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Midterms- Criminal Law 1

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Criminal Law Reviewer Part I

Criminal Law (DPT) -The branch or division of law which defines crimes, treats their nature and provides for their punishment

Crime -Committed or omitted in violation of a public law forbidding or commanding it

Sources of Criminal Law 1. Revised Penal Code 2. Special Criminal Law 3. Penal Presidential decrees issued during Martial law

Common Law Crimes -

Crimes which their rules of action do not rest for authority upon any express and positive declaration of the will of the legislature

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Not recognized in this country

~Court decisions are not part of the criminal law as these decisions only explain the meaning of the law as enacted by the legislative branch of the governme nt

Limitations on enactment of Criminal law 1. No ex post facto law or bill of attainder shall be passed 2. No person shall be held to answer for criminal offense without due process of law Ex post facto law 1. Criminal act done before the passage of the law has punished the act. 2. Aggravates a crime before it was committed 3. Changes the punishment and inflicts greater punishment than the law annexed to the crime when committed 4. Alters rules of evidence 5. Deprivation of a right for something which when done was lawful 6. Deprives a person accused of a crime some lawful protection to which he has become entitle

Bill of Attainder -an act that inflicts punishment without trial. 1

Constitutional Rights of the Accused 1. All persons shall have the right to a speedy trial 2. No person shall be held to answer without due process of law 3. All persons (except those punishable by reclusion perpetua), be bailable. 4. Accused is presumed innocent until the contrary is proved 5. No person shall be compelled to be a witness ag ainst himself. 6. Excessive fines shall not be imposed 7. No person shall be put twice in jeopardy of punishment for the same offense 8. Free access to courts shall not be denied to any person by reason of poverty Statutory rights of an accused (from revised rules on criminal procedure) 1. to be presumed innocent until the contrary is proved 2. to be informed of the nature and cause of accusation against him 3. to be present and defend in person 4. to testify as a witness in his own behalf 5. to be exempt from being compelled to be a witness against himself 6. to confront and cross examine the witness against him 7. to have a compulsory process 8. to have a speedy, impartial and public trial 9. to appeal in all cases

Rights which may not be waived a.

right of the accused to be informed of t he nature and cause of the accusation ag ainst him

Right that can be waived a.

Right to confrontation

b. Right to cross examination

Characteristics of Criminal Law (GTP) 1. General a.

Binding to all persons who live and sojourn in Philippine territory.

b. Jurisdiction of civil courts is not affected by the military character of the accused c.

Civil courts have concurrent jurisdiction with general court martial over s

d. soldiers even in times of war. e. RPC is not applicable when a military court t akes cognizance of the case f.

Military is triable in civil court unless it is service-connected.

g. Exceptions to the generality: i. treaties and laws of preferential application; ii. subject to the principles of public international law and iii. to treaty stipulations 2

Constitutional Rights of the Accused 1. All persons shall have the right to a speedy trial 2. No person shall be held to answer without due process of law 3. All persons (except those punishable by reclusion perpetua), be bailable. 4. Accused is presumed innocent until the contrary is proved 5. No person shall be compelled to be a witness ag ainst himself. 6. Excessive fines shall not be imposed 7. No person shall be put twice in jeopardy of punishment for the same offense 8. Free access to courts shall not be denied to any person by reason of poverty Statutory rights of an accused (from revised rules on criminal procedure) 1. to be presumed innocent until the contrary is proved 2. to be informed of the nature and cause of accusation against him 3. to be present and defend in person 4. to testify as a witness in his own behalf 5. to be exempt from being compelled to be a witness against himself 6. to confront and cross examine the witness against him 7. to have a compulsory process 8. to have a speedy, impartial and public trial 9. to appeal in all cases

Rights which may not be waived a.

right of the accused to be informed of t he nature and cause of the accusation ag ainst him

Right that can be waived a.

Right to confrontation

b. Right to cross examination

Characteristics of Criminal Law (GTP) 1. General a.

Binding to all persons who live and sojourn in Philippine territory.

b. Jurisdiction of civil courts is not affected by the military character of the accused c.

Civil courts have concurrent jurisdiction with general court martial over s

d. soldiers even in times of war. e. RPC is not applicable when a military court t akes cognizance of the case f.

Military is triable in civil court unless it is service-connected.

g. Exceptions to the generality: i. treaties and laws of preferential application; ii. subject to the principles of public international law and iii. to treaty stipulations 2

1. Military Base Agreement exceptions a. Offense committed in bases 2. Offense committed outside the bases by any member of the United States which the offended part is also a member of the US 3. Against the security of US iv. Persons exempted from the operations of the crimi nal law (by treaty stipulation) 1. Chief of states

2. Ambassadors, ministers plenipotentiary, ministers residents and charges d affaires

a. CONSULS ARE NOT ENTITLED TO PRIVILEGES AND IMMUNITIES OF AN AMBASSADOR OR MINISTER 2. Territorial a. Philippine criminal laws are imposed within the territories of the Philippines only b. EXCEPTIONS TO THE TERRITORIAL APPLICATION OF CRIMINAL LAW i. Should commit an offense while on a Philippine ship ii. Forge or counterfeit any coin or currency note of the Philippines iii. Liable for acts committed with the introduction of any coin or notes iv. Public officers should commit an offense in theexercise of their functions 1. Direct bribery, indirect bribery, frauds against public treasury, possession of prohibited interest, malversation of public funds, failure of accountable officer to render accounts, illegal use of public funds or property, failure to make a delivery of public funds or property, falsification of documents v. Commit crimes against national security and law of nations 1. Treason, conspiracy, espionage, violation of neutrality

3. Prospective a. A law cannot make an act punishable in a manner in which it was not punishable when committed.

b. EXCEPTION to prospectivity i. Where the new law is expressly made inapplicable ii. When the offender is a habitual criminal

Effects of repeal on penal law 1. if the repeal makes the punishment lighter, the new law shall be applied 2. when the penalty is heavier in the new law, the law to be enforced shall be the law that can be applied during the time of the omission. 3. When a new law repealed the old existing law, the act penalized under the old law, the crime is obliterated.

Construction of Penal Laws

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1. Penal laws are construed against the government and liberally in favor of the accused 2. Spanish text is controlling because it was approved by Philippine legislature in its Spanish text

Book 1 of Revised Penal Code -basic principles affecting criminal liability and the provisions on penalties including criminal and civil liability Book 2 of Revised Penal Code -defines felonies with the corresponding penalties. 1 January 1932- date of effectivity of Revised Penal Code 2 Theories of Criminal Law 1. Classical Theory a.

Basis of criminal liability is human free will and the purpose of penalty is retribution

b. hjuMan is a moral creature with free will c.

Mechanical and direct proportion between crime and penalty

d. With scant regard to the human element. 2. Positivist Theory a.

Man is subdued occasionally by strange and morbid phenomenon which constrains him to do wrong

b. Crime is social and natural phenomenon. ~3 miles from the seashore is considered as part of the national territory -a Philippine vessel is one that is registered in the Bureau of Customs - If the owner of a vessel is a Filipino but the crime committed was 10 miles from territory- foreign rule applies. Crimes Committed on board a foreign merchant ship or airship -crimes committed on high seas by a foreign merchant vessel is not triable by our courts - on board a foreign ship- within 3 miles  of our territory- triable by our courts Rules as to jurisdiction over crimes committed aboard foreig n merchant vessels 1. French Rule a.

Crimes are not triable in the courts of that country unless their commission is endangering the security of the territory or the safety of the state

2. English Rule a.

Crimes are triable in the country unless they refer to the internal management thereof 4

b. Observed in the Philippines. Felonies -acts and omissions punishable by law -commited by decit and fault Elements of Felonies 1. There must be an act or omission 2. Act or omission must be punishable by the revised penal code 3. Act is performed or the omission has been incurred by means of dolo or culpa Act- any bodily movement tending to produce some effect in the external world Omission -inaction or failure to perform a positive duty which one is bound to do. Examples of felony by omission 1. Failure to render assistance to any person 2. Failure to issue a receipt 3. Owing allegiance to the Philippines, having knowledge of conspiracy does not disclose Nullum Crimen, nulla poena sine lege There is no crime when there is no law punishing it.

Classification of felonies according to the means by which they are committed: 1. Intentional felonies 2. Culpable felonies 3. Acts that are punishable by special statutes Distinguish Intentional felonies and Culpable felonies -in intentional felonies, the offender has done an act with malice while in culpable felonies, the offender has done an act without malice. -Culpable acts result from: a. imprudence b. negligence c. lack of foresight

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d. lack of skill



Negligence is lack of foresight



Imprudence is lack of skill

malice/ dolus -intent to do an injury to another. Examples of culpa: 1. Malversation through negligence 2. Evasion through negligence 3. Imprudence Crimes that cannot be done by culpa 1. Murder 2. Treason 3. Robbery 4. Malicious mischief Imprudence - deficiency of action - If a person fails to take necessary precaution to avoid injury -INVOLVES LACK OF SKILL Negligence - deficiency in pereception -if a person fails to pay proper attention and to use diligence in foreseeing the injury or damage impending to be caused - involves LACK OF FORESIGHT! Reckless Imprudence- voluntarily, but without malice, doing or failing to do an act from which material damage results.

Reasons why act or omission in felonies must be voluntary 1. RPC is based on the Classical Theory  6

2. Acts or omissions punished by law are always deemed voluntary since man is a rational being 3.

Dolo is performed with intent and voluntary; culpa is performed wi th imprudence consists in voluntarily.

Requisites of Dolo or Malice 1. Freedom a.

When a person acts without freedom, he is merely a tool.

2. Intelligence a.

Inability to determine morality- no crime can exist (imbecile, insane, infant, no discernment, therefore no criminal liability)

3. Intent a.

Proof of the commission of an unlawful act

Mistake of fact -misapprehension of fact on the part of the person wh o caused injury to another Requisites of mistake of fact as a defense 1. That act done would have been lawful had the facts been as the accused believed them to be 2. Intention in performing the act should be lawful 3. Mistake must be without fault or carelessness To justify an act, there should be: (requisite of justifying circumstances) 1. Unlawful aggression on the person killed 2. Reasonable necessity of the means employed to prevent or repel it 3. Lack of sufficient provocation on the part of the person defending himself.  Actus non faci reum nisi mens sit rea- the act itself does not make a man guilty unless his intention were

so..  – an act done by me against my will is not my act.  Actus me invite factus non est meus actus – an Requisites for Culpa 1. Freedom 2. Intelligence 3. Imprudence, negligence or lack of skill or foresight Mala in se and Mala Prohibita Mala in se - wrongful in their nature (theft, rape, homicide)

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- serious crimes -intent governs -felonies defined in the RPC -inherently immoral. Mala prohibita - wrong because it is prohibited by statute. -violations of mere rules of convenience designed to secure a more orderly regulation of the affairs of the society. -have I violated a law? - acts made criminal by special laws Motive -moving power which impels one to action for a definite re sult Intent -

Purpose to use a particular means to effect result

How is motive proved? -testimony of witnesses -statement of the accused -motive by evidence Criminal liability shall incur: b. by any person committing a felony although the wrongful act done be different that which he intended. c.

