessel is covered (Pp. vs. Julmain May 30, l959). Under the New Rules on Criminal Procedures (Jan. 1, l985), the phrase registered or licensed under the Phil. Laws are deleted & substituted with

 subject to the generally accepted principles of international law.

 Philippine warship, whatever it is, is an extension of the Philippines and its sovereignty. If the foreign vessel is also a warship, our courts have no jurisdiction as such is an extension of the country to which these vessels belong ( US. vs. Fowler 1 Phil. 614)

 On foreign merchant vessels, there are two rules that are followed: 1) FRENCH RULE that crimes committed on board a foreign merchant vessel while on the waters of another country are not triable in that country unless those affecting the peace and security of that country or the safety of that state is endangered.

 2) ENGLISH RULE that such crimes are triable in that country unless such crimes affect merely the internal management of the vessel. This is also known as the Anglo-American Rule. This is the rule that we followed in our jurisdiction (US vs. Bull- 15 Phil. 7). This includes continuing crime committed on board a foreign vessel sailing from a foreign port and which enters Philippine waters is triable in our courts.

 U.S. vs. Look Chow - 18 Phil 573- mere possession of opium on board a foreign vessel in transit in Philippine waters as such does not involve a breach of public order unless the opium is landed in our Philippine soil. U.S. vs. Wong Cheng- 46 Phil 729 this already involves breach of public order

 because the accused smoked opium while inside the vessel. This already causes such drugs to produce its pernicious effects within our country.

 2) Should forge or counterfeit any coin or currency note of the Philippine Islands or obligations and securities issued by the Govt. of the Philippine Islands.- reason behind is to maintain and preserve the financial credit and stability of the State. Ex. of obligation- sweepstakes ticket & lotto.

 3) Should be liable for acts connected with the introduction into these islands of the obligations and securities mentioned in the preceding number. 4) While being a public officers or employees, should commit an offense in the exercise of their functions. Ex. Bribery, Malversation.

 Article 203 RPC- Who are public officersAny person, who, by direct provision of the law, popular election, or appointment by competent authority, shall take part in the performance of public functions in the Govt. of the Philippine Islands or shall perform in said Govt. or in any of its branches, public duties as an employee, agent or subordinate official or any rank or class.

 5) Should commit any of the crimes against National Security and the Laws of Nations. Ex. Piracy and Mutiny (Article 122 RPC) Laws of Nations. Treason (Article 114 RPC) and Espionage (Article 117 RPC) Crimes against National Security.

 Piracy shall be committed by any person, who on the high seas or Philippine waters, shall attack or seize a vessel, or not being a member of its complement nor a passenger, shall seize the whole or part of the cargo of said vessel, its equipment, or personnel belonging to its complement or passengers. Mutiny is the unlawful resistance to a superior officer, as the raising of commotions and disturbance on board a ship against the authority of the commander.

 Treason is committed by any Filipino citizen who levies war against the Phils. or adheres to her enemies, by giving them aid or comfort within the Phils. or elsewhere. Espionage: - is committed by any person: 1) who without authority, enters a warship, fort, or naval or military estab., or reservations to obtain any info., plans, photographs or other data of a confidential nature relative to the defense of the Phil. Archipelago;

 2) being in possession, by reason of the public office he holds, of the articles, data or info, discloses their contents to a rep. of a foreign nation.

 C) Prospectivity or Irretrospectivity- means that generally penal laws should have only prospective application (Arts. 21 & 22RPC). Exception if this is favorable to the accused ( has retroactive effect). Exception to the exception if the accused is a habitual delinquent.

 Ex. Re-imposition of Death penalty under RA 7659, which took effect on December 31, l993. This cannot be given a retroactive effect on the accused who committed a crime on September 23, l987 ( Pp. vs. Bracamonte- 257 SCRA ). Reason behind this provision Lex prospicit, non respicit (the law looks forward not backward). The rationale against retroactivity is that a law usually

 derides rights which may have already become vested or impairs the obligation of contract and hence is unconstitutional. Example of a law which can be given a retroactive effect Pres. Decree No. l866 ( which took effect on April 4, l973) penalizes Illegal Possession of Firearms for Reclusion Temporal Maximum to

 Reclusion Perpetua ( 17 years, 8 months and 1 day to Reclusion Perpetua) This was amended by RA 8294( which took effect on June 6,l997) - wherein the penalty for illegal poss. of firearms is now based on the caliber of the FA if low caliber Prision Correccional in its Max. Period ( 4 years, 2 months and 1 day to 6 years); if high powered penalty is

 Prision Mayor in its Minimum Period- 6 years and 1 day to 8 years. Example of the exception to the exception no retroactivity because the accused is habitual delinquent if within ten years from the date of his release or last conviction of the crime of Serious or Less Serious Physical Injuries, Robbery, Theft,

 Estafa or Falsification, he is found guilty of any of said crimes a third time or oftener (Multi-recidivist) . Does the prospectivity rule only cover laws passed by Congress? No. The prospectivity rule applies also to penal circulars. For instance, DOJ Circular no. 12 issued on August 8, l984 declared

 that all checks including guarantee checks are covered by BP. Blg. 22. The court ruled that this Circular cannot be applied retroactively because petitioners cannot be faulted for relying on the earlier pronouncement of the Secretary of Justice that guarantee checks issued prior thereto are not covered by said Circular. The decision further states that the principle

 of prospectivity of statutes, original or amendatory has been applied to administrative rulings and circulars, and to judicial decisions which although in themselves are not laws, are evidence of what the laws mean, this being the reason why under Article 8 of the New Civil Code, judicial decisions applying the laws or the

 Constitution shall form part of the legal system ( Co vs. Court of Appeals- 45 SCAD October l993). Same application on the courts interpretation upon a written law the interpretation of the court on a written law has the force of law. When a doctrine of the court is overruled and a different view

 is adopted, the new doctrine should be applied prospectively and should not apply to parties who relied on the old doctrine on the faith thereof. This is especially true in the construction and application of criminal laws, where it is necessary that the punishability of an act be reasonably foreseen for the guidance of society ( Co vs. CA- Ibid).

 Effect of the repeal of penal laws on the accused: The effect depends upon the nature of the repeal of the penal laws: a) In absolute or total repeal or express repeal, the act or omission is decriminalized so that if a case is pending, it shall be dismissed whether

 the accused is a habitual delinquent or not because there is no more crime for which he should be tried. If he was already convicted and /or serving sentence, he shall be released if he is not a habitual delinquent or unless the law provides that detention is to continue. b) In partial or relative repeal or implied

 repeal or repeal by re-enactment, the first law will govern if the accused is a habitual delinquent or if the favorable second law prohibits retroactivity. While the second law will govern if favorable to the offender who is not a habitual delinquent or the law is silent as to its retroactivity. Ex. Pp. vs. Velasco 67 SCAD or 252 SCRA the

 beneficent provisions of RA 7659 can be applied retroactively to judgments which have become final and executory prior to December 31, l993 and even to those who are already serving sentences.

RULES OF CONSTRUCTION
1) A penal law is liberally construed in favor of the accused (Pp. vs. Terrado l25 SCRA 648 & Corpuz vs. People February l991)- Presumption of innocence. 2) In case there is ambiguity of the law the original text in which a penal law is approved will govern in case of a conflict

 with the official translation. Hence, the RPC which was approved in its Spanish text is controlling over its English translation- (Pp. vs. Manaba 58 Phil. 665).

THEORIES
Different philosophies underlying the criminal law system: (4 schools of thought): 1) Classical or juristic theory a) Basis of criminal liability is human free will. Man has the capacity to choose between right and wrong, good and evil. Hence, when he

 does or omits an act, he does so willingly and voluntarily with full knowledge of the effects and consequences thereof. The purpose of the penalty is retribution. In view of the voluntariness of the act or omission, the offender should be given the penalty that he deserved. As to the penalty, the same should be mechanically

 determined in direct proportion to the crime committed. The emphasis of the law is on the offense and not on the offender. Man therefore should be adjudged or held accountable for wrongful acts so long as free will appears unimpaired ( Pp. vs. Genosa l34 SCAD September, 2000).

 2) Positivist or Realistic Theory Basis of criminal liability is that man is inherently good but the offender is socially sick. He is a product, not only of biological factors, but also of his environment. His thoughts and actions are influenced by his upbringing, social environment and associations. The purpose of the penalty is reformation.

 Since the offender is a product of his environment, then the penalty should be corrective or curative to reform him. (Thus jails are called reformatories). The penalty is arrived at after an examination of the offender. The penalty should be suited to the individual offender precisely because the purpose is to reform him. The emphasis of the law is on the offender

 and not on the offense. 3) Ecclectic (or mixed ) Philosophy This combines the good features of both the classical and positivist theories. Ideally, the classical theory should be applied to grievous crimes, whereas the positivist is made to apply to economic & social crimes.

 4) Utilitarian Theory This espouse the idea that the primary function of punishment in criminal law is to protect society from potential and actual wrongdoers. The retributive aspect of penal laws should be directed against them. Thus it behooves upon our courts of law that in applying the punishment

 imposed upon the accused, the objective of retribution of a wronged society should be directed against the actual and potential wrongdoers. Magno vs. CA June l992 Magno issued four checks to collateralize an accommodation but not for an account or for value. The SC ruled that Magno should not be punished for the mere issuance of the check in question.

 Constitutional limitations on the right to enact penal laws: (Article III-Bill of Rightsof the l987 Constitution: a) No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws (Article 1) b) No torture, force, violence, threat, intimidation, or any other means

 which vitiate the free will shall be used against him (Sec. 12-2) c) No law, therefore, must be passed imposing cruel and unusual punishment or excessive fines. d) No ex-post facto law or bill of attainder shall be enacted Sec. 22. Ex-post facto law- it makes an act or omission criminal which when committed was not yet so.

Ex-post facto laws:

1) Statutes that make an act punishable as a crime when such act was not an offense when committed; 2) Law which, while not creating new offenses, aggravate the seriousness of a crime; 3) Statutes which prescribe greater penalty for a crime already committed; or 4)Laws which alter the rules of evidence as to make it easier to convict an accused.

Lacson vs. Executive Secretarysupra

RA- No. 8249 Law amending the jurisdiction of the Sandiganbayan is not a penal law. Rather, it is a substantive law on jurisdiction. The original law on jurisdiction of the SB is PD 1606, which was amended by RA 7975 and then recently by RA 8249. Not being a penal law, the retroactive effect of RA 8249 is not unconstitutional.

ARTICLE 3 FELONIES (Delitos)- acts or omission punishable by law. Ways of committing it: 1) Deceit/Malice (Dolo) 2) Fault (Culpa) Whether done with Malice/deceit or fault act is voluntary. Voluntariness is an element because it is specifically stated

 in Article 3 which refers to dolo be done with deliberate intent; while in Art. 365 referring to reckless imprudence (culpa), it expressly states that it consists in voluntarily but without malice, doing or failing to do an act. Dolo is intentional Intentional Felonies, while culpa is not Culpable Felonies.

 Where there is intent, there can be no negligence Pp. vs. Nanguil 43 Phil. A) Dolo (Malice/Deceit) Elements: 1) Freedom absence of constraint in the choice or action. When a per son acts w/o freedom, he is not a human being, but a tool.

 Freedom is negated by irresistible force and uncontrollable fear ( Exempting Circumstances Article 12, pars. 5 & 6) 2) Intelligence is the moral capacity to determine what is right from what is wrong and to realize the consequences of ones act. Intelligence, is therefore, negated by minority, insanity and imbecility ( Exemp-

 ting circumstances Art. 12 pars. 1, 2 & 3) 3) Intent is the purpose to use a particular means to effect such a result. Intent is presumed from the commission of the acts. The presumption of criminal intent may arise from the proof of the

 criminal act and it is for the accused to rebut this presumption (Pp. vs. Abando March 22, l962). Intent is a mental state, the existence of which is shown by the overt acts of a person. What was the external demeanor which accused showed from which the trial court and respondent court inferred

 animus furandi? In the case of Lim vs. CAMay l993 41 SCAD the sinister mental state is presumed from the commission of an unlawful act in bringing out the tires from the bodega which were loaded on his pick-up. The presumption of fencing under Sec. 5 of PD 1612 is that mere possession of any good or article or anything of value

 which has been the subject of the crime of robbery or theft. It is therefore presumed that the unlawful acts were done with full knowledge and criminal intent and it is up for the accused to rebut the same. Distinguish Intent from motive : Motive is the moving power or force which impels a person to a desired result.

 Intent is an element of a crime, while motive is not. Motive may become necessary to be proved in case there is doubt whether the accused committed the crime or not or when the evidence on the commission of the crime is purely circumstantial or inconclusive. The rule is that proof of motive is unnecessary to

 impute a crime to the accused if the evidence concerning his identification is convincing. A converso, if the evidence of identification is unclear, then the jurisprudential doctrine is that proof of motive is a paramount necessity ( Pp. vs. Bautista May l998 94 SCAD). Ppv. vs. Macoy July l997 84 SCAD -

 It has been held that where the identity of the assailant is in dispute, motive becomes relevant, and when it is supported with sufficient evidence for a conclusion of guilt, a conviction is sustainable or when the acts brings about variant crimes (Pp. vs. Puno-Feb. l993) Kinds of intent: 1) General intent- presumed

2) Specific intent this is an element of the crime, hence not presumed but must be established. Ex. In Libel or defamation, criminal intent is presumed from the publication where the acts imputed concern the private life of the offended party, because no one has the right to invade ones privacy.

Definition of Libel
Article 353-Libel is a public and malicious imputation of a crime,or of a vice or defect, real or imaginary, or any act or omission, condition, status or circumstance tending to cause dishonor, discredit or contempt of a natural or juridical person, or to blacken the memory of one who is dead. Article 358- Slander (Oral Defamation)

 In the crime of Attempted or Frustrated Murder or Homicide specific intent to kill must be proven. It is not presumed because if the intent to kill is not duly established, then the crime will only be physical injury. But if death results, criminal intent becomes a general intent which is presumed.

 What negates intent - Mistake of facts an act or omission which is the result of a misapprehension of facts that is voluntary but not intentional. The actor performed an act which would be lawful had it been true as he believed it to be. This must be done in good faith or under an honest belief (Pp. vs. Ah Chong-15 Phil. 488).

 This is contrary to Mistake of Identity ( Pp. vs Oanis-(74 Phil. 257). May a crime be committed without criminal intent? Yes -1) culpable felonies or crimes committed by means of culpa; and 2) offenses punished as Mala Prohibita.

 Mala Prohibita an act is wrong because it is prohibited by law. W/o the law punishing it the act, it cannot be considered a wrong. Ex. Possession of Unlicensed FA (PD l866 as amended by RA 8294; carrying a FA within a polling place (Election Code) and mere issuance of a bouncing check (BP Blg. 22).

 Mala in se an act is wrong from its very nature. The test to determine whether an act is mala in se is not the law punishing it but the very nature of the act itself. B) Culpa (Culpable Felonies) Elements: 1) Freedom 2) Intelligence

3) Negligence or imprudence Culpa results from negligence, imprudence, lack of foresight or lack of skill. Negligence is deficiency of perception; while imprudence is deficiency of action. Negligent act must still be voluntary.

 In negligence, what is principally punished is the mental attitude or condition behind the act , the dangerous recklessness. The law punishes the negligent or reckless act, not the result thereof. Test of negligence Did the defendant in doing the alleged negligent act use that reasonable care and caution which an

 ordinary prudent person would have used in the same situation? A person driving his motor vehicle beyond the allowable speed bumped a person resulting to his death Reckless Imprudence Resulting to Homicide. If the victim was riding in his bicycle, which was also damaged, then the offender can also be held liable of the complex crime of

 Reckless Imprudence Resulting To Homicide and Damage To Property( Article 365 RPC). Article 4. CRIMINAL LIABILITY Criminal liability shall be incurred : 1) By any person committing a felony (delito) although the wrongful act done be different from that which he intended;

ELEMENTS:
a) felony is committed; b) the wrong done is the direct, natural and logical consequence of the felony committed, even if different from what is intended.

 Basis Spanish maxim El que causa de la causa es causa del mal causado He who is the cause of the cause is the cause of the evil caused thats why one is liable for all the direct and natural consequences of his unlawful act, even if the ultimate result had not been intended (Pp. vs. Ural 56 SCRA 138 ).

 Pp. vs. Ulep- June 20, l988 Even if the victim is suffering from an internal ailment, liver, heart disease or tuberculosis, if the blow delivered by the accused is the efficient cause of his death, then there is criminal liability. Pp. vs. Opero 105 SCRA 40 where the offenders after robbing the victim, tied her

 hands and feet & stuffed her mouth w/ a piece of pan de sal to prevent her from screaming, & the victim died of asphyxiation because the pan de sal slid into her neckline, caused by the movements of the victim, it was held that the death of the victim, even though not intended, was the direct consequences of the felonious acts of the offenders.

3 SITUATIONS UNDER THIS:

1) Error en personae (Mistake in the identity of the victim Pp. vs. Oanis 74 Phil. 257- Chief of Police Oanis & his coaccused Cpl. Galanta were under instructions to arrest one Balagtas, a notorious criminal and escaped convict, and if overpowered to get him dead or

 alive. Proceeding to the suspected house, they went into a room and upon seeing a man sleeping with his back towards the door, simultaneously fired at him w/ their revolver, w/o first making any reasonable inquiry as to his identity. The victim turned out to be an innocent man, Tecson, and not the wanted criminal. Accused were convicted with Murder.

2) Aberratio Ictus- Mistake in the blow Pp. vs. Mabug-at 51 Phil. 967- Where the accused, having discharged his firearm at Juana Buralo, but because of lack of precision, hit and seriously wounded Perfecta Buralo, it was held that the accused was liable for the injury caused to the latter.

3) Praeter intentionem-Injurious result is greater than that intended Pp. vs. Cagoco- 58 Phil. 524 where the accused w/o intent to kill, struck the victim w/ his fist on the back part of the hand from behind, causing the victim to fall down w/ his head hitting the asphalt pavement and resulting in the fracture of his head, it was held that the accused was liable for the death of

 the victim, altho he had no intent to kill said victim. Proximate cause is that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurredBataclan vs. Medina 102 Phil. 181.

 When death is presumed to be the natural consequences of the physical injuries inflicted: 1) That the victim at the time the physical injuries were inflicted was in normal health; 2) That the death may be expected from the physical injuries inflicted; and

3) That death ensued within a reasonable time. Circumstances w/c are not considered efficient intervening cause: 1) weak or diseased physical condition of the victim (Pp. vs. Ilustre 54 Phil. 594 & Pp. vs. Reyes 61 Phil. 341); 2) nervousness or temperament of

the victim- Pp. vs. Almonte 56 Phil. 54; 3) causes w/c are inherent in the victim such as not knowing how to swim; 4) neglect of the victim; 5) erroneous or unskilled medical or surgical treatment. Felony is not the proximate cause of the resulting injury when:

 1) there is an active force that intervened between the felony committed and the resulting injury, and the active force is a distinct act or fact absolute foreign from the felonious act of the accused; or 2) the resulting injury is due to the intentional act of the victim.

 Death is not the direct, natural and logical consequence of the felony committed: 1) accused deliberately immerses his body in a contaminated cesspool, thereby causing his injuries to become infected and serious De Los Santos case. 2) death caused by prevalent fever Pp.vs. Palalon 49 Phil 177.

 Article 253- RPC Attempting to commit suicide is not punishable under the RPC. Therefore, if A, in attempting a suicide, jumped out of the window to kill himself but when he dropped to the ground he fell on an old woman who died as a consequence, A is not criminally liable for intentional homicide. A was not committing a felony when he attempted a suicide. (Reyes).

 (Boado) has a contrary opinion. A is liable because when A jumped he did not ascertain that there is somebody on his suicide path. 2) Impossible crimes- is one where the acts performed would have been a crime against persons or property but which is

 not accomplished because of its inherent impossibility or because of the employment of inadequate or ineffectual means (Intod vs. CA- October l992). There is intent (subjective) to commit a crime but actually no crime is committed (objective). The reason for punishing an impossible crime is that subjectively the offender is a

 criminal although objectively no crime is committed. If the acts constitute another distinct felony, an impossible crime is not committed because objectively a crime is committed. Ex. If the accused administered abortive drugs upon his girlfriend whom he believed to be pregnant, which turns out not be to be true, this is an impossible crime because

 Abortion is a Crime against Persons. But if the girlfriend suffered injuries, then the accused is liable for Physical Injuries. There is now an Impossible crime of Rape because under The Anti-Rape Law, Rape is now a crime against persons. There is no attempted or frustrated stage of impossible crime because there is no crime committed.

ELEMENTS:
A) Act performed would be an offense against persons or property; 1. Parricide Art. 246 2) Murder Art. 248 3) Homicide Art. 249 4) Infanticide Art. 255 5) Abortion Arts.256, 257, 258 & 259;

 6) Duel Arts. 260 & 261 7) Physical Injuries Arts. 262, 263, 264, 265 & 266. Crimes against Property: 1) Robbery Arts. 294, 297, 298, 299, 300, 302 & 303; 2) Brigandage Arts. 306 & 307 3) Theft Arts. 308. 310 & 311

4) Usurpation Arts. 312 & 313; 5) Culpable Insolvency Art. 314; 6) Swindling & other Deceits Arts. 315, 316, 317 & 318 7) Chattel Mortgage Art. 319 8) Arson & other crimes involving destruction Arts. 320, 321, 322, 323, 324, 325 & 326.

 9) Malicious Mischiefs Arts. 327, 328, 329, 330 & 331. Why only crimes against persons & property?- Because these crimes involved moral depravity. Ex. Inadequate means Using a small quantity of poison by mixing it in the food, thinking it was enough.

 Two kinds of inherent impossibility: 1) Legal impossibility it occurs where the intended acts, even if completed would not amount to a crime. It would apply to those circumstances where: 1) the motive, desire and expectation is to perform an act in violation of the law; 2) there is intention to perform the physical act; 3) there is performance of the intended physical act;

 4) the consequence resulting from the intended act does not amount to a crime. (ex. Killing a dead person). 2) Factual or physical impossibility- This occurs when extraneous circumstances unknown to the actor or beyond his control prevent the consummation of the intended crime. Ex. A thief who picks the pocket of & finds the same empty.

 Article 49: Penalty to be imposed upon the principals when the crime committed is different from that intended: 1) If the penalty prescribed for the felony committed be higher than that corresponding to the offense which the accused intended to commit, the penalty corresponding to the latter shall be imposed in the maximum period.

 2) If the penalty prescribed for the felony committed be lower than that corresponding to the one which the accused intended to commit the penalty for the former shall be imposed in its maximum period.

 Article 59 Penalty for impossible crimes the court having in mind the social danger and the degree of criminality shown by the offender, shall impose upon the offender the penalty of Arresto Mayor or a fine ranging from 200 to 500 pesos.

ARTICLE 5 - Duty of the courts in connection with acts which should be repressed but which are not covered by the laws and in cases of excessive penalties. Whenever the court has knowledge of any act which it may deem proper to repress and which is not punishable by law, it shall render the proper decision,

 and shall report to the Chief Executive, through the DOJ, the reasons which induce the court to believe that said act should be made the subject of penal legislation. In the same way the court shall submit to the Chief Executive, through the DOJ, such statement as may be deemed proper

 without suspending the execution of the sentence, when a strict enforcement of the provisions of the Code would result in the imposition of a clearly excessive penalty, taking into consideration the degree of malice and the injury caused by the offense. ( Cases of former Pres. Estrada and Jalosjos).

CLASSIFICATION OF CRIMES
Two: 1) Formal crimes are those which are always consummated by a single act. Ex. Slander. 2) Material crimes are those which have 3 stages :Attempted, Frustrated and Consummated.

DEVELOPMENT OF CRIME
1) Internal acts not punishable. 2) External acts: a) Preparatory usually not punishable, except in some cases, such as: Art. 304- Unlawful Possession of a Picklocks & Art. 115Proposal and conspiracy to commit Treason. b) Acts of execution: Attempted,

 Frustrated and consummated. Attempted stage- when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance.

 Overt acts acts w/c must refer to the crime - elements of the crime. Ex. Pp. vs. Lamahang 61 Phil. 703Lamahang was caught after he has made an opening on the wall of a store before entering it, he cannot be held liable for Attempted Robbery because the purpose of his intended entrance is not yet known.

 He is liable only for Attempted Trespass to Dwelling as undoubtedly the opening was made to enter the store. Murder/Homicide Accused fired his gun at the victim, hitting the latter not at the vital parts of his body or if the wound inflicted is not fatal Attempted stage. Rape when the accused had the inten-

 tion of lying down with the woman victim, by raising her skirt. (element of his desire to have sexual contact). Frustrated stage When the offender performs all the acts of execution which would produce the felony as a consequence, but which, nevertheless, do not produce it by reason of causes

 Independent of the will of the perpetrator. Consummated stage when all the elements necessary for its execution and accomplishment are present. Examples: 1) Theft Art. 308 U.S. vs. Adiao38 Phil. 754 mere abstraction by the accused of the belt from the baggage of

 the passenger of a vessel and secreting it in his desk in the customs house, where it was discovered is consummated Theft. (All the elements of the crime of Theft are present. Altho he was not able to dispose it, disposal is not an element of the crime of Theft). 2) Pp. vs. Dino Theft is frustrated because while the accused has performed

 all the acts of execution, the crime was not consummated because the accused were caught with the stolen articles at the check point. (items were guns bulky) 3) Pp. vs. Espiritu - Linen- passed through a check point. Crime is consummated. 4) Rape (RA 8353) Only Attempted and Consummated no Frustrated stage.

 Pp. vs. Hernandez 49 Phil. 980- the gravamen of the offense is carnal knowledge, hence, no matter how slight is the penetration, the felony is consummated. If the male organ failed to touch the pudendum of the woman, for some causes other than his own spontaneous desistance, the felony is only attempted.

 The case of Pp. vs. Erina ( 50 Phil. 998), which ruled that there is a frustrated stage of the crime of Rape is no longer applicable. In this case the offended party is a child 3 yrs. & 11 mos. and it was proven that due to the disparity of their organ or the smallness of the organ of the child, penetration could hardly be done.

 But in the case of Pp. vs. Velasco 73 SCRA 574 penetration of the labia of the pudendum or entry of the labia or lips of the female organ, is a consummated Rape. 5. Arson PD l6l3 Small portion of the bldg. is burned consummated.

 Total burning of the bldg. is not necessary. But when all acts necessary to burn a bldg. have already been performed as setting on fire some rags soaked in gasoline to burn the bldg. but no portion is burned, the crime is frustrated (Valdez 39 Phil 240). Pp. vs. Garcia no fire yet, then attempted stage.

 6). Estafa (Art. 315-RPC)in the Dominguez case 41 Phil. 409- the salesman pocketed the part of his sales, but before he could get out, he was discovered, then the crime is frustrated. Damage is an element. 7 ) Bribery (Art. 210-RPC) U.S. vs. Tan Gee- 7 Phil. 738 Offer of a Chinaman to allow his companion to land without investigation was refused Attempted Bribery.

