CIRCUMSTANCES AFFECTING CRIMINAL LIABILITY the accused; reasons for the commission.
For example: alibi, self defense;
I. Classification: In general the circumstances are either (i) defenses or (ii)
modifying circumstances
II. Defenses: those which if proven may result to an acquittal of the offender
from the crime charged or lead to non-criminal liability. They are the reasons
advanced by the accused why he may not be held criminally liable.
They are classified into the following:
A. As to form:
1. Positive or Affirmative- They are often called defenses in the nature of
“Admission and Avoidance”. The accused admits authorship of the act or
omission charged and imputed to him but he puts up matters to avoid
criminally liability or which will result to his acquittal.
All the Justifying, Exempting and Absolutory Causes are Affirmative
defenses.
2. Negative- the accused denies authorship or having performed the act or
omission imputed to him. Examples are denial, alibi, mistaken identity.
B. As to Effect:
1. Total or Perfect- those the effect of which will totally exonerate the
accused. Example: a complete justifying circumstance, amnesty
2. Partial- those which are intended to lessen the liability of the accused.
They include proof the offense is a lesser offenses, or that it is of a lower
stage of execution, that the accused has a lower participation and is not the
principal .
C. As to source:
1. Legal- those provided for by statutes or by the constitution. For example:
prescription of crimes, marriage of the offender and offended; pardon,
double jeopardy, amnesty.
2. Factual- those based on the circumstances of the commission of the
crime relating to the time, place, manner of commission; identification of
insanity, mistaken identity.
III. Modifying Circumstances- those which will either increase or decrease the
penalty. They are called mitigating or aggravating circumstances
IV. Circumstances Recognized in the Philippines.
They are found either in the Revised Penal Code, Special Laws or in
jurisprudence. The defenses and modifying circumstances governed by the
RPC include the following:
A. Justifying Circumstances- These are the defenses in which the accused
is deemed to have acted in accordance with the law and therefore the act
is lawful. Since the act is lawful, it follows that there is no criminal, no
criminal liability and no civil liability, save in paragraph 4.
1. There is no mens rea or criminal intent
2. The circumstances pertain to the act and not to the actor. Hence all who
participated in the act will be benefited. Thus if the principal is acquitted
there will be no accomplices and accessories.
3. These apply only to intentional felonies, not to acts by omissions or to
culpable felonies or to violations of special laws
4. They are limited to the 6 enumerated in Article 11.
B. Exempting Circumstances- These are defenses where the accused
committed a crime but is not criminally liable. There is a crime, and there
is civil liability but no criminal.
1. The basis is the lack of any of the elements which makes the act/omission
voluntary, i.e. freedom, intelligence, intent or due care.
2. These defenses pertain to the actor and not the act. They are personal
to the accused in whom they are present and the effects do not extend to
the other participants. Thus if a principal is acquitted, the other principals,
accessories and accomplices are still liable.
3. They apply to both intentional and culpable felonies and they may be
available in violations of special laws.
4. They are limited to the 7 enumerated in Article 12.
 C. Absolutory Causes- These are defenses which have the same effects as
the exempting circumstances but they are not among those enumerated in
Article 12. They are found in certain Articles of the Revised Penal Code or
are developed by jurisprudence.
1. They are based on public policy
2. Examples of those in the RPC include: non-liability for an attempted
felony due to voluntary desistance; Death/Physical Injuries Under
Exceptional Circumstances
3. Those recognized and developed by jurisprudence include: mistake of
fact, set-up/frame up, instigation
D. Mitigating Circumstances- Those which when present results either to:
(i) the penalty being reduced by at least one degree or (ii) the penalty shall
be imposed in its minimum period. They are those enumerated in Article
13.
E. Extenuating Circumstances- .Those which have the same effect as
mitigating circumstances but are not among those enumerated in Article
13 but are provided for in certain articles of the RPC and apply only to
certain felonies. They are called “Special Mitigating Circumstances”.
1. Examples: Abandonment in case of adultery; Release of the victim within
3 days with the purpose not attained, in the felony of Slight Illegal
Detention
F. Aggravating Circumstances- Those which when present will result either
to: (i) a change in the nature of the offense as to make it more serious and
result to the imposition of a higher penalty (ii) the penalty being imposed
in its maximum period. They are provide for by the Revised Penal Code as
well as by special laws.
G. Alternative Circumstances- those which may either be appreciated as
mitigating or aggravating. They are enumerated in Article 15 of the RPC.