Any person performing an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means

CASE: -a child died due to hitting of her head while being raped; accused is guilty. - due to curiosity, A snatched a bolo> B injured= physical injuries; A not liable 8

El que es causa de la causa del mal causado

When is motive needed to be proved: 1. Doubt as to the identity of the assailant 2. No eyewitness to the crime 3. If evidence is merely circumstantial 4. if identity of the accused came from unreliable source A person committing a felony is still criminally liable even if: 1. Mistake in the identity of the victim (error in personae) 2. Mistake in the blow (aberratio ictus) 3. The act exceeds the intent (praeter intentionem) For a person to be held criminally liable for a felony different from which he intended to commit, requisites: 1. Intentional felony has been committed 2. Wrong done to the aggrieved aggrieve d party is direct, natural and logical consequence of the fe lony committed.

Case: A wanted to commit suicide- fell to a woman> not guilty of homicide; no intentional felony was committed. A shoots another in self defense or in defense of another is not guilty of homicide. A was being shot, shot back in defense; killed a bystander is not liable. A policeman was firing at an armed prisoner; hit a bystander - not criminally liable (fulfillment of duty). No felony is committed when: 1. Act or omission is not punishable by the RPC 2. When the act is covered by any of the exempting circumstances in Art 11 Any person who creates in another person’s mind a state of danger:

CASE: Hold up- woman jumped- died > culprit is responsible. Cases with direct, natural and logical consequence of felony:

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1. A woman drowned because she jumped into the water because she was threatened 2. Victim removed drainage and resulted in peritonitis 3. Patient was suffering from internal malady 4. Offended party refused to submit to surgical operation 5. The resulting injury was aggravated by infection

CASES: -

Victim with TB- fist blow- died > guilty of homicide (blow accelerated death)

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Accused stabbed- caused shock- liable for homicide.

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Removed drain- died> guilty of homicide- accused cause mortal wound.

Proximate cause -cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the result would not have o ccurred.

Natural refers to an occurrence in the ordinary course of human life or events Logical -means there is a rational connection between the ac t of the accused and the resulting i njury or damage. When felony is not proximate cause: 1. Active force intervened between felony committed and the resulting injury (existence of intervening cause) 2. Resulting injury is due to the intentional act of the victim. Not effective intervening causes: 1. Weak or diseased physical condition of the victim 2. Nervousness or temperament of the victim 3. Causes which are inherent in the victim 4. Neglect of the victim or third person 5. Erroneous or unskillful medical or surgical treatment When death is presumed to be the natural consequence of physical injuries 1. Victim at the time of physical injuries were inflicted was in normal health 2. Death maybe expected from physical injuries inflicted 3. Death ensued within a reasonable time. 10

iS the accused responsible for the result if there is a neglect of the wound or there is an improper treatment of the wound? -an active force but it is not a disctinct act or fact absolutely foreign from the criminal act. Impossible crimes Requisites of impossible crime:

1. Act performed would be an offense against persons or property 2. Act done was done with evil intent. 3. Its accomplishment is inherently impossible or that the means employed is neither inadequate or ineffectual

4. Act performed should not constitute a violation another provision of the Revised Penal Code Felonies against persons 1. Parricide 2. Murder 3. Homicide 4. Infanticide 5. Abortion 6. Duel 7. Physical injuries 8. Rape Felonies against property 1. Robbery 2. Brigandage 3. Theft 4. Usurpation 5. Culpable insolvency 6. Swindling 7. Chattel mortgage 8. Arson 9. Malicious mischief Reasons why the act performed by the offender cannot produce an offense against persons or property 1. The commission of the offense is inherently impossible of accomplishment 2. The means employed is either inadequate or ineffectual. Requisites for inherent impossibility of accomplishment: 1. Legal impossibility 11

2. Physical impossibility of accomplishing the intended act. Impossible crimes which are punishable under the RPC 1. Poisoning someone with arsenic but instead, substance put was just common salt 2. Murdering a corpse Impossible crimes examples 1. Murdering a dead person 2. Stealing a watch from someone but it turns out the thief was the original owner 3. Safe opened but was empty Employment of inadequate means: 1. Used small quantity of arsenic to poison (frustrated felony) 2. Used huge amount of arsenic that is able to kill a person but the person lived due to resistance (frustrated murder)

Employment of ineffectual means -putting sugar instead of poison -pulled the trigger but did not fire Purpose of the law in punishing impossible crime: -to suppress criminal propensity or criminal tendencies. Objectively, the offender has not committed a felony, but subjectively, he is a criminal. -degree of criminality and tendency to be a criminal -punishment: arresto mayor and to pay the cost 200php-500php -only less grave to grave Requirement for the contemplation of a trial of a cri minal case (e.g. a case is before a court, the charged with a crime that is not punishable) 1. The act committed by the accused appears not punishable by any law 2. The court deems it proper to repress such act 3. Court must render proper decision by dismissing the case and acquitting the accused 4. Judge must make a report to the C E through DOJ stating the reasons why the said act should be of penal legislation. In case of excessive penalties:

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The Article 5 requires that 1. Court after trial finds the accused guilty 2. The penalty provide by law and which the court imposes for the crime committed appears to be clearly excessive because a.

The accused acted with lesser degree of malice

b. There is no injury or the caused is lesser gravity 3. The court should not suspend the execution of the sentence 4. Judge should submit a statement to the CE though DOJ re commending executive clemency. Battered Women’s syndrome (sec 26 RA9262) -

Victims or survivors who are suffering from BW S, do not incur any criminal and civil li ability notwithstanding the absence any of elements for justifying circumstances of self defense under RPC

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The woman and the person she killed live in battering relationships (regular maltreatment or battery committed by the victim against the woman).

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One time battery is not enough; it should be repetitive and habitual.

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Results from cumulative abuse ( series of act)

Battered Women’s syndrome - refers to scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse. Accused acting with lesser degree of malice: -killing wife with the intention of beating son - coconut and father ~it is the duty of the judge t o respect and apply the law, reg ardless of their private opinions. Judges are duty bound regardless of his convictions (e.g. people vs veneracion 249 SCRA 244) Consummated felonies

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When all elements necessary for its execution and accomplishment are present.

Frustrated felony

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Offender performs all the acts of execution which would produce the felony as a consequence but which do not produce it by reason of causes of independent of the will  of the perpetrator,

Attempted felony

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-offender commences the commission of a felony but does not perform all the acts of execution by reason of his own spontaneaous desistance Stages of Development of a Crime

1. Internal acts a.  – mere ideas in the mind of the person b. Not punishable c.

No effect- no crime

2. External acts a. Preparatory acts i. Not punishable 1. Proposal and conspiracy to commit a felony 2. If independent crimes then it is punishable (carrying picklock)- Art 304 RPC 3. Other examples of preparatory acts: buying poison, carrying a weapon or inflammable materials) 4. BP 6- illegal possession of sharp objects that are used not in relation with the occupation.

b. Acts of execution i. Punishable under RPC 1. STAGES OF EXECUTION a. Attempted b. Frustrated c.

Consummated

Attempted Felony -when the offender begins the commission of a felony dire ctly by overt acts

Elements of attempted felony : 1. The offender COMMENCES 2. He does NOT PERFORM all acts 3. Act has not stopped by his own spontaneous distance 4. Non performance was due to cause or accident Felony deemed commenced directly by overt acts: 1. External acts 2. External acts have direct connection with the crime intended to be committed.

Overt acts

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-some physical activity or deed, indicating the intention to commit a particular crime, more than mere planning or preparation. Difference between Preparatory acts and overt acts:



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Buying poison (preparatory act)

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Putting poison to food (overt act)

Overt acts> clear showing that there is intention to commit a crime. There is direct connection with the intention to commit a crime

Indeterminate offense -where the purpose of the offender in performing an act is not certain. Double interpretation -in favor as well as against the accused, which show an innocent as well as a punishable act, must not and cannot furnish grounds by themselves for attempted crime. ~Directly by overt acts -the offender commences the commission of felony directly by overt acts -only the person who personally executes the commission of a crime can be guilty of attempted felony.

When there is conspiracy, the act of one is the act of all. ~Does not perform all the acts of execution -if the offender has performed all the acts of execution- nothing more is left to be done- the stage of execution is that a frustrated fe lony, if the felony is not produced; or consummated, if the felony is produced. ~By reason of some cause or accident

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In attempted felony, the offender fails to perform all acts of execution which should produce the felony because of some cause or ac cident.

~Other than his own spontaneous desistance -if the actor does not perform all the acts of execution by reason of his own spontaneous desistance, there is no attempted felony. The law does not punish him.

- the desistance must be done before a felony has been committed so that the law does not punish him. (e.g. no attempted rape but rather acts of lasciviousness) ~A stole chicken then returned the chicken, there is still theft. 15

Attempted felony -the offender never passes the subjective phase.

Subjective phase of the offense -portion of the acts constituting the crime, starting from the point where the offender begins the commission of the crime to the point whe re he has still control over his acts, including their natural course. Difference of murder and homicide -murder has treachery/qualifying circumstance

~Use of poison is always MURDER e.g. soup with poison; once swallowed- victim has no control over it. Elements of Frustrated Felony 1. Performs all the acts of execution 2. All the acts performed would produce the felony as a c onsequence 3. Felony is not produced 4. By reason of causes independent of the will of the perpetrator. Requisites of a frustrated felony 1. That the offender has performed all the acts of execution which would produce the felony 2. Felony is not produced due to causes independent of perpe trator’s will. ‘performs all acts of execution’ -nothing more is left to be done by the offender, because he has performed the last act necessary to produce the crime. Difference with frustrated and attempted: -in attempted felony, the offender does not perform all the acts of execution. He merely commences the commission of a felony directly by overt acts. ~Deadly weapons are used, blows were directed at the vital parts of the body,  the aggressors stated their purpose to kill and thought they had killed.

~IMPT NOTE:

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If the wound inflicted was mortal, then it is frustrated. If the wound inflicted was not mortal, then its only attempted

FRUSTRATED FELONIES 1. Stabbing the offended party in the abdomen 2. Causing a wound in the peritoneal cavity 3. Perforating the lungs ATTEMPTED FELONIES: 1. 4 sucessive shots at the offended party while the latter was fleeing to escape from his assailants. ~Do not produce it -in frustrated felony, the acts performed by the offender do not produce the felony because if the felony is produced, it would be consummated ~Independent of the will of the perpetrator

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If all acts of execution have been performed, the crime may not be consummated, because certain causes may prevent its consummation.

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If the crime is not produced because of the timely intervention, it is frustrated.