 Pp. vs. Diego Quinn- G.R. No. 42663Where the money handed by the offeror was returned by the public official Frustrated Bribery. It will be noted that in both cases, the accused were private persons who attempted to corrupt public officials, therefore the decisions disregarded the requisite that Bribery can

 be committed only by a public officer. Recent ruling where the accused was charged of Attempted Bribery for offering a patrolman money to dissuade him from arresting the accused, the lower court convicted the accused of Frustrated Corruption of Public Officials (Article 212 RPC). But the SC changed the crime to

 Attempted Corruption of Public Officials Pp. vs. Ng Pek 81 Phil. 562, because altho the money was actually offered and delivered, the public official refused to be corrupted. Frustrated Corruption of Public Officials, therefore, may occur if the offender already handed the money to the public officer to corrupt him, already received, but which was returned, since

 all the acts of execution were already performed but the corruption was not consummated because the officer returned the money, an act independent of the will of the perpetrator. But in a decision of the CA Pp. vs. Elago, it is ruled that upon a careful review of our jurisprudence, we are unable

 to find a single case of Frustrated Bribery or Frustrated Corruption of Public Officials, considering the essential elements of these offenses, thus we are bound to deduce that they are not subject to frustration, for the reason that if the corruption of public official is accomplished, the crime is consummated,

 otherwise, it is nothing more than an attempt. ARTICLE 7 WHEN LIGHT FELONIES ARE PUNISHABLE Light felonies are punishable only when they have been consummated, except crimes against persons or property. - Reason for the exception involved moral depravity. ( Light felonies committed

 against persons and property, are punishable even if attempted or frustrated. Reason for Art. 7 light felonies produce such light, such insignificant moral and material injuries that public conscience is satisfied with providing a light penalty, for their consummation, thus there is no need for a penalty for those not consummated.

 What are light felonies those infractions of law for the commission of which the penalty of Arresto Menor or a fine not exceeding 200 pesos, or both, is provided. ( Article 9, par. 3). 1) Slight Physical Injuries & Maltreatment Art. 266 2) Theft Art. 309 pars. 7 & 8 3) Alteration of Boundary Marks Art. 313

 4) Malicious Mischief Art. 328, par. 3 & Art. 329, par. 3 5) Intriguing Against Honor Art. 364 Article 8 CONSPIRACY & PROPOSAL TO COMMIT FELONY- Not punishable, unless the law specifically provides.

 Conspiracy exists when two or more persons come to an agreement concerning the commission of a crime and decide to commit it. Proposal exists- when the person who has decided to commit a felony proposes its execution to some other persons. Reason for the rule these are only pre-

 paratory acts, and the law regards them as innocent or at least permissible except in rare and exceptional cases. Exceptions: 1) Art. 115- Conspiracy & proposal to commit treason; 2) Art. 136- Conspiracy & proposal to commit rebellion, insu., or coup d etat;

 3) Conspiracy to commit arson. 4) Conspiracy to commit sedition ( no proposal). Conspiracy to commit a crime distinguished from conspiracy as a means to commit a crime Conspiracy to commit a crime is not to be confused with conspiracy as a means of committing a

 crime. In both cases, there is an agreement but mere conspiracy to commit a crime is not punished except in Treason, Rebellion, Coup detat & Sedition or Arson. Even then, if the Treason for example is actually committed, conspiracy will be considered as a means of committing it and the accused will all be liable for Treason and not for conspiracy

 to commit a crime. In conspiracy to commit a crime, mere agreement is sufficient whereas in conspiracy as a means to commit a crime, overt acts to realize the criminal purpose must also be performed, meaning the crime must be committed.

 In conspiracy, even though the act of the several perpetrators are different, they can be imposed the same penalty, based on the concept that the act of one is the act of all (Antonio vs. Sandiganbayan G.R. 57937). Conspiracy must be shown to exist as clearly and as convincingly as the commission of the offense in order to uphold the fundamental principle that no

 one shall be found guilty of a crime except upon proof beyond reasonable doubt (Pecho vs. Pp.- 74 SCAD). To establish conspiracy, it is necessary that there be proof that the malefactors have acted in concert and in pursuance to same objective, to achieve the same result. Conspiracy can be inferred from the

 acts of the accused. Their actions must be judged not by what they say, for what men do is the best index of their intentions (Pp. vs. Mada-I Santalani, et al-G.R. No. L-29979). There must be intentional participation in the transaction with a view to the furtherance of the common design and purpose (Pp. vs. Realon, et al. 99 SCRA

 422). From the legal viewpoint, conspiracy exists, it at the time of the commission of the offense, the accused had the same purpose, and were united in its execution (Pp. vs. Danilo Sy, et al 113 SCRA 207) Conspiracy must be proved by clear and convincing evidence. Mere suspicion,

 speculation, relationship, association and companionship do not prove conspiracy (Pp. vs. Sosing 11 SCRA 368). Mere presence is not indicative of conspiracy. Pp. vs. Tabuso 114 SCAD The court noted the eye defect of the accusedappellant (for which he was known as bulag in the locality) and doubted his ability to perform the role of a look-out.

 Implied conspiracy one that is deduced from the mode and manner in which the offense was committed. The concerted acts of the parties to achieve the same objective signify conspiracy. This doctrine was first enunciated in the case of Pp. vs. Guevara 179 SCRA 334, which held that the act of holding the victim from behind immediately before the latter was stabbed

 by Eduardo constitutes a positive and over act towards the realization of a common criminal intent which may be classified as instantaneous. The act was impulsively done at the spur of the moment. In the absence of conspiracy, the criminal responsibility arising from the acts directed against the victim is individual and not collective (Tapalla vs. CA 41 SCAD).

 Conspiracy cannot co-exist with negligence because this is done intentionally ( Narciso vs. Sandiganbayan). Can a head of office be held liable for conspiracy for the acts of his subordinates? Yes. He can likewise be held liable through his negligence, which brought about the commission of the crime

 of Falsification, Malversation of Public Funds, without which the crime could not have been committed. ( Cebu City Hall Officials case- Omb. vs. Alvin Garcia). There is however an exception- Arias vs Sandiganbayan 180 SCRA. Heads of offices have to rely to a reasonable extent on their subordinates and on the good faith of those who prepared the same.

ARTICLE 9 GRAVE FELONIES, LESS GRAVE FELONIES and LIGHT FELONIES. Grave felonies are those which the law attaches the capital punishment or penalties which in any of their periods are afflictive, in accordance with Article 25 of this Code.

 Article 25: Capital punishment Death Afflictive penalties: 1) Reclusion Perpetua 20 yrs. and 1 day to 40 yrs. 2) Reclusion Temporal 12 yrs. & 1 day to 20 yrs. 3) Perpetual or temporary

absolute disqualification 4) Perpetual or temporary special disqualification 5) Prision Mayor 6 yrs. & 1 day to 12 years. (whether min., medium or maximum) .

 Less grave felonies- are those which the law punishes with penalties which in their maximum period are correctional. Article 25: Correctional penalties: 1) Prision correccional 6 mos. & 1 day to 6 years. 2) Arresto Mayor 1 mo. & 1 day to 6 months;

3) Suspension 4) Destierro (D & S have the same range with PC) Light felonies infractions punished with Arresto Menor or a fine not exceeding 200 pesos.

ARTICLE 10 OFFENSES NOT SUBJECT TO THE PROVISIONS OF THE REVISED PENAL CODE Offenses which are or in the near future may be punishable under special penal laws are not subject to the provisions of this Code. This Code shall be supplementary to such laws, unless the latter should specifically provide the contrary.

 Offenses punished under Special Penal Laws- Statutes enacted by the Legislative branch, penal in character, which is not an amendment to the RPC. Provisions of the RPC not applicable to SPL- Art. 6- Attempted & frustrated stages of the commission of a crime; - Arts. 13 & 14- Mitigating &

 aggravating circumstances. 5 Circumstances Affecting criminal liability: 1) Justifying circs. Art. 11 2) Exempting circs. Art. 12

3) Mitigating circs- Art. 13 4) Aggravating circs Art. 14 5) Alternative circs. Art. 15.

ARTICLE 11 JUSTIFYING CIRCUMSTANCES are those where the act of the person is said to be in accordance w/ law, so that such person

 is deemed not to have transgressed the law and is free from both criminal and civil liability. - No civil liability- except under par. 4 by the person benefited. The law recognizes the non-existence of a crime do not incur criminal liability. 1) Self-defense any one who acts in

defense of his person or rights, provided the following circs. Concur: a) Unlawful aggression b) Reasonable necessity of the means employed to repeal it; & c) Lack of sufficient provocation on the part of the person defending himself.

.
1) Unlawful Aggression positively strong act with wrongful intent. a) Actual means an actual attack with the use of physical force or weapon- ex. act of stabbing; shooting. b) Imminent an attack that is impending or at the point of happening- Pp. vs. Nabayra (1991)- There must be a real danger; not a mere threatening attitude-

- ex. aiming a gun and brandishing a bolo; (not holding his waistline). Agreement to fight not unlawful aggression except if one violates the agreement. If unlawful aggression ceases no more aggression- not justified revenge (Pp. vs. Alconga 78 Phil. 366)

 Unlawful aggression is a material aggression, an offensive act which positively determines the intent of the aggressor to cause the injury (Pp. vs. Sabio 19 SCRA -901) There is no unlawful aggression when the peril to ones life, limb or right is neither actual or imminent (Pp. vs. Crisostomo108 SCRA- 288)

Impt. element -UA w/o it no complete self-defense- Pp. vs. Bausing 1991; ( Incomplete self-defense). 2) Reasonable necessity of the means employed to repeal it Pp. vs. Gatual 254 SCRA no need of mathematical calculation of the material commensurability between the means

 of attack and defense. This depends on the two elements: 1) whether the means was the only one which the defender could avail at the time of the attack; and 2) the defender is acting on the instinct of self-preservation- based on the danger of the injury, not on the actual

 harm several stab wounds negate self defense. The gauge of rational necessity is to be found in the situation as it appears to the individual who is the object of aggression. The instinct of self-preservation more often than not is the moving factor in mans action in defending himself Pp. vs. Artuz- 71 SCRA 116).

3) Lack of sufficient provocation on the part of the person defending himself Provocation must be immediate (does not allow interval of time). Sufficient proportionate to the damage caused by the act, and adequate to stir one to its commission.

 Rights that can be defended: 1) Right to chastity Pp. vs. Jaurigue76 Phil. 174 2) Right to property -Pp. vs. Apolinar 38 O.G. 2879; - Pp. vs. Narvaez (Art. 429 CCPApril 30, l983) - in relation to Article 11par. 5 exercise of a right.

 3) Right to honor self-defense in libel/oral defamation/slander- once aspersion is cast, the sting is still there. Reason for self-defense- Under the Classical School because the State cannot always come to the aid of a person unlawfully attacked; he has then to defend himself by following his instinct of self-

 preservation. Under the Positivist School because it is an exercise of a right and anything done to repel an unlawful attack is an act of social justice ( Pp. vs. Boholst-Caballero 61 SCRA 180). The accused who claims self-defense must prove its elements clearly & convin-

 cingly. The rationale is that such proceeds from the admission of the accused that he killed or wounded another, which is a felony, for which he should be criminally liable, unless he establishes to the satisfaction of the courts the fact of legitimate defense ( Castanares cs. CA 92 SCRA 567).

 Gen. principle proving the commission of a crime lies with the prosecution and this must be done w/ proof beyond the cavil of a doubt. But this is not so in claims of selfdefense. The burden of proof- shifted to the accused ( Pp. vs. Magallanes July l997- 84 SCAD ). He must rely on the strength of his own evidence and not

 on the weakness of that of the prosecution for, even if the prosecution evidence is weak, it could not be disbelieved after the accused himself admitted the killing ( Pp. vs. Arroyo- Sept. l991) . 2) Anyone who acts in defense of the persons 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 consanguinity within the fourth civil degree, provided that the first and the second requisites prescribed in the next preceding circumstance are present, and further requisite, in case the provocation was given by the person attacked, that the

 one making the defense had no part therein- Defense of Relatives Consanguinity within the fourth civil degree first degree cousin. Same degree refers to relatives already mentioned as brothers and sisters, so a brother-in law, or a sister-in-law is a relative within the same degree. A second

 degree cousin is not a relative under this particular provision ( Par. 3- Defense of Stranger). In the event that not all the requisites for the defense of a relative are attendant, the accused should be entitled to either an ordinary mitigating circumstance of incomplete self-defense of a relative pursuant to Art. 13 (1) or a privileged

 Mitigating circumstance under Article 69. However, the Supreme Court has held that for the claim of incomplete defense of a relative to prosper, it is essential to prove the primordial element of unlawful aggression. If there was no unlawful aggression, there would be nothing to prevent or repel. In that event, there could be no defense, complete or incomplete.

 ( Pp. vs. Santos -69 SCAD or 255 SCRA & Pp. vs. Agapinay 186 SCRA 812). 3) Anyone who acts in defense of the persons 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. Pp. vs. Valdez 58 Phil. 31- A person who grappled for the possession of the bolo with the husband who was attacking his wife and in the course wounded the husband, is said to have acted in defense of a stranger.

 4) State of Necessity-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: a) that the evil sought to be avoided actually exists; b) that the injury feared be greater than that done to avoid it;

 c) that there be no other practical and less harmful means to prevent it; Damage is caused to persons or property by a person to avoid an evil or injury. Pp. vs. Norma Hernandez- 55 O.G. 8465an accused was acquitted of the crime of Slander by Deed, when she eloped with another man after all wedding preparations with the offended party were

 made, since there was a necessity on the part of the accused to avoid a loveless marriage with the offended party. The civil liability will be incurred by the persons who benefited by the avoidance of the injurious act, not by the actor. The state of necessity must not be caused by the negligence or violation of the law

of the actor. 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. Elements: a) The offender acted in the performance of a duty or a lawful exercise of right or office;

b) The injury caused or offense committed is the necessary consequence of the due performance of such right or office. A Policeman who was attacked by an escaping prisoner when he demanded his surrender, dodged it, and then fired his revolver w/o hitting the prisoner, but who,

 when he ran away was again fired upon by the policeman, this time hitting and killing him, is exempt from criminal liability as the deceased was under obligation to surrender and had no right to commit the assault after evading his sentence- Pp. vs. Delima- 46 Phil. 768. Appellant was not in the performance of

 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. The fatal injuries that appellant caused the victim were not necessary consequence of his performance of duties as a police officer. His duty to arrest the female suspects did

 not include any right to shoot the victim to death Pp. vs. Peralta- 142 SCAD Jan. 2001. For this circumstance to be invoked, the above-mentioned elements must be present, otherwise the absence of the second element will only make the circumstance an incomplete one thereby

 converting it into a mitigating circumstance under Arts. 13 and 69 RPC-Pp. vs. Pinto Jr. Nov. l991. The lawful exercise of a right exists if the owner or possessor of a thing employs reasonable force to repel or prevent an actual or threatened unlawful physical; invasion of his property- Art. 429 CCP.

 Under the doctrine of self-help in rt. 429 of the CCP, the law justifies the act of the owner nor lawful possessor of a thing in using such force as necessary to protect his proprietary rights. 6) Any person who acts in obedience to an order issued by a superior for some lawful purpose- Obedience to superior

 Order. Elements: a) an order has been issued by a superior; b) the order is for a legal purpose; & c) the means used to carry out such order is lawful.

 Pp. vs. Margen, et al -85 Phil. 839- If a soldier upon order of his sergeant, tortured to death a person for bringing food different from that ordered, he is liable because the order to torture is illegal and the accused was not bound to obey it. Tabuena vs. Sandiganbayan- Feb. l997even if the order is illegal but it is apparently legal and the subordinate

is not aware of its illegality, the subordinate is not liable. This circumstance was appreciated in the case of Tabuena where it was shown that l) the subordinatesuperior relationship between Tabuena and Marcos was clear; 2) the lawfulness of the order was apparent as it has for its purpose the partial payment of the liability

 of one government agency to another; 3) if it were illegal, Tabuena was not aware of its illegality. B) EXEMPTING CIRCUMSTANCESCircumstances where, altho the act is criminal, the law exempts the actor from liability. A crime is committed, but the law exempts the actor from criminal liability.

Since there is a crime, although there is no criminal liability, there is civil liability except in ACCIDENT ( c) and INSUPERABLE CAUSE (f) which strictly are not criminal. a) IMBECILITY/INSANITY unless the latter has acted during a lucid interval.

When the imbecile or an insane person has committed an act which the law defines as a felony (delito), the court shall order his confinement in one of the hospitals or asylums established for persons thus afflicted, which he shall not be permitted to leave without first obtaining the permission of the same court.

 Imbecility is exempting in all cases, while insanity is not if the offender committed the crime during a lucid interval. Sec. 1039 Rev. Adm. Code Insanity is a manifestation in language or conduct of disease or defect of the brain or a more or less permanently diseased or disordered condition of the mentality,

 functional or organic, and characterized by perversion , inhibition or disordered function of the sensory or of the intellective faculties or by impaired or disordered volition. Imbecility an adult person who thinks and acts like a seven year old child. The test of imbecility or insanity is complete deprivation of intelligence in the

 Commission of the act, that is, that the accused acted without least discernment Pp. vs. Aldemita G.R. No. 55033-34 Nov. 13, l986. There is absence of power to discern, or there is total deprivation of freedom of the will. Mere abnormality of the mental faculties will not exclude imputability( Pp. vs. Danao- Nov. l992).

 Mere mental aberration or eccentricity is not exempting but mitigating Pp. vs. Bonoan- 64 Phil. 87. Who has the burden of proof? Article 800 of the Civil Code of the Philippines provides that the law presumes that every person is of sound mind, in the absence of proof to the contrary.

 If the accused interposes the defense of mental incapacity, the burden of establishing such fact rests upon him- Pp. vs. Morales 121 SCRA 426. Hence, in the absence of positive evidence that the accused had previously lost his reason or was demented moments prior to or during the perpetration of the crime, the courts

 will always presume that he was in a normal state of mind (Pp. vs. Medina- Feb. l998- 91 SCAD). The degree of proof needed is proof beyond reasonable doubt. Insanity must be at the time of the commission of the crime, not after.

 If insanity occurs after the commission of the crime or during the trial of the case, the trial will be suspended and will only resume by the time the accused regains his sanity. If insanity occurs after final sentence, the execution of said sentence shall be suspended with regards to personal liability. If at anytime the convict shall recover his reason, his sentence shall be executed except when it already prescribed (Art. 79 RPC).

 Two tests or criteria of insanity: 1) Cognition test or complete deprivation of intelligence in committing the criminal act; 2) Volition test or total deprivation of the freedom of the will. (Our case law shows common reliance on the test of cognition, rather than in the

 Volition Test. Under foreign jurisdiction, these are the three major criteria in determining the existence of insanity: 1) Delusion Test an insane person believes in a state of things, the existence of which no rational person would believe;

2) Irresistible Impulse Test when by reason of duress of mental disease, he has lost the power to choose between right and wrong, to avoid the act in question, his free agency being at the time destroyed; 3) Right or Wrong Test a person is insane when he suffers from such

 perverted condition of the mental and moral faculties as to render him incapable of distinguishing right & wrong. An insane person has no full and clear understanding of the nature Pp. vs. Dungo July 31, l991.

 B) MINORITY : Youthful offender is a child, minor or youth, including one who is emancipated in accordance with law, who is over nine but under eighteen years of age at the time of the commission of the offense. ( Art.189 Pres. Decree No. 603- Child & Youth Welfare Code).

Minors are classified as: 1) person under 9 years old 2) person over 9 years of age and under 15, unless he has acted with discernment, in which case, such minor shall be proceeded against in accordance w/ the provs. of PD 603 ( Child & Youth Welfare Code).

 Old provisions of the law: 1) children under 9 years- absolute exemption; 2) children over 9 but under 15- w/o discernment absolute exemption; 3) children over 9 but under 15- w/ discernment- tried- if convicted sentence

 will be suspended- if he commits another crime, he will be charged and if convicted the suspended sentence will be promulgated and he will serve his previous conviction and the second conviction. 4) children over 15 but under 18 tried and if found guilty promulgation of sentence is suspended. Same proc.

 as in no. 3. Basis: Arts. 189 & 192 PD 603: A child over 9 years of age or under at the time of the commission of the offense shall be exempt from criminal liability and shall be committed to the care of his or her father or mother, or nearest relative or family friend in the discretion of the court

 and subject to its supervision. The same shall be done for a child over 9 but under 15 years of age at the time of the commission of the offense, unless he acted with discernment, in which case he shall be proceeded in accordance with Art. 192.

 Discernment-means the mental capacity to fully appreciate the consequences of ones unlawful acts (Pp. vs. Navarro) or to determine the difference between right and wrong. This may be shown and should be determine by considering all the circumstances afforded by the record of the case, his appearance, his attitude,

 and his behavior and conduct, not only before and during the commission of the act but also after and even during the trial (Pp. vs. Doquena 68 Phil. 580). Pp. vs. Alcabao- 44 O.G. 5006- a child, 11 years of age, with a sling shot hit the right eye of the offended party causing serious injuries, and after hitting him, still uttered

 bad remarks. This showed that the accused realized the nature of his wrongful act and he, therefore, acted with discernment. Art. 196: If it is shown to the satisfaction of the court that the offender whose sentence has been suspended, has behaved properly and has shown his capability

 to be a useful member of the community, even before reaching the age of majority, upon recommendation of the DSWD, it shall dismiss the case and order his final discharge. Art. 197: Whenever the youthful offender has been found incorrigible or has wilfully failed to comply with the conditions of

 his rehabilitation programs, or should his continued stay in the training institution be inadvisable, he shall be returned to the committing court for the pronouncement of sentence. When the youthful offender has reached the age of 21 while in commitment, the court shall determine whether to dismiss

 the case or pronounce the judgment. In this caser, the offender can avail of probation and he shall be credited in the service of his sentence with full time spent in the actual commitment and detention. Now new law Republic Act No. 9344Juvenile Justice and Welfare Act of 2006.

 Sec. 4.Definition of terms: Child refers to a person under the age of 18 years. Sec. 6. Minimum age of criminal responsibility A child l5 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 sub-

 jected to an intervention program pursuant to Sec. 20 of this Act. A child above 15 years but below 18 years of age shall likewise be exempt from criminal liability and be subjected to an intervention program, unless he acted with discernment ( appropriate proceedings).

PROCDURE:
Sec. 20. Children below the age of criminal responsibility If it has been determined that the child taken into custody is 15 years old or below, the authority which will have an initial contact with the child has the duty to immediately release the child to the custody of his

 parents or guardian, or in the absence thereof, the childs nearest relative. Said authority shall give notice to the local social welfare and development officer who will determine the appropriate programs in consultation with the child and to the person having the custody over the child. If the parents, guardians or nearest

 relatives cannot be located, or if they refuse to take custody, the child may be released to any of the following: nongovernmental or religious organization; a barangay official, or a member of the Barangay Council for the Protection of Children (BCPC), a local social welfare and development officer; or when and where appropriate, the DSWD. If the

 referred to herein has been found by the Local Social Welfare and Development Officer to be abandoned, neglected or abused by his parents, or in the event that the parents will not comply with the prevention program, the proper petition fpr involuntary commitment shall be filed by the DSWD or the Local Social Welfare

 and Development Officer pursuant to PD 603. C) ACCIDENT: Accident- is any happening beyond the control of a person the consequences of which are not foreseeable. If foreseeable there is culpa.

 Accident is an occurrence that happens outside the sway of our will, and altho it comes about through some act of our will, lies beyond the bounds of humanly foreseeable consequences. It connotes absence of criminal intent. Elements: a) performance of a lawful act;

 b) with due care; c) causes injury to another by mere accident; and d) without any fault or intention of causing it. Pp. vs. Bindoy- 56 Phil. 15- if in the struggling with another who sought to wrest away his bolo, to defend his possession the defendant wounded a bystander, who died as a conse

 quence, the injury caused is accidental. - Other cases of accidents: - Pp. vs. Hatton the blow-out of a tire, there being no proof of excessive speed, resulting in the death of a passenger of the truck is also accidental. - Pp. vs. Trinidad- an accidental shooting due to legitimate self-defense

 is exempting. Accident presupposes the performance of a lawful act. The act of drawing a weapon during a quarrel not in selfdefense is unlawful as it is Light Threat under Art. 285 RPC, par. 1. So, the accident cannot be invoked as an exempting circumstance (Pp. vs. Reyta-13 CAR 1190).

 Under this exempting circumstance, there is no civil liability. D) COMPULSION OF IRRESISTIBLE FORCE Any person who acts under the compulsion of irresistible force. - The irresistible force must be physical and must come from a third person.

 It cannot spring primarily from the offender himself (Pp. vs. Fernando 33 SCRA 149) The accused acted not only without will but against his will. U.S. vs. Caballeros 4 Phil. 850 the offender was struck with the butts of the guns of those who killed another to compel him to bury their victim, he is not liable as

 accessory because he acted under the compulsion of an irresistible force. Irresistible force- 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. 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 means of a third person (Pp. vs. Serrano- 136 SCRA 391). The duress, force, fear or intimidation must be present, imminent and impending and of such nature as to induce a wellgrounded apprehension of death or

 serious bodily harm if the act is not done. The compulsion must be one of such a character as to leave no opportunity to the accused for escape or self-defense in equal combat (Pp. vs. Lorenzo 130 SCRA 311; Pp. vs. Patog 144 SCRA 429; Pp. vs. Nalipanat- 145 SCRA 483).

 Elements: 1) The force must be physical, must come from an outside source, and the accused must act not only w/o a will but even against his will; 2) The accused must be reduced to a mere instrument, such that the element of freedom is wanting; and

3) The duress, force, fear or intimidation must be present, imminent and impending and of such a nature as to induce a wellgrounded fear of death or serious bodily injury if the act is not done. The fear should not be speculative, fanciful of imagined. It must be real. It is based on the complete absence of

 freedom on the part of the accused and has its roots in the Latin maxim ACTUS ME INVITO FACTUS NON EST MEUS ACTUS which translates to AN ACT DONE BY ME AGAINST MY WILL IS NOT MY ACT. The compulsion employed upon the accused must have been of such

 character as to leave no opportunity for him to spring an escape to himself foist any act of defense for self-preservation. Thus, duress has been unavailing where the accused had every opportunity to run away if he had wanted to or resist any possible aggression because he was also armed (Pp. vs.Salvatierra- 71 SCAD)

 E) IMPULSE OF UNCONTROLLABLE FEAR the fear must be insuperable and he who acts under this situation is completely deprived of freedom. Elements: 1) The threat which caused the fear was of an evil greater than, or at least equal to, that which the accused was

 required to commit; and 2) it promised an evil of such gravity and imminence that the ordinary man would have succumbed to it ( Pp. vs. Arizobal -5 CAR 901). The compulsion must be of such character as to leave no opportunity for the accused to escape (Pp. vs. Parulan).