IV. Basic Rules on Affirmative Defenses
A. Justifying Circumstances, Exempting Circumstances, and Absolutory
Causes, are recognized as Affirmative Defenses
B. Since the accused has admitted authorship of the act or omission, it’s
not anymore necessary for the prosecution to prove his participation in the
commission of the crime or his identity, hence there may be a revere order
of trial in that it will be the accused who will be the first to present his
evidence
C. It is incumbent upon the accused to prove his defense by” clear, positive
and convincing evidence” and his conviction is not that the prosecution
failed to prove his guilt but that he was unable to prove his defense.
-o0o-
CONSTITUTIONAL DEFENSES
I. Defenses based on a Violation of the Due Process Clause
A. The Statute is VOID-FOR- VAGUENESS PRINCIPLE
1. Due Process requires that the terms of a penal statute must be
sufficiently explicit to inform those who are subject to it what conduct on
their part will render them liable to its penalties.
2. The Doctrine that a penal; statute is unconstitutional if it does not
reasonably a person on notice as to what the person may not do, or what
the person is required to do. As a rule a statue maybe said to be vague
when it lacks comprehensible standards that “men of common intelligence
must necessarily guess at its meaning and differ as to its application” It is
repugnant to the constitution in two aspects: (a) it violates due process for
failure to accord persons, especially the parties targeted by it, fair notice of
the conduct to avoid and (b) it leaves law enforcers unbridled discretion in
carrying out its provisions and become an arbitrary flexing of the
government muscle.
3. However an act will be declared void and inoperative on the ground of
vagueness and uncertainty, only upon a showing that the defect is such that
the courts are unable to determine, within any reasonable degree of
certainty, what the legislature intended
 Example: An ordinance of the City of Cincinnati that made it illegal for :
“three or more persons to assemble on any sidewalk and there conduct
themselves in a manner annoying to persons passing by”
B. VOID FOR OVERBREADTH ( Overbroad) PRINCIPLE
1. A penal statue is unconstitutional if its language is so broad that it
unnecessary interferes with the exercise of constitutional rights, even
though the purpose is to prohibit activities that the government may
constitutionally prohibit.
2. A statute is overbroad where it operates to inhibit the exercise of
individual freedoms guaranteed by the constitution, such as the freedom
of religion or speech. When it includes within its coverage not only
unprotected activity but also activity protected by the constitution.
3. This principle applies more to felonies or offenses which conflict with the
freedom of expression and association such as prosecution for libel,
inciting to rebellion or sedition, and violation of the Election Code.
Example: In Adiong s. COMELEC ( 207 SCRA 712) the court declared as void
that portion of the Election Code prohibiting the posting of election
propaganda in any place-including private vehicles- other than in the
designated common poster area.
C. VOID FOR LACK OF PUBLICITY
1. The Penal Statue was not publicized in the manner provided for by the
Constitution, such as publication in a newspaper of general circulation or
in the Official Gazette. Hence there is no constructive note to the public
and the principle that “Ignorantia legis nemenem excusat” will not apply.
II. Defenses Based on the Equal Protection Clause
A. DISCRIMINATORY AND SELECTIVE APPLICATION
1. A Penal Law must apply to all persons who are in the same or similar
situation
2. A statute nondiscriminatory on its face maybe grossly discriminatory in
its operation. Though the law itself be fair on its face and impartial in
appearance, yet, if it is applied and administered by public authority with
an evil eye and unequal; hand, so as to make unjust and illegal
discriminations between persons in similar circumstances, material to their
rights, there is denial of equal justice and is prohibited.
3. However, the prosecution of one guilty person while others equally guilty
are not prosecuted, is not, by itself, a denial of the equal protection of the
laws. There must be present an element of ”clear and intentional or
purposeful discrimination:” on the part of the prosecuting officials.
Art. 11. JUSTIFYING CIRCUMSTANCES
Introduction: The Use of Force Defenses: These are the justifying
circumstances where the accused is allowed to use force i.e to inflict injury
upon the victim or to destroy property. The force may either be (i) Deadly
Force or that which can result to serious physical injuries or even to the death
of the victim and (ii) Non-Deadly but reasonable force.
The Use- of-Force-Defenses include (i) self-Defense (ii) Defense of Relative and
(iii) Defense of Stranger.