Case: Doctor poisoned wife-> upon taking the poison administered antidote-> not guilty of parricide because the intent to kill disappeared when he prevented the poison from producing the death of his wife. Frustrated and Attempted felony: 1. Offender has not accomplished his criminal purpose 2. Frustrated- all done; attempted- just beginning. Distinguish attempted from frustrated felony -the essential element which distinguishes attempted from frustrated felony is that, in the latter, there is no intervention of a foreign or extraneous cause or agency betwe en the beginning of the consummation of the crime and the moment when all the acts have been performed which should result in consummated crime; while in the former there is such intervention and the offender does not arrive at the point of performing all the acts which should produce the crime. Distinguish attempted or frustrated from impossible crime

1. In attempted or frustrated felony and impossible crime, the evil intent of the offender is not accomplished. 17

2. Impossible crime> impossible to accomplish; F and A> possible to accomplish 3. IC> inadequate or ineffectual; F and A> what prevented its accomplishment is the intervention of certain cause of accident Consummated felony -when all elements for execution and accomplishment are present Art If not all elements are proved: 1. Felony is not consummated 2. Felony is not committed 3. Another felony is show to have been committed.

How to determine whether the crime is attempted, f rustrated or consummated/ stages of a crime 1. Nature of the offense 2. Elements constituting the felony 3. Manner of committing the same Example: Arson Consummated- if even a small part of the house was burned Frustrated- if there was a small blaze but no part of the house was burned. Attempted- if the house was poured with gasoline and the match has been stricken.

Theft: Consummated- if the thief was able to get hold of the belonging even if he is not able to carry it away Estafa Consummated: if the offended party is actually damaged or prejudiced. Manner of committing crimes: 1. Formal crimes a.

Consummated in one instant, no attempt.

b. Slander and false testimony/ selling of drugs

2. Crimes consummated by mere attempt or proposal or by overt act 18

a.

Flight to enemy’s country

b. Corruption of minors 3. Felony by omission a.

Offender does not execute acts.

4. Crimes requiring the intervention of two persons to com mit them are consummated by mere agreement. 5. Material crimes a.

Crimes that are consummated not in one instant i. Rape

1. Consummated rape- entry even without rupture of hymen is considered consummated

2. Attempted rape- on top + raising the skirt ii. Homicide

1. Consummated- shot the victim in left forearm; stabbed at the chest 2. Frustrated murder3. Attempted homicide ===================================================================================== Light Felonies: 1. Those infractions of law for the commission of which the penalty of arresto menor (1 day to 30 days) or fine not exceeding 200 pesos or both. 2. Only punished when they are CONSUMMATED Examples: (STAMI)

1. Slight physical injuries 2. Theft (not exceeding 5 pesos) 3. Alteration of boundary marks 4. Malicious mischief 5. Intriguing against honor. Conspiracy and proposal to commit felony 1. Conspiracy to commit a felony and 2. Proposal to commit a felony ~only in the cases in which the law specially provides a penalty therefor Conspiracy -exists when two or more persons come to an agreement concerning the commission of a felony and decided to commit it.

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Conspiracies punishable by law: (TRSA)

1. Treason- prision mayor +10k 2. Rebellion/ coup d’etat- prision mayor +8k RA 6968 3. Sedition-prision mayor +2k 4. ARSOn (PD 1613) Conspiracy as a manner of incurring liability

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ABC helped mutually conspired and conferedated in the commission of

Requisites of Conspiracy 1. 2 or more persons came to an agreement 2. Agreement concerned the commission of a felony 3. The execution of the felony is decided upon Indications of Conspiracy 1. When their acts aimed at the same object 2. Participation indubitably showed unity of purpose 3. Knowledge of the plot 4. Action in concert at the time of agg ression. (act of one is the act of all) Penalty for monopolies and combinations in restraint of trade: -

Prision correctional or a fine raging from 200-6k or both,

Requisites of a proposal 1. That person has decided to commit a felony 2. He proposes its execution to some other person or persons There is no criminal proposal when: 1. The person who proposes is not determined to commit the felony. 2. There is no decided, concrete or formal proposal 3. It is not the execution of a felony that is proposed. Treason is an external security of the state Coup d’etat and rebellion are against internal security of the state ~conspiracy and proposal to commit a crime is punishable against external and internal security -once the conspiracy succeeded, there will be impunity for the crime he commmited.

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Grave felonies -are those which the law attaches the capital punishment or penalties in any of their periods in accordance with Article 25 of this code -penalty punishable by prision correctional to prision mayor. -the higher or maximum period is the afflictive penalty, if penalty is composed of 2 periods > it is grave

felony -if there are 2 or more distinct penalties, the higher or hig hest of the penalties must be a c orrectional penalty/

Less grave felonies

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Those which the law punishes with penalties which their maximum period are correctional.

Light Felonies -infractions of law for the commission of which the penalty of arresto menor or a fine not exceeding 200 pesos or both.

1. Death- capital punishment

Divisible penalty- has 3 periods. Pricion Correccional

Min Med max

Afflictive Penalties

2. Reclusion perpetua3. Reclusion temporal 4. Perpetual or temporary absolute disqualification 5. Perpetual or temporary special disqualification 6. Prision mayor- 1 day to 6 months Correctional Penalties 1. Prision correccional 21

2. Arresto mayor 3. Suspension 4. Destierro Arresto menor Public censure Fine Bond to keep the peace Penalties/ fines:

1. 200 php- light felony 2. More than 200 php- less grave fel ony 3. 6k- grave felony Offenses punishable under special laws 1. Offenses under special laws are not subject to provisions of this code 2. RPC is supplementary to such laws Special laws -penal law which punishes acts not defined and penalized by RPC. -statute enacted by the legislative branch that is penal i n character which is not an amendment of the RPC Suppletory application 1. Subsidiary penalty a.

The court applied suppletorily the provision on subsidiary penalty in special laws

b. If the special law is silent regarding the matter 2. Civil liability 3. Rules on service of sentence 4. Definition on principals, accomplices and accessories 5. Principles of conspiracy

1. Retroactive 2. Forfeiture of instruments in a crime 3. Subsidiary imprisonment 4. Criminally liable are civilly liable

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Special Notes in Criminal Law Part 1 1. Crimes not involving breach of public order committed on board a foreign ship is not triable by our courts 2. If the crime is on board a foreign ship> it is not triable by our courts 3. Smoking opium in a ship docked 2.5 miles outside the territory is a breach in public order. 4. Warships are reputed to be the territory of the country to which they belong 5. Only external act is punished because the internal acts are beyond the sphere of penal law. 6. A person who caused an injury without intention to cause an evil may be held liable for culpable felony (person tied a girl to cure ulcers- girl died) 7. Reason why acts of negligence is punishable- a man must use common sense, and exercise due reflection in his entire act, it his duty to be cautious, careful and prudent. 8. Acts executed negligently are voluntary 9. A voluntary act is a free, intelligent and intentional act 10. One who acts without freedom necessarily has no intent to do an inquiry to another 11. Existence of intent is shown by the overt acts of a person 12. A person who got up in his sleep, with a bolo in his hand, who wounded another, is not criminally liable because his acts were not voluntary 13. There is no criminal intent if it was ordered by a superior military officer and has ordered a  junior officer to do something illegally. 14. Lack of intent to commit a crime may be inferred from the facts of the case 15. Act done would have been lawful, had the facts been as the accused believed them to be. (ladymarried believing that she is already of age) 16. Lack of intent to kill the deceased because his intention was to kill another, does not relieve the accused from criminal responsibility 17. When the accused in negligent, mistake of fact is not a defense. 18. When the accused is charged with intentional felony , absence of criminal intent  is a defense. 19. In culpable felonies, the injury caused to another should be unintentional, it being simply the incident of another act performed without malice. 20. Mistake in identity is not reckless imprudence. 21. A person causing damage or injury to another, without malice or fault is not criminally liable under the revised penal code. 22. In mistake of fact, the act done would have bee n lawful, had the facts been as the accused believed them to be. 23. When the accused is charged with intentional felony, absence of criminal intent is a defense. 24. If there is only error on the part of the person doing the act, he does not act with malice, and for that reason, he is not criminally liable for intentional felony. 25. In culpable felonies, the injury should be UNINTENTIONAL.

26. Good faith and absence of criminal intent not valid defense in crimes punished by special laws. 23

27. When acts are inherently immoral, they are mala in se even if punished under special law 28. Motive is not an essential element of a crime; need not to be proved. 29. A good motive does not prevent an act from being a crime. (mercy killing) 30. Motive is essential only when there is doubt as to the i dentity of the assailant. 31. Motive is important in ascertaining the truth between two antagonistic theories or ve rsions of the killing. 32. Disclosure of the motive is an aid in completing the pr oof of the commission of the crime. 33. Lack of motive may be an aid in showing the innocence of the accused. 34. One who commits intentional felony is responsible for all consequences which may naturally and logically result there from, whether foreseen or intended or not. 35. If wrongful act results from negligence, his liability is determined under Article 365 36. When a person has not committed a felony, he is not criminally liable for the result which is not intended. 37. Any person who creates in another’s mind an immediate sense of danger, which causes the latter to do something resulting in the latter’s injuries. (EG. Jumping off a jeep because of robbery). 38. A person is not criminally liable for all possible consequences which may immediately follow his felonious act, but only for such as are proximate. (e.g. person knocked off, horse jumped on him) 39. There is no impossible crime if the act performed is other than a felony against persons or property. Criminal Law Notes II 1. In impossible crime, the act performed should constitute a violation of another provision of the Code 2. When a court has knowledge of any act which it may be deem proper to repress and which is not punishable by law, it shall render the proper decision and shall report to CE through the DOJ the reasons thatinduce the court to believ e that the said act should be made subject of penal legislation. 3. Courts have the duty to apply the penalty provided by the law 4. Judge has the duty to apply the law as interpreted by the SC 5. The external acts must be related to the overt acts of the crime the offender intended to commit 6. Raising a bolo as if to strike the offended party with i s not an overt act of homicide 7. Drawing or trying to draw a pistol is not an overt act of homicide. 8. To constitute attempted homicide, the person using a fir earm must fire the same, with intent to kill the offended party, without however inflicting mortal wound on the latter. 9. The external acts must have a direct connection with the crime intended to be committed by the offender. 10. The intention of the accused must be viewed from the nature of the acts executed by him, and not from his admission. 24

11. When there is conspiracy, the act of one is the act of all 12. The desistance should be made before all the acts of execution are performed. 13. The desistance which exempts from criminal liability has reference to the crime intended to be committed, and has no reference to the crime actually committed by the offender before his desistance. 14. Supreme court in certain cases has emphasized the belief of the accused. 15. There is no crime of frustrated theft. 16. There is no attempted or frustrated impossible crime. 17. Light felonies are punishable only if they have been consummated 18. Except if they are committed against persons or proper ty 19. Conspiracy is not a crime except when the law specifically provides a penalty therefor 20. Direct proof is not essential to establish conspiracy 21. Direct proof is not essential to establish conspiracy 22. One who offers money to a public officer to induce him not to perform his duties is lia ble for attempted bribery. 23. Offenses not subject to the provisions of the RPC is punishable under special laws. This code shall be supplementary to such laws, unless the latter should specially provide the contrary. 24. Aggravating circumstances cannot be appreciated in offenses punished by special laws. ===================================================================================== Special laws are punishable only in their consummated phase except in provisions provided by law ; e.g. CHAPTER 2 Circumstances affecting criminal liability

1. Justifying circumstances 2. Exempting circumstances 3. Mitigating circumstances 4. Aggravating circumstances 5. Alternative circumstances Imputability -

Quality by which an act may be ascribed to a person as its author or owner. It implies that the act committed has been freely and consciously done.