 U.S. vs. Exaltacion 3 Phil. 339 the accused was compelled under fear of death to join the rebels, thus he is not liable for Rebellion. Pp. vs. Rene Siao Accused Reylan Gimena, under gun point, was directed by accused Siao to rape Erlinda. Both Gimena and Siao were charged of the

 crime of Rape. During the trial, accused Gimena was able to prove that he was acting under controllable fear. Between his life and that of raping Erlinda, although he knew that the act is illegal and wrong, he had no other recourse but to do it, otherwise, he would be killed. Instinct of self- preservation is very important. Gimena was acquitted. Siao was convicted.

 Distinction between IRRESISTIBLE FORCE (IF) and UNCONTROLLABLE FEAR ( UF) : 1) IF the force must be physical and must come from outside source;

UF- is an impulse coming from within the person of the actor himself; 2) IF- the actor acts without a will; UF- the actor acts not against his will but because he is endangered by the fear; Similarities: - both refer to external influences and not to physiological need.

 F) INSUPERABLE OR LAWFUL CASE any person who fails to perform an act required by law, when prevented by some lawful or insuperable cause. This applies to felonies committed by omission. The law imposes a duty on the part of the person to perform an act. If he fails to do so, he violates the law. But if

 the failure is due to a lawful cause or insuperable cause, he is not criminally liable. In this instance, there is also no civil liability because his acts are lawful. Ex. Article 125 RPC- provides for the number of hours (12-light penalties; 18correctional penalties & 36-afflictive penalties) when a person arrested must

 be delivered to the proper judicial authorities. If the peace officers failed to do so because of circumstances beyond his control, such as being stranded in an island, or a far-flung area (Sayo vs. Chief of Police 80 Phil.), that is insuperable cause and the peace officers will not be liable under Article 125.

 ABSOLUTORY CAUSES analogous circumstances to exempting circs.- in absolutory causes, the act committed constitutes a crime but the law does not punish the offender for reason of public policy. 1) INSTIGATION takes place when a peace officer induces a person to commit

 a crime and without the inducement, the crime would not have been committed. The person instigating must not be a private individual as he would be liable as Principle by Inducement (Art. 17, par. 2) ENTRAPMENT signifies the ways and means devised by a peace officer to entrap or apprehend a person who has

 committed a crime. In an entrapment, ways and means are resorted to for the purpose of trapping and capturing the lawbreakers in the execution of their criminal plan; whereas, in instigation, the instigator physically induces the would-bedefendant into the commission of the offense and himself becomes a coprincipal (Pp. vs. Ramos Jr. G.R. No.

 88301-Oct. 28, l991). In the case of Pp. vs. Lua Hua, et al.-50 Phil. 52-54- the accused wrote to his correspondent in Hong Kong to send him a shipment of opium. The opium had been there 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 the 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 some amounts. 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. The Court held that 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 the importation and asked for the 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 along the way of their enterprise so far as the customhouse was concerned. This is not a case where an innocent person is induced to commit a

 crime merely to prosecute him, but simply a trap set to catch a criminal (Pp. vs. Valmores, et al L-58625,- 122 SCRA 922). It was held in Araneta vs. Court of Appeals L-46638- 146 SCRA 532- that the difference between ENTRAPMENT and INSTIGATION lies in the origin of the criminal intent. In ENTRAPMENT means

 rea originates from the mind of the criminal. The idea and resolve to commit the crime comes from him. In INSTIGATION, the law officer conceives the commission of the crime and suggests it to the accused, who adopts the idea and carries it into execution (Cabrera vs. Judge Pajares 142 SCRA 127).

 ENTRAPMENT is no bar to the prosecution and conviction; in INSTIGATION, the defendant would have to be acquitted (Pp. vs. Payumo July 2, l990). The process of entrapment is buy-bust operation- Pp. vs. Balidiata- G.R. No. 101831- May 21, l993.

 Distinction between Entrapment & Instigation: Entrapment - Instigation 1)The mens rea - Evil idea originated originated from the from the peace offi accused who was cer who induced the merely trapped by accused to commit

the peace officer in flagrante delicto. 2) This is not absolutory as to the offender since he authored the evil idea.

the act. Absolutory by reason of public policy.

3) Consistent with public policy. 4) Trap for the unwary criminal(Pp. vs. MarcosL85 SCRA).

Contrary to public policy. Trap for unwary innocent.

5) The peace officer is without criminal liability for their acts are in accordance with law.

The peace officer is a principal by inducement (Pp. vs. Ramossupra).

 2) Article 6, par. 3- Spontaneous desistance during the attempted stage of a felony. 3) Article 7- Light felonies are not punishable unless consummated except in crimes against persons or property. 4) Article 16 - Accessories are not liable in light felonies.

 5) Article 247- death or physical injuries under exceptional circumstances. 6) Article 332 exemption of certain persons from criminal liability, such as in crimes of Theft, Estafa and Malicious Mischief.

 Distinction between Justifying and Exempting circumstances: Justifying Exempting 1. Act is w/n the - the act is criminal bounds of law 2. There is no - there is a crime and crime, hence no a criminal criminal

 3. Since there is no crime, there is no criminal & no civil liability.

since there is a crime, there is a criminal (but exempted from criminal liability) & there is civil liability.

 4. The emphasis of the - the emphasis law is on the act. of the law is on the actor. ARTICLE 13- MITIGATING CIRCUMSTANCES circumstances which show the lesser perversity of the offender and which are considered to

 lower the penalty imposable generally to the minimum period of the penalty prescribed in the law. They are matters of defense which do not have to be alleged in the information. Since this is so, the accused must proved it with concrete evidence to the satisfaction of the Court ( Pp. vs. Malunay).

 The rationale behind the whole concept of mitigating circumstance is to show mercy and some extent of leniency in favor of an accused who has nevertheless shown lesser perversity in the commission of an offense. Classification of mitigating circumstances: 1) Ordinary that whereby the penalty is

 lowered to the minimum period -pars. 3 to 10); 2) Privileged- one whereby the penalty whether divisible or indivisible is lowered one or two or more degrees-pars. 1 & 2; 3) Specific applies to specific felony. This is an additional classification and applicable to analogous mitigating circs.

 Exs. a) Concealment of Dishonor- crimes of Infanticide (Art. 255) & Abortion (Art. 258); b) Voluntary release of a person detained within 3 days w/o the accused attaining his purpose & before the institution of the criminal action- Article 268 (Slight Illegal Detention). c) Unjustified abandonment of the

 spouse in the crime of Adultery (Article 333). Distinction between Ordinary & Privileged mitigating circumstances: 1) Ordinary mitigating circ. can be offset by a generic aggravating circ.; whereas privileged mitigating circ. cannot be offset by any aggravating circ.- passion

 by treachery. Privileged mit. circ. cannot be offset by any aggravating circ. minority; 2) Ordinary mit. circ. If not offset by a generic aggravating cir. has the effect of imposing the lesser penalty plea of guilt. Privileged mit. circ. has the effect of imposing the penalty by one or two

 degrees lower than that provided by law. 3) Ordinary mit. circ. not considered when what is prescribed is single indivisible penalty Death or Reclusion Perpetua (this is considered if what is prescribed is composed of two indivisible penalties under Art. 63- par. 3); Privileged mit. circ.- always considered

 no matter what penalty is imposed. MITIGATING CIRCUMSTANCES: 1) PRIVILEGED MITIGATING CIRCUMSTANCES OF INCOMPLETE JUSTIFYING OR EXEMPTING CIRCUMSTANCES - Those mentioned in the preceding chapter, when all the requisites necessary to justify the act or to exempt from criminal liability in the

 respective cases are not attendant - In self-defense, defense of relatives or defense of strangers, it is essential that unlawful aggression be present; otherwise, there can be no such defense, whether complete or incomplete. Ex. If in self-defense, what is present is unlawful aggression appreciated as

 ordinary mitigating circ.; if unlawful aggression is coupled with reasonable means, the penalty is one or two degrees lower Article 69 (Pp. vs. Deopante- 75 SCAD) Exempting circumstance of Accident if the requisites of due care and without fault in causing the injury are absent, the result will be negligence and the case will be

 covered by Art. 67, w/c provides for the same penalty as that provided in Art. 365, par. 1. The effect is the same as that of a privileged mitigating as the penalty is one degree lower than that provided for an intentional felony. If the requisites of lawful act and without intention of causing the injury are absent, an intentional act results, and there can be no mitigating

 circumstance based on the absence of such requisites. 2) MINORITY/OLD AGE- That the offender is under 18 years of age or over 70 years. In the case of a minor, he shall be proceeded against in accordance with the provisions of Art. 80 (Art. 80 is already amended by PD 603 now by RA 9344Juvenile Justice and Welfare Act).

Over 18 years but under 70 years full criminal responsibility but may be entitled to Probation (PD 968 as amended). Over 70 years is ordinary mitigating circumstance. 3) LACK OF INTENTION TO COMMIT SO GRAVE A WRONG Praeter Intentionem (Article 4, par. 1)- That the offender had no intention to commit so

 grave a wrong as that committed. The injury shall befall upon the same person, not upon another. There should be a great disparity between the intent (means employed to accomplish the criminal act) and its consequences. Intent as a mental process is shown by the external acts of the offender and is

 judged by the facts showing notable disproportion between the means employed, its consequences and the attendant circumstances, like the nature and kind of the weapon employed, the location of the wound inflicted, the number of wounds, and the conduct of the accused at the time of its commission

 (Pp. vs. Amit 32 SCRA 95). Art. 13, par. 3, addresses itself to the intention of the offender at the particular moment when he executes the act or commits the criminal act; not his intention during the planning stage ( Pp. vs. Garachico- 113 SCRA 131). Since intention partakes of the nature of

 a mental process, an internal act, it can, as a general rule be gathered from and determined only by the conduct and external acts of the offender, and the results of the acts themselves. Ex. Pp. vs. Opero supra. Pp. vs. Cagoco- 58 Phil. 526- act of the offender in striking at the victim w/ his

 fist, who fell down and as a result his head hit the pavement causing cerebral hemorrhage which caused his death; Pp. vs. Abejuela-supra shooting the victim in his leg, not on the vital parts of his body. Cases showing circs. w/c contradict this claim: 1) Pp. vs. Reyes G.R. No. 33767-

 - the accused in raping the two-year old child, applied a lighted cigarette over her body as to cause blisters and in hitting her with a piece of bamboo on the head acts were considered necessary to produce the result, which is the death of the victim; 2) Pp. vs. Yu- L- 13780-Jan. 28, l961-

the brute force employed in choking a girl; 3) Pp. vs. Mationg, et al 113 SCRA 167- strangling the victim with a piece of rope tied around her neck till she died. 4) Pp. vs. Retubado G.R. no. 58585June 20, l988 accused caused the death of his 5-month old son by delivering upon the child two fist blows thrice with the full

 force of his clenched fists. This mitigating circumstance is applicable only to felonies resulting in material or physical injuries. It does not apply to felonies committed thru negligence. Intentionem denoting intentional felonies.

4) SUFFICIENT PROVOCATION That sufficient provocation or threat on the part of the offended party immediately preceded the act. Requisites: A) Provocation must be sufficient; -sufficient means adequate to excite a person to commit the crime and

 must accordingly be proportionate to its gravity. Ex. a) U.S. vs. Firmo 37 Phil. 133- illtreating and abusing the offender by kicking and cursing him. b) Pp. vs. Mansale,Jr. 31 SCRA 401- hitting the victim in the eye before the fight.

c) People vs. Marquez- 53 Phil. 260 infidelity of the wife which made the husband kill her. Not sufficient: a) Pp. vs. Laude- 58 Phil. 933- a request for an explanation to the accused regarding his derogatory remarks against certain ladies;

b) Pp. vs. Sayson 43 O.G. 3219- act of the accused in intentionally asking for more wine, however unreasonable or annoying it might have been; c) Bautista vs. CA G.R. No. L- 46025Sept. 2, l992- It is not enough that the provocating act be unreasonable or annoying.

B) It must be immediate. Immediate means that there is no interval of time between the provocation and the commission of the crime (Pp. vs. Pagal, et al 79 SCRA 570). - Pp. vs. De Guia G.R. No. L-3731where the accused, who was charged by the offended party of stealing jackfruits,

 went home and returned fully armed and killed the deceased, provocation was considered mitigating. Not immediate: a) Pp. vs.Benito 62 SCRA 351- 24 hours before the commission of the crime; b) Pp. vs. Co- 67 O.G. 7451- one hour before the stabbing incident;

 Pp. vs. Padilla June l994- 52 SCAD- not mitigating Accused cannot invoked that he was provoked by Pfc. Ontuca when the latter ran away from him because, understandably so, the hapless victim feared for life having been beaten up twice by his assailants that same evening. To flee when danger lurks is human and can never be regarded as a source of provo-

 cation sufficient to come within the ambit of the Code. When the offended party flees from the aggressor, the latter has no reason to pursue and attack him. Pp. vs. Alconga provocation given by the deceased during the first stage of a fight is not mitigating where the accused pursued and killed the deceased while

 as the deceased, from the moment he 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 to further attack him. Sufficient provocation is included in incomplete self-defense and cannot be appreciated as an independent circ.

C) It must originate from the offended party. 5). IMMEDIATE VINDICATION OF A GRAVE OFFENSE: that the act was committed in the immediate vindication of a grave offense to the one committing the felony (delito), his spouse, ascendants, descendants, legitimate natural or adopted

 brothers or sisters, or relatives by affinity within the same degree. a) Grave offense- need not be a felony or an act punished by law. It may be any act or event which offends the accused causing mental agony to him and moves him to vindicate himself of such offense. Ex. U.S vs. Ampar- 37Phil. 301 -

 a remark to the accused, an old man 70 years of age, in the presence of so many guests that he would make a roast pig out of him ( because of his age). Pp. vs. Diokno- 63 Phil. act of the victim in eloping with the daughter of the accused is a grave offense to his family. Pp. vs. Rosal 66 Phil. 323 - remarks

 of the victim in the presence of the guests during a celebration that the accused lived at the expense of his wife- highly offensive to the accused. In determining the gravity of the offense, the age of the accused, his social standing, the time and place when the offense was committed and other attendant circumstances are to be

 considered. The relatives against whom the grave offense may be committed are the same relatives mentioned in defense of relatives except that relatives by consanguinity within the fourth civil degree are excluded. Ex. Accused is entitled to a mitigating circumstance of having acted in proximate

 vindication of a grave offense committed by the victim against the honor of his daughter when said victim told him anyway my nephew is already through with your daughter and someday well be in-laws. Pp. vs. Regulacion March 18, l983 accused sought to vindicate the honor of his family and appease his self-respect

 when he killed the victim. b) Immediate means proximate and hence, an interval of time may lapse from the commission of the grave offense to the commission of the crime in vindication thereof Pp. vs. Parana 64 Phil. 331the accused was slapped by the deceased in the presence of so many persons, and

 he attacked the deceased the following day, this mitigating circumstance was appreciated because it was shown that the slapping engendered perturbation of mind and although, not so immediate, by reason thereof, lasted until the moment the crime was committed. Immediate means proximate (Pp. vs.

 Babor 74 SCAD September l996. Distinctions between provocation and vindication of a grave offense: 1) In provocation- it is directed against the person committing the felony; in vindication of a grave offensemay be committed only against the offender but also against the relatives who

 are mentioned in the law; 2) Provocation must be immediate to the commission; whereas, vindication may be proximate. 6) PASSION OR OBFUSCATION That of having acted upon an impulse so powerful as naturally to have produced passion or obfuscation- to be mitigating,

 it is necessary to establish the existence of an act both unlawful or unjust and sufficient to produce such a condition of mind to commit the felony and 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 (Pp. vs. Alangguilang- 52 Phil. 663). Facts must be proved to show causes sufficient to produce loss of self-control and to overcome reason (PP. vs. Mojica 70 SCRA 502). Rule For passion or obfuscation to be considered as a mitigating circumstance,

 it is necessary to establish the existence of an unlawful act, sufficient to produce such a condition of mind, and it must not be far removed from the commission of the crime by a considerable period of time, during which the perpetrator might recover his normal equanimity (Pp. vs. Cauyan L33677-128 SCRA 504).

 It is necessary that the passion or obfuscation arose from lawful sentiments. There must be an act unlawful and sufficient to excite passion or obfuscation on the accused (Pp. vs. Tiongco- l994-55 SCAD). Ex. of cases where passion or obfuscation is appreciated as mitigating

 circumstances: 1) Pp. vs. Castro 117 SCRA 1014-the accused boxed the victim after he saw the latter box his four year old son. 2) Pp. vs. Muit 117 SCRA 696- where the shooting of the victim was aroused by a fit of jealousy due to wild rumors of amorous relationship of the victim with the

 wife of the accused. The feeling of resentment from the rivalry in amorous relations with a woman is a powerful stimulant to jealousy and is sufficient to produce loss of reason and self-control. Not considered as mitigating circs.: 1) Pp. vs. Tiongco- supra The anger of Eduardo at Francis did not arise from

 lawful sentiments. The delay of Francis in obeying Eduardos request to buy a ballcaster bearing is too trivial a matter as to fairly and justly cause such overreaction. 2) U.S. vs. Sarikala- 37 Phil. 486- if more than 24 hours had elapsed from the insult and the commission of the felony.

 3) U.S. vs. Hicks -14 Phil. 217- killing the deceased with whom the offender lived for several years because she left him to live with another man. Reason: because the passion did not originate from legitimate feelings. Different views: U.S. vs. De La Cruz- 22 Phil. 429 & Pp. vs. Marquez- 53 Phil.260 killing the common-law wife surprised

 in flagrante in carnal intercourse with a friend is passion that is mitigating because the offender acted under an impulse caused by the sudden discovery that the woman proved untrue to him. Pp. vs. Engay- 47 O.G. 4306 & Pp. vs. Yuman- 61 Phil. 786- killing by the accused of her common-law-husband

 with whom she lived for 15 years but who married another woman, produced passion that is mitigating because it arose from the natural feeling of despair in a woman who saw her life broken and found herself abandoned by the very man for whom she made so many sacrifices. Acting on revenge not mitigating

 - Pp. vs. Rabanillo- 107 SCAD & Pp. vs. Caliso 58 Phil. 283. - Passion or obfuscation 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 Pp. vs. CA- 144 SCAD. Passion or obfuscation cannot also coexist with evident premeditation because in the latter there must be a lapse of time to enable the offender to meditate and reflect in the consequences of his acts.

 7) VOLUNTARY SURRENDER & VOLUNTARY PLEA OF GUILT- 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 of the prosecution. These two circumstances are independent of each other and if present in the commission of the crime, can be appreciated in favor of the offender. These are the only mitigating circumstances based on the lesser perversity of the

 offender and are present after and not at the time of the commission of the crime. A) VOLUNTARY SURRENDER: Elements: 1) The offender has not been actually arrested; 2) He surrendered himself to a person in authority or an agent of a

 person in authority; and 3) The surrender must be voluntary. Voluntary surrender must be made to a person in authority or his agents. It may be present if made after the issuance of a warrant of arrest but before actual arrest is made (Pp. vs. Yecla-68 Phil. 740 &

 Pp. vs. Comsi 71 Phil. 595). The law does not require that surrender must be before or after the issuance of a warrant of arrest (Pp. vs. Javier 112 SCRA 186; Pp. vs. Clamor- July 1, l991; Pp. vs. Bausing- July 18, l991 & Pp. vs. Tismo-Dec. 4, l991). Pp. vs. Taraya- G.R. No. 135551-

 October 27, 2000 If a warrant of arrest has been issued, or an information filed, surrender is no longer voluntary because his arrests imminent. Pp. vs. Amaguin 47 SCAD voluntary surrender is present even if the accused turned themselves one week after the crime. The fact is they voluntarily surren-

 dered to the police before arrest could be effected. To be voluntary, a surrender must be spontaneous, i.e. there must be an intent to submit oneself to the authorities, either because he acknowledges his guilt or because he wishes to save them from the trouble and expense to be necessarily

 incurred in his search and capture. Thus, the surrender is not voluntary if the offender was merely forced by circumstances. Pp. vs. Rebamontan (en banc)- April l999- 105 SCAD the SC did not consider as voluntary surrender the act of the accused in not resisting the arrest or

 in not denying the crime, because it was the police officer who went looking for the accused after obtaining information from an eyewitness as to who committed the crime. B) VOLUNTARY PLEA OF GUILT Elements: 1) Made in open court;

2) spontaneous and unconditional; and 3) prior to the presentation of the evidence of the prosecution. Voluntary plea of guilt is mitigating because it is an act of repentance and respect for the law; it indicates a moral disposition in the accused favorable to his reform (Pp. vs. De la Cruz- 63 Phil. 874

 and Pp. vs. Gano- Feb. 2001- 144 SCAD). An extra-judicial confession is not mitigating- Pp. vs. Undong- 66 SCRA 386because this is not made in open court. An offer to enter a plea of guilty to a lesser offense than that charged in the information is not mitigating (Pp. vs.

 Magat 332 SCRA). 8) THE OFFENDER IS DEAF AND DUMB OR BLIND- That the offender is deaf and dumb, blind or otherwise suffering some physical defect which thus restricts his means of action, defense, or communication with his fellow beings.

 The physical defect contemplated in this article must affect the means of action, defense or communication of the offender with his fellow beings. The nature of the offense is, therefore, to be considered as to whether such physical defect is mitigating. The commission by a blind person of

 the crime of Estafa by misappropriating a sum of money entrusted by a friend to him for safekeeping will not entitle him to this mitigating circumstance. In the crime of Treason, the physical infirmities of the accused were not considered mitigating as he had shown such fire of purpose, zeal and vigor in the

 execution of his treasonous activities (Pp. vs. Lupera 83 Phil. 120). A blind person or one who is crippled or lame is entitled to this mitigating circumstance if he commits the crime of physical injuries. In the crime of Robbery, it was held that the accused who is deaf and dumb or

 whose right hand is missing is entitled to this mitigating circumstance (Pp. vs. Garillo- August 2, l978). 9) ILLNESS THAT DIMINISHES THE EXERCISE OF WILL POWER Such illness of the offender as would diminish the exercise of the will-power of the

 offender without however depriving him of consciousness of his acts the nature of the illness affects the will of a person but must not deprive of the consciousness of his acts; otherwise, such will be exempting. Exs. A) a mother who killed her child after delivery as she was suffering under

 the influence of a puerperal fever; b) acute neurosis (Pp. vs. carpenter) c) feeblemindedness (Pp. vs. Formigenes- 87 Phil. 658) d) mild psychosis or schizophrenic reaction ( Pp. vs. Puno).

10)ANALOGOUS CIRCUMSTANCES:
- Any other circumstance of a similar nature and analogous to those above mentioned. This lies within the discretion of the court, taking into consideration all the facts of the case that would best serve the interest of justice. Ex. 1) Restitution of the public funds

 used mitigating in Malversation of Public Funds- analogous to voluntary plea of guilt (Nizurtado vs. Sandiganbayan- Dec. l99457 SCAD) & voluntary surrender (Pp. vs. Luntiao & Pp. vs. Amante); 2) Over 60 years old, w/ failing eyesightanalogous to over 70 years old (Pp. vs. Reantillo);

 3) Jealousy- similar to passion or obfuscation (Pp. vs. Ubengen). 4) Extreme poverty- similar to justifying circumstance of State of Necessity (pp. vs. Macbul 74 Phil. 436). (But if the accused impoverished himself and lost his gainful occupation by committing crimes, extreme poverty is not considered as analogous

 circumstance; 5) Testifying for the prosecution without being discharged analogous to voluntary plea of guilt ( Pp. vs. Navasca- 76 SCRA 70); 6) Where the victim previously threatened the accused for non-payment of debt arising from gambling, causing the

 accused humiliation and shame, is a mitigating circ. analogous to passion or obfuscation (Pp. vs. Ong); 7) Where the accused killed the deceased, who took away his carabao and held it for ransom and thereafter failed to pay its value after the carabao died, the accused would be entitled to a mitigating

 circumstance analogous to vindication of a grave offense (Pp. vs. Monaga, et al- 118 SCRA 966). ARTICLE 14: AGGRAVATING CIRCUMSTANCES:-Those which serve to increase the penalty without exceeding the maximum provided by law because of the greater perversity of the offender as

 shown by the motivating power of the commission of the crime, the time and place of its commission, the means employed or the personal circumstances of the offender. Kinds of Aggravating Circumstances: 1) Generic- that w/c generally applies to all crimes- ex. Recidivism.

 2) Specific that w/c applies to a particular felony- ex. cruelty in crimes against persons. 3) Qualifying- that w/c changes the nature of the felony- ex. treachery in Murder. 4) Inherent- that w/c is part/element of the felony committed thus no longer considered against the offender in the

 determination of the penalty- ex. Unlawful entry in the crime of Robbery. Distinction between generic and qualifying aggravating circumstances: 1) G- can be offset by an ordinary mitigating circs. Q- cannot be offset by any mitigating circs.

 2) G- increase the penalty to the maximum period of the penalty prescribed in the law; Q- change the nature of the crime and the designation of the offense, thus generally, it will increase the penalty by degrees. Old provision a qualifying aggravating circumstance cannot be proved as such unless alleged in the information, whereas

 a generic aggravating may be proved even though not alleged. A qualifying aggravating circumstance if not alleged in the information may be proved as a generic aggravating circumstance (Pp. vs. Butler- Jan. 27, l983 & Pp. vs. Deberto 205 SCRA (l992) Under the Revised Rules of Criminal Procedure it is now required that generic aggravating circumstance must be alleged in the information just like qualifying circs.

 If not alleged, this cannot anymore be proven, otherwise this would violate the right of the accused to be informed of the nature of the accusation against him. The distinction between the generic and qualifying aggravating circumstance as to the allegation in the information has been obliterated. Cases: Pp. vs. Gallego- 338 SCRA Aug. 2000; Pp. vs. Albert-251 SCRA (l995); Pp. vs.Abuyen- Sept. 1992.

AGGRAVATING CIRCUMSTANCES:
1) TAKING ADVANTAGE OF PUBLIC POSITION- the offender is a public officer who availed of the influence or reputation inherent in his position for the purpose of committing the crime. The offender must avail himself of the prestige or ascendancy

 which goes with his position as a means of securing the execution of the crime. In other words, the public position must in any way facilitate its commission. The essence of the matter is presented in this inquiry- Did the accused abuse his office in order to commit the crime?