Par. 1. SELF DEFENSE
I. Concept: When a person uses force and causes injury to another or destroys
the property of another, in order to defend his own person, rights, property or
honor against an aggression/attack coming from the victim.
The elements: It requires proof of the existence of an: (i) unlawful aggression,
(ii) the reasonable necessity of the means employed to prevent or repel the
attack and (iii) the lack of sufficient provocation on the part of the accused.
The first two are common to the three Use-of- Force- Defenses.
II. First element: There must be present an unlawful aggression coming from
the victim.
A. This refers either to:
 1. Real or Material Aggression or an attack that has broken out or has
actually materialized. Examples; the act of shooting another’s with a
gun; hitting another with or without a weapon; trespass to another’s
property; running away with another’s property; uttering slanderous
words; publicizing or broadcast of libelous matters.
2. Imminent or one which is at the point of happening. They refer to acts
of the victim which show a clear and positively strong intention to cause
harm to the accused, which can only be prevented through the use of
force.
These are more than mere threatening attitudes, or oral threats or
threatening stance or postures
B. An aggression is more serious that an act of simple provocation by the
victim.
C. This element is the foundation of the Use of Force Defenses. It has to be
proven otherwise there is nothing to defend against
D. Principles:
1. The aggression must be “unlawful” i.e the victim was not acting in
accordance with laws, or under color of right. Thus the following do not
constitute “unlawful” aggression: (i) the act of a property owner in
pushing out an intruder for refusing to leave peacefully (ii) the act of a
policeman in handcuffing a law violator (iii) the scolding by a teacher of
an unruly student.
2. The aggression must come from the victim.
3. At the time of the defense, the aggression must still be continuing
and in existence. In the following instances there is no more aggression
and if the accused still uses forces, he becomes the aggressor:
a). When the attacker desists, or is prevented or restrained by third
persons; or is divested of his weapon, or is overpowered
b). When the attacker retreats unless it is to secure a more vantage
position
4. Question: When the person attacked was able to wrest the weapon
or has disarmed his attacker, may he use the weapon against the
attacker? Answer: No because the aggression has ceased unless the
attacker persist to grab back the weapon for in such case, there is still
imminent danger tot his life or limb.
5. Thus: there must be no appreciable lapse of time between the
unlawful aggression and the act done to repel or prevent it
6. Presumption as to the Aggressor: Where there is no direct evidence
who was the aggressor, it may be presumed that the one who was
deeply offended by the insult was the one who had a right to demand
an explanation from the perpetrator of the insult and he must have
been the one who struck first if the proffered explanation was
unsatisfactory ( PP. vs. Ramos, 77 Phil. 4)
E. At what point may a person attacked put up a defense?
1. Retreat-to-the-Wall Principle. –The doctrine which states that before
a person is entitled to use force in self defense he must first attempt to
withdraw from the encounter by giving as much ground as possible and
it is only there is no more place to retreat that he may now use force to
defend himself.
This doctrine is impractical and has been abandoned
2. Stand-Your-Ground-When-In-The-Right Principle.- The doctrine
which holds that when a person is attacked in the place where he has a
right to be, he need not retreat but he may immediately use force to
defend himself.
a). This is the prevailing doctrine followed. It applies to all especially
to law enforcement agents who are expected to stand their ground
and to subdue, overcome and arrest criminals.
b) A related doctrine is the Castle Doctrine.-When a person is
attacked in his dwelling (a man’s house is his castle) he is not
expected to retreat but he may immediately use force to defend
himself and his dwelling. This is availed of where armed persons
intrude into a dwelling as it is natural to expect that the armed
persons would use their weapons at any time and upon any occupant
of the dwelling.
F. May the attacker claim self defense?
 1. As a rule one who initiates an attack can not claim self defense being
himself the aggressor.
2. However he is entitled to an incomplete self defense: (a) if he is met
with excessive force in return and is forced to defend himself or (b)
When he withdraws or retreats from the attack but is pursued by the
intended victim and he had to defend himself.
G. Rule when there is an agreement to a fight or when one accepts a
challenge to a fight. Neither one can put up self defense because each is an
aggressor to the other and both anticipate the aggression coming from the
other. The law leaves them where they are. Except when one is attacked
by the other in violation of the terms and conditions of the fight, such as to
the time, place and choice of weapons agreed upon, then the person
attacked may claim self defense.
III. Second element: There must be reasonable necessity of the means
employed to prevent or repel the attack. .