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Act of a person is his act

Responsibility -

Obligation of suffering the consequences of crime.

Imputability vs Responsibility

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Imputablity implies that a deed may be imputed to a p erson, responsibility implies that the person must take consequences of such deed

Guilt -

An element of responsibility

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Man cannot be made to answer for the consequences of a crime unless he i s guilty.

Justifying circumstances -

Those where the act of a person is said to be in accordance with law , so that such person is deemed not to have transgressed the law and be free from both criminal and civil liability .

Basis of justifying circumstances -

Recognizes non-existence of a crime by expressly stating in in the opening sentence of Article 11.

Justifying circumstances: 1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur

a. Unlawful aggression b. Reasonable necessity of the means employed to prevent or repel it.^ c.

Lack of sufficient provocation on the part of the person defending himself 

2. Anyone who acts in defense of the person or r ights of his spouse, ascendants, descendants or legitimiate, natural or adopted brothers or sisters or of his relatives by affinity in the same degree, provided that the first and second requisites prescribed in the next preceeding circumstance are present, and the further requisite i n case of provocation was given by the person attacked, that the one making de fense had no part therein 3. Anyone who acts in defense of the person or r ights of a stranger, provided that the first and second requisites in the first circumstance of this article ar e present and that the person defending be not induced by revenge, resentment or other evil motive 4. Any person who, in order to avoid an evil or i njury, 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.

There be no other practical and less harmful mean so preventing it

5. Any person who acts in the fulfillment of a duty or in the lawful exercise of a right or office 6. Any person who acts in obedience to an order issued b y a superior for some lawful purpose

Justifying circumstances:

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1. Self defense 2. Defense of relatives 3. Defense of stranger 4. Avoiding greater evil/ state of necessity 5. Fulfillment of duty 6. Obedience of order ~circumstances mentioned in article 11 are matters of defense and it is incumbent to the ac cused. ~in self defense, the burden of proof rests upon the  accused.

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Justifying circumstances are matters of defense.

Rights included in self defense -

Right to life

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Right to property acquired by us

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Right to honor/ chastity

Reasons why penal law makes self defense lawful

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It is impossible for state to prevent aggression

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Protection of the person unjustly attacked

Requisites for self defense

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Unlawful aggression

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Reasonable necessity of the means employed to prevent or repel it

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Lack of sufficient provocation on the part of the person defending himself.

UNLAWFUL AGGRESSION ON THE PART OF THE PERSON INJURED

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Person should be attacked or threatened.

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If there is no unlawful aggr ession, there is nothing to prevent or repel.

2 kinds of aggression: 1. Lawful 2. Unlawful - if a husband caught a paramour and killed the latter> there is self defense because he i s protecting his honor - paramour killed husband- there is no self defense because the HONOR! Case: Chief- throwing stones at the accused- crime is not nunlawful. 27

Police- 5 shots in air- aimed at the escaping detainee Unlawful aggression

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Equivalent to assault or at least threatened assault of an imm ediate and imminent kind.

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There is unlawful aggression when the peril to one’s life, limb is either actual or imminent.

Peril to one’s life (2 kinds of aggression) 1. Actual a.

Danger must be present, that is actually i n existence

b. US vs Jose Laurel 2. Imminent/ immediate a.

Danger is on the point of happening.  It is not required that the attack alr eady begins for it maybe too late

~person defending must have been attacked with actual physical force or actual use of weapon ~insulting words addressed to the accused could not constitute unlawful aggression.

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A slap on the face in unlawful aggression. (face represents dignity)

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Mere belief of an impending attack is not sufficient

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Foot kick greeting is not unlawful.

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A strong retaliation for an injury or threat may amount to an unlawful aggression

Retaliation

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Payback

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Not a self defense

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Aggression that was begun by the injured party already ceased to exist when the accused attacked him..

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Not a justifying circumstance

~when the unlawful aggression ceases, the defender no longer has the right to kill or wound the former aggressor.

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The attack made by the deceased and the killing of the deceased by defendant should succeed each other without appreciable interval of time. (should be simultaneous with the attack made by the deceased)

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No unlawful aggression when there is agreement to fight.

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If the challenge was not accepted- then the accused has acted in self defense (both protagonists are assailants)

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Aggression which is stipulated ahead if time and place in unlawful.

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One who voluntarily  joined a fight cannot claim self defense Stand ground when in right- no risk of being attacked in the back by the aggressor.

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How to determine unlawful aggressor: 1. The person who was deeply offended by the insult was the one who believed he had a right to demand explanation of the perpetrator

2. One who also struck the first blow when he w as not satisfied with the explanation offered. Unlawful aggression in defense of other rights: 1. Attempt to rape a woman- defense of right to chastity a.

Placing a hand by a man on the woman’s upper thig h is unlawful aggression (a woman may kill an offender if it is the only means left to protect her honor from so grave an outrage)

2. Defense of property a.

Attack on the person of one entrusted with said prope rty

3. Defense of home a.

Violent entry to another’s home.

-belief of the accused may be considered in determining the existence of unlawful aggression. -there is self defense even if the aggressor used a toy pistol, provided the accused believed it was a real gun.

No self defense: 1. Accused failed to surrender himself 2. Multiple blows 3. Facts

Examples of threats to inflict real injury: (not an unlawful aggression) 1. When on aims a revolver at another with the intention of shooting him 2. Act of opening a knife. -aggression must be real and not merely imaginary ~to repel or to prevent

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The law protects not only the person who re pels an aggression but even he person who tries to prevent an aggression that is expected nd

Meaning of 2  requisite of defense 1. There be a necessity of the course of action taken  by the person making a defense 29

2. There be a necessity of the means used

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Reasonableness of the necessity depends upon the circumstances

-necessity of the course of action taken depends on the existence of unlawful agg ression. - when the aggressor is disarmed- not justified to be attacked. - when only minor physical injuries  are inflicted after unlawful aggression has ceased  exist, there is still self defense if mortal wounds were  inflicted at the time the requisites of self defense were present. The person defending is not expected to contr ol his blow

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May still be justified as long as the mortal wounds are inflicted at a time when the elem ents of complete self defense are still present.

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When the aggression is so sudden that there is no time left to the one making a defense to determine what course of action to take.

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In repelling or preventing an unlawful aggre ssion, the one defending must aim at his

assailant and not indiscriminately fire his deadly weapon. (galacgac- with innocent persons inside a house aimed his revolver at random) II. NECESSITY OF THE MEANS USED CASES without rational necessity to employ the means used:

1. A sleeping woman was grasped in her arm- not justified to kill with a knife. 2. Attacked with fist blows- (x) mortal wound with a dagger 3. A man who placed hand on the thigh- not reasonable to kill him with a knife. ~the means employed is reasonable, will depend upon the nature and quality of the weapon used by

the aggressor, his physical condition, character, size and o ther circumstances.

Reasonableness of the means employed will depend on: 1. Nature quality of weapons a.

Dagger or knife is more dangerous than a club

b. Firearm = knife or dagger c.

Fist blows = fist blows

2. Physical condition, character and size a.

Bigger persons- justified in using knife

b. Larger and stronger- justified in using a bolo 3. Other circumstances a.

Shotgun is a reasonable means to prevent an aggression with a bolo.

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-reasonable necessity of means employed to prevent or repel unlawful aggression to be liberally construed in favor of law abiding citizens rd

3  requisite of self defense -

Lack of sufficient provocation on the part of the person defending himself

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Must not have given cause for the aggression by his unjust conduct or by inciting or provoking the assailant rd

CASES IN WHICH 3  REQUISITE OF SELF DEFENSE IS PRESENT 1. No provocation at all was given to the aggressor by the person defending himself a.

A shot B because B was running with a daggger

2. Insufficient provocation a.

B built a fence; A asked why; B angered and attacked A.

3. It was not given by the person defending himself 4. If provocation was given- it was not proximate and immediate to the act of aggression a.

Defense should’ve happened immediately.

How to determine the sufficiency of provocation:

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Should be proportionate to the act of agg ression and adequate to stir the agg ressor to its commission

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Verbal aggression cannot be considered sufficient provocation

The provocation is sufficient:

1. When one challenges the deceased to come out of the house for fist fight 2. One hurls insults or imputates to another the utterance of v ulgar language 3. Accused tried to forcibly kiss the sister of the disease Requisites of lack of sufficient provocation refers exclusively to the person defending himself. 3 cycles of Battered woman: 1. The tension building phase 2. Acute battering incident 3. Tranquil/ loving phase. ~battered woman has very low opinion of herself; self-defeating and self-sacrificing Relatives that can be defended:

1. Legitimate Spouse 2. Antecedents 3. Descendents 4. Legitimate, natural or adopted siblings, relatives by affinity

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5. Relatives by consanguinity within fourth civil degree ~brothers and sisters are within 2nd degree of consanguinity rd

~ 3  degree of consanguinity- uncles and aunts th

~4  degree of consanguinity- first cousins Requisites of defense of relatives

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Unlawful aggression

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Reasonable necessity of the means employed to prevent or repel it

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In case of provocation was given by the per son attacked, the one making a defense had no part therein..

Ex. A attacked B. B boloed A. sons of A saw A in mud, then killed B, they are justified Friend played practical joke- attacked the friend- victim was justified Requisites of defense of strangers: 1. Unlawful aggression 2. Reasonable necessity of the means employed to prevent or repel it 3. The person defending be not induced by revenge, resentment, or other evil motive. Who are strangers

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Not included in the enumeration of relatives; even friends are not included

Part IV Avoidance of greater evil or injury/ STATE OF NECESSITY Avoidance of greater evil or injury

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That the evil sought be avoided actually exi sts.

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Injury feared be greater than that done to avoid it

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There be no other practical and less harmful means of preventing it.

e.g. choosing the life of the mother to be saved - instinct of self preseravation will always make one feel that his own safety is of greater importance than that of another. - when the accused was not avoiding any evil, he cannot invoke the justifying circumstance of avoidance of a greater evil or injury. Examples of damage to property `- captain throwing goods in the ship 32

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Evil which brought about the greater evil m ust not result from a violation of the law by the actor.