 Examples: 1) U.S. vs. Yumul 34 Phil. 169accused policeman effected the abduction of the offended party when he was wearing his uniform; 2) U.S vs. Torrida 23 Phil. 189- Accused, a councilor, ordered that the death of large cattles be reported to him and their owners

 pay him certain fees which they did in the belief that it was required by an ordinance, but which was not true, and the accused spent the money he received. This aggravating circumstance is present in the crime of Estafa. 3) Pp. vs. Pinto, et al. G.R. No. 39519 November 21, l991 this aggravating

 circumstance was appreciated against the police officers who killed the person they were supposed to arrest. Not appreciated: U.S. vs. Dacuycuy- 9 Phil. 84- Accused, a councilor, received some money from the offended parties who requested that he purchase for them Cedulas, but instead

 of doing it, he spent the money. This agg. circ. is not present, because the crime committed is independent of his official functions and also because, this is not connected with his duties. Pp. vs. Cepaloc- 117 SCRA 874 accused, a policeman pistol-whipped the deceased because of the latters vicious attack upon his brother. This agg. circ.

 is not considered as the brother was purely avenging the attack upon his brother. If the abuse of official position is an integral element of the felony, as in Falsification of Public Document (Article 171 RPC) Pp. vs. Teves 14 Phil. 275- not considered. Likewise, in the crimes of Bribery ( Art. 210) and Malversation of

 Public Funds (Article 217 RPC). 2) CRIME COMMITTED IN CONTEMPT OF OR WITH INSULT TO PUBLIC AUTHORITIES: Requisites: 1) public authority is engaged in the discharged of his duties; and 2) he is not the person against whom the

 crime is committed; 3) the offender knows of the identity of the public authority. Public authority is a person in authorityChief of Police is now a person in authority (Pp. vs. Rodil- Nov. 20, l981). Same with Barangay Captains (under the Local Govt. Code). The crime must not be committed against

 public officer, otherwise it would be Direct Assault and this circ. is absorbed. If the crime is committed in the presence of a policeman, this is not present, bec. he is only an agent of a person in authority. 3) AGE, SEX, RANK, DWELLING:- Act committed with insult or lack of regard due to the offended party by reason of age, sex, or rank or the crime is committed in

 the dwelling of the offended party, if the latter has not given provocation.- There are four agg. circs. in this par., w/c if present in the commission of the crime are considered as one agg. circ. only. W/ insult or in disregard means the specific fact of insult or disregard of sex, age, rank of the offended party, who is a

 woman, older or of higher rank than the accused. These circumstances are considered in crimes against persons, security or honor. It is not considered in crimes against property. In Robbery w/ Homicide not considered bec. this is a crimes against property, not person (Pp. vs. PunzalanNov. 8, l991 & Pp. vs. Ponciano- 12/5/91).

 1) Age Pp. vs. Bugho- Sept. 30, l991- victim being 73 years old at the time he was hacked to death; Pp. vs. Lapan- 7/92-victim was 6 yrs old, stabbed 14 times; Pp. vs. Lora- March 30, l982victim of the crime of Murder is a child 3 years old. 2) Sex For this circ. to be considered, there must be a showing that the accused specially saw to it that his victim would be a woman. There must be some specific

 insult or disrespect of her womanhood (Pp. vs. Ursal 121 SCRA 400). U.S. vs. Quevengco -2 Phil. 412compelling a woman to go to the house of the accused against her will. Pp. vs. Manalang- 123 SCRA 583- killing of a woman, a sexagenarian, was attended by disrespect done on her on account of her sex.

 Sex is not considered in crime where being a woman is an element thereof as in the crimes of Parricide, Rape, Abduction or Seduction. These circs. were not considered when the offender assaulted the victim due to passion or obfuscation because the offender who has lost his reason would

 not have deliberately and consciously know that the act was done with disrespect to the offended party. 3) Rank refers to high social position or standing, or graded official standing-Killing of a judge bec. he was strict (Pp. vs. Valeriano G.R. L- 2159); the deceased was a consul, while the accused was a clerk (Pp. vs. Godinez- L12268), or the accused, a clerk, killed the victim, a ranking official of CSC (Pp. vs.

 Benito- 74 SCRA 271; the deceased was the Chief of Police and the accused was the Chief of Secret Service (Pp. vs. Hollero 98 Phil. 162). 4) Dwelling a building or structure, exclusively used for rest or comfort. This includes dependencies, staircase, and enclosures under the house. It is not necessary that the house is owned by the

 offended party. It may include a room in a boarding house, for home is that which the law seeks to protect or uphold whether the dweller is a lessee, a boarder or bedspacer. A combination of a store and house is not a dwelling Pp. vs. Magnaue- May 30, l951; nor a market stall (Pp. vs. Macaso ) nor a gambling house or house of pros-

 titution (U.S. vs. Balmori- 28 Phil.578). It is aggravating, although the victim was staying temporarily in order to escape the brutalities of the appellant because of jealousy (Pp. vs. Sto. Tomas- 138 SC%RA 206); in Robbery w/ Violence or Intimidation bec. this can be committed w/o necessarily entering a house (Pp. vs. Dejaresco- June 19, l984); even if the

 victim was killed in the staircase of the house (Pp. vs. Alcala- 46 Phil. 731); in the case where the victim was taken from his house although the offense was not completed in the house as he was killed outside (Pp. vs. Jardiniano, et al -103 SCRA 530). Not considered: a) if the offended party

 has given provocation (Pp. vs. Dequena60 Phil. 279), but if not immediate agg. b) if both the offender and offended party are occupants of the same house (U.S. vs. Rodriguez-9 Phil. 136). The rationale for appreciating this agg. circ. is the deliberate invasion of the tranquility of ones domicile, thus showing greater perversity (Pp. vs. Pagal- supra).

 4) ABUSE OF CONFIDENCE OR OBVIOUS UNGRATEFULNESS Requisites: 1) the offended party had trusted the offender; 2) the offender abused such trust; and 3) that such abuse of confidence facilitated the commission of the crime

 ( Pp. vs. Zea, et al- L-23109, Pp. vs. Barcena- L- 34202). For abuse of confidence to exist, it is essential to show that the confidence between the parties must be immediate and personal as would give the accused some advantage or make it easier for him to commit the criminal act. The confidence must be a means of facilitating the

 of the crime, the culprit taking advantage of the offended partys belief that the former would not abuse said confidence (Pp. vs. Arojado 350 SCRA, January 2001). Examples: Abuse of confidence a) Pp. vs. Marasigan IXL, J. 12- this circumstance is present in the killing of his sweetheart whom he invited to a ride after

 he had determined to kill her and who went with him not knowing his plan; b) Pp. vs. Villas 29 SCRA 947- when the accused was hired by the deceased as a trusted houseboy for 4 years prior to the commission of the crime; that in the discharge of his duties he was allowed to enter and clean her room and to close the flower shop and therefore had access to

 the private room where he killed her; c) Pp. vs. Caliso 58 Phil. 283- offender was the servant of the family and sometimes took care of the child, whom she later killed; d) Pp. vs. Lora- 113 SCRA 366- where the victim, a 3 year old boy, was entrusted to the custody of the accused, whose duty in the household was to take care of the

 minor victim, whom she killed. Exs. of obvious ungratefulness: a) Pp. vs. Bautista- 72 O.G. 2117- when the victim was suddenly attacked while in the act of giving the assailants their bread and coffee for breakfast, there was obvious ungratefulness; b) Pp. vs. Baloyo 106 Phil. 972- where the accused killed his employer who allowed him to maintain a store in his compound without

 paying rent; c) Pp. vs. Lupangco 106 Phil. 972- the accused who was living in the house of the victim, employed by the victim as an overseer and in charge of the carpentry work and had free access in the house of the victim who was very kind to him and his family and who helped him solved his problem;

 d) Pp. vs. Lobetania-116 SCRA 297where the accused and his companions killed their hosts after they had supper and slept in their house. 5) CRIME COMMITTED IN THE a) PALACE OF THE CHIEF EXECUTIVE; b) IN HIS PRESENCE; c) WHERE PUBLIC AUTHORITIES ARE ENGAGING IN THE DISCHARGE OF THE DUTIES; or d) IN

 A PLACE DEDICATED TO RELIGIOUS WORSHIP- only in the 3rd circumstance (where the authorities are engaged in the discharge of their duties), is performance of function necessary. The other 3 circs. require merely that the crime be committed in the places specified: in the palace of the Chief Executive; in his presence, or in a place dedicated to

 religious worship. It is necessary though that the offender must have sought the above places for the commission of the crime which shows his lack of respect for the said places. Ex. Pp. vs. De Ananias-96 Phil. 979- the accused stabbed the victim in the office of the Chief of Police who was investigating a fist fight between them.

 - It is necessary to show that the offender must have sought any of the above places for the commission of the crime (Pp. vs. Jaurigue- 76 Phil. 174). Any of the said places, therefore, is not aggravating, if the crime was casually committed therein. This agg. circ. of having committed the crime in a place where the public authorities are in the discharge of their

 duties is absorbed in the crime of Direct Assault (Pp. vs. Perez). 6) NIGHTTIME, UNINHABITED PLACE OR BAND- If all these aggravating circumstances concur in the commission of the crime, all will constitute one aggravating circumstance only as a general rule, but these can be considered separately if their elements are distinctly

 perceived and can subsist independently, revealing a greater degree of perversity(Pp. vs. Damaso May 20, l978) a) NOCTURNITY/NIGHTTIME- to be aggravating, it is essential that this circumstance facilitated the commission of the crime, or the offender took advantage of it; or it was purposely sought for the purpose of impunity (Pp. vs. Soriano-

 35 SCRA 633 & Pp. vs. Pasiliao- G.R. No. 98152- Oct. 26, l992). Nighttime- period of darkness beginning at the end of dusk and ending at dawn; period from sunset to sunrise (Pp. vs. Garachico). - To be agg., the crime must be committed exclusively at nighttime. If the commission of the crime was commenced

 at daytime and it was consummated at nighttime, such is not aggravating (U.S. vs. Dowdell- 11 Phil. 4); - where the meeting of the victim and the accused was merely accidental and attack was made at the impulse of the moment and as a consequence of unexpected turn of events not agg.(Pp. vs. Veloso- 92 SCRA 515 & Pp. vs. Damo 128 SCRA 615);

 If nighttime forms part of a treacherous means and manner adopted to insure the execution of the crime, it will be absorbed in treachery (Pp.vs. Pardo-70 Phil.564); otherwise, it may be considered independently from treachery- the crime was committed during nighttime, the victims hand were tied at the time of the stabbing (Pp. vs. Artieda- 90 SCRA 144);

 Pp. vs. Ong- L-34497- January 30, l975when the victim was stabbed twice with an ice pick at night while his hands were tied and his mouth was gagged, nighttime is not absorbed in treachery because in this crime, treachery arose from the defenseless position of the victim when he was killed, while nighttime was purposely sought by the accused to facilitate impunity in the commission of the crime.

TW0 TESTS OF NOCTURNITY

1) Objective test nocturnity is agg. bec. it facilitates the commission of the crime; 2) Subjective test under which nocturnity is agg. bec. It was purposely sought for. These two tests are to be applied in the alternative. Even if not purposely chosen,

 it will still be present if it facilitated the commission of the offense (Pp.Garcia, et al.-Oct. 31, l979 & Pp. vs. Palon- Feb. 20, l984); Altho., subjectively, nighttime was not purposely sought for, if objectively, it was a circumstance that facilitated the commission of the crime and which the accused took advantage of for the purpose

 of impunity, nighttime should be appreciated (Pp. vs. Morales 121 SCRA 426). B) UNINHABITED PLACE is determined not by the distance of the nearest house to the scene of the crime but whether or not in the place where the crime is committerd there was a possibility of the victim receiving some help (Pp. vs. Bangug-

 52 Phil. 87. So, the place is not uninhabited if where the crime was committed, it could be seen and the voice of the deceased could be heard from a nearby house ( Pp. vs. Laoto- 52 Phil. 401). The Supreme Court ruled that a place where there are no people or any number of houses w/n a perimeter of less than 200

 Meters is uninhabited (Pp. vs. Egot- 130 SCRA 134). - Pp. vs. Rubia-( 52 Phil. 172) where the crime was committed at sea not so far away from another banca, the place is uninhabited as it was difficult for the victim to receive any help and it was easy for the accused to escape punishment.

 Pp. vs. Capillas 102 SCRA 173uninhabited place was not considered aggravating although the house nearest the dwelling of the offended party was about 2 kms. away because it was not apparent that the offender selected the place either to better obtain their objective without interference or to secure themselves against detection & punishment.

 Uninhabited place is not aggravating if it is not purposely sought for or taken advantage of to facilitate the commission of the crime (Pp. vs. Mesias, jr 127 SCRA- 792). 3) BAND consists of at least four armed persons (more than 3 armed persons organized with the intention of carrying out any unlawful design (Pp.vs. Lee- Dec. 20, l991). They must act together in the commission of the crime.

 If one has no direct participation in the commission of the crime, as one is a principal by Inducement, there is no band (Gamara vs. Valero 51 SCRA 322); Even if there are 20 members, but only 3 of them are armed, there is no band ( Pp. vs. Lungbos- June 21, l988). Pp. vs. Estante,Jr.- 92 SCRA 122- where four armed persons were charged with

 Robbery w/ Homicide and during the trial one of them was acquitted, it was held that the crime was committed by a band. A strong dissenting opinion maintained that the acquittal of one would not result to a band. Band is inherent in Brigandage but not in simple Robbery.

 In Pp. vs. Ombao- 103 SCRA 243- it was held that in the crime of Robbery w/ Homicide, band is not taken into account, citing, Pp. vs Moros Amajul, et al., 111 Phil. 254. There is a strong dissenting opinion holding that band should be considered a generic agg. cir. In the case of Pp. vs. Puesca- 87 SCRA 130- band was considered a generic

 aggravating circumstance in Robbery w/ Homicide, Robbery w/ Rape, Intentional Mutilation or Physical Injuries resulting in insanity, impotency and blindness (Subdiv. 2, Art. 263, RPC), which means it can be offset by an ordinary mitigating circumstance. 7) CALAMITY OR MISFORTUNE- that the crime be committed on the occasion of a

 conflagration, shipwreck, earthquake, epidemic, or other calamity or misfortune. The term other calamity or misfortune refers to conflagration, shipwreck, earthquake or epidemic (Pp. vs. Arpa, et al. 27 SCRA l037). It cannot refer to acts of men because they are of a nature different from the events enumerated (under the principle of ejusdem generis).

 This refers to the occasion during which the crime is committed. These circs. are considered aggravating because it shows greater perversity, who, instead of lending aids to the victims, adds to their suffering, by taking advantage of their misfortune to despoil them (U.S. vs. Rodriguez- l9 Phil. 150).

 8) AID OF ARMED MEN that the crime be committed with the aid of armed men or persons who insure or afford immunity. Requisites: 1) the armed men or persons took part in the commission of the crime, directly or indirectly; and 2) the accused availed himself of their aid or relied upon them when the crime

 was committed. This circ. cannot be appreciated if the armed men are conspirators, by acting under the same plan and same purpose because in this situation, they are all principals (Pp. vs. Piring- 63 Phil. 546) . U.S. vs. Abaigar- 2 Phil. 417- casual presence is not aggravating, if the offender did not avail himself of their aid.

Band may absorbed aid of armed men, since in the existence of a band the employment of more than 3 armed men is automatically included (Pp. vs. Manayao78 Phil. 721). Distinction bt. Band & Aid of Armed Men: 1) Band all offenders are principals; Aid of Armed Men merely accomplices.

 2) Band there must at least 4 armed persons, whereas in Aid of Armed Menthe number of armed men is not considered. 9) RECIDIVISM- that the accused is a recidivist. Recidivism is one who, at the time of his trial for one crime, shall have previously been convicted by final

 judgment of another crime embraced in the same title of this Code. This requires at least two convictions: the first by final judgment and must take place prior to the second conviction. Both offenses must be embraced in the same title of the same code. Ex.- July 20, 2007- accused is on trial for Homicide; on said date, he has already

 been convicted by final judgment, the crimes are within the same title: crimes against property: Theft, Robbery, Estafa; or in crimes against persons: murder, homicide, parricide or physical injuries; he must be convicted of the second offense and in the computation of the penalty, the court will increase it to the maximum. Recidivism is imprescriptible. It is taken

 Into consideration no matter how long a time had lapsed between the first and the second conviction ( Pp. vs. Calocar- 60 Phil. 878). It is likewise considered even if the offender has been given absolute pardon for the first conviction, since pardon merely extinguishes the penalty, (U.S. vs. Sotelo- 28 Phil. 147) but not in Amnesty, as this extinguishes all the

 effects in law of the crime committed (U.S. vs. Francisco- 10 Phil. 185). Pp. vs. Compendio,Jr. 259 SCRARecidivism must be alleged in the information and must be proven by a certified true copy of the final judgment (after the lapse of 15 days from promulgation of decision).

 10) REITERACION OR HABITUALITYthat 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. This requires that the offender shall have served out his sentence for the prior offense (Pp. vs. Layson, et al. Oct. 31, l969).

 The offenses are not necessarily embraced under the same title of this Code. This is not always aggravating. Ex. Accused was convicted or Malicious Mischief and had served the penalty of Arresto Mayor. Again, he was charged and convicted of the crime of Incriminating Innocent Persons, with an imprisonment term of Arresto Mayor- (Equal penalty).

 Mal. Mischief crimes against property, while Incriminating is a crime against honor. Another ex. accused was charged and convicted w/ an imprisonment term of six (6) month for the crime of Less Serious Physical Injuries. He served this. Then again, convicted of the crime of Slander, and served the imprisonment term of one (1) month (Greater penalty).

 Another ex. accused had been convicted of two crimes, namely: Slander and Malicious Mischief, wherein he was meted the imprisonment terms of one (1) month each. After serving the same, he was again, charged and convicted of the crime of Theft, w/ an imprisonment term of one (1) year.

 Distinction bt. Recidivism and Reiteracion (Habituality): 1) Reiteracion- the offender is previously punished; Recidivism- it is enough that there be previous conviction by final judgment; 2) Reiteracion- the offenses are not embraced under the same title of the Code;

Recidivism- these offenses must be embraced under the same title of the Code; 3) Reiteracion- is not always aggravating as its appreciation rests upon the discretion of the court; Recidivism- if present, is always considered aggravating;

 4) Reiteracion- prior crime must have been penalized with an equal or greater penalty or two or more crimes with lighter penalty; Recidivism- no requirement as to penalty imposed in the prior conviction. Habitual delinquency- is a special aggravating circumstance for which is imposed an additional penalty which escalates with the increase in the number

 of convictions. A person is a habitual delinquent if: 1) Within a period of ten (10) years from the date of his release or last conviction; 2) Of the crimes of Falsification, Robbery, Estafa, Theft, Serious or Less Serious Physical Injuries (FRETSeL); 3) He is found guilty of said crimes a third

 time or oftener. Distinctions bt. Recidivism & Habitual Delinquency: R-1) Convictions- two are enough; 2) Crimes both under the same title of the Code; 3) Prescription- none as there is no time limit bt. the first and second convictions;

 4) Nature Generic can be offset by ordinary mitigating circ. Habitual Delinquency: 1) Three convictions necessary; 2) Crimes FRETSeL; 3) Prescribes if the 10 year limit between the convictions exceeded; 4) Special agg. circ cant be offset .

 Quasi-Recidivism- the offender has been previously convicted by final judgment and before beginning to serve such sentence or while serving the same he committed a felony. This is a special aggravating circumstance. May an offender be a recidivist and a habitual delinquent at the same time? Yes, if the offender was convicted for the

 third time of Theft within the conditions prescribed by law, the first and the second convictions referring to Robbery & Estafa. May an offender be a habitual deliquent w/o being a recidivist? Yes- if the three convictions refer to a specific felonies not embraced in the same title of the Code, like Falsification, Robbery & Serious Physical Injuries.

 11) PRICE, PROMISE, REWARD- That the crime be committed in consideration of a price, reward or promise. They affect equally the offeror and the acceptor (Pp. vs. Canete, et al- L-37945-May 28, l984). The offeror is a Principal by Inducement, and the acceptor, the Principal by Direct Participation (Pp. vs. Opero- 51 Phil. 201). The inducement is the primary considera-

 tion in the commission of the crime for this aggravating circumstance to be considered against the person induced (Pp.vs. Paredes- 24 SCRA 635). If the money was given, w/o any previous promise, after the commission of the crime as an expression of sympathy, this circumstance cannot be present (U.S. vs. Flores- 28 Phil. 29).

 12) INUNDATION, FIRE, POISON, EXPLOSION,etc- 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 artifice involving great waste. This is the only aggravating circumstance that may constitute a crime in itself (Art. 62, par. 1).

 If the building is set on fire, the crime is Arson. If a person is killed by means of poison, it is Murder. These circumstance will no longer be considered aggravating. If a hand grenade is thrown into a house and as a result of the explosion, the house was damaged, but no one was injured, the crime committed is the crime involving Destruction (Pp. vs. Comporedondo). If

 the explosion was used as a means to kill the occupant, who died as a consequence, the crime will be Murder. 13) EVIDENT PREMEDITATION Elements: a) The time when the accused determined to commit the crime; b) An act manifestly indicating that the accused has clung to his determination; &

 c) a sufficient lapse of time between such determination and execution, to allow him to reflect upon the consequences of his acts. Evident premeditation must be based upon external acts and must be evident not merely suspected (Pp. vs. Yturriaga-88 Phil.534), indicating deliberate planning (Pp. vs. Florida, September l992).

 What must be clearly established for evident premeditation to be considered?- It must be shown when the plan to kill was hatched or what time elapsed before it was carried out for the essence of evident premeditation is that the execution of the criminal act must be preceded by cool thought and reflection of the resolution to carry out the criminal intent during the

 space of time sufficient to arrive at a calm judgment. Evident premeditation means that a period sufficient in a judicial sense to afford full opportunity for meditation and reflection and sufficient to allow the conscience of the actor to overcome the resolution of his will if he desires to hearken to its warnings has elapsed.

 31/2 hours from the plan to the commission of the crime is sufficient time for the accused to dispassionately reflect upon the consequences of his act or to desist from its execution. Evident premeditation must be clearly proven, established beyond reasonable doubt. But if this is inherent element of a

 crime, then it has already been considered by the law. Evident premeditation is inherent in crimes against property (Pp. vs. Daos- 60 Phil. 13), but it may considered in Robbery w/ Homicide, because the evident premeditation relates to the killing and not to the robbery (Pp. vs. Manansala- July 1992).

 Relationship between conspiracy & evident premeditation- under normal conditions, 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. But in the case of implied conspiracy, 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 elapsed before it was carried out, so that it cannot be determined if the accused had sufficient time between its inception and its fulfillment dispassionately to consider and accept the consequences.There should be a showing that the accused

 has the opportunity for reflection and persisted in effectuating his criminal design. Absent such showing, this aggravating circumstance should be rejected ( Pp. vs. Manansala- July 1992). Proof of conspiracy does not imply the existence of evid. premeditation. Evident premeditation can be presumed only where conspiracy is directly established , not where,in this case, conspiracy is only implied (Pp. vs. Padlan- 94 SCAD- May l998).

 14) CRAFT, FRAUD AND DISGUISE- That craft, fraud or disguise be employed-These are intellectual means in the commission of a crime and are separate aggravating circumstances. CRAFT is cunning or intellectual trickery or chicanery resorted to by the accused to carry out his evil design (Pp. vs. Barrios,et al- 92 Phil. 89; Pp. vs. Zea, et al. L- 23109-10- June 29, 1984130 SCRA 77). Pp. vs. Timbol- 47 O.G. l859-There is craft when the accused assumed a position of

 authority to gain entrance in a house to enable him to be alone with the offended party to commit acts of lasciviousness. Pp. vs. Tanchico- 93 SCRA 575- Deigning friendship, accused was able to lure the victim to the uninhabited place where the crime was thereafter committed. Pp. vs. Napili- 55 Phil. 581- In the crime of Robbery when one of the accused shouted from

 the outside that they wanted to buy cigarettes which induced the offended party to open the kitchen for them and which also paved the way for their intrusion into the house. FRAUD constitutes deceit and is manifested by insidious words or machinations. Pp. vs. De Leon- 50 Phil. 539- Stepfather of the offended party, taking advantage of the absence of her mother, took the young girl away and told her she was to be taken to the house of her grandmother but instead she was taken to

 another house where she was raped. DISGUISE is resorted to conceal the identity (if in spite of the disguise, the offender was recognized, such is not aggravating). Pp. vs. Piring- 63 Phil. 548- covering the face with handkerchief. Pp. vs. Gonzales 56 Phil. 842- illegally wearing constabulary uniform. Pp. vs. Veloso- 112 SCRA 206- In Robbery w/ Homicide, accused wearing masks.

 These circumstances are not aggravating if they did not facilitate the commission of the crime or not taken advantage or by the offender in the course of the assault. 15) ABUSE OF SUPERIOR STRENGTH OR MEANS TAKEN TO WEAKEN THE DEFENSEThat advantage be taken of superior strength, or means be employed to weaken the defense ABUSE OF SUPERIOR STRENGTHIntentionally employing excessive force out of proportion to the means of defense available to the offended party. There must be a notorious

 inequality of forces between the victim and the aggressor, and to appreciate it, it is necessary to evaluate the physical conditions of the protagonists and the arms employed by each side ( Pp. vs. Cabiling 74 SCRA- 285). There must be deliberate intent to take advantage of the same (Pp. vs. Bello 10 SCRA 298). This circumstance is appreciated in the following cases:

 a) Pp. vs. Apelado- 113 SCAD- The aggressors, who were all armed, first hit the legs of their unarmed victim, causing the latter to fall kneeling, then stabbed him above the knee; and having deprived him of his means stand or run, took turns in inflicting mortal wounds on him. b) Pp. vs. Ocumen- 116 SCAD-male accused attacked a defenseless woman with a deadly weapon (his sex and weapon gave him superiority).

 Not appreciated as aggravating: a) If the assault is characterized with passion or obfuscation; or made during a quarrel (U.S. vs. Balines 4 Phil.594). MEANS EMPLOYED TO WEAKEN THE DEFENSE Pp. vs. Ducusin- 53 Phil. 280- Intoxicating a victim with intention to kill him. Pp. vs. Siaotong- March 29, l957- by suddenly casting sand or dirt upon the eyes of the offended party and then wounding him.

 16) TREACHERY 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.

 The following requisites must concur: a) the culprit employed means, methods or forms of execution which directly and especially tend to insure the offended party which means that no opportunity was given to the latter (Pp. vs. Samonte- 68 SCRA 90); b) that such means, methods or manner of execution was deliberately or consciously shown (Pp. vs. Clemente- 21 SCRA 261).

 Treachery is applicable only in crimes against person. It is qualifying in Murder (Art. 248), or in Serious Physical Injuries (Art. 263). In Parricide and Homicide, it is generic. Gen. rule- If the attack is frontal, there is no treachery, except when the attack is sudden and unexpected (Pp.vs. Macarubbo- Sept. 9, l965); there is treachery if the attack is sudden, unexpected and from behind and the deceased did not have the slightest opportunity to defend himself except if it is a continuation of a previous attack (U.S. vs. Baluyot- 40 Phil. 385).

 Treachery absorbs nighttime and taking advantage of superior strength (Pp. vs. Bechayda- August l992). 17) IGNOMINY- means employed or circumstances brought about to add IGNOMINY to the natural effects of the crime. This is a circumstance pertaining to the moral order, which adds disgrace and obloquy to the material injury caused by the crime. It is akin to the adage adding insult to injury. It produces more suffering on account of its humiliating

 effects. Ignominy relates to moral suffering whereas, cruelty refers to physical suffering. Pp. vs. Torrefiel- 45 O.G. 8803- accused winding a cogon grass around his penis before committing rape. U.S. vs. Iglesia- 21 Phil. 55- when the accused raped a woman in the presence of her husband (Pp. vs. Soriano- June 24, l983).

 18) UNLAWFUL ENTRY That the crime be committed after an unlawful entry. There is unlawful entry when an entrance is effected by a way not intended for the purpose, ex. entering through a window. Unlawful entrance must be made for the purpose of committing a crime like rape or murder. But this is inherent in the crime of Trespass To Dwelling or Robbery W/ force Upon Things.

 Unlawful entry must be for entrance, but not for escape. 19) BREAKING WALL, ROOF, FLOOR, DOORS OR WINDOWS- That as a means to the commission of a crime a wall, roof, floor, door or window be broken. Means for committing a crime. Inherent in the crime of Robbery w/ Force Upon things.

 20) AID OF MINORS/USE OF MOTOR VEHICLES- That the crime be committed with the aid of persons under 15 years of age or by means of motor vehicles, motorized watercraft, airships or other similar means There are two aggravating circumstances: a) Use of minors- shows greater perversity of the offender in taking advantage of the youthfulness of these persons for criminal purposes.

 b) The second is intended to meet the problem created by modern criminals in resorting to faster means of conveyance to commit a crime. Exs. a) Pp. vs. Lacsamana- 70 Phil. 517using a taxicab in committing robbery; b) Pp. vs. Marasigan- 70 Phil. 583victim was killed in a taxi hired and used by the accused.

 Not considered: a) Pp. vs. Bagtas- Sept. 12, l955- in the crime of Estafa wherein a jeep was used in carting away the property, because Estafa was not committed by means of said vehicle. b) Pp. vs. Espejo 36 SCRA 400- if vehicle is used to facilitate the escape of the accused Other similar means refer to other means of transportation that are similar to motor vehicles or airships (such as scooter or motorcycles or motorized water craft). Excluded- horse-driven carriage.

 21) CRUELTY The wrong done in the commission of the crime is deliberately augmented by another wrong not necessary for its commission There is cruelty when the culprit enjoys and delights in making his victim suffer slowly and gradually, causing unnecessary moral or physical pain in the consummation of the criminal act which he intended to

 commit (Pp. vs. Dayug- 49 Phil. 423 & Pp. vs. Dr. Satur). Cruelty requires deliberate prolongation of the suffering of the victim. U.S. vs. Oro- l9 Phil. 548- mouth and other parts of the 11 months old baby were burned. Pp. vs. Mariquina- 45 O.G. 6053- extracting the left eye of the victim from its socket with a pointed end of a cane and stuffing his mouth with mud.

 Pp. vs. Lora- 113 SCRA 316- Gagging of the mouth of a three year old child with stockings, dumping him with head downward into a box, and covering the box with sacks and other boxes, causing slow suffocation, and as a result the child died. The number of wounds alone is not sufficient to conclude cruelty. It must be clearly shown that the same was used to prolong the agony of the victim.

DISTINCTION
RECIDIVISM HABITUALITY HABITUAL DELINQUENCY QUASI-RECIDIVISM

1) 2)

ACCUSED ON TRIAL By this time, he has already a conviction

1)

ACC. HAS BEEN PUNISHED OR SERVED HIS SENTENCE

1) ACCUSED HAS BEEN CONVICTED/SERVED HIS SENTENCE

1) ACCUSED PREVIOUSLY CONVICTED BY FINAL JUDGMENT 2) BEFORE BEGINNING TO SERVE OR WHILE SERVING HIS SENTENCECOMMITTED ANOTHER FELONY 4) SPECIAL AGGRAVATING CIRC.

3)CRIMES OF WHICH HE IS ON TRIAL ARE WITHIN THE SAME TITLE OF THE SAME CODE

2) IST OFFENSE IS PUNISHED OF EITHER EQUAL OR GREATER PEN. OR 2 OR MORE CRIMES W/C THE LAW ATTACHES LIGHTER PEN. 3) CONVICTED IN THE SECOND OFFENSE

2) WITHIN 10 YEARS FROM HIS LAST CONVICTION /DATE OF LAST RELEASE CONVICTED FRETSeL

4) CONVICTED OF THE SECOND OFFENSE

3) FOUND GUILTY OF SAID CRIMES 3X OR OFTENER 4) SPECIAL AGGRAVATING CIRC.- ADDL. PEN.

5) GENERAL AGGRAVATING CIRCS.

4) NOT ALWAYS AGGRDEPENDS UPON THE DISCRETION OF THE COURT

 Examples: 1) Recidivism Robbery & Theft- Property Homicide & Murder- Person 2) Habituality- Greater- Mal. Misch (AMa). & Incriminating Innocent Person (AMe) Equal Mal. Misch-AMa & Intriguing Against Honor (AMa) 2 or more Intrig- AMe & SlanderAMe) and Estafa - PC

3) Habitual Del.Crimes- Date of Conv.-Date of Last Rel. Theft - April, 1920 - April, l923 Rob -May, l928 - March, l935 Estafa - June, l943 - June 1950 Falsification- Jan. l951 Effects: Additional penalty: 1) 3rd conviction- PC in its med. & max. periods;

 2) 4th conviction PM in its min. and med. periods; 3) 5th conviction PM in its max. to RT in its min. periods. But in no case will the total of the two penalties exceeds thirty (30) years ( Article 62). 4) Q-Rec. RPC- SPL ( RA 7610) - RPC - RPC

ARTICLE 15 -ALTERNATIVE CIRCUMSTANCES:

ALTERNATIVE CIRCUMSTANCES- are those which must be taken into consideration as aggravating or mitigating according to the nature and effects of the crime and other conditions attending its commission. They are relationship, intoxication and degree of instruction and education of the offender.

 (RIDE/RIE). 1) Relationship taken into consideration when the offended party is the spouse, ascendant, descendant, legitimate, natural or adopted brother or sister or relative by affinity (SADBroSA). Step-parents and step-children are included by analogy, similar to ascendant and descendant (Pp. vs. Bersabal 48 Phil. 439). But relationship between uncle and niece is not included ( U.S. vs. Incierto 15 Phil. 358).

 Rule relative to relationship: 1) Crimes against Property- mitigating (applying by analogy Art. 332- crimes of Theft, Swindling and Malicious Mischief is exempting). 2) Crimes against Persons- if the offended party is a relative of higher degree or of the same level, relationship is aggravating; but if the offended party is a relative of a lower degree, relationship is mitigating. Exception- Murder, Homicide, Serious Physical Injuries. In crimes of Parricide- element of the crime, hence neither mit. nor agg.

 3) Crimes against Chastity- relationship is always aggravating, whether the offended party is of a lower or higher degree. This is because of the nature of the crime ( Ex. Acts of Lasciviousness (Pp. vs. Marino- 143 SCAD & Rape (RA 8353)- Pp. vs. Manhuyod, Jr. 94 SCAD). 2) Intoxication- meant that the offenders mental faculties must be affected by drunkeness. The state of intoxication must be proved (Pp. vs. Apduhan, Jr- 24 SCRA 798). Mere drinking of liquor prior to the commission of the crime does not necessarily produce a state of intoxication. Rule: a) It is mitigating if it is not habitual or it is not subsequent to the plan of the commission of the felony.

 B) It is aggravating- if it is habitual or intentional. Pp. vs. Hernandez- No. L- 3391- accused who plotted to kill the victim, had drunk wine in order to embolden him carrying out with his evil plan- aggravating. Pp. vs. Calinawan G.R. No. 21413-R- if one is somewhat drunk at the time of the incident for having drunk tuba- mitigating.

 To be aggravating, there must be evidence of excessive and habitual use or specific purpose to commit the crime by getting drunk, otherwise, it will be mitigating (Pp. vs. Moral- 132 SCRA 474). Pp. vs. Dumo 128 SCRA 663- The accused cannot claim intoxication when he was able to drive his tricycle to the place where he brought the victim, made love to her, following which he killed and dumped her in a well and then drove

 his vehicle back to the place where he came from, as such conduct shows that he had complete control of his mental faculties. 3) Degree of Instruction & Education/ Lack of Education- whether to be considered mitigating or aggravating, depends upon the nature of the crime committed. It is not illiteracy alone, but the lack of intelligence of the offender that is considered. If one is not considered literate but is highly or exceptionally intelligent or mentally

 alert or comes from a family of professionals, so that he realizes the significance of his acts, there is no mitigation. If the crime is basically wrong, such as Parricide, Theft or Rape- it is immaterial whether the offender is schooled or not, because these are forbidden by natural law. High degree of learning is aggravating if he takes advantage of it in the commission of the crime. Ex. Lawyer- in the crime of Falsification or a Doctor who kills his victim by the medicine he prescribed.

 In the crime of Treason, the decisions vary. In the case of Pp. vs. Marasigan 47 O.G. 3229- it was held mitigating. But in the case of Lansanas- 82 Phil. 193- it was considered aggravating, because love of country is the natural feeling of every citizen no matter how unlettered or uncultured he may be.

ARTICLE 16- WHO ARE CRIMINALLY LIABLE A) For Grave & Less Grave Felonies: 1) Principals 2) Accomplices 3) Accessories B) For Light Felonies: 1) Principals 2) Accomplices

 In the commission of a crime, there are two (2) subjects: 1) Active (criminal/offender) 2) Passive ( injured party /victim). As far as active subjects are concerned, they must only be natural persons, because of the highly personal nature of the criminal responsibility :

 Reasons: 1) Because of the requirement under the RPC that the culprit must act with personal malice or negligence. 2) Because of the penalty of impisonment or deprivation of liberty (destierro), as these can only be executed upon a natural person. 3) Only natural persons can be arrested.

 Exceptions: 1) Criminal actions directed upon the officers of the corporation ( not against the corp). 2) Under the Corporation Law, Public Service Law, Securities Law and Election Code corporations may be fined for certain violations.

 Passive subject- State, the natural person, juridical persons or a group. Corpse cannot be a passive subject as he has no more rights. Exception- under Art. 353-, the crime of Defamation may be committed if the imputation tends to blacken the memory of one who is dead. ARTICLE 17- PRINCIPALS: 1) PRINCIPAL BY DIRECT PARTICIPATIONthose who take a direct part in the execution of the act;

 2) PRINCIPAL BY INDUCEMENT-those who directly force or induce others to commit it; and 3) PRINCIPAL BY INDISPENSABLE COOPERATION those who cooperate in the commission of the offense by another act without which it would not have been accomplished. A) DIRECT PARTICIPATOR- they are those who materially execute the crime. They must appear at the scene of the crime and perform acts necessary in the commission of the offense

 to be liable. Ex. One who shoots at and kills another, or one who burns the house of another. He is the Principal by Direct Participation in the crime of Homicide and in the crime of Arson. When a single individual commits a crime, there is no difficulty in determining his participation in the commission thereof. In fact, a single individual committing a crime is always a Principal By Direct Participation, because he must take direct part in the execution of the act.

 But when two or more persons are involved in the commission of the crime, it is necessary to determine the participation of each. To establish conspiracy, proof of previous agreement is not essential. What is necessary is that the assailants are animated by one and same purpose and that they act in concert pursuant to the same criminal objectives (Pp. vs. Sazon- 189 SCRA 700). In conspiracy, there is collective criminal responsibility, as the act of one is the act of all.

 B) INDUCER- there is a Principal By Induction or Inducement only if it is shown that the crime was actually committed by another who was induced (Pp. vs. Ong Chat Lay- 60 Phil. 788). Inducement comprises reward, promise, command and pacto. Regarding Induction, it is essential that : a) it be made directly with the intention of procuring the commission of the crime; b) such inducement be the determining cause of the said commission by the one

 induced (Pp. vs. De La Cruz- 97 SCRA 385). The inducement must precede the act induced and must be so influential in producing the criminal act that without it the act would not have been performed. For such act to be considered direct inducement, it is necessary that they be as direct, as efficacious, as powerful, as physical or moral coercion or as violence itself (Pp. vs. Kiichi Omine-61 Phil. 609).

 Pp. vs. Lao- 110 Phil. 643)- a wife who induced the killing of the mistress of her husband by giving money to the killer is a Principal by Inducement. If there is evidence of conspiracy, the requisites to convict a Principal by Inducement need not be present. The Principal by Inducement must intend that his inducement should be obeyed. Mere careless comment made by one who does not

 possess dominance or moral ascendancy over the offender will not make the former a Principal by Inducement. To be one, the inducers utterances must be of such a nature and made in such a manner as to become the determining cause of the crime. Where the words uttered did not make any great dominance or influence on the offenders or is no longer necessary

 as the offenders were already determined to commit the offending acts, the utterance will not make the utterer an inducer (Pp. vs. Parungao76 SCAD). Is there a Principal By Inducement in Falsification of Residence Certificate?- The person who supplied to the innocent employee in the treasurers office the false facts to be written on the residence certificate he was buying is a Principal By Inducement as he was

 the one who induced the employee to write those false facts which he supplied (Pp. vs. Po Giok To- April 30, l966). This is an example of a case wherein only the Principal by Inducement is liable and the person induced is not, as he acted without malice or criminal intent, aside from the fact that there was no conspiracy between the inducer and the induced.

 Kill him and we will bury him an imprudent utterance said in the excitement of the boss or in the heat of anger and not in the nature of a command that had to be obeyed, does not make the utter a Principal by Inducement (Pp. vs. Agapinay- 186 SCRA 812). Principal who directly forces others to commit a crime- if the force employed is irresistible or is caused by an uncontrollable fear, only the one employing it is liable as the executor is exempt

 under pars. 5 and 6 of Article 12 (Pp. vs. Sia and U.S. vs. Caballeros). C) INDISPENSABLE COOPERATOR there must be immediate participation in the criminal design of the Principal by Direct Participation by an act without which the crime would not have been committed. The cooperation of this principal is by an act indispensable to the commission of the felony.

 To cooperate means to desire or wish in common a thing. The common purpose does not necessarily mean previous understanding, for it can be inferred from the circumstances of each case (Pp. vs. Aplegido, et al 76 Phil. 571). Ex. If an employee of a bank in connivance with a depositor placed in his initials on the check in connivance of the depositor drawn against the bank knowing that there were no

 sufficient funds, the employee is a Principal By Indispensable Cooperation. The act of initialing the check is indispensable to the act of defraudation as without it the check would not be encashed (U.S. vs. Lim Buanco 14 Phil. 484). Pp. vs. Labis- 21 SCRA 875- by holding the deceased from behind in such a manner that the latter could not move and while thus being held by the co-accused, the other accused stabbed

 the deceased, the co-accused, performed an act without which the crime would not have been accomplished which makes him a Principal by Indispensable Cooperation. Pp. vs. Tigalo, et al Nov. 7, l979- where one of the accused removed the panties of the offended party and held her feet while the sexual act was performed by the other accused, the first accused is a Principal By Indispensable Cooperation considering the extent of his cooperation.

 The participation of the cooperator must be indispensable to the commission of the crime. If his participation is not indispensable, that is, with or without his participation, the offense will be committed, the liability may only be that of an accomplice. In the case of Pp. vs. Sotto- March l996- the pumpboat owner who helped the offenders by pretending that his pumpboat needed towing by the

 passing boat of the victims was held to be merely an accomplice. Here, the offenders transferred to the boat of the victims and later robbed and killed them. The court ruled that the offenders could have asked for the help of other pumpboat owners. A Principal By Indispensable Cooperation may be a conspirator under the doctrine of implied conspiracy (Subayco vs. Sandiganbayan).

ARTICLE 18- ACCOMPLICES

Accomplices- are those persons who, not being included in Article 17, cooperate in the execution of the offense by previous or simultaneous acts. Under this provision, a person is considered as an accomplice if his role in the perpetration of the crime is of a minor character (Pp. vs. Fronda- May l993- 41 SCAD). Two elements are required: 1) He takes part in the execution of the crime by previous or simultaneous acts; and 2) He intends to take part in the commission of the crime.

In the case of accomplices, there is no conspiracy. An accomplice has knowledge of the criminal design of the principal and all that he does is to concur with the latter in his purpose, by cooperating in the execution of the crime by previous or simultaneous act, for the

 for the purpose of supplying material or moral aid to the principal in an efficacious way (Pp. vs. Fronda-supra). Mere presence does not by itself constitute a simultaneous act of cooperation sufficient to make one an accomplice. In some exceptional situations, having community of design with the principal does not prevent a malefactor from being regarded as an accomplice if his role in the perpetration of the homicide or murder was, relatively speaking,

 of a minor character. Since the participation is not absolutely indispensable to the consummation of the murder, the rule that the court should favor the milder form of liability may be applied (Pp. vs. Nierra, et al 96 SCRA 1; Pp. vs. San Miguel, et al July 31, l981; Pp. vs. Medrano 114 SCRA 335). A relation must exist therefore, between the act of the principal and that committed by the accomplice. (Pp. vs. Tamayo). It is essential

 that the accomplice must have known of the criminal design of the principal and he thereby cooperates knowingly or intentionally by an act which even though not rendered, the crime would be committed just the same. Examples: 1) Pp. vs. Lingad 51 O.G. 6191- the driver of the taxicab knowing that his co-accused were going to commit robbery permitted them to use the taxicab in going to the place where the robbery was committed is an accomplice;

 2) Pp. vs. Suarez- 267 SCRA; Pp. vs. De Vera- August l999-119 SCAD- a lookout who was not part of the conspiracy but participated only after such decision was reached incurs criminal liability as an accomplice since he is merely an instrument of the crime who cooperates after the decision to commit the same had already been made;

 3). Pp. vs. Chua Huy- 87 Phil. 258- one is an accomplice in the crime of Kidnapping if he guarded the detained person to prevent him from escaping; 4) Pp. vs. Moral 132 SCRA 474- after some of the accused had already delivered fatal blows upon the victim, subsequent infliction of a wound by the other accused would make him only an accomplice, as he did not inflict the fatal wound;

 5) Pp. vs. Vicente, et al May 21, l969where the acts of one of the accused in inflicting wounds upon the victim several times with a small knife and after the latter had fallen down seriously if not already dead, is not necessary and indispensable in the consummation of the criminal assault but merely a show off or an expression of sympathy or feeling of camaraderie with the other co-accused;

 6) Pp. vs. Doble- 114 SCRA 131- where the participation of the two accused were limited only to looking for a banca, despite knowledge that they would use this in the crime of Robbery, because the Robbery could still be committed even without this participation. Accomplices are also known as Accessories Before the Fact. Any doubt as to the participation of an individual in the commission of the crime, is always resolved in favor of a lesser

 responsibility (Pp. vs. Abiog- Oct. 31, l961). The complicity which is penalized requires a certain degree of cooperation, whether moral, through advice, encouragement, or agreement or material, through external acts. Both the principal and the accomplice act before or during the commission of the crime.

ARTICLE 19- ACCESSORIES

Accessories are those who, having knowledge of the commission of the crime, and without having participated therein, either as principals or accomplices, take part subsequent to its commission in any of the following manners: 1) By profiting themselves or assisting the offender to profit by the effects of the crime; 2) By concealing or destroying the body of the crime, or its effects or instruments thereof, in order to prevent its discovery;

 3) By harboring, concealing, or assisting in the escape of the principal of the crime, provided the accessory acts with abuse of his public functions or whenever the author of the crime is guilty of Treason, Parricide, Murder, or an attempt to take the life of the Chief Executive, or is known to be habitually guilty of some other crime.

All the acts specified in Article 19 :

are performed by the accessory after the commission of the crime. An accessory does not participate in the criminal design nor cooperate in the commission of the crime (Pp. vs. Verzola80 SCRA 600). Mere knowledge or acquiescence to, or approval of the act, without cooperation, is not enough to make one liable for conspiracy. There is no accessory if the crime committed is light.

A) Profiting from the effects of the crime:

Any person who received any property from another, and used it, knowing that the same property is stolen, is guilty as an accessory. Exs: 1). Taer vs. CA- 186 SCRA 598- Taers act of employing the two carabaos in his farm, knowing these to be stolen, is an act of profiting by the object of Theft; 2) U.S. vs. Galanco- 1 Phil 672- a person who received from another property which he knew to have been stolen, and sold it, and gave the proceeds to the thief, is an accessory after the fact.

 Take note however, of Presidential Decree No. 1612- Anti-Fencing Law- If one engages in the buy and sell, deals or possesses goods which he knows or should have known are proceeds of the crime of Robbery or Theft, he will be liable not as Accessory After the Fact, but for the offense of Violation of the Anti-Fencing Law.

B) Concealing or destroying the body of the crime:

The body of the crime refers to the corpus delicti and not necessarily to the corpse. It is the specific offense in fact committed by someone. It means the substance of the crime and in its primary sense refers to the fact that a crime has actually been committed ( Pp. vs. Marquez- 43 O.G. 5). This is a compound fact made up of two things: 1) the existence of a certain act or result forming the basis of the criminal charge; and

 2) the existence of a criminal agency as the cause of this act or result. Otherwise stated, its elements are: a) proof of the occurrence of a certain event; and b) some persons criminal responsibility (Pp. vs. Boco- June l999, l07 SCAD). Exs. of a body of the crime- In the prosecution for drug sale- an illegal sale of the regulated drug; in Murder- its the killing of the victim.

Examples:
1) Pp. vs. Saladino- May 30, l961- placing a weapon in the hands of the deceased after he was killed to make it appear that he was armed and it was necessary to kill him for having offered resistance to the authorities; 2) U.S. vs. Leal- 1 Phil. 118- assisting in the burial of the body of the victim of a homicide to prevent its discovery; 3) Pp. vs. Galleto 78 Phil. 820- mere act of a person of carrying the cadaver of one unlawfully killed to be buried, to prevent its discovery.

C) Assisting the principal to escape:

There are two classes of accessories contemplated under this par. a) Public officers who harbor, conceal or assist in the escape of the principal of any crime (not light felony) with abuse of public functions; Requisites: 1) the accessory is a public officer; 2) he harbors, conceals or assists in the escape of the principal; 3) the public officer acts with abuse of his public functions; and 4) the crime committed by the principal is not a light felony.

 Examples: 1) U.S. vs. Yacat- 1 Phil.433- a Mayor who refused to prosecute the offender, making it possible for him to escape; and 2) Pp. vs. Antonio- July 2000, l64 SCAD- a police officer who was present when the crime was committed abused his official function when he failed to effect the immediate arrest of the offender and conduct a speedy investigation of the crime committed, thus assisting the offender to escape.

 B) Private persons who harbor, conceal or assist in the escape of the author of the crime- guilty of Treason, Parricide, Murder or an attempt on the life of the President, or one who is habitually guilty of some other crimes. Requisites: 1) the accessory is a private person; 2) he harbors, conceals or assists in the escape of the author of the crime; 3) the crime committed by the principal is either, a) Treason; b) Parricide; c) Murder; d) an attempt against the life of the Pres.; or e) that the principal is known to be habitually guilty of some other crimes.

Examples:
1) Pp. vs. Talingdan- 84 SCRA 19- the accused, who was present when her husband was shot, did not only enjoin her daughter not to reveal to anyone what the latter knew, but also threatened that she would kill her if she would tell it to somebody, and when the police officers conducted the investigation, the wife claimed that she had no suspects in mind; 2) U.S. vs. Calapag-21 Phil. 262- a person who, when asked by the police officers gave false information

 regarding the whereabouts of a person who was guilty of murder in order for the latter to escape; 3) Pp. vs. Realon- 95 SCRA 107- when one of the accused witnesses the principal fired at the victim and then he ran with him when the latter fled from the scene of the crime and while in flight, the principal passed the fatal gun to him, who in turn dumped the gun inside a garbage can, it was held that he assisted the principal to escape and conceal the instrument used in the commission of the crime, he is an accessory.

 Effects of Acts of Accessoryship: The responsibility of an accessory is subordinate to that of the principal in a crime because the accessorys participation is subsequent to its commission and it is essential that it should be established that a crime is committed by the principal (Pp. vs. Ong To ke- April 21, l956) and his guilt is directly related to that of the principal. So, if the principal is acquitted because the facts alleged to have been committed are not proved or do not constitute a crime, the accessory is not liable (U.S. vs. Mendoza- 23 Phil. 194). But if the principal is acquitted because of exempting circumstance, the accessory is still liable.

 Rule: 1) Pp. vs. Billon 48 O.G. 1391- as long as the crime has been committed, even if the principal has not been arrested and convicted, the accessory may be held liable. This is so, as Art. 19 does not require the conviction of the principal. (Spanish text shall prevail over the English text). 2) Pp. vs. Barlam April 15, l953- this principle does not apply to par. 3, where the principal was not tried nor was final judgment rendered against him because par. 3 requires that the crime be proven as well as the identity of the author thereof. 3) Pp. vs. Inovera- 65 O.G. 3168/ Pp. vs. Nueva- Feb. 16, l976- the CA overruled the Barlam ruling and reverted back to Billon doctrinestating that: whether the principal is brought to court or is at large, the prosecution has to prove the commission of the crime charged, with the same quantum of evidence, and the participation in it of all the persons named in the information. The accessory is accorded the opportunity to refute the evidence of the prosecution establishing

 the crime and the participation of the alleged principal. If a separate case is filed against the principal and another against the accessory, the arraignment, trial and conviction of the accessory, without the principal having been first tried and convicted is not proper and violation of the legal system of procedural orderliness ( Pp. vs. Gaw Lin- 63 O.G. 3820). Such will not happen now in view of the provision of consolidation of cases involving similar issues or parties, under the Rev. Rules on Crim. Proc.

 Distinguish accomplice from principal in general an accomplice is one who does not take a direct part in the commission of the act, who does not force or induce others to commit it, or who does not cooperate in the commission of the crime by another act without which it would not have been accomplished, yet cooperates in the execution of the act by previous or simultaneous actions (Pp. vs. Silvestre- 56 Phil. 353).

 Distinguish accomplice from principal by cooperation the participation of the offender in a case of complicity, although necessary, is not indispensable as in the case of a co-principal by cooperation. Distinguish an accomplice from a principal by direct participation: 1) in both, there is community of design; 2) as to the acts performed, there is no clear cut distinction between the acts of the accomplice and those of the principal by direct participation, that is why in case of doubt, it shall be resolved in favor of lesser responsibility, that of a mere accomplice;

 3) between or among the principals, there must be conspiracy, but between principals and the accomplices, there is no conspiracy. Distinction between accomplice and accessory: Accomplice - Accessory 1)When-participates before - takes part or during the commis- subsequent sion of the offense to the commission offense

 2) Knowledge knows the - knows of the criminal design of commission the principal of the offense 3) Acts-provides material - acts in 3 or moral aid in an ways in Art. efficacious way 19 but not in a man ner indispensable to the offense.

 4) Liability No exemption from liability.

Some accessories are exempted under Art. 20 of the Code.