Fulfillment of duty or lawful exercise of right or office

Requisites:

1. The accused acted in performance of a duty  or in lawful exercise of a right or office 2. The injury caused or the offense committed be necessary consequence of due performance of duty or lawful exercise of such right or office. \ -

Shooting a thief who refused to be arrested is not justified.> excessive shooting

No violence or unnecessary force shall be used in making an arrest and the person arrested shall not be subject to any greater restraint than is necessary for his detention Doctrine of self help

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Lawful possessor of a thing has the right to e xcluse any person from the enjoyment and disposal thereof.

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He may use such force as may be reasonably necessary to repel or prevent an actual threatened unlawful physical invasion or usurpation of his property

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Theft, malicious mischief and swindling are crimes that cannot be committed by a wife against his husband

The actual invasion of property may consist of a mere disturbance of possession or of a r eal dispossession.

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Of right

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Of office o

The executioner of bilibid cannot be held liable for murder for the exe cution performed by him

o

Surgeon amputated a leg of a patient to save him from gangrene

Obedience to an order issued for some lawful purpose

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Any person who acts in obedience to an order issued by a superior for a lawful purpose

Requisites: 1. An order has been issued by the superior 2. Order must be for lawful purpose 3. The means used by subordinate to carry out said order is lawful a.

Executed a day before the order

b. Full knowledge of a fasilfied documents

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A subordinate is not liable for carrying out an illegal order of his superor, if he is not aware of the illegality of the order and he is not negligent. 33

Exempting circumstances

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Are those grounds for exemption from punishment because there is wanting in the agent of the crime any conditions which make the act voluntary or negligent

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Basis: the exemption from punishment is based on the complete absence of negligence.

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A person who acts without FII us not malicious.,

Exempting circumstances: IUD GLIF 1. Imbecile or an insane person, unless the latter has acted during a lucid interval 2. Person under 15* 3. 3rd provision has been impliedly repealed by RA 9344 4. Any person who, while performing a lawful act with due care, causes an injury by mere accident without fault or intention of causing it. 5. Any person who acts under the compulsion of an irresistible force 6. Any person who acts under the impulse of an uncontrollable fear of an equal or greater injury 7. Any person who fails to perform an act required by law, prevented by some lawful or insuperable cause Exempting Circumstance (IMACII) Imbecility Minority Accident Compulsion (of irresistible force) Impulse (uncontrollable fear) Insuperable cause

Difference between Justifying and exempting: Justifying No crime No liability No civil liability Emphasis on the act

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Exempting With crime No liability With civil liability Emphasis on the actor

In exempting circumstances, there is crime but there is not liability. 34

Burden of proof

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Proved to the satisfaction of truth.

Difference bet imbecile and insane

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Imbecile is exempt in all cases of criminal liability while insane is not exempt in all cases> lucid interval

Imbecile-

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a person who has a mental development comparable to that of a child 2-7 y/o

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completely deprived of reason or discernment and freedom of the will at the time of committing the crime.

* in insanity- there should be a complete deprivation of i ntelligence or that there be a t otal deprivation of the freedom of the will. *mere abnormality of mental faculties is not enough esp if the offender has not lost consciousness *if insane- court shall order confinement; but court has no power to per mit the insane person to leave asylum without obtaining opinion of the Director of Health. * the defense has the burden of proof to show insanity. * evidence is required before and after the crime has been committed to prove insanity. * a person who was insane at the time of the commission of a felony> exempt from criminal liability. * if a person was SANE during the time of commission of felony> not exempted * trial will be suspended until the mental capacity of the accused has been restored (fair trial) * insanity following a crime> not acquitted. (MUST BE SANE DURING COMMISSION OF CRIME). Dementia praecox

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delusions; person has no control of his acts

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with hallucinations

Schizophreneia

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chronic mental disorder characterized by inability to distinguish between fantasy and reality.

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With delusions and hallucinations

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Withdrawal into a fantasy

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Aloofness, withdrawal, hopelessness, hatred,fear.

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Does not regularly blink his eyes.

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Kleptomania

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With conflicting opinion

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Person has lost the power of his will, therefore he is exempted.

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But if conscious of acts- then it is only a mitigating circ

Epilepsy

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chronic nervous disease characterized by fits.

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If crime done was during a fit> then exempted.

Feeblemindedness

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Not exempted because offender can distinguish right from wrong.

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Imbecile cannot distinguish.

Pedophelia

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Not insanity because he could distinguish right from wrong.

Amnesia

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Failure to remember is in itself no proof of the mental condition of the accused.

Other cases in lack of intelligence: 1. Somnambulism 2. Hypnotism 3. Malignant malaria (complicated the nervous system) 

Complete absence of intelligence

Under 9- amended by RA 9344. Changed to 15 years old 

If a child committed a crime when he was below 15, the child shall be subjected to an intervention program.



A minor must have discernment to incur criminal liability.

Periods of Criminal responsibility: (ACFM) 1. Age of absolute irresponsibility- 15 and below 2. Age of Conditional responsibility – 15+ 1 day to 18 3. Age of Full responsibility- 18 to 70 4. Age of mitigated responsibility- 15+1 to 18; 70 up> provided that he acted with discernment. Discernment

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Capacity to understand the difference between right and wrong

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Difference between intent and discernment: 1. Intent- desired act 2. Discernment- moral significance. How can discernment be shown: 1. Manner the crime was committed 2. Conduct of the offender after committing the crime



In case of doubt as to the age of the child; it shall be resolve d in his or her favor.

Determination of age BAT 1. Birth Certificate 2. Authentic Certificates 3. Testimony of the child or a member of a family.



A person alleging the age of the child i n conflict with the law has the burden of proving the age of such child.

Par 4: Elements: LDAI

1. Person is performing a lawful act 2. With due care 3. Causes an inquiry to another by mere accident 4. Without fault or intention causing it.

Accident - happens outside the sway of our will; lies beyond the bounds of forseeable * the difference of accident with negligence is that the latter is forseeable. Compulsion of an irresistible force: Elements: PIT 1. Compulsion is by means of physical force 37

2. The physical force must be irresistible. 3. Physical force must come from a third person Part 6: Any person who acts under the impulse of an uncontrollable fear of an equal or greater injury Elements: 1. Threat which causes the fear is of an e vil greater to or at least equal tp that which he is re quired to commit; 2. Promises an evil that an ordinary man has succumbed. Requisites for uncontrollable fear 1. Existence of an uncontrollable fear 2. Fear must be real and imminent 3. Fear of an injury is greater than or at least equal to that committed. Duress

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Should be based on RIR (reasonable, imminent or real) fe ar of loss of one’s life or limb.

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A threat of future injury is not enough

Distinction between irresistible force and uncontrollable fear:



In irresistible force- violence has been used; uncontrollable fear- intimidation or threat.

ACTUS ME INVITO FACTUS NON EST MEUS ACTUS *

Par. 7Any person who fails to perform an act required by law, when prevented by some lawful or insuperable cause Elements: RFL 1. Act is required by law to be done 2. Person fails to perform such act 3. Failure to perform was due to some lawful or insuperable cause Examples: priest- confession treason Insuperable cause: mother- died baby- due to dizziness 

In all exempting circumstances, intent is wanting in the agent of the crime

Absolutory causes

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Those act committed is a crime but for reasons of public policy and sentiment; there is no penalty imposed.

1. Justifying circumstances 2. Absolutory circumstances 3. Art 6- spontaneous desistance 4. Art 20- accessory is relative of the principal 5. Art 124- commission of a crime in insanity 6. Art 247- death inflicted under exceptional circ 7. Art 280- entering a person’s house for the purpose of preventing some serious harm for himself. 8. Legal grounds for arbitrary detention 9. Art 332- no criminal liability but only civil due to: theft, swindling or malicious mischief (TSM) a.

Spouse, ascendants, descendants

b. Widowed spouse c.

Brothers, sisters, bro in laws if living together.

10. In cases of rape> marriage shall extinguish criminal action. 11. instigation *Instigation is an absolutory cause. E.g. Investigator- smoke opium- accused was not criminally liable because he was i nstigated to commit a crime but if selling> then it is a crime. 

Courts are condemning the practice of instigation

Entrapment is not an absolutory cause. 

Instigator induces thr would be accused in the commission of a crime.



Entrapment- to trap the or catch the criminal

ENTRAPMENT IS NOT A DEFENSE. 

Instigation must be made by public officers or private detectives.

Mitigating Circumstances Part I. Those Mentioned in the preceding chapter when all requisites necessary to justify the act or to exempt from criminal liability in the respective cases are not attendant 1. Self defense 2. Defense or relatives 3. Defense of stranger 4. State of necessity 5. Performance of duty 6. Orbedience to order of superior 39

7. Minority above 15 but below 18 8. Injury by mere accident 9. Uncontrollable fear * Insanity/imbecility and below 15 cannot be place to mitig ation because the condition of a person is indivisible.



If a person with illness is wih will power> then it can be considered as mitigating circumstance

a. INcompletese self defense, defense of relatives and defense of stranger> UNLAWFUL AGGRESSION must be present> if not it is not SELF DEFENSE. 

2/3 requisites (unlawful aggression+ other)- Privilieged mitigating circumstance (art 69)



Unlawful aggression+ sufficient provocation./ unlawful aggression+ unreasonable means to prevent it= privileged mitigating circumstance

b. Incomplete justifying cirucumstance of avoidance of greater evil or injury - first requisite is present ( exi stence of evil); but last 2 are absent (injury feare d is greater ; no other practical ways to prevent it) c. Inomplete justifying circumstance of performace of duty (OANIS CASE) d. Incomplete justifying circumstance of obedience to an order EXEMPTING CIRCUMSTANCES: 1. Incomplete circumstance of minority over 15 and under 18

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If the minor acted with discernment – he is entitled to a mitigating circumstance

2. Incomplete exempting circumstance of accident a.

Person performs a lawful act, with due care, causes injury to another, without intent

b. Incomplete- art 365 (negligence and imprudence) 3. Incomplete exempting circumstance of uncontrollable fear a.