ARTICLE 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 spouse, ascendants, descendants, legitimate, natural and adopted brothers and sisters, or relatives by affinity within the same degree, with the single exception of accessories falling within the provisions of par. 1 of the next preceding article. (SADBROSA).

 SADBROSA- are exempted as accessories as provided under Art. 19, except if they profit from the crime or assist the offender to profit by the effects of the crime. When the relatives assist the principal by concealing or destroying the body of the crime or by assisting the escape of the principal, the law recognizes that they are doing so because they are motivated by their natural affection for the offender. They acted due to blood or immediate relationship and not for material gain or profit. However, when they profit or assist the offender in profiting by the effects of the crime, the law believes that they are doing so because of greed and not because of filial affection.

The exemption provided for under this article is based on the ties of blood and the preservation of the cleanliness of ones name, which compels one to conceal crimes committed by relatives so near as those mentioned in this article. ( Nephew or niece not included among such relatives).

 If a peace officer who is related to the principal helped him to escape, he will be liable for dereliction of duty under Art. 208 (RPC), for failing to prosecute. ARTICLE 21- Penalties- No felony shall be punishable by any penalty not prescribed by law prior to its commission. Penalty is the suffering that is inflicted by the State for the transgression of a law. Penalties are the punishment imposed by lawful authority upon a person who commits a deliberate or negligent act (Pp. vs. Moran- 44 Phil. 431). In its general sense, penalty signifies pain; in its juridical sphere, penalty means suffering undergone,

 because of the action of society, by one who commits a crime. Hence, penalty is imposed only after a conviction in a criminal action. Nature of system of penalties: 1) Rigid- its rigidity lies in the classification of penalties; 2) Elastic- its elasticity lies in the range of each class, period or degree. This is further enlarged by the Law of Indeterminate Sentence.

 Juridical conditions of penalty: 1) Must be productive of suffering but the limit is the integrity of human personality; 2) Must be proportionate to the crime in the sense that different penalties are prescribed for different felonies; 3) Must be personal as it must be imposed only upon the criminal and no other; 4) Must be legal as it must be the consequence of a judgment according to law; 5) Must be certain so that one cannot escape from it; 6) Must be equal in the sense that it applies to all persons regardless of circumstances; 7) Must be correctional.

 Purpose of the State in punishing crimes- for justice, because the State has an existence of its own to maintain, a conscience to assert and moral principles to be vindicated. Penal justice rests primarily on the moral rightfulness of the punishment imposed. Theories justifying penalty: 1) Absolute theory an act of retributive justice, a vindication of absolute right and moral law violated by the criminal. 2) Relative theory a) Prevention to prevent or suppress the danger to the state arising from crimes;

b) Self-defense- to protect society from wrong or threat inflicted by the offender; c) Reformation- to correct and reform the offender; d) Exemplary to deter others from committing crimes; e) Justice that crime must be punished by the State as an act of retributive justice, a vindication of absolute right and moral law violated by the criminal.

 The penalty under this Code has three-fold purpose: 1) Retribution or expiation penalty is commensurate with the gravity of the offense; 2) Correction or reformation- as shown by the rules which regulates the execution of the penalties consisting in deprivation of liberty; 3) Social defense- shown by its inflexible severity to recidivists and habitual delinquents. Social defense and exemplarity justify the penalty of death. When a person has proved himself to be a dangerous enemy of society, the latter protect itself from such enemy by taking his life in retribution for his offense and as an example and warning to others (Pp. vs. Carillo- 85 Phil. 611).

 Who has the power to impose penalties? Penalties are prescribed by statutes and are essentially and exclusively legislative. Judges can only interpret and apply them and have no authority to modify them or revise their range as determined exclusively by the legislature ( Pp. vs. Dela Cruz- Dec. 1992). What penalties may be imposed upon an offender? only those which have been prescribed by law prior to its commission. Unless there is a law penalizing an act or omission, that act or omission cannot be penalized, no matter

 how reprehensible it may be. Nullum crimen, nulla poena sine lege. ARTICLE 22- RETROACTIVE EFFECT OF PENAL LAWS- Penal laws shall have a retroactive effect as long as it is favorable to the accused, who is not a habitual criminal.

ARTICLE 24- Measures of prevention or safety w/c are not considered penalties
1) The arrest and temporary detention of accused persons, as well as their detention by reason of insanity or imbecility, or illness requiring their confinement in a hospital. 2) The commitment of a minor to any of the institutions mentioned in Art. 80 and for the purpose specified therein (repealed). 3) Suspension from the employment or public office during the trial or in order to institute the proceedings.

 4) Fines and other corrective measures which, in the exercise of their administrative or disciplinary powers, superior officials may impose upon their subordinates. 5) Deprivation of rights and the reparations which the civil law may establish in penal form. Preventive suspension- (Santiago vs. Sandiganbayan- April 2001- is not a penalty, as it is not imposed as a result of a judicial procs. It is only intended to remove her from office temporarily while the case is on-going.

 Deprivation of rights- deprivation of parental authority on statutory grounds. Preventive measures take place before conviction, while corrective measures are imposed not in criminal cases. So, a fine imposed by the superior over his subordinate in the exercise of administrative authority is a corrective measure. But a fine imposed upon an offender by the court after conviction is a penalty.

3 Scales of pen. in the Code and their significance:

1) Article 25 - classifies the penalties into principal and accessories. 2) Article 70 - provides for the scale when there are two or more sentences to be served, including the three-fold rule. 3) Article 71- graduates the penalties into the order of its severity for purposes of applying the rules under Article 61 in rel. to Arts. 50-57 (pen. imposable on principal, accomplices, accessories for consummated, frustrated and attempted felonies.

Classification of penalties under the RPC (Art. 25)

A) Principal-that provided by law for a felony and that which is imposed by the court upon conviction (ex. Prision Mayor for Falsification under Art. 171). B) Accessory- that deemed included in the imposition of the principal penalty ( in the conviction of Falsification, the accompanying accessory penalty is perpetual disqualification to hold public office).

Classification of principal penalties

1) According to their divisibility: a) Indivisible- those which have no fixed duration & no periods- ex. Death, RP & Public Censure; b) Divisible with fixed duration and have three periods- min., med. and max. (ex. Prision Mayor ).

 2) According to their gravity: a) Capital- Death b) Afflictive- Reclusion Temporal c) Correctional Arresto Mayor d) Light- Public Censure 3) According to subject matter: a) Deprivation of freedom- RP b) Restriction of freedom Destierro c) Deprivation of rights suspension d) Pecuniary fine

Classification of Penalties (based on gravity)-Art. 25

1) Capital Death 2) Afflictive Reclusion Perpetua Reclusion Temporal Perpetual or Temporary Absolute Disqualification Perpetual or Temporary Special Disqualification Prision Mayor

 3) Correctional- Prision Correccional Arresto Mayor Suspension Destierro 4) Light Arresto Menor Public Censure Penalties common to the preceeding classes: Fine and Bond To keep Peace

Accessory Penalties
1) Perpetual or Temporary Absolute Disqualification 2) Perpetual or Temporary Special Disqualification 3) Suspension from public office, right to vote and be voted upon, profession of calling 4) Civil Interdiction 5) Indemnification 6) Forfeiture or confiscation of instrument & proceeds of the offense 7) Payment of costs

 What penalties may either be Principal or Accessories? 1) Perpetual or Temporary Absolute Disqualification 2) Perpetual or Temporary Special Disqualification 3) Suspension ( if this is the penalty provided in the RPC for the offense, then it is a principal penalty; if not, it is only an accessory penalty).

Article 78- When and how a penalty to be executedNo penalty shall be executed except by virtue of a final judgment. A penalty shall not be executed in any other form than that prescribed by law, nor with any other circumstances or incidents than those expressly authorized thereby. In addition to the provisions of the law, special regulations prescribed for the government of the institutions in which the

 penalties are to be suffered shall be observed with regard to the character of the work to be performed, the time of its performance, and other incidents connected therewith, the relations of the convicts among themselves and other persons, the relief which they may receive, and their diet. The regulations shall make provision for the separation of sexes in different institutions, or at least into different depts. and also for the correction and reform of the convicts.

 In the imposition of the penalty, the courts are duty bound to use the legal terminology, because the different kinds of penalties (reclusion perpetua, reclusion temporal, prision mayor, etc. ) have different corresponding legal accessories and effects ( Pp. vs. Mobe- 81 Phil. 58).

1) Death Penalty
Article 47- The death penalty shall be imposed in all cases in which it must be imposed under existing laws, except when the guilty person is below 18 years of age at the time of the commission of the crime or is more than 70 years of age or when upon appeal or automatic review of the case by the Supreme Court, the required majority vote is not obtained for the

 imposition of the death penalty, in which cases the penalty shall be Reclusion Perpetua. In all cases where the death penalty is imposed by the trial court, the records shall be forwarded to the Supreme Court for automatic review and judgment by the court en banc, within 20 days but not earlier than 15 days after promulgation of the judgment or notice of denial of any motion for new trial or reconsideration. The transcript shall also be forwarded within

 10 days after the filing thereof by the stenographic reporter. What is a capital offense- it is an offense, which under the law existing at the time of its commission and at the time of the application to be admitted to bail, may be punished by death, although a lower penalty than death may be imposed after conviction (Pp. vs. Marcos- G.R. No. L-47388).

 Old law- death penalty is through electrocution. But Section 19 (1) of Article III of the l987 Constitution clearly provides that the death penalty shall not be imposed unless for compelling reasons involving heinous crimes, the Congress hereafter provides for it and, if already imposed, shall be reduced to Reclusion Perpetua.

 Death penalty, however, was reimposed under Republic Act No. 7659, which took effect on Dec. 31, l993 (15 days after its publication on Dec. 16, l993- Pp. vs. Godoy Dec. 1995). Article 81( as am by RA 8177)- When and how the death penalty is to be executed- The death sentence shall be executed with preference to any other penalty and shall consist in putting the person under sentence to death by lethal injection. The death sentence shall be executed

 under the authority of the Director of the Bureau of Corrections, endeavoring so far as possible to mitigate the sufferings of the person under the sentence during the lethal injection as well as during the proceedings prior to the execution. The Director of the Bureau of Corrections shall take steps to ensure that the lethal injection to be administered is sufficient to cause the instantaneous death of the convict.

Pursuant to this, all personnel involved in the administration of lethal injection shall be trained prior to the performance of such task. The authorized physician of the Bureau of Corrections, after thorough examination, shall officially make a pronouncement of the convicts death and shall certify thereto in the records of the Bureau of Corrections. The death sentence shall be carried out not

 earlier than one (1) year nor later than eighteen (18) months after the judgment has become final and executory without prejudice to the exercise by the President of his executive clemency powers at all times. What is the constitutional policy on penalty as a whole? It is that no excessive

 fines or cruel or inhuman punishment is meted. The counterpart of Sec. 19 (1) in the l935 Constitution reads: Excessive fines shall not be imposed, nor cruel and inhuman punishment inflicted. In the l973 Constitution, the phrase became cruel or unusual punishment. The Bill of Rights Committee of the l986 Constitutional Commission read the l973 modification as prohibiting unusual punishment even if not cruel. It was thus seen as an obstacle to

 experimentation in penology. Consequently, the Committee reported out the present text which prohibits cruel, degrading or inhuman punishment as more consonant with the meaning desired and with jurisprudence on the subject (Echegaray vs. Secretary of Justice October l998- 100 SCAD).

Is Death penalty violative of this policy?

No. Now it is a well-settled in jurisprudence that the death penalty per se is not cruel, degrading or inhuman punishment. In the oft-cited case of Harden vs. Director of Prisons, this court held that punishment are cruel when they involve torture or a lingering death; but the punishment of death is not cruel, within the meaning of that word as used in the

 Constitution. It implies something inhuman and barbarous, something more than the mere extinguishment of life ( supra). Any infliction of pain in lethal injection is merely incidental in carrying out the execution of the death penalty. The court which designates the date of execution is the trial court which convicted the accused, that is, after the SC has reviewed the entire records of the case and has affirmed the judgment of the lower court. The procedure is that the judgment is entered fifteen (15) days

 after its promulgation, and ten (10) days thereafter, the records are remanded to the court below including a certified true copy of the judgment for execution. As to the date of execution, Section 15 of the implementing rules, in conjunction with Sec. 1 of RA 8177, provides that death sentence shall be carried out not earlier than one (1) year nor later than eighteen (18) months after the judgment has become final and executory,

 without prejudice to the exercise by the President of his clemency powers at all times. Hence, the death convict is in effect assured of 18 months from the time the judgment imposing the death penalty has became final and executory wherein he can seek executive clemency and attend to all his temporal or spiritual affairs.

 In accordance with Sec. 25 of RA 7659, amending Art. 83 of the RPC, upon finality of the Decision, the records of the case shall be forwarded to the Office of the President for possible exercise of the pardoning powers (Pp. vs. Victor- July 1998, 95 SCAD).

Article 82-Notification & execution of the sentence The court shall designate a working day for the execution, but not the hour thereof, and such designation shall not be communicated to the offender before sunrise of said day, and the execution shall not take place until after the expiration of at least 8 hours following the notification, but before sunset. During the interval between the notification and the

 execution, the culprit shall, insofar as possible, be furnished such assistance as he may request in order to be attended in his last moments by priests or ministers of the religion he professes and to consult lawyers, as well as in order to make a will and confer with members of his family or person in charge of the management of his business, of the administration of his property, or of the care of his descendants.

 The execution shall take place in the penitentiary or Bilibid in a place closed to the public view and shall be witnessed only by the priests assisting the offender and by his lawyers and by his relatives, not exceeding six, if he so requests, by the physician and the necessary personnel of the penal establishment, and by such persons as the Director of Prisons may authorize.

Article 84- Place of Execution & persons who may witness the same.

Article 85-Burial
Unless claimed by his family, the corpse of the culprit shall, upon completion of the legal proceedings subsequent to the execution, be turned over to the institute of learning or scientific research first applying for it, for the purpose of study and investigation, provided that such institute shall take charge of the decent burial of the remains. Otherwise, the Director of

 Prisons shall order the burial of the body of the culprit at government expense, granting permission to be present thereat to the members of the family of the culprit and the friends of the latter. In no case shall the burial of the body of a person sentenced to death be held with pomp (viol. of this prov. constitutes Public Disturbance under Art. 153, RPC).

Arts. 47 & 83- Cases in w/c death pen. be not imposed:

1) If the guilty person is over 70 years. If over 70, he shall be sentenced to RP or life imprisonment (Pp. vs. Del Mundo -114 SCRA 719); 2) If the death penalty is imposed by the lower court is not affirmed by ten but not less than eight justices of the Supreme Court, in which case, the death penalty is lowered to RP or life imprisonment; and

 3) If the offender is a minor under 18 years of age at the time of the commission of the felony (Art. 68, as amended by RA 9344). Even without this provision, minors cannot be imposed the death penalty as this is a privileged mitigating circumstance. 4) When the death penalty is by operation of law such as in the case of Qualified Theft where the penalty is two degrees higher, because death

 penalty is imposed only in heinous crimes and for those where it is expressly prescribed and Qualified Theft is not a heinous crime. Suspension of the execution of death penalty: 1) Upon a pregnant woman or within one year after delivery. But not her pecuniary liability ( Art. 83); 2) When the convict shall become insane or imbecile after final judgment ( Art. 79).

 Article 40- Death penalty if implemented, no accessory penalty. But if not executed by reason of commutation pr pardon, it shall carry the accessory penalty of Perpetual Absolute Disqualification and that of Civil Interdiction during the 30 years following the date of sentence, unless such accessory penalties are expressly remitted in the pardon.

 Article 30- Effects of Perpetual or Temporary Absolute Disqualification: 1) Deprivation of the public offices and employments which the offender may have held, even if conferred by popular election. 2) Deprivation of the right to vote in any election for any popular elective office or to be elected to such office. 3) Disqualification for the offices or public employments and for the exercise of any of the rights mentioned.

 ( In case of temporary disqualification, such as nos. 2 & 3, these will only last during the term of the sentence). 4) Loss of right to retirement pay or other pension for any office formerly held. Article 34- Civil Interdiction deprives the offender during the time of his sentence the rights of parental authority, or guardianship, either as to the person or property of any ward,

 or marital authority, of the right to manage his property and of the right to dispose of such property by any act or any conveyance inter vivos. Under Art. 38 of the New Civil Code, civil interdiction is one of the restrictions on capacity to act but does not exempt the offender from certain obligations, as when the latter arise from his act or from property relations.

A person civilly interdicted cannot appoint an agent to manage his property, as the act of the agent is also the act of the principal. By acting, through an agent, the civilly interdicted person is doing indirectly what the law prohibits to be done directly. But he can prepare his last will and testament, for what the law prohibits is the disposition of his property inter vivos. The will does not dispose of his property at the time of its making, but at the time of his death, subject to compliance of legal requirements under the laws on succession and Rules of Court.

 On June 24, 2006, however, Congress passed Republic Act No. 9346 prohibiting the imposition of Death Penalty in the Philippines. So, as of this time, the highest penalty that the court can impose upon a convicted person, is only Reclusion Perpetua, even if the law penalizing the act imposed the death penalty.

2) Article 27-a) Reclusion Perpetua - 20 years and 1 day to 40 years - Before RP has no fixed duration, but when RA 7659 was passed (Sec. 17), said penalty was given the above-stated fixed duration. While this is so, there was no clear legislative intent to alter its original classification as an indivisible penalty, because if such was the intention, then Art. 63 of the RPC would have lost its reason and the basis of its existence. If Congress had intended to do so, then it should have amended Art. 63 and Art. 76 and other provisions of the RPC

 involving RP, such as Art. 41 on the accessory penalties thereof and pars. 2 and 3 of Art. 61, which have not been touched by a corresponding amendment (Pp. vs. Lucas Jan. l995- 58 SCAD). ( Art. 63- Rules for the application of indivisible penalties- ex. pen. is single indivisible penalty RP- despite presence of mit. or agg. cirs., said penalty has to be imposed) ( Art. 61- Rules of graduating penalties- ex. If the imposable pen.is single and indivisible, the next pen. lower by one degree is RT.)

What was the reason for giving RP a fixed duration?

It was said in Pp. vs. Reyes (Aug.l992) decided prior to RA 7659, that penalties in the RPC as set out in ARTS. 25, 70 and 71, RP is the penalty next higher to RT. It follows by necessary implication that the minimum of RP is 20 years and 1 day and with a maximum duration thereafter to last for the rest of the convicts natural life although pursuant to Art. 70, it appears that the maximum period for the service of penalties shall not exceed 40 years. It would be legally absurd and violative of the

 scales of penalties in the RPC to reckon the minimum of RP at 30 years since there would be a resultant lacuna whenever the penalty exceeds the maximum of 20 years of RT but is less than 30 yeas. Sec. 21 of RA 7659 merely restated the existing jurisprudence. Any penalty exceeding 20 years is within the RP range. Any person sentenced to 22 years of RP is not entitled to bail pending appeal- (Sec. 3, Rule 114, Rev. Rules of Court).

 Reclusion Perpetua under Article 70 entails imprisonment of at least 30 years. This, however, does not mean that he will be set free after serving for 30 years. This only mean that after serving the said number of years, he becomes eligible for pardon (Pp. vs. Dela Penal- July , l997-85 SCAD) or for the application of the threefold rule (pp. vs. Tena- Oct. l992).

What is the purpose of the law in prescribing RP?

The intendment of the law is that a person condemned to undergo the penalty of RP shall remain in prison perpetually, or for the rest of his natural life. However, he becomes eligible for pardon by the Chief Executive after he shall have been imprisoned for at least 30 years, unless he is deemed unworthy of such pardon. There is no automatic review of the penalty of RP. If the accused did not file an appeal, then the decision becomes final and unappealable (Garcia vs. Pp., Nov. l99- ll5 SCAD).

 Article 41- Accessory penalties for Reclusion Perpetua- Civil Interdiction for life or during the period of the sentence as the case may be, and that of Perpetual Absolute Disqualification which the offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon.

b) Reclusion Temporal - 12 years and one (1) day to 20 years (Divisible penalty): Maximum 17 years, 4 mos. & 1 day to 20 years; Medium 14 years, 8 mos. & 1 day to 17 years and 4 mos. Minimum 12 years & 1 day to 14 years and 8 mos.

 Accessory penalty for RT- same as RP Article 41.- Civil Interdiction for life or during the period of the sentence, and that of Perpetual Absolute Disqualification which the offender shall suffer even tho pardoned as to the principal penalty, unless the same shall have been expressly remitted.

c) Prision Mayor & Temporary Disqualification

- 6 years and 1 day to 12 years-(divisible) Max.period 10 years & 1 day to 12 years Medium per.- 8 years & 1 day to 10 years Minimum per. 6 years & 1 day to 8 years (Temporary disqualification absolute or special) As to the penalty of disqualification this is the range if imposed as principal penalty, but if imposed as an accessory penalty its duration shall be that of the principal penalty.

 Accesory penalty of Prision Mayor Article 42 Temporary Special Disqualification and that of Perpetual Special Disqualification from the right of suffrage, altho pardoned, unless the same shall have been remitted. Bernabe vs. Memoracion- August l997-85 SCAD the judge was wrong when he described 12 yrs., 5 mos. & 11 days as medium period of Prision Mayor, because the med. per. is 8 yrs. & 1 day to 10 yrs.

d) Prision Correccional, Suspension & Destierro

- 6 months and 1 day to 6 years (divisible) Max. period 4 years, 2 mos. & 1 day to 6 years; Med. period- 2 years, 4 mos. & 1 day to 4 years, 2 mos.; Min. period 6 mos. & 1 day to 2 years, 4 mos. As to Suspension, this is the range if imposed as a principal penalty, but if imposed as an accessory penalty, then its duration shall be that of the principal.

 Article 87- Destierro Any person sentenced to Destierro shall not be permitted to enter the place or places designated in the sentence, nor within the radius therein specified, which shall not be more than 250 and not less than 25 kilometers from the place designated. Pp. vs. Jesus 80 Phil.- if the convict enters the prohibited are, he commits Evasion of Service of Sentence.

 Article 43- Accessory pen. of Prision Correccional Suspension from Public Office, Right to Follow a Profession or Calling, & Perpetual Special Disqualification from the Right of Suffrage, if the duration of said imprisonment shall exceed 18 mos. The offender shall suffer the disqualification altho pardoned as to the principal penalty, unless the same shall have been remitted in the pardon.

e) Arresto Mayor
- 1 month and 1 day to 6 months (div)Max. per. 4 mos. & 1 day to 6 mos. Med. per. 2 mos. & 1 day to 4 mos. Min. per. - 1 mo. & 1 day to 2 months Accessory penalties- Article 44Suspension of the Right to Hold Office and Suffrage during the term of the sentence.

f) Arresto Menor - 1 day to 30 days (divisible) Max. per. 21 to 30 days Med. per. 11 to 20 days Min. per. - 1 to 10 days Accessory penalties are the same with Arresto Mayor (Article 44).

g) Bond to keep the Peace

- shall be required to cover such period of time as the court may determine (as amended by RA 7659). Article 35- Effects of the bond to keep the peace : It shall be the duty of any person sentenced to give bond to keep the peace, to present two sufficient sureties who shall undertake that such person will not commit the offense sought to be prevented, & that in case such offense be committed, they will pay the amount determined

 by the court in its judgment, or otherwise deposit such amount in the office of the clerk of the court to guarantee said undertaking. The court shall determine, according to its discretion, the period of duration of the bond. Should the person sentenced fail to give the bond as required, he shall be detained for a period which shall in no case exceed six months, if he shall have been prosecuted for grave or less grave felony, and shall not exceed thirty days, if for a light felony.

 Article 284-Bond for good behavior A person convicted of Grave Threats under Art. 282 or Light Threats under Art. 283 may, in addition to the penalty prescribed by law, also be required to give bond not to molest the person threatened and the bond shall be required to cover such period of time as the court may determine, and if he fails to do so, he shall be sentenced to Destierro. Since Art. 284 is a specific article applicable to Grave or Light Threats only, such will govern in case the bond is not given by the offender and not Article 35 for the latter is an article of general application.

h) Public Censure - May Censure be included in the sentence of acquittal?No. Because censure is a penalty. If the accused is acquitted, the court has no authority to censure him, because no matter how light a punishment it may be, is repugnant and is essentially contrary to acquittal. (Pp. vs. Abellera- 69 Phil. 623). But if the court finds that the acts charged and proved are immoral, unethical or reprehensible, but such do not constitute a crime, the court may exercise its disapproval of those acts to avoid the impression that by acquitting the accused the court approves the act or of his conduct (Pp. vs. Meneses- 74 Phil. 119).

i) Fine- (Art. 26)

1) Afflictive more than P6,000 2) Correctional- not less than P200 but not more than P6,000 3) Light less than P200 This applies if the fine is imposed as a single or alternative penalty (Pp. vs. Basalo 101 Phil. 57). It does not apply if imposed together with another penalty (Pp. vs. Quinto- 60 Phil. 351).

 Reconciliation between Art. 9 and Art. 26- Under Art. 9, alight felony is defined as an infraction of law in which the penalty is AMe. or a fine not exceeding P200. Under Art. 26, a light fine is less than P200. So, a fine which is exactly 200 is correctional. If the issue is prescription of felony- Art. 9 will prevail over Art. 26. Such offense will prescribe within two months. But if the issue is prescription of penalty, Art. 26 will prevail and as such, will be considered correctional and will prescribe in 10 years except AMa, which will prescribe in 5 years ( Arts. 90, 91 and 92).

j) Pecuniary Liabilities (Art.38)

Order of Payment- in case the property of the offender should not be sufficient for the payment of all his pecuniary liabilities, the same shall be met in the following order: 1) The reparation of the damage caused; 2) Indemnification of consequential damages; 3) Fine; 4) Costs of the proceedings.

 Reparation amount of the damage, taking into consideration the price of the thing, whenever possible, and its sentimental value to the injured party (Art. 106). Indemnification of consequential damage shall include not only those caused the injured party, but also those suffered by his family or by a third person by reason of the crime (Art. 107). P50,000 death; unearned earnings.

k) Costs (Art. 37)

- shall include fees and indemnities in the course of the judicial proceedings, whether they be fixed or unalterable amounts previously determined by law or regulations in force, or amounts not subject to schedule. If the convict has no property to pay the fine, he shall be a subject to a subsidiary personal liability at the rate of 1 day for each P8.

Article 39 Subsidiary Penalty Subsidiary penalty- a penalty that takes the place of a fine for insolvent convicts. It is neither a principal or accessory penalty, but a substitute penalty for fine only, subject to the following rules: 1) If the principal penalty imposed is higher than PC no subsidiary imprisonment; 2) If the principal penalty imposed is PC or Arresto and Fine- shall remain under confinement until his fine is satisfied, but his

 subsidiary imprisonment shall not exceed 1/3 of the term of sentence and in no case continue for more than 1 year. Ex. Offender is sentenced to 6 years of PC and a P4,000 fine. Divide the number of days such fine of P4,000 at the rate of P8.00 per day= 500 days. 1/3 of 6 years = 2 years (730 days) 500 days is lesser than the 1/3 term-730 In no case will it exceed- 1 year 365 days. So, the subsidiary impris. 365 days

3) If the principal penalty is only Fine- the subsidiary imprisonment shall not exceed 6 mos., if the culprit shall have been prosecuted for grave or less grave felony, and shall exceed 15 days , if for a light felony. Ex. Penalty is P4,000- divide this by P8.00 = 500 days. Fine of P4,000 is Less Grave- so the subsidiary impris. shall be limited only to 6 mos. or 180 days.

 4) If the penalty is Fine and Destierro-(not to be executed by confinement in a penal institution, but has a fixed duration) computation is the same as in no. 1. 5) Service of subsidiary imprisonment will not relieve the offender of his pecuniary liabilities to pay the fine if his financial position improves after his release. Offender cannot be made to undergo the subsidiary imprisonment unless expressly provided in the judgment because this is not

 an accessory penalty. Subsidiary imprisonment- is not imprisonment for debt because the constitutional prohibition refers to debts incurred in the fulfillment of contracts. Distinctions bt. Degree & Period of penalty: Degree refers to the entire penalty imposable for a felony committed; period refers to the three equal portions- maximum, medium and minimum.

 Significance of the 1 day differentiates the gravity of a degree or period of penalty. Ex. 6 years is PC; but 6 yrs. and 1 day is already PM. Art. 65- Rules in arriving the 3 periods for the divisible penalty - Subtract the minimum from the max.; divide by three to get the 3 periods-

 A) Prision Mayor- 6 yrs.& 1 day to 12 years Max = 12 - 6= 6/3- 2 yrs. Min= 6 plus 2 = 8 (6 yrs. & 1 day to 8 yrs) Med= 8 plus 2= 10(8 yrs. & 1 day to 10 yrs) Max=10 plus 2=12(10 yrs. & 1 day to 12 yrs.)

 B) Prision Correccional- 6 mos. & 1 day to 6 years Convert 6 years to months= 72 mos. 72-6 = 66/3= 22 mos (22+6=28/12=2 yrs. & 4 mos) Min-6 mos. & 1 day to 2 yrs. & 4 mos. (28 +22= 50/12= 4 yrs. & 2 mos.)

 Med-( 2 yrs. 4 mos. & 1 day to 4 yrs. & 2 mos.) 50 + 22 = 72 mos/12= 6 yrs. Max-( 4 yrs. 2 mos. & 1 day to 6 yrs.)

 This accessory penalty is included in every penalty imposed for the commission of a crime. Confiscation is in favor of the government. Property of a third person not liable for the offense is not subject to confiscation. Property not subject of lawful commerce though it belongs to a third person shall be destroyed.

Article 45- Confiscation & Forfeiture of the Proceeds or Insts.of the Crime-

Articles 50 to 57 C F A Principal - 0 1 2 Accomplice- 1 2 3 Accessory - 2 3 4 Article 60- The provisions contained in the above articles shall not be applicable to cases in which the law expressly prescribes the penalty provided for a frustrated or attempted felony, or to be imposed upon accomplices or accessories.

 Exs. of cases wherein the law punish the Accomplice with a penalty corresponding to the Principals: 1) Article 346- Ascendants, guardians, curators, teachers and any person who by abuse of authority or confidential relationship shall cooperate as accomplices in Rape, Acts of Lasciviousness, Seduction, Corruption of Minors, White Slave Trade or Abduction;

 2) Article 268- One who furnished the place for the perpetration of the crime of Slight Illegal Detention. Cases in which the law punishes an accessory with a penalty corresponding to that of a principal or of one degree lower instead of two degrees: 1) Article 162- Knowingly using counterfeit seal or forged signature of the President;

 2) Article 168- Illegal Possession and Use of False Treasury or Bank Notes; 3) Article 172 (par. 3)- Using Falsified Document; 4) Article 173,( par. 2)- Using Falsified Dispatch.

Article 28- Computation of Penalties

Effectivity of penalties: 1) From the day the judgment becomes final temporary penalties like suspension, if the offender is in prison; 2) From the day the offender is placed at the disposal of the judicial authorities for the enforcement of the penalty- penalty consisting of deprivation of liberty if the offender is not in prison; 3) From the day the defendant commences to serve the sentence other penalties.

 4) Since a commitment order in case the offender is in prison does not take effect until after the judgment of conviction becomes final, or fifteen (15) days after its promulgation, when no appeal is filed- it is only then that the service of sentence is legally commenced; 5) If the accused is in prison at the time the judgment is promulgated, he is deemed to have submitted himself for the execution of the said judgment as of the date of promulgation.

Article 29- Preventive Imprisonment

- Offenders or accused who have undergone preventive imprisonment shall be credited in the service of their sentence consisting of deprivation of liberty, with the full time during which they have undergone preventive imprisonment, if the detention prisoner agrees voluntarily in writing to abide by the same disciplinary rules imposed upon convicted prisoners,

 except in the following cases: 1) when they are recidivists, or have been convicted previously twice or more of any crimes; and 2) when upon being summoned for the execution of their sentence they have failed to surrender voluntarily. If the detention prisoner does not agree to abide by the same disciplinary rules imposed upon convicted prisoners, he shall be credited in the service of his sentence with 4/5ths of the

 time during which he has undergone preventive imprisonment (Pp. vs. Abanes- 73 SCRA 44). Whenever an accused has undergone preventive imprisonment for a period equal or more than the possible maximum imprisonment of the offense charged to which he may be sentenced and his case is not yet terminated, he shall be released immediately without prejudice to the continuation of the trial thereof or the proceeding on appeal, if the same is under

 review. In case the maximum penalty to which the accused may be sentenced is destierro, he shall be released after thirty (30) days of preventive imprisonment( Pp. vs. Magonawal, et al- 63 SCRA 106 & Pp.vs. Bastasa- Feb. l979). (Destierro constitutes deprivation of liberty). - An accused sentenced to life imprisonment is entitled to deduction (U.S. vs. Ortencio 38 Phil.941).

 This also holds true if the penalty is Reclusion Perpetua- because the law does not make any distinction between temporal or perpetual penalties (Pp. vs. Corpuz- March l994-49 SCAD). More so, since Reclusion Perpetua now has a fixed period altho still indivisible (RA 7659- Pp. vs. Lucas & Pp, vs. Reyes August l992).

 - This does not apply if the sentence does not involve a term of imprisonment like fine, as the law says deprivation of liberty. - An accused undergoes preventive imprisonment if the offense of which he is charged is not bailable or if bailable he cannot post bail and he is not entitled to recognizance. The offense is not bailable if it is punished with Reclusion Perpetua to Death and the evidence of guilt is strong. The mere fact that the offense

 is punishable with Death or Reclusion Perpetua does not per se make the offense not bailable. There is the other requirement that the evidence of guilt is strong. What is the remedy when the person has already served the maximum penalty imposable? The appropriate remedy of the accused is to file a Petition for Habeas Corpus considering that the decision in this case is now final( In accordance with the resolution in

 Angeles vs. Bilibid- Jan. 4, l995 and Pp. vs. Agustin- Sept. 5, l995). Pp. vs.Labriaga- Nov. l995- 65 SCADThe accused-appellant Rita Labriaga having served more than the maximum imposable penalty of PC, should be released.

Article 70- Successive Service of Sentence

-When the culprit has two or more penalties, he shall serve them simultaneously if the nature of the penalties will so permit, otherwise the following rules shall be observed: In the imposition of the penalties, the order of their respective severity shall be followed so that they may be executed successively or as nearly as possible,

 should a pardon have been granted as to the penalty or penalties first imposed, or should they have been served out. For the purpose of applying the provisions of the next preceding par. the respective severity of the penalties shall be determined in accordance with the following scale: 1) Death 2) Reclusion Perpetua

3) Reclusion Temporal 4) Prision Mayor 5) Prision Correccional 6) Arresto Mayor 7) Arresto Menor 8) Destierrro 9) Perpetual Absolute Disqualification 10) Temporary Absolute Disqualification 11) Suspension from public office, the right to vote & be voted for, the right to follow profession or calling, & 12 Public Censure

 Notwithstanding the provisions of the rule next preceding, the maximum period of the convicts sentence shall not be more than three-fold the length of time corresponding to the most severe of the penalties upon him. No other penalty to which he may be liable shall be inflicted after the sum total of those imposed equals the same maximum period. Such maximum period shall in no case exceed forty years.

 In applying the provisions of this rule the duration of perpetual penalties (penal perpetua) shall be computed at thirty years. What is the rule when a convict is given multiple sentences? The general rule is that he shall serve them simultaneously if the nature of the penalties permit simultaneous service of sentence. Otherwise, the penalties shall be served successively in the order of severity as prescribed under this article.

 Ex. Destierro and Fine Prision Correccional and Perpetual Special Disqualification Suspension From Office and Fine (Rodriguez vs. Dir. of Prisons-47 SCRA 353). What are the limitations of the service of sentence? a) The maximum duration of the convicts sentence shall not be more than three-fold the length of time corresponding to the most severe

 of the penalties imposed upon him. No other penalty to which he may be liable shall be inflicted after the sum total of those imposed equals the same maximum period (3-fold rule). b) Such maximum period shall in no case exceed forty years. What is the three-fold rule? - It is the rule that the maximum duration of the sentence should not exceed 3 times the most severe penalty imposed upon the convict and the added limitation that the maximum period thus computed shall in no case exceed 40 years.

 How is the penalty computed? Steps: 1) Get the most severe penalty meted as listed under Art. 70; 2) Multiply the duration of the most severe penalty by 3; 3) Add the duration of all the different penalties; 4) Compare the results of steps 2 & 3; 5) Accused to serve the lesser period unless it is in excess of 40 years in which case the accused shall only serve for 40 years.

 Exs.1) Case of Paco Larranaga, et al Sentence is two Reclusion Perpetua Range- 20 years and 1 day to 40 years. (Altho. the highest period is 40, we do not start it with the same, because the last provision of Art. 70 provides: In applying the provisions of this rule, the duration of perpetual penalties (pena perpetua) shall be computed at 30 years). 30 x 3= 90 years Paco, et al will only serve 40 years bec. the law provides that shall in no case that the maximum period exceed 40 years.

 2) Conviction of four (4) PM Range- 6 yrs. & 1 day to 12 years 12 x 3 = 36 Add the four penalties (12+12 + 12 + 12)= 48 Compare the two results = 36 years is lower, so this will be the penalty that will be serve, as this does not exceed 40 years.

 3) Aspra vs. Director of Prisons- 85 Phil. 737This applies to equal penalties: Conviction Six (6) Estafas-sentenced to 3 months and 11 days in each case. 3 x 3= 9 mos. / 11 x 3= 33 days = 9 mos. & 33 days or 10 mos. & 3 days Add all - ( 3+3+3+3+3+3)= 18 mos. - (11+11+11+11+11+11)=66 days 18 mos. & 66 days or 20 mos. & 6 days Acc. will only serve the period of 10 mos. & 3 days.

 The three-fold rule applies although the penalties were imposed for different times and under separate informations (Torres vs. Superintendent -56 Phil. 847) The three-fold maximum penalty does not preclude subsidiary imprisonment. This means to say that after the prisoner has served the highest penalty under the three-fold rule, he still has to serve the payment of all indemnities (fine) with or without subsidiary imprisonment provided the principal penalty does not exceed 6 years. So, if the prisoner after serving the three-fold

 maximum penalty cannot pay the fine, he still has to serve the subsidiary imprisonment as long as the principal does not exceed 6 years (Bagtas vs. Dir. of Prisons- 47 O.G. l743). Should the court refrain from imposing the correct penalties if these would exceed the limitation of the three-fold rule? - NO. It is the duty of the court to impose the penalty for all crimes of which the accused was found guilty. This article deals with SERVICE OF SENTENCE and not imposition, hence this article is for the Director of Prisons to follow

 and not for the court. The rationale for imposing the correct penalty is that when the convict is pardoned, he will still serve the other sentences meted upon him. Distinction bt. Imposition of Penalty & Service of Sentence: The imposition of penalty is determined by the nature, gravity and number of offenses charged and proved, whereas, service of sentence is determined by severity and character of the penalties imposed, in the impossibility or practicability of the service of

 sentence, since actual service is a contingency, subject to various factors like escape of the convict, grant of executive clemency, or natural death of the prisoner ( Pp. vs. Peralta, et al 25 SCRA 759). Multiple Death Penalty- Reasons: The imposition of multiple death penalties, far from being a useless formality, has practical importance. The sentencing of an accused to several capital penalties is an indelible badge of his extreme criminal perversity, which may not

 be accurately projected by the imposition of only one death sentence irrespective of the number of capital felonies for which he is liable. Showing thus the reprehensible character of the convict in its real dimensions, the possibility of a grant of executive clemency is justifiably reduced in no small measure. Hence, the imposition of multiple death penalties could effectively serve as a deterrent to an improvident grant of pardon or commutation. Faced with the utter delinquency of such a convict, the proper penitentiary authorities would exercise judicious restraint in

 recommending clemency or leniency in his behalf. Granting, however, that the Chief Executive, in the exercise of his constitutional power to pardon (one of the presidential prerogatives which is almost absolute), deems it proper to commute the multiple death penalties to multiple life imprisonments, then the practical effect is that the convict has to serve the maximum 40 years of multiple life sentences. If only one death

 penalty is imposed, and then is commuted to life imprisonment, the convict will have to serve a maximum of only thirty years corresponding to a single life sentence (Pp. vs. Jaime Jose, et alFeb. 6, l971- 37 SCRA 450; Pp. vs. Peralta ibid). If the multiple penalties are death, how will the rule under Art. 70 be complied?- When the sentence is executed, all the death sentences are deemed simultaneously served (Pp. vs. Peralta- ibid).

Article 71-Graduated Scales

-In cases in which the law prescribes a penalty lower or higher by one or more degrees than another given penalty, the rules prescribed in Article 61 shall be observed in graduating such penalty. The lower or higher penalty shall be taken from the graduated scale in which is comprised the given penalty. The courts, in applying such lower or higher penalty, shall observe the following graduated scales:

SCALE NO. 1
1) Death 2) Reclusion Perpetua 3) Reclusion Temporal 4) Prision Mayor 5) Prision Correccional 6) Arresto Mayor 7) Destierro 8) Arresto Menor 9) Public Censure 10) Fine

SCALE NO. 2
1) Perpetual Absolute Disqualification 2) Temporary Absolute Disqualification 3) Suspension from public office, the right to vote and be voted for, and the right to follow a profession or calling 4) Public Censure 5) Fine

 - In Art. 70 the penalty next lower in severity to Arresto Mayor regarding the successive service of sentence is Arresto Menor; but in Art. 71, as to graduated scales, the penalty next lower in degree to Arresto Mayor is Destierro. Ex. Pp. vs. Cabanban- May 7, l960- Accused was convicted of Simple Seduction which carries a penalty of Arresto Mayor. As he was under l8 at the time of the commission of the crime, the penalty imposed was Destierro.

Article 61- Rules of Graduating Penalties

For the purpose of graduating the penalties which, according to the provisions of Articles 5057, inclusive of this Code, are to be imposed upon persons guilty as principals or any frustrated or attempted felony, or as accomplices or accessories, the following rules shall be observed: 1) When the penalty prescribed for the felony is SINGLE & INDIVISIBLE, the next penalty lower in degree shall be that immediately following such scale prescribed under Art. 71;

 Single and Indivisible penalties are Death and Reclusion Perpetua. - if the single penalty is Death one degree lower to this is Reclusion Perpetua - if the single penalty is Reclusion Perpetuaone degree lower to this is Reclusion Temporal. Ex. Art. 267- Kidnapping & Serious Illegal Detention- punishable w/ Death- If the accused is only an Accomplice penalty is Reclusion Perpetua.

 2) When the penalty prescribed for the crime is composed of TWO INDIVISIBLE penalties, or of ONE or MORE DIVISIBLE penalties to be imposed to their full extent, the penalty next lower in degree shall be that immediately following the lesser of the penalties prescribed in the respective graduated scale; a) Two indivisible penalties- Reclusion Perpetua to Death. Ex. Parricide (Article 248)- Reclusion Perpetua to Death. One degree lower to this- if the crime is frustratedReclusion Temporal.

 b) Divisible penalty imposed in its full extentPrision Mayor - Penalty next lower in degree of PM is Prision Correccional Ex. Intentional Abortion- Art.256 (par. 2)- PM- if the crime is only frustrated- penalty is only Prision Correccional. 3) When the penalty prescribed for the crime is composed of one or two indivisible penalties and the maximum period of another divisible penalty, the penalty next lower in degree shall be composed of the medium and minimum periods

 of the proper divisible penalty and the maximum period of that immediately following in said respective scale; - Penalty prescribed consists of ONE or MORE INDIVISIBLE and the MAXIMUM of a DIVISIBLE PENALTY-next lower in degree consists of medium and minimum period of proper divisible penalty and the maximum of the divisible penalty immediately following: Reclusion Temporal maximum to Death Ex. Pp. vs. Paredes, Jr. Nov. l996- convicted of Murder (prior to RA 7659)- carries a penalty of

Reclusion Temporal Maximum to DeathPeriod Penalty prescribed Maximum Death Medium Reclusion Perpetua Minimum Reclusion Temporal Max. One degree lower: Maximum Reclusion Temporal Med. Medium Reclusion Temporal Min. Minimum Prision Mayor Max. One degree lower Prision Mayor max. to Reclusion Temporal medium.

 4) When the penalty prescribed for the crime is composed of several periods, corresponding to the different divisible penalties, the penalty next lower in degree shall be composed of the period immediately following the minimum prescribed and of the two next following, which shall be taken from the penalty prescribed, if possible; otherwise from the penalty immediately following in the above-mentioned respective graduated scale;

 Ex. Penalty is Prision Mayor max. to Reclusion Temporal medium period Max. - Reclusion Temporal med. Med. - Reclusion Temporal min. Min. - Prision Mayor max. One degree lower: Max. - Prision Mayor med. Med. - Prision Mayor min. Min. - Prision Correccional max. One degree lower = Prision Correccional in its max. period to Prision Mayor in its medium period.

 Article 306- Brigandage- Prision Mayor in its medium period to Reclusion Temporal in its minimum period. Max. - Reclusion Temporal min. Med. - Prision Mayor max. Min. - Prision Mayor med. One degree lower: Max. - Prision Mayor min. Med. - Prision Correccional max. Min. - Prision Correccional med. One degree lower Prision Correccional in its medium period to Prision Mayor in its minimum period.

 5) Penalty prescribed in a manner not provided in the preceding 4 rules- Court proceeds by analogy and shall impose the corresponding penalty: a) if the penalty prescribed by law is composed of three periods, the penalty lower in degree is the penalty consisting of three periods down the scale; b) if the penalty prescribed by law consists of two periods, the penalty next lower in degree is the penalty consisting of two periods down the scale;

 Ex. Penalty for Abduction (Article 343)Prision Correccional in its min. and med. periods: Prision Correccional med. Prision Correccional min. One degree lower Arresto Mayor max. Arresto Mayor med.

 C) if the penalty prescribed by law consists of one period, the penalty next lower in degree is the next period in the scale: Ex. Art. 166 (par. 5) Forging Treasury Notesthe penalty is Reclusion Temporal in its minimum period- penalty next lower in degree is Prision Mayor in its maximum period Reclusion Temporal min. Prision Mayor max.

 - In lowering the penalty by degree, aggravating or mitigating circumstances are not yet considered, because Art. 61 refers to the penalty prescribed for the felony. After the penalty next lower in degree is determined, aggravating or mitigating circumstances are then considered to determine the proper period of penalty.

 This is so, as in arriving at the imposable penalty, the following circumstances will be considered by the Court: 1) Stages of the commission of the crime( C,F, A) 2) Degree of participation (P, Acco., Acce.) 3) Presence of Aggravating or mitigating circumstances; 4) Indeterminate Sentence law 5) Probation (if the penalty does not exceed 6 yrs).

 -Effects of the attendance of mitigating and aggravating circumstances and habitual delinquency: 1) Aggravating circumstances which in themselves constitute a crime specially punishable by law or 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;

Art. 62- Rules for Application of Pen. w/ Regard to Mit. & Agg. Circs.

 a) Those which in themselves constitute a crime especially punishable by law. Ex. Explosion (Art. 14, par. 12)- Art. 324- Crimes involving Destruction (now amended by PD 1613- Law on Arson); by means of fire- crime of Arson. b) Those included by law in defining the crimeAbuse of confidence (Art. 14, par. 4)- crimes of Qualified Theft (Art. 310) and Estafa (Art. 315).

 1(a) When in the commission of the crime, advantage was taken by the offender of his public position, the penalty to be imposed shall be in its maximum regardless of mitigating circumstances. The maximum penalty shall be imposed if the offense was committed by any person who belongs to an organized/

/syndicated crime group. An organized /syndicated crime group means a group of 2 or more persons collaborating, confederating or mutually helping one another for purposes of gain in the commission of any crime (As am. by RA 7659). 2) The same rule shall apply with respect to any aggravating circumstances inherent

 in the crime to such degree that it must of necessity accompany the commission thereof. Ex. Evident premeditation- Art. 14, par. 13crimes of Robbery w/ Force Upon Things (Art. 299) and Murder ( Art. 248). 3) Aggravating or mitigating circumstances which arise from the moral attributes of the offender, or from his private relations with the offended party, or from any other personal cause, shall only serve to aggravate or

 mitigate the liability of the principals, accomplices and accessories as to whom each circumstances are attendant. a) moral attributes of the offender- Passion or obfuscation If A and B killed C and A acted with passion, such mitigating circumstance will only affect A. In rape- relationship as aggravating circumstance will be appreciated only against the person who is related to the victim.

 In Adultery- abandonment of the wife by the husband mitigates not only the liability of the wife, but also of her paramour because in Adultery, the act is one, juridically (Pp. vs. Avelino 40 O.G. 115). 4) The circumstances which consist in the material execution of the act, or in the means employed to accomplish it, shall serve to aggravate or mitigate the liability of the persons only who had knowledge of them at the time of

 the execution of the act or their cooperation therein. a) material execution of the act- ex. If A cooperated with B in the killing of C who killed the latter with ignominy. Such will aggravate not only the liability of B but also of A, if he has knowledge of it at the time of the execution of the act. b) means to accomplish the crime- ex. A induced B to kill C. A left to B the means he

 might employ to execute the act. B killed with treachery. Such agg. circ. will affect B only (Pp. vs. Otero- 51 Phil. 201). But if A was present when B was killed, such aggravating circumstance will also affect him. In a Per Curiam decision, the Supreme Court held, that since there was conspiracy, the law should be appreciated against the mastermind as a generic

 aggravating circumstance even when he was not present when the crime was committed. The Otero case was not held applicable as in that case the accused was convicted as principal by inducement without proof of conspiracy with the other accused. In conspiracy, the rule is, every conspirator is responsible for the acts of the other accused (Pp.vs.Pareja-30 SCRA- 693).

 5) Effects of Habitual Delinquency Article 63- Rules for the application of indivisible penalties 1) Penalty is single and indivisible-penalty shall be applied regardless of the presence of mitigating or aggravating circumstances. Death or Reclusion Perpetua. 2) Penalty is composed of two indivisible penalties- Reclusion Perpetua to Death.

 i) one aggravating cir. present- higher penalty Death ii) no mit. nor agg. cir. present- lesser penalty Reclusion Perpetua iii) one mit. cir. present- lesser penalty Reclusion Perpetua. 2) When both agg. and mit. are present, the courts shall reasonably allow them to offset one another in consideration of their number and importance.

Article 64- Rules for the Application of Divisible Penalties 1) No aggravating and no mitigating circumstance-medium period; 2) One mitigating- minimum period; 3) One aggravating maximum period; 4) Mitigating and aggravating circumstances are present offset each other. 5) Two or more mitigating and no aggravating- one degree lower.

 6) Any number of aggravating circumstances penalty cannot exceed the penalty provided by the law in its maximum period. Cases wherein Article 64 do not apply: 1) Penalty that is single and indivisible; 2) Felonies thru negligence; 3) Penalty is fine; and 4) Penalty is prescribed by special law.

Act 4103- Indeterminate Sentence Law (ISL)

- Purpose- is to uplift and redeem valuable human material and prevent unnecessary and excessive deprivation of personal liberty and economic usefulness (Pp. vs. Onate- 78 SCRA 43). As a rule, it is intended to favor the accused particularly to shorten his term of imprisonment, depending upon his behavior and his physical, mental, and moral record as a prisoner to be determined by the Board of Pardon and Parole.

 Covers crimes punishable under the RPC or SPL: a) RPC -Minimum- one degree next lower to the penalty imposed. The term of the minimum is left to the discretion of the court and this discretion is unqualified. The only limitation is that it is within the range of the penalty next lower in degree to that prescribed by the RPC for the offense committed. - Maximum the penalty imposed as provided by law.

 B) SPL maximum term of the indeterminate sentence shall not exceed the maximum fixed by law and the minimum shall not be less than the minimum prescribed by law. Pen. 1 year to 5 years-( 1 year to 3 years or 3 years to 5 years). ISL will not apply in the following cases: 1) Offenses punished by Death or RP 2) Those convicted of Treason , Conspiracy or Proposal To Commit Treason, Misprision of Treason, Rebellion, Sedition, Espionage, & Piracy. 3) Habitual Delinquents.

 4) Those who escaped from confinement; 5) Those granted with conditional pardon and who violated the term of the same; 6) Those whose maximum period does not exceed one year. 7) Those already serving final judgment upon the approval of this act. Rationale- after serving the minimum term, the prisoner may be released on parole.

 Examples :1) Convicted of Homicide- Reclusion Temporal 12 years and 1 day to 20 years. Accused principal - crime is consummated Maximum 17 years, 4 mos. & 1 day to 20 years; Medium 14 years, 8 mos. & 1 day to 17 years and 4 mos. Minimum 12 years and 1 day to 14 years and 8 mos.

Prision Mayor- 6 years & 1 day to 12 yrs; Max.- 10 years & 1 day to 12 years Med.- 8 years & 1 day to 10 years Min.- 6 years & 1 day to 8 years Prision Correccional- 6 mos. & 1 day to 6 yrs. Max- 4 yrs., 2 mos. & 1 day to 6 yrs. Med.- 2 yrs., 4 mos. & 1 day to 4 yrs. 2 mos. Min- 6 mos. & 1 day to 2 yrs. & 4 mos.

 - During the trial, he pleaded guilty (Plea of guilt is an ordinary mitigating circ.) 12 years and 1 day to 14 years & 8 mos. Applying the ISL- one degree for the min. Prision Mayor min. 6 yrs and 1 day to 8 yrs. Pen- 6 yrs. & 1 day of PM in its min. period as its minimum to 14 years & 8 mos. of RT in its min. period as its maximum.

 Probation PD 968 as am. - is a disposition under which a defendant, after conviction and sentence, is released subject to the conditions imposed by the court and to the supervision of a probation officer ( for those imposed the penalty of 6 years and below).