Fear is greater or equal to what he is required to comit

b. Evil of such gravity and imminence that an ordinary person would have succumbed it. Part 2: the offender is under 18 years of age or over 70

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Repealed by RA 9344

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if acted with discernment- child will undergo diversion programs

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if acted without discernment> child will be exempted

Diversion

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alternative, child-appropriate process of determining the responsibility and treatment of a child in conflict with the law on the basis of his or her social, cultural, economic, psychological or educational background without resulting to formal court proceedings

Diversion Program

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refers to the program that the child in conflict with the law i s required to undergo after he or she is found responsible for an offense without resorting to formal court proceedings

Conditions of Diversion program 1. imposable penalty is not more than 6 years a.

punong baranggay and others will conduct mediation, family conferencing and recoliation, conflict resolution

2. victimless crimes penalty is not more than 6 years a.

child + parents/ guardian will develop an appropriate diversion and rehabilitation program (BCPC)

3. imposable penalty exceeds 6 years> diversion measures may be resorted to only by court



if a child admits during a diversion program, that admission will not be used against a child



a diversion program shall be binding if accepted by parties concerned



diversion proceedings shall be complete within 45 days



once a month meeting



failure to comply> will institute appropriate lagal action



period of prescription shall be suspended but not exceed a period of 2 years

Diversion program maybe held in: 1. katarungang pambarangay 2. police investigation 3. inquest 4. preliminary investigation if the offense does not fall under the conditions/ no consent

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pB shall forward it to law enforcement officer, prosecutor or appropriate court

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the word CHILD shall be in bold letters

- if the offender is over 70> PRIVILEGED MITIGATING CIRCUMSTANCE If death penalty for over 70:

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1. shall not be imposed 2. shall be suspended and commuted 3. will result to reclusion perpetua Basis: demunition of intelligence Par 3: that the offender had no intention to commit so grave wrong as that committed

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intention can also be seen if the blow that was given was intended not to a vital part of a body.

How to show intention: 1. weapon used 2. part of the body injured (vital) 3. manner the wrong committed 4. the injury inflicted 

inflicting 5 stab wounds in rapid succession negates lack of intention



No intent is not applicable when offender employed brute force



The intention is during when a criminal act has been done and not during the PLANING STAGE



Lack of intention to commit so grave wrong, mi tigating in robbery with homicide.



Lac of intention to commit so grave a wrong is not appreciated where the offense committed is characterized by treachery.



Lack of intent to kill is not mitigating in physical injuries

Instances of mitigating when the victim dies 1. Burning a victim’s cothes for fun> victim died



No intent is not applicable to felonies by negligence o

In felonies through negligence> the offender already acts without intent. 

o

Replaced by negligence, imprudence, lack of skill and lack of foresight.

*case: woman pulled hair> woman fell > fetus aborted> unintentional abortion

Unintentional abortion

-

By violence shall cause the killing of the foetus in the u terus or the violent expulsion of the fetus from the maternal womb causing its death but unintentional.

Basis of paragraph 3:

-

intent is diminished

Part 4: sufficient provocation or thret on the part of the offended party immediately preceded the act.

42

Provocation

-

any unjust or improper conduct on the part of the offended party, capable of exciting, inciting or irritating anyone

requisites: 1. provocation must be sufficient 2. it must originate from the offended party 3. provocation must be immediate to the act of the com mission of the crime ‘sufficient’

-

adequate to excite a person to commit the wrong and must accordingly be proportionate to the gravity

Difference of provocation between mitigating and self defe nse 1. in self defense the lack of provocation is on the part of the accused (justifying) 2. in mitigating> provocation is on the part of the offended party



there shouldn’t be any interval of time on part of the provocation of the accused



If threat> there is sufficient provocation immediately after the threat



Vague threats not sufficient (the sentence must be complet

Basis of Paragraph 4: - diminution of intelligence and inten

Par 5: that the act was committed in the immediate vindication of a grave offense to the one committing the felony, his spouse, ascendants, descendants, legitiamate, natural or adopted brother or sisters or relatives by affinity within the same degree

Requisites: 1. The grave offense done to the one committing the felony… 2. Felony is committed in vindication of such grave offense e.g. son> stabbed> killed other people surrounding him - the relationship exists between surviving spouse and blood relatives of the deceased - B’s brother killed C after he killed A

43

- lapse of time is allowed between the grave offense and the vindication - killing of paramour by the offended husband one day after the adultery was proximate

Provocation vs Vindication 1. Provocation- directly only to the person commiting felony; vindication- offense committed against relatives 2. Provocation- not a grave offense; vindication- offended party must have done a grave offense to the offender. 3. Provocation- immediately preceded the act (no interval of time); vindication- may be proximate 

Vindication concerns the honor of a person



Killing of a relative is a grave offense

Basis to determine the gravity of offense in vindication:



-

Social standing of the person

-

Place and time when the insult was made

Provocation should be proportionate to the damage caused by the act and adequate to stir one to its commission.

Basis of Paragraph 5: diminution of the conditions of voluntariness.



Grave offense must be directed to the accused.

Par 6 that having acted upon an impulse so powerful as naturally to have produced passion or obsfuscation

Requirements: 1/ accused acted upon impulse 2. the impulse must be powerful to produce passion

Passion or obfuscation is mitigating because a person loses his reason and self control and diminishes exercise of his will power in obfuscation or passion

There is no mitigating circumstance when: 44

1. The act committed in spirit of lawlessness 2. Act committed is in revenge. Requisites of mitigating circumstance of passion or obsfucation 1. Act both unlawful and sufficient to produce such a condition of mind 2. The said act which produced obfuscation was far removed from the commission of the crime by a considerable length of time. 

Exercise of a right or fulfillment of duty is not proper source of passion or obsfucation



No passion or obfuscation after 24 hours or several hours or half an hour.



The crime committed must be the result of a sudden impulse of natural and uncontrollable fury



Obsfuscation cannot be mitigating in a crime which is planned and calmly meditated before its execution



Obfuscation- when relationship is illegitimate is not mitigating



The cause producing passion or obfuscation must come from the offended party

Basis of paragraph 6:

-

Diminution of intelligence and intent

Passion or obfuscation distinguished from irresistible force: 1. Obfuscation is mitigating; irresistible force is exempting 2. Passion or obsfuscation cannot give rise to an irresistible force > requires physical force rd

3. Passion > offender; irresistible force> from 3  peson 4. Passion> lawful sentiment; irresistible force> unlawful Passion or obfuscation from provocation: 1. Provocation from injured party; obfuscation? Produced by an impulse which may be caused by provocation 2. Provocation- immediately preced; passion- need not to be immediate 3. Both> loss of reason and self control Par 7 That the offender had voluntarily surrendered himself to a person in authority or his ag ents, or that he had voluntarily confessed his guilt before the cour t prior to the presentation of evidence for prosecution

2 mitigating circumstance: 1. Voluntary surrender to a person in authority 2. Voluntary confession of guilt before presentation of evidence Requisites of voluntary surrender:

45

1.

offender had not been arrested

2. Offender surrendered himself to aperson in authority or a latter’s agent 3. Surrender was voluntary Requisite of voluntariness

-

Spontaeneous in manner * acknowledges his guilt or because he wishes to save them trouble)

Not voluntary surrender: 1. Warrant of arrest showed that the accused was arrested 2. Accused surrendered after the warrant of arrest was served upon him 3. Accused was arrested by his own admission 4. Accused went into hiding 5. 4 years of hiding 

Not itigating when defendant was arrested



When the warrant of arrest had not been ser ved or not returned unserved because theaccused canot be located> surrender is mitigating.



Surrendering weapon is not voluntary surrender.

Person in authority or agent

-

Barrio capain and barangay chairman

-

Commanding officer is an agent of a person

Agent of a person in authority

-

Who by direct proivision by law or by appointment by competent authority is charged wi th maintenance of public order and protection and the security of life and property and any person who comes to the aid of persons in authority.

-

Commanding officer

-

Justice of peace



There must be a voluntary surrender before the arrest



RPC does not make any distinction among the various moments when the surre nder may occur



There is voluntary surrender when the warrant has not yet been served.



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



Surrender through an INTERMEDIARY is considered as a valid mitigating

When is surrender voluntary: 1. because he acknowledges his guilt 2. because he wishes to save them the trouble and expenses incurred in his search and capture Spontaneous: 46

-

an inner impulse

-

acting without external stimulus



the law requires the accused must surrender himself



surrender is not voluntary when forced by circumstances

Requisites of a plea of guilty: 1. that the offender spontaneously confessed his guilt 2. made in open court 3. prior to the presentation of evidence for prosecution.



Plea of guilty on appeal is not considered as mitigating



Plea of not guilty at the preliminary investigation is no plea at al



Withdrawal of plea of not guilty and pleading guilty before presentation of evidence by prosecution is still mitigating.



A conditional plea of not guilty is not a mitigating circumstance ( penalty may not be imposed to the accused).



Death penalty is changed to life imprisonement because of the guilty plea.



Plea of guilty to lesser offense than that charge d is not mitigating.



Plea of guilty to the offense charged in the ame nded information, lesser than that charged in the original is mitigating (e.g. double murder to double homicide)



When the accused is charged with a grave offense, the court should take his testimony in spite of his guilty plea

Guidelines in the conduct of a searching inquirt: 1. Ascertain from the accused himself a.

How he was brought into the custody of the law

b. Whether he had assistance of a competent counsel c.

Under what conditions he was detained and interrogated during the investigations

2. Ask the defense counsel a series of questions 3. Elicit information about the personaliy profile of the accused 4. Inform the accused of the exact length of imprisonment 5. Inquire f the accused knows the crime with which he is charged 6. All questions posed to the accused should be in a language known and understood by the latter 7. Trial judge must satisfy himself that the accused is trulyguilty ‘act of repentance and respect for the law’

-

Reason why plea of guilty is mitigating

47

When is plea of guilty not mitigating 1. Culpable felonies 2. Crimes punished by special law Part 8:

Deaf, dumb, blind or otherwise suffering from some physical defect



Physical defect must restrict means of action, defense or communication with fellow beings

Physical defect



-

Armless

-

Cripple stutterer

-

Means to defend are limited

No education needed

Par 9

-

Such illness of the offender as would diminish, the exercise of will power of the offender without however depriving him of consciousness of his acts

Requisites 1. That the illness of offender as would diminish the exercise of will power 2. That such illness should not deprive the offender of consciousness of his acts Illness of theoffender considered mitigating: 1. Belief of a witch 2. Example of illness of nerves or moral faculty 3. Acute neurosis 4. Feebleminded Basis: diminution of intelligence and intent

Par 10: similar nature and analogous

Examples: 1. 60 years old and with failing sight is analogous 48

2. Outraged feeling of creditor similar to passion and obfuscation 3. Impulse of jealous feeling (jealousy) 4. Manifestations of BWS 5. Esprit de corps- ( mass psychology 6. Voluntary restitution (similar to voluntary surrender) 7. Extreme poverty and necessity ( similar to incomplete justification based on necessity ; life is more sacred than a mere property right 8. Testifying for prosecution; analogous to guilty plea 9. Restitution in malversation Not mitigating: 1. Killing the wrong man 2. Not resisting arrest; not analogous to vol surrender Circumstances which are NOT exempting nor mitigating 1. Mistake in blow 2. Mistake in identity 3. Entrapment 4. Accused is over 18 5. Performance of righteous action Aggravating circumstances

-

Are those which if attendant in the commissi on of the crime, serve to increase the penalty without exceeding the maximum penalty

Where is Aggravaitng circumstance based: 1. Motivating power 2. Place of commission 3. Means and ways employed 4. Time 5. Personal circumstances 4 kinds of aggravating circumstance 1. Generic a.

Applied to all crimes ( dwelling, nighttime or recidivism)

b. ‘except mean of motor vehicles 2. Specific a.

Apply only in particular crimes

3. Qualifying a.

Those that change the nature of the crime 49

4. Inherent a.

Necessity accompany te commission of the crime

Difference between qualifying from generic 1. GA- not offset by any mitigating (max period); QA-not only name; but also place 2. QA- cannot be offset by MC; GA- can be compensated by MC 3. QA- must be alleged; GA- circumstancial Aggravating circumstances which are personal to offender: 1. From moral attributes of offender 2. From his private relations with the offended party 3. Any other personal cause Circumstances that aggravate liability: 1. Public position 2. Crime committed in contempt or with insult to public authorities 3. Disregard of rank, age, sex, dwelling without provocation 4. Act committed with abuse of confidence or obvious ungratefulness 5. In palace of chief executive or in his presence; where public authorities discharge their duties or place dedicated for worship 6. Nighttime, uninhabited place, band 7. Conflagration, shipwreck, earthquake, epidemic or other calamity 8. Aid of armed men or persons who insure or afford impunity 9. Recidivist 10. Been previously punished for an offense which law attaches an equal or greater penalty 11. Consideration of price, reward or promise 12. Inundation, fire, poison, explosion, stranding of a vessel 13. Evident premeditation 14. Craft, fraud or disguise 15. Superior strength 16. Treachery 17. ignominy 18. unlawful entry 19. broken wall, roof, foor, door or window 20. aid of persons under 15 / by means of motor vehicle, airships 21. augmented by causing other wrong not necessary for its commission Par 1: The advantage be taken by the offender of his public position

Basis: means used to secure the commission of crime 50



the officer myst take advantage of his influence, prestige or ascendency



question should be asked: did the offender abused his office? 

Not taking advantage of his position: > CONGRESSMAN CAUGHT GAMBLING AND OFFERED RESISTANCE 

when the public officer did not take advantage of the i nfluence of his position, this aggravating circumstance is not present.



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



Wearing uniform is immaterial in certain cases



The person to whom the crime was committed should be AWARE that that person is a policeman



If a person failed to do his office duties> AGGRAVATING



Not aggravating if accused could have perpetrated the crime without occupying police position

Par 2: that the crime commited in contempt of or with insult to the public a uthorities

Basis: lack of respect for the public authorities Requisites

1. Public authority is engaged in the exercise of his functions 2. Excercised functions> not the one against him 3. Offender knows him to be a public authority 4. His presence has not prevented the offender from com mitting the criminal act Public authority:

-

A public officer who is directly vested with jurisdiction, has the power to govern and execute the laws



Councilor, mayor, governor

If the crime is committed in the presence of an agent> not an aggravating

Agent of a person in authority:

-

In charge of maintenance of public order and the protection and security of life and property



The crime should not be committed against the public authority



If direct> direct assault without this aggravating circ



There should be the knowledge that the person in aut hority is present

Par 3: that the act be committed 1. With insult or in disregard of the respect due a. Sex

51

b. Rank c.  Age 2. That it be committed in the dwelling of the offe nded party; no provocation given

Basis: greater perversity of the offender 

Should be taken as single or together only



This is applicable only to crimes against persons or honor 



The commission of a crime must be deliberately intended to offend or insult sex or age of the offended party

Examples of crimes with disregard to the respect due for the offended party: 1. Pupil vs teacher 2. Private citizen who attacked a person in authority 3. Killing of a judge 4. Attempt upon the life of a general Rank:

-

High social position or standing as a grade in armed forces/ social position or station

Age of the offended party

-

Present when the offended person could be the father of the offender

-

Also present if killed was 80 years old and ver y weak

-

Applicable to tender age and also to old age

-

Applicable only for crimes against persons and NEVER for property

-

Robbery with homicide is not affected; because the main reason for committing this crime is > ROBBERY

Sex of the offended party

-

Applicable to female only not male

-

Direct assault upon a lady teacher

-

Not existing if: o

Has a relationship

o

When the offender acted with passion and obfuscation

o

When the condition of being a woman is indispensable in commission of the crime: 

Parricide



Rape



Abduction



Seduction

That the crime be committed in the dwelling of the of fended party:

52

Dwelling

-

Building or structure, exclusively used for rest and comfort

-

A combination of house and store is not dwelling

Basis: place of the commission of the offense

-

Great disrespect for the sanctity of privacy

What aggravates the commission of the crime 1. Abuse of confidence 2. Trespassing 

Offended party must not give provocation; if provocation was given, there is no AC

Meaning of provocation: 1. Given by the owner of the dwelling 2. Sufficient 3. Immediate to the commission of the crime 

If all are present there is provocation;



If not all> no provocation



It must be proven that there was no provocation given



If the offender did not enter the dwelling, it is still a circumstance; shot from outside



Even if the killing took place outside> it is aggravating provided that the commission of the crime bagan in the dwelling



Dwelling is aggravating in abduction or illegal detention if the victim was taken from her house



Not aggravating if called down from the house

What is included in dwelling: 1. Dependencies, 2. Foot of the staircase 3. Enclosure under the house 

If the deceased had 2 house; it is still aggravating.

When is dwelling not aggravating: 1. When both offender and offended are occupants of the same house 2. If robbery> force upon things> aggravating is already inherent 3. Trespass to dwelling 4. Owner gave sufficient and immediate provocation 5. Crime committed did not belong to the offended party 6. Rape was committed in the ground floor of a two storey vid rental

53

Examples of aggravating cases: 1. Raped in boarding house 2. Paternal home 3. House of her aunt; temporary dwelling 4. Sleeping guests in one person



Aggravating when the husband killed his estranged wife in a house other than conjugal home



Adultery> if deed done in the house> aggravating

Adultery

-

A deeddone by a married woman who shall have sexual intercourse with a man not her husband



By a man who has carnal knowledge of her knowing her to be married

Dwelling not aggravating in adultery when paramour also lives there

Paragraph 4: that the act be committed with abuse of confidence or obvious ungratefulness

Basis: means and ways employed

-

When the offended party has trusted the offender who later abuses such trust

Requisites: 1. Offended party had trusted the offender 2. The offender abused such trust 3. Abuse of confidence facilitated the commission of the crime *Betrayal of confidence is not aggravating * killing of child by an amah is aggravated by abuse of confidence * there is no abuse of confidence if the offended can RESIST the offender Felonies where abuse of confidence is inherent 1. Malversation 2. Qualified theft 3. Estafa by conversion or misappropriation 4. Qualified seduction 

Ungratefulness must be obvious.

Par 5: crime committed in the palace of the chief executive or in his presence or where public authorities are engaged in the discharge of their duties or in a place dedicated to religious worship

54

Differences of presence and insult to publc authorities 1. Are in performance of their duties 2. Par 5> must be in their office par 22> must be outside their office 3. Par 2: should not be the offended party; par 5> may be the offended party 

It doesn’t matter if religious functions are being held



An electoral rpecint during the election day is a place where public authorities are engaged in the dsicahrge of their duties



Cemeteries are not a place for religious worship



The offender must have intention to commit a crime when he entered the place

Par 6: that the crime be committed 1. In night time or uninhabited place or by a band iBasis: time and place of the commission and the means and ways employed 

Considered separately

When aggravating:

1. Facilitated the commission of the crime 2. Especially sought for by the offender to insure the commission of the crime or for the purpose of impunity

3. When the offender took advantage thereof for the purpose of impunity

e.g Night time> when A hid and waited for nighttime behind a tree * whenever such circumstances amy facilitate the commission of the offense Especially sought for by the offender

-

When he sought the nighttime with ease

-

Not sought for when: o

Notion was conceived shortly

o

Mere casual encounter

When is noctunity not sought for:

1. Facilitated the commission of the offense 2. Offendertook advantage of the same to commit crime Nighttime

-

Period of darkness

-

Beginning at the end of dusk and ending at dawn

-

Sunset to sunrise 55



Nocturnity is an aggravating only> if the offender sought for it and not just because the crime was committed on wee hours of the night



Darkness must not only be incidental



The information must allege that nighttime was sought for or taken advantage of by the accused or that it facilitated the commission of the crime



Not aggravating when crime bagan at daytime



Commission of the crime must begin and be accomplished in the nighttime



If there is lighting capable of making them be recognized> nighttime is not aggravating



When the place of the crime is illuminated by the light,it is not aggravating.

Uninhabited place

-

One where there are no houses at all, a place considerable distance from town, there the houses are scattered at a great distance form each other

-

The aggravating should not be considered when the place where the crime was committed could be seen and the voice could be heard 

-

The distance is not considered but the reasonable possibility of the victim receiving some HELP

-

Felony was perpetrated in the open sea

-

If casually encountered> did not take advantage

BY A BAND:

Band

-

More than 3 malefactors ashall have acted together in the commission of crime

-

MUST ACT TOGETHER

-

More than 3 persons should have constituted the crime

-

Stone is included in the terms of arms

-

If only one of the four armed persons is a principal by inducement> they do not form a band

-

All the armed men, at least four in number must take direct part in the execution of the act constituting the crime

-

If the meeting was casual; no aggravating- e.g. when they met and agreed to fight

-

Band is aggravating in crimes against property or against persons or in the crime of illegal detention or treasn

-

Not applicable to crimes against chastity

-

By a band is inherent in BRIGANDAGE

Par 7- that the crime be committed on the occasion of a conflagration, shipwreck, earthquake, epidemic or other calamity or misfortune

56

Basis: time of the commission of the crime. Reason: taking advantage of the offended’s mi sfortune e.g. robbery in burned house; thief after a destructive typhoon - if provoked> not aggravating - refers to other conditions of distress similar to those precedingly enumerate; CHAOTIC CONDITIONS AFTER LIBERTION IS NOT INCLUDED

Par 8: crime be commited with the aid of armed men or persons who insure or afford impunity

Basis: means and ways Requisites: 1. Armed men took commission of the crime directly or indirectly 2. Availed himself of their aid or relied upon them Rule for the application of this circumstance:



-

Casual presence> does not constitute an aggravating

-

Or did not rely on their aid

The armed men must take part directly or indirectly

Examples of with aid of armed men:

-

Help by moros



Not applicable when both parties are equally armed



If they acted under the same plan and for the same purpose

Difference of aid of armed men by band



-

Band requires more than 3 armed acted together

-

Armed men is present> but not merely aided

If there are armed men and aid> aid men is absorbed by the band

Par 9. accused is a recidivist

Basis: inclination to crimes of the offender

Recidivist

57

-

One who, at the time of his trial for one crime,shall have been previously convicted by finaly udgment of another crime embraced in the SAME TITLE OF THE RPC

Requisites 1. Offender is on trial for an offense 2. He was previously convicted by final judgment of another crime 3. Both first and second offenses are embraced in the titl e of the same code 4. The offender is convicted of the new offense



What is controlling is the time of trial,not the time of the commission of the crime

Time of trial for one crime

-

Arraignment + judgment

Final judgment:

1. After the lapse of the period for perfecting an appeal 2. When the sentence has been partially or totally satisfied or served 3. The accused has waived in writing his right to appeal 4. accused has applied for probation Examples of crimes embraced in the same title of the RPC

-

robbery and theft> crimes against property

-

homicide and physical injuries> crimes against persons



there is recividism no matter how many years have intervened



pardon does not obliterate the fact that the ac csed was a recidivist



but amnesty extinguishes the penalty and its effects

Par 10. That the offender has been previously punished for an offe nse to which law attaches an equal or greater oenalty or for two or more crims to which it attaches a lighter penalty

Requisites: 1. that the accused is on trial for an offense 2. that he previously served sentence for another offense> greater penalty 2 or more crimes which attaches a lighter penalty (offense>/= or 2 crimes light+light)

58

e.g. A > punished with 12 years- 20 years; committed homicide> punishable with 12 years- 20 years (EQUAL therefore aggravating) 2. B punished for homicide (20 years)> after release> committed falsification of public docs (1yr)> there is aggravating. (greater first)



if lower punishment first, there is no aggravating



if homicide before and homicide now, there is recidivism ( embraced in the same title of the code)



if punished for 3 months and then next punished for 1 year (2 lighter offenses)- aggravating



It is all about the penalty attached to the offense  and not the penalty imposed.