Article 67- Increasing or reducing the pen. of Fines

A) If the law prescribes the minimum as well as the maximum- the court cannot impose a fine next higher. Ex. Fine of P200 to P1,000 (each degree will be equal to of P1,000 or P250.00. P250.00 added to P1,000 to determine the next higher in degree without changing the minimum of P200 = P 200 to P1,250. Fine next lower in degree = P200 to P750.00

 B) If the law imposing the fine does not fix the minimum, the determination of the fine is left to the discretion of the court, provided that it shall not exceed the authorized maximum- P4,000 ( P200 or P2,000) Circumstances to be considered by the court: 1) Mitigating or agg. circs 2) Wealth or means of the culprit 3). Gravity or seriousness of the charge. (Nizurtado vs. Sandiganbayan the SC reduced the P10,000 fine to P2,000 bec. of the presence of mitigating circumstance.

EXTINCTION OF CRIMINAL LIABILITY

How is criminal liability extinguished? 1) Totally 2) Partially ARTICLE 89- TOTAL EXTINCTION OF CRIMINAL LIABILITY 1) By the death of the convict, as to the personal penalties, and as to pecuniary penalties, liability therefor is extinguished only when the death of the offender occurs before final judgment;

 2) By service of the sentence; 3) By amnesty, which completely extinguishes the penalty and all its effect; 4) By absolute pardon; 5) By prescription of the crime; 6) By prescription of the penalty; 7) By the marriage of the offended woman, as provided in Art. 344 of this Code.

A) DEATH
The criminal and civil liabilities are extinguished if the offender dies before final judgment (Pp. vs. Jose, et al- June 17, l976). This is so, as when death occurs, nobody will serve the penalty for the crime (Pp. vs. Bayotas- Sept. l994-55 SCAD & Petralba vs. SandiganbayanAug. 16, l991).

 What is Final Judgment? Sentencia firma should be understood as one which is definite. The legal import of the term final judgment is similarly reflected in Articles 72 & 78 of this Code, which mention the term final judgment in the sense that it is already enforceable. Also Sec. 7 of Rule ll6 of the Rules of Court states that a judgment in a criminal case becomes final after the lapse of the period for perfecting an appeal for when the sentence has been partially or totally satisfied or served or the defendant has expressly waived in writing the right to appeal.

 Judgment becomes final when: 1) No appeal is seasonably perfected; 2) Accused commences to serve the sentence; 3) Right to appeal is expressly waived in writing, except where death penalty was imposed by the trial court; and 4) Accused applies for probation, thereby waiving his right to appeal ( Pp. vs. Salle- Dec. l995- En banc- 66 SCAD).

 If death however, occurs after final judgment, the pecuniary liabilities devolve upon the heirs only if some properties are left. Article 89, par. 1 applies only if the civil liability arises from the criminal liability as its sole basis (Article 100Every person criminally liable for a felony is also civilly liable). However, it cannot apply if the civil liability arises not only from the crime but from another source like a contract of purchase and sale. Ex. The accused was convicted of Estafa for selling a parcel of land twice. Pending appeal, he died. His civil liability was not extinguished as it arose out of the contract of sale.

 Under the Civil Code, the civil liability of the accused remains as this civil liability is independent of his criminal liability. If the accused dies while his case is pending appeal, the motion for recovery of money may not be dismissed; but when he dies before final judgment by the trial court, the money claim should be presented before the probate or intestate court (Torrijos vs. CA- L-40336, 67 SCRA 394).

 The possible civil liability of the deceased accused can be determined in the exercise of appellate jurisdiction arising from the alleged criminal acts complained of as if no criminal case has been instituted against him and Art. 30 of the Civil Code will apply in determining his civil liability (Pp. vs. Sendaydiego- Jan. 20, l978). This rule was applied in the case of Pp. vs. Tirol- L-30588- Jan. 31, l981- where one of the accused-appellants died pending appeal,

 the case was dismissed as to his criminal liability, but the appeal was to be resolved concerning him to determine his criminal liability as the basis of his civil liability for which his estate may be liable (Pp. vs. Naboa- 132 SCRA 410). Does Art. 30 of the Civil Code authorize the appellate court to continue exercising appellate jurisdiction over the accuseds civil liability ex-delicto when his death supervenes during appeal? No. What Art. 30 recognizes is an alternative and separate civil action which may be brought to demand civil liability from a criminal offense independently of any criminal action.

 The intendment of Article 100 on civil liability ex-delicto is rooted in the courts pronouncement of the guilt or innocence of the accused. Death dissolves all things (Mors omnia solvi). Article 30 refers to the institution of a separate civil action that does not draw its life from a criminal proceeding. How about the death of the offended party?-The death of the offended party does not extinguish criminal liability, as it is not included in Art. 89. Neither is it mentioned as one of the grounds for a Motion to Quash under the Rules on Criminal Procedure (Pp. vs. Bandalian- 117 SCRA 718).

B) SERVICE OF SENTENCE
Article 89 of the RPC stipulates that the penalties consisting of deprivation of liberty shall be executed and served in the places and penal establishments provided by the Administrative Code in force or which may be provided by law. The Code thus requires that the service of sentence be in a penal institution (Martin vs. Eduardo 121 SCRA). Thus the period during which the accused was at large during his escapes from the jail cannot be included in the service of his sentences in fixing the date of his release (Ibid).

C) AMNESTY
Amnesty- is an act of the sovereign power granting oblivion or a general pardon for a past offense, and is rarely, if ever, exercised in favor of a single individual, and is usually exercised in behalf of a certain class of persons, who are subject to trial but have not yet been convicted. Amnesty extinguishes the criminal liability & not merely the penalty but also its effects. But the civil liability is not extinguished.

D) ABSOLUTE PARDON
Two kinds of pardon: 1) Article 36-Pardon by the Chief Executive. Pardon- is an act of grace proceeding from the power entrusted with the execution of the laws which exempts the individual on whom it is bestowed from the punishment the law inflicts for the crime he has committed. 2 kinds: a) Absolute b) Conditional

 An absolute pardon extinguishes criminal liability of the offender. But this does not exempt the offender from the payment of the civil indemnity imposed in the sentence. It does not also restore the right to hold public office or the right of suffrage unless such rights are expressly restored by the terms of the pardon. A pardon to be effective, must be delivered and accepted. The pardon given by the President upon the woman convicted of Adultery affects her only and cannot benefit the paramour ( U.S. vs. Guarin- 30 Phil. 85).

 When may the right to hold public office and to exercise suffrage be considered restored altho not expressly stated in the pardon? Only in a case when the pardon is granted after the offender has served the term of imprisonment, because such conviction removes all that is left on the consequence of conviction( Cristobal vs. Labrado 71 Phil. 34). This is the exception to the provisions of the law, that is, where the facts and circumstances of the case clearly show that the purpose of the Chief Executive is precisely to restore rights altho not expressly stated in the pardon ( Pelobello vs. Palatino72 Phil. 441).

 Limitations of the pardoning power of the President: 1) Such power does not extend in cases of impeachment. 2) The power can only be exercised after conviction. 3) In election offenses, it can be exercised only upon prior recommendation of the COMELEC. What is the effect of an appeal of judgment of conviction on the pardoning power of the President? An appeal brings the entire case within the exclusive jurisdiction of the appellate court. A becoming regard for the doctrine of separation of powers demands that such exclusive authority of the appellate court be fully

 respected and kept unimpaired. Had not the present Constitution adopted the conviction by final judgment limitation, the President could, at any time and even without the knowledge of the court, extend executive clemency to anyone whom he in good faith or otherwise believes to merit presidential mercy. To allow the President to do so, will be a derogation of the jurisdiction of the appellate court.

 If an appeal is filed, an appellant may be granted pardon, but he must first withdraw his appeal, i.e. the appealed conviction must first be brought to finality. b) CONDITIONAL PARDON( Art. 94-par.1)-This must be accepted to be efficacious because of the conditions imposed which must be complied strictly. A Conditional Pardon is in the nature of a contract between the sovereign power or the Chief Executive and the convicted criminal to the effect that the former will release the latter subject to the condition that if he does not comply with the terms of the pardon, he will be recommitted to prison to serve the unexpired portion of

 the sentence or an additional one (Alvarez vs. Dir. Of Prison 80 Phil. 50). By the pardonees consent to the terms stipulated in the contract, the pardonee has placed himself under the supervision of the Chief Executive or his delegate who is duty-bound to see to it that the pardonee complies with the terms and conditions of the pardon. Under Sec. 64 (i) of the Revised Administrative Code, the Chief Executive is authorized to order the arrest & re-incarceration of any such person who, in his judgment, shall fail to comply with the condition/s of his pardon (Torres vs. Dir. of Bureau of Corrections- Dec. l995- 66 SCAD) and he can be prosecuted under Art. 159 of the RPC.

 May the grant of pardon be subject to the review of the courts? No. It is now a well-entrenched rule in this jurisdiction that this exercise of presidential judgment is beyond judicial review. The determination of the violation of the conditional pardon rests exclusively in the sound judgment of the Chief Executive. The pardonee, having consented to place his liberty on conditional pardon upon the judgment of the power that has granted it cannot invoke the aid of the courts, however erroneous the findings may be upon which his recommendation was ordered (Tesoro vs. Dir. of Prisons- 68 Phil. 154).

 Is a Petition for Writ of Habeas Corpus the remedy for a person incarcerated because of violation of the terms of the conditional pardon? No. Habeas Corpus lies only when the restraint of a persons liberty has been judicially adjudged as illegal or unlawful. Solely vested in the Chief Executive, who in the first place was the exclusive author of the conditional pardon and its revocation, is the corollary prerogative to reinstate the pardon. Conditional pardon does not also extinguish civil liability (Monsanto vs. Factoran,Jr.- 170 SCRA l989 & Pp. vs. Nacional- Sept. l995- 64 SCAD).

 2) PARDON BY THE OFFENDED PARTY-(Article 23) This does not extinguish criminal liability, except in Art.266-C and Art. 344 of the RPC (amendment of the Anti-Rape Law) which requires a valid marriage between the rapist and the victim to effect an extinguishment of criminal liability. But civil liability is extinguished by express waiver of the offended party. The criminal action in public crimes is not extinguished. Thus, the criminal liability for Estafa is not affected by the compromise or novation of contract, for it is a public offense which must be prosecuted and punished by the government in its own motion even though complete reparation should have been made of the damages suffered by the offended party (Javier vs.

 Pp. -70 Phil. 550). Reimbursement of, or compromise as to the amount of the crime affects only the civil liability but does not relieve him from the penalty prescribed by the law for the offense committed (Pp. vs. Miranda- G.R.No. L- 16122). Regarding private crimes, which are mentioned under Art. 344, like Rape, Seduction, Abduction, Acts of Lasciviousness, Adultery and Concubinage, the criminal action is barred if: a) the pardon is made before the institution of the action; b) in Adultery & Concubinage, the pardon must refer to both offenders, which may either be expressed or implied;

 c) in Rape, and other private crimes, the pardon must be expressed (Pp. vs. Infante- 57 Phil. 138); d) the marriage between the offender and the offended party totally extinguishes the criminal liability of the offender. In Rape cases, the pardon given by the parents of the minor victim to be effective must have the concurrence of the minor victim herself (Art. 266-C R.A. 8353). Pp. vs. Lacson, Jr- The pardon given by the parents cannot stand alone. This is inefficacious. This is not sufficient to remove the criminal responsibility of the offender. Rather, this must be accompanied by the express pardon of the victim herself ( U.S. vs. Luna -1 Phil. 360 & Pp. vs. Tadulan-April l997- 81 SCAD).

 What is the effect of an affidavit of desistance? An affidavit of desistance is merely an additional ground to buttress the accuseds defenses, not the sole consideration that can result to acquittal. There must be other circumstances which, when coupled with the retraction or desistance, create doubts as to the truth of the testimony given by the witnesses at the trial and accepted by the judge (Pp. vs. Ballabare- Nov. l996- 76 SCAD). All that the accused offered as

 defenses mainly consisted of denial and alibi which cannot outweigh the positive identification and convincing testimonies given by the prosecution (Pp. vs. Echegaray- Feb. l997- 79 SCAD). Pardon by the Chief Executive distinguished from the pardon by the offended party: 1) Pardon by the Chief Executive extinguishes criminal liability, whereas that is not the case if the pardon is given by the offended party except in case of marriage, as it only bars the institution of the criminal action;

 2) Pardon by the Chief Executive is granted after conviction by final judgment, whereas pardon given by the offended party is given before the institution of the action; and 3) Pardon by the Chief Executive cannot include the civil liability of the offender, whereas the civil liability may be expressly waived by the offended party.

Distinction bt. Amnesty & Absolute Pardon

Amnesty 1.Application- gen. to poli tical crimes & offenders 2.Effect obliterates the effects of con viction as if the act were not criminal 3.Congress concurrence required Pardon gen.to ordinary crimes & offenders relieves the offender of penalty but the effects of conviction stay concurrence not required

 4. When given - even before conviction 5. To whom given - usually to class of persons

after final conviction specific individual

E) PRESCRIPTION OF CRIME (Article 90)

Prescription of crime It is the forfeiture or loss of the right of the State to prosecute the offender after the lapse of a certain time fixed by law. Prescriptive periods: a) Death, Reclusion Perpetua and Reclusion Temporal 20 years b) Afflictive penalties 15 years c) Correctional penalties 10 years Arresto Mayor 5 years

d) Libel or other similar offenses 1 year e) Oral Defamation & Slander By Deed 6 mos. f) Light offenses 2 mos. g) Compound crime highest penalty shall be made the basis. Article 91- Computation of prescription of offenses- The period of prescription shall commence to run from the day on which the crime is discovered by the offended party, the authorities or their agents, and shall be interrupted by the filing of the complaint or information, and shall commence to run again when such proceedings terminate without the accused being

 convicted or acquitted, or are unjustifiably stopped for any reason not imputable to him. The term of prescription shall not run when the offender is absent from the Philippine Archipelago. Prescriptive period is not waivable. Since it is for the benefit of the accused, this cannot be extended. Once prescription sets in, the court loses its jurisdiction.

 In computing the period of prescription, the first day is excluded and the last day is included (Pp. vs. Galano- 75 SCRA 193). February 28 and 29 of a leap year as held in Namarco vs. Tuazon, should be counted as separate days in computing the prescriptive period. When the last day to file an Information falls on Sunday or legal holiday, the period of prescription cannot be extended to the next

 working day. So, this should be filed on the last working day before the legal holiday (Yapdiangco vs. Buencamino, et al 122 SCRA 713). What is the effect of the delay in the reporting of crimes in its prosecution?- None. The law on prescription would be meaningless if we were to yield to the proposition that delay in the prosecution of crimes would be fatal to the State and the offended party. In fixing the different prescriptive periods on the basis of the gravity of the penalty prescribed therefor, the law takes

 Into account or allows reasonable delays in the prosecution thereof. In the case of Pp. vs. Gecomo -254 SCRA- the court ruled that 17 days, 35 days or even 6 mos. delay by a rape victim in reporting the attack on her honor does not detract from the veracity of her charge. Who is the offended party referred to in Art. 91?- State or the private complainant. The law does not make any distinction between a private crime or public crime. In both cases then, the discovery may be by the offended party,

 the authorities or their agents ( Garcia vs. CAJan. l997- 78 SCAD). Besides, under Sec. 12, Rule 110 of the Rules on Criminal Procedure, the offended party is defined as the party to whom the offender is civilly liable. Furthermore, under Art. 100, it is expressly stated that every person criminally liable is civilly liable. The prescriptive is interrupted upon the filing of the case before the Prosecutors Office or that of the Office of the Ombudsman( Francisco vs. CA).

 The prescriptive periods for the crimes punished under SPL- basis is Act no. 3326- Prescription shall begin to run from the day of the commission of the violation of the law and if the same be not known at the time, from the discovery thereof, and the institution of judicial proceedings for its investigation and punishment (Presl. Ad Hoc Committee on Behest Loans vs. Ombudsman- August 2001).

 Sec. 52 of PD 1529 (Property Registration Decree) provides for constructive notice. Knowledge is counted at the time of registration. This constructive notice, in view of registration, does not apply to the registration of the marriage contract in the crime of bigamy. This is so, as bigamous marriage is really entered in secrecy in order to conceal the legal impediment (Pp. vs. Reyes- July 1989).

 Can brief trips abroad qualify as absence as contemplated under Art. 91? No. This is not the absence referred to in said article, as these trips were very brief. Example: Slight Physical Injuries-inflicted on July 20, 2009prescriptive period is 2 mos. a) If committed by a public official in relation to office no need of going to the Lupong Tagapamayapa 31 days for July - 20 60 42= 18 days -------September 18, 2009- last 11 - July day of filing 31- August -------- 42 days

 b) If not a public official or a public official and the act is not in relation to office undergo a conciliation at the Lupong Tagapamayapa. Filing of the complaint at the barangay will toll the running of the prescriptive period but only for 60 days and thereafter, the prescriptive period will again run.

F) PRESCRIPTION OF PENALTY (Article 92)

Prescription of penalty- It is the loss or forfeiture of the right of the government to execute the final sentence after the lapse of a certain time fixed by law. Prescriptive periods of penalties: 1) Death & Reclusion Perpetua- 20 years 2) Other afflictive penalties- 15 years 3) Correctional penalties 10 years, except Arresto Mayor 5 years 4) Light penalties 1 year

Art. 93-Computation of Prescription of Penalty

Period commences to run from the date the culprit evades the service of sentence. It is interrupted: a) if the defendant surrenders; b) if he is captured; c) if he should go to foreign country w/ w/c the Philippines has no extradition treaty; and d) if he should commit another crime before the expiration of the period of prescription.

Evasion of sentence is an essential element of prescription of penalties and takes place before the running of the period and cannot interrupt it. ARTICLE 94- PARTIAL EXTINCTION OF CRIMINAL LIABILITY 1) Conditional pardon 2) Commutation of the sentence 3) Good conduct allowance which the culprit may earn while he is serving his sentence. 4) Parole (Under ISL) 5) Probation 6) Partial repeal of penal law

ARTICLE 96-COMMUTATION OF SENTENCE

The commutation of the original sentence for another of a different length and nature shall have the legal effect of substituting the latter in the place of the former. It is the change in the sentence of the court made by the President which consists in reducing the penalty imposed upon the offender . Such substitutes the original penalty.

ARTICLE 97- ALLOWANCE FOR GOOD CONDUCT

The good conduct of a prisoner in any penal institution shall entitle him to the following deductions from the period of his sentence: 1) First two years 5 days for each month of good behavior 2) Third to fifth year -8 days for each mo. 3) Following years to the 10th year- 10 days each mo. 4) Eleventh year and successive years 15 days for each mo.

 The allowance is given in consideration of the good conduct of the prisoner while serving his sentence (Pp. vs. Martin-68 Phil. 122). These allowances are granted by the Director of Prisons and once given, these cannot be revoked (ARTICLE 99). This right can be enjoyed even though the prisoner has been sentenced to several penalties and the same have been cut down by Article 70 to three times the most severe of the penalties.

 This does not embrace detention prisoners. Detention prisoners are entitled only to preventive imprisonment, if he agreed in writing to abide by the rules of the jail (Baking vs. Director of Prisons, et al. L-30603-28 SCRA 851). ARTICLE 98- SPECIAL TIME ALLOWANCE FOR LOYALTY- a deduction of one-fifth of the period of his sentence shall be granted to any

 prisoner who, having evaded the service of his sentence under the circumstances mentioned in Art. 158 of this Code, gives himself up to the authorities within 48 hours following the issuance of a proclamation announcing the passing away of the calamity or catastrophe referred to in said articles.

 When is the special time allowance given? 1) The occurrence of disorder resulting from a conflagration, earthquake, explosion or similar catastrophe or a mutiny in which the prisoner did not participate; 2) The convict must evade the service of his sentence (This article does not apply to the prisoners who did not escape Lozada vs. Acenas 78 Phil. 226); 3)He must give himself up w/n 48 hours after the issuance of a proclamation by the President announcing the passing away of such calamity. - Loyalty award- 1/5 deduction of the period of his sentence. If he does not return, additional 1/5 of the term remaining to be served will be imposed, but not to exceed 6 months.

ARTICLE 48-COMPLEX CRIMES

In complex crimes, although two or more crimes are actually committed, they constitute only one crime in the eyes of the law as well as in the conscience of the offender. The offender has only one criminal intent. Even in the case where an offense is a necessary means to commit the other, the evil intent of the offender is only one (Pp. vs. Hernandez- 99 Phil. 515). It is on this basis that the law imposed only one penalty.

TWO KINDS OF COMPLEX CRIMES:

1) Compound (Delito Compuesto)- when a single act constitutes two or more grave or less grave felonies; 2) Complex Crime Proper ( Delito Complejo)- when an offense is a necessary means of committing another crime. 1) Compound Crimes: single act results to: a) two or more grave felonies ex. Pp. vs. Guillen 47 O.G. 3433- single act of throwing a hand grenade resulted

 to the death of Simeon Varela (Murder) and attempts on the lives of many others (Multiple Attempted Murders)- Murder is a grave felony, same with Attempted Murders. - One single shot which resulted to the death of two persons Double Homicide ( Pp. vs. Pama- 44 O.G. 3339). Both Homicides are grave felonies.

- when a person planted a bomb in the airplane, resulting to its explosion and death of several people multiple murders and damage to property (Pp. vs. Largo 99 Phil. 1061); - where a paper bag was given by the accused to the occupant of the house containing some vegetables but when opened, it exploded resulting to the death of several persons and injuring another complex crime of Multiple Murder with Frustrated Murder Pp. vs.

 Villaflores 115 SCRA 570 and Pp. vs. Carpo, et al April 2001- 149 SCAD. Pp.vs. Paculba- 124 SCRA 383- single act of firing shot resulting to the death of one and mortally injuring the other Murder w/ Frustrated Murder. However, if the accused fired several bullets in succession from a submachine

 gun with a single pull of the trigger, killing several persons, the same is not covered under this rule, because this is not considered one act. The continued pressing of the trigger of the gun is not considered one act. This is not a complex crime. b) Less grave and grave: When a mayor while in the performance of his duties was ambushed and killed, Direct Assault with Murder.

 C) Less grave and less grave: A Judge was being attacked in relation to the performance of his function resulting to less serious physical injuries crime is Direct Assault with Less Serious Physical Injuries (U. S. vs. Montiel 9 Phil. 162). There is no complex crime of Rape with Homicide in view of the new law-RA 8353. Same with Arson with Homicide because of RA 1613.

 But when a single act results in a) grave felony and a light felony; or b) grave or less grave and an offense punished under Special Law, there is no complex crime. Ex. Accused act of stabbing one person killing him and at the same time hitting another resulting only to slight injuries no complex crime but two crimes of Homicide and Slight Physical Injuries. Lontok, Jr. vs. Judge Gorgonio April 30,l979- While driving his car, accused

 bumped another car resulting to a damage of only P2,000 and at the same time injuring its driver with only slight injuries- no complex crime but two crimes of Reckless Imprudence Resulting to Damage to Property (Less Grave felony) and Reckless Imprudence Resulting to Slight Physical Injuries Light Offense. Another reason why there is no complex crime of grave felony and light , its because the latter is usually absorbed.

 Pp. vs. Lawas- 97 Phil. 975- Lawas ordered the Moros to be tied in order to be brought to another place. When one of the guards approached Datu Lomangcolob, the latter refused, thereupon, Lawas fired his revolver at him and ordered the guards to fire; the guards following instructions fired at the Moros including those who tried to escape. After a short time, Lawas ordered his men to cease fire and the firing stopped. The evidence positively shows that the killing was of a single impulse, which was induced by the order of the leader to fire.

 The Supreme Court held that if the act or acts complained of resulted from a single criminal impulse, it constitutes a single offense. The ruling in the Lawas case applies only when there is no evidence at all to show the number of persons killed by each of the several defendants.

 Under recent rulings, the single criminal impulse, same motive or the single purpose theory has no legal basis, for Art. 48 speaks of a single act. However, the theory is acceptable when it is not certain who among the accused killed or injured each of the victims.

 2) When an offense is committed as a means necessary to commit another Complex Crime Proper- The phrase necessary means has been interpreted not to mean indispensable means because if it did, then the offense as a necessary means to commit another would be an element of the other crime. It simply means such an offense is committed to facilitate and insure the commission of the other (Pp. vs. Hernandez).

 Exs. 1) Pp. vs. Jaqueline Lim she changed the amount in the check from P2,000 to P20,000 and as a result of which, she was able to misappropriate P18,000, public funds Malversation of Public Funds Through Falsification of Commercial Document; 2) Pp. vs. Mayor Maamo, et al- made it appear in the payroll that a particular person worked in the Clean and Green Project and received P1,600 when in truth and in fact said person is already dead. Malversation of Public Funds Through Falsification of a Public/Official Document. But if the other crime is used to conceal the other crime, then this is not a complex crime proper, but two crimes.

 There is no complex crime of Rebellion with common crimes Enrile vs. Judge Salazar. In these two situations- the penalty that will be imposed is the penalty of the crimes which is higher and to be applied in the maximum.

Plurality of Crimes
- consists in the successive execution by the same individual of different criminal acts upon any of which no conviction has yet been declared. Continued, continuous or continuing crime- is a single crime consisting of a series of act arising from one criminal resolution and is therefore not a complex crime. The reason here is that neither the criminal act nor the intention is susceptible of division (Pp. vs. Bayot).

 A) Exs.of Continued Crimes: a) Pp. vs. De Leon49 Phil. 347- Taking by the accused from the yard of a house two roosters belonging to two different owners- is one Theft only because the two acts of taking arose from one criminal resolution. b) Pp. vs. Jaranilla- 55 SCRA 563- Taking of 6 roosters from a chicken coop considered single offense. c) Pp. vs. Emit- G.R. No. L- 13477- accused run amok and killed several persons, only one crime of Murder.

 d) Santiago vs. Garchitorena- 46 SCAD or 228 SCRA- there was only one crime committed, thus the 32 Informations filed should be changed into one, as this falls under the so-called Delito Continuado or Continued Crime or Continuous Crime. The original information charged her of approving the application for legalization of several aliens not qualified under the law. This was committed more or less on October 17, 1988.So the approval could be done by a single stroke of the pen.

 B) Transitory crime- is also called a moving crimewhere the elements of the crimes happened in different places, hence the criminal action can be instituted in the places where any of the elements happened. Kidnapping and Serious Illegal Detention if kidnapped in Cebu and detained Mandaue this can be filed in any of these places. BP 22- Check was issued in Makati City, but delivered in Cebu City in payment of the goods obtained can be filed either in the place of the issuance of the check or the place where it was used or delivered ( Pp. vs. Yabut).

 c) Continuing crime- Ex- offense which is continuing at time Rebellion GarciaPadilla vs. Enrile 121 SCRA. Squatting is a continuous crime (Dacutanan vs. Pp. August l990). D) Special Complex crimes Robbery with Homicide has a penalty of its own under Art. 294.