Reiteracio is not always aggravating

Difference between Reiteracion and recidivism 1. RT> offender should have served his sentence first; RD only final judgment 2. RT> previous and ubsequent offenses must not be embraced in the same title; RD> same title 3. RT not always aggravating, RD> always 4 forms of repetition 1. Recidivism 2. Reiteration 3. Multi recidivism or habitual delingency 4. Quasi residivism(special aggravating) Habitul delinquency

-

When a person, within a period of 10 years fr om the date of his release, found guilty of any crimes a third time

-

Shall suffer an additional penalty for being delinquent

Quasi recidivism

-

Any person who shall commit a felony after having been convicted by final judgment, before beginning to serve or while serving> shall be punished by the maximum period of the new felony.

Par 11

-

That the crime be committed in consideration of a price, reward or promise

Basis:

59

-

Motivating power



2 principals



Applicable to the one who gave the price or reward



Can be applied to the instigator of a crme



Price, reward or promise must be for the purpose of inducing another to perform the deed



Reward was voluntary

Par 12: That the crime be committed by means of inundiation, fire, poison, explosion, stranding of a vessel or intentiaonal damage thereto, derailment of a locomotive or by the use of any oth er artifice involving waste and ruin

Bais: means and ways employed When used as a means to kill another person the crime is murder 1. By means of fire a.

There is an actual design to kill the person

b. If the person was killed and set a person on fire murder or homicide 2. By means of explosion a.

No intent is destruction; with intent= murder

3. By means of derailment of locomotive a.

Just derailment= damage

b. Without intent to kill- complex damage c.

With intent to kill- murder

PAR 13: That the act eb committed with evident pre meditation

-

WITH DELIBERATE PLANNING OF THE ACT

-

MUST BE preceded by a cool thought and reflection

-

The premeditation must be evident

-

Evidence must be showing that the accused meditated and reflected on.

Requistites of evident premeditation 1. The time when the offender determined to commit the crime 2. Act manifestly indicating that the culprit has clung to his determination 3. Sufficint tlapse of time between determination and execution 60



rd

Daate and time when the offender determined to com mit the crime essential> lapse of time ; 3 requisite is computed

nd

Things to indicate that the 2  requirement is existing: 1. Careful planning 2. Offenders previously prepared the means which they considered adequate to carry it out 3. Grave was repared 4. Defendants made repeaed statements 5. Defendant sharpen his bolo Sufficient lapse of time:

-

Accused had 3 day’s time to meditate upon the crime which he intended to commit and was not prompted by the impulse of the moment



3 hours or less is considered sufficient lapse of time



½ hour is not sufficient



It is required so that there will be a time to do a cold and deep meditation



Conspiracy presupposes premeditation



If conspiracy is only implied> evident premeditation may not be appreciated



Premeditation is absorbed by reward or promise



When the victim is different from that intended, premeditation is not aggravating.



Evident premeditation, while inherent in robbery, may be aggravating in robbery with homicide if premeditation included the killing of the victim.

Par 14 (CFD)

-



That craft, fraud or disguise be employed

There is mental or intellectual rather than physical means to which the criminal resorts to carry out his design

Craft

-

Involves use of intellectual trickery or cunning on the p art of the accused. It is not attendant where the accused was practically in a stupor when the crime was committed

-

Chicanery resorted to by the accused to aid in the execution of his criminal design.

-

Scheme in the execution of the crime

-

Act of the accused in pretending to be bona fide passengers>

When is craft not aggravating:

61

-

When craft partakes of an element of the offense, the same may not be appreciated independently for the purpose of aggravation.

Fraud

-

Insidious words or machinations used to induce the victim to act in a manner which would enable the offender to carry out his design.

Difference between Fraud from Craft

-

Craft- act; fraud- words

-

Craft uses act in order not to arouse suspicion while fraud uses insidious words or machinations to induce

Disguise

-

Resorting to any device to onceal identity

-

Handkerchief etc.

-

If the culprits were recognized by the victim, disguise was not considered aggravating.

-

The use of an assumed name in the pubilication of a libel constitutes disguise.

-

The purpose of the offender should be to be able to conceal his identity.

Par 15 1. The advantage be taken of superior strength 2. Means be employed to weaken the defense



To take advantage of superior strength by means to use purposely excessive force

No advantage of superior strength: 1. With passion oand obfuscation 2. When quarrel arose unexpectedly Illustrations of abuse of superior strength: 1. Strong man ill treating a child or old person 2. Innocent and tendered baby 3. Defenseless and under the liquor> 

When the attack was made on the vi ctim alternately, there I sno abuse of superior str ength.



There is abuse of superior strength when a man attacks a woman with a weapon.



No abuse of superior strength in parricide against wife (sex is inherent in paricide)



There must be an EVIDENCE that the accused was physicall y stronger



Numbers in terms of superiority is not sufficien 62



This depends on the AGE, SIZE AND STRENGTH of parties



Number of aggressors, IF ARMED, may point to abuse of superior strength



There is abuse of superior strength when weapon used is out of proportion to the defense available to the offended party



Simultaneous attack by two persons with revolvers against a defenseless person is ag gravated by superior strength



There is no abuse of superior strength when 2 acted as accomplice. BOTH SHOULD BE  principals



When there is treachery, superior strength is absorbed



Abuse of superior strength is aggravating in coercion and forcible abduction when greatly in excess of that required to commit the offense



Treachery absorbs band and superior strength; abuse of superior strength absorbs band

TO WEAKEN DEFENSE:



-

Throwing of cloak

-

Throwing of sand

-

Intoxicating

If the degree of intoxication is until the time when the victim cannot make any defense> TREACHERY



Applicable only to defense against persons

Par 16- treachery

BASISS: means and ways

Treachery

-

When the offender commits any of the crimes against person, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution without risk to himself

-

Offended party was not given an opportunity to MAKE A DEFENSE

-

Sudden, unexpected and without warning

RULES REGARDING TREACHERY 1. Applicable only to crimes against the person 2. Means, methods or forms need not insure accomplishment of crime. 3. Mode of attack must be consciously adopted 

Treachery cannot be presumed

63

Illustrations without treachery: 1. Accidental meeting 2. No witness who could have seen how the deceased was shot 3. The witness did not see how it all began Exceptions: 1. No witness but > tied and head was cut off 2. Killing of a child Mode of attack must be consciously adopted 1. Accused must make some preparation to kill the deceased 2. The mode of attack must be thought of by the offender and must not spring from unexpected turn of events. Examples of treachery: 1. Shooting a vicitim at a distance 2. Deliberate surprise attack on victims 3. Reduced to helplessness 4. No expectation from the enemy 5. When the victim was tied and gagged 6. Victim didn’t have time to defend himself  When is treachery not present: 1. Frontal encounter 2. Ominous sign of their presence 3. Announcement of presence Characteristics of treachery 1. Deliberate 2. Sudden 3. Unexpected attack Attacks showing the intention to eliminate risk 1. Victim asleep 2. Victim half awake 3. Victim being held 4. Attacked from behind (with a firearm or bladed weapon) Requisites of treachery:

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1. Victim was not in a position to defend himself 2. Offender consciously adopted the particular means, method or form of attack employed by him



When the accused gave the deceased a chance to prepare, there was no treachery



No treachery where the attack is preceded by a warning



No treachery where shooting is preceded by heated discussion



Even if warning was given> if the deceased does not have weapon> treachery



Killing a woman asking for mercy is committed with treachery



Treachery in killing a child



Treachcery must be proved by clear and convincing evidence



Attack from behind is not always treachery

Summary of the rules: 1. When the aggression is continuous, treachery must be pre sent at the beginning of the assault 2. When the assault was not continuous, in that there as interruption, it is sufficient that treachery was present

1. Treachery- means, methods or forms of attack are employed> offended difficult oto put up any resistance 2. Abuse of superior strength- offender does not use means, methods of forms; takes advantage of superior strength 3. Weaken the defense- employs meansbut the employed only materially weakens 

When there is conspiracy, treachery is agai nst all offenders

What are absorbed in treachery

-

Evident premeditation

-

Use of superior strength

-

Abuse of superior strength

-

Employing means to weaken the defense

-

By band

-

Abuse of superiority

-

Dwelling

-

Aid of armed men

-

Nighttime

-

Craft

65



Treachery is inherent in mrder by poisoning



Treachery cannot co exist with passionor obfuscation (passion or obfuscation loses his reason and self control)

Par 17- means be employed or circumstances brought about which add ignominy to the naural effects of the act

Ignominy

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Circumstance pertaining to the moral order, which adds disgrace and obloquy toe the material injury by the crime

Where is ignominy applicable: 1. Crimes against chastity 2. Less serious physical injuries 3. Light or grave coercion 4. Murder (kneeling in front of him Cases of ignominy 1. Rape in front of a husband 2. Woman was raped by 4 prsons 3. Accused not only used missionary position 4. Forcing an old woman to confess to theft 

There is ignominy when the situation is more humiliating or putting party in shame



Dismembering a body is not ignominy



Killing of husband in front of a wife is not ignominy

Par. 18

-

That the crime be committed after an unlawful entry

Basis: means employed

Unlawful entry:



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When an entrance is effected by a way not intended for the purpose

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Entering a window

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Only an entry> not exit.

-

Dwelling and unlawful entry are 2 different circ

Unlawful entry is not aggravating in trespass to dwelling 66

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