A. The question is whether the defense is appropriate and commensurate
to the type, degree, and intensity of the aggression taking into
consideration the place, occasion and surrounding circumstances of the
aggression.
B. The reasonableness of the means include two aspects: (1).
Reasonableness of the Mode of Defense and (2) Reasonableness of the
Choice of Weapon. A person under attack has the right to defend, but as it
proper for him to sue a weapon and if so, whether the weapon chosen is
commensurate to the attack.
C. The law requires Rational Necessity and Rational Equivalence of
Weapons and not Factual Equality, to be determined by considering both
the subjective and objective aspects of the situation. They include the
following:
1. The imminence of the danger as it appeared to the accused coupled
by the instinct for self-preservation
2. When the attacker is armed, consider the instrument of aggression
and the means of defense most readily and immediately available to the
person attacked
3. Consider the physique, size, age, sex, knowledge of martial arts ( the
hands and feet of boxers, martial artists, wrestlers, are considered
deadly weapons) of the attacker and the person attacked, including the
reputation of the attacker as a person of violence
4. Consider whether under the time and place of the attack, the person
attacked can call for immediate assistance
5. Consider the number of the attackers
D. When can Deadly Force be used?
1. When there is an attack on a person’s life or limbs i.e he may either
be killed or seriously injured
2. In case of an attack upon one’s property, it must be coupled with an
attack on the person’s life or limb which promises death or serious
bodily harm, otherwise only reasonable force must be used.
If there is no attack on the person’s life or limb, reasonable force
may still be used as is necessary to protect the property from being
seized, destroyed or interfered with under the Doctrine of Self Help
provided for In Article 429 of the New Civil Code.
3. In case of an attack on chastity, deadly force is allowed if there is a
clear intent to rape, which intent maybe negated by the circumstances
of time and place; if there is no clear intent to rape only reasonable
force must be used
4. In case of attack on one’s honor or reputation, the use of physical
force is never justified. When one is libeled or defamed, he may fight
back with a similar libel or defamation provided it is only to the extent
which is necessary to free himself from the effects of the
libel/defamation. This is called the “ Doctrine of Justified Libel” or
“ The Privilege of a Reply Doctrine”.
5. The Principle of Self defense and Use of Deadly Force does not apply
to situations where a person is injured or killed as a result of the
installation of Protective Devises/Methods such as by the installation of
live electric wires on a fence, or by attack dogs let loose in one’s yard.
IV. The third element: Lack of Sufficient Provocation on the part of the Person
Claiming Self Defense.
A. Concept: The person attacked must not have given sufficient reason for
the victim to attack him.
B. Provocation: This includes any conduct which excites, incites or induces
a person to re-act, it is conduct which vexes or annoys, irritates or angers
another.
 C. This third element is present in any of the following situations:
1. When no provocation at all was given by the accused.
When a property owner angrily demands why the victim built a fence
on his land, which in turn angered the victim to attack the accused, such
conduct on the part of the accuse is not provocation.
2. When there was provocation but it was not sufficient i.e. it may have
vexed or annoyed but was not sufficient for the victim to make the kind
of attack he employed upon the accused. The sufficiency must be
measured in relation to the reaction of the victim
3. When sufficiency provocation was given but it was not immediate to
the attack
D. Examples of sufficient provocation:
1. Imputing to the victim the utterance of vulgar language
2. Trespassing into the property of the victim
3. Jokes made in poor taste or bad mouthing the victim
4. Destroying the victim’s property
DEFENSE OF RELATIVE
I.. Relative: They refer exclusively tot eh a persons’ spouse, ascendant,
descendant, brothers of sisters; relatives by affinity in the same degree; and
by consanguinity within the 4th civil degree
II. The third element: The One Defending Had No part in the Provocation.
A. This is present in the following instances:
1. The relative defended did not give any provocation at all
2. If the relative gave provocation, the one defending was not aware of
it
3. If the relative gave provocation, the one defending did not participate
either actually or morally, as by encouragement
B. Even if the person defending acted out of evil motive, such as revenge,
this defense is still available
DEFENSE OF A STRANGER
I. Stranger is any person not a relative.
II. The third element: The Person Defending Should Not Be actuated by
Revenge, Resentment, or Other Evil Motive
A. The accused must prove he acted out of an honest desire to save the life
or limb or property of the stranger and not because his true intention was
to harm the victim. If otherwise he is deemed to be committing a crime
there being present the elements of actus reus and mens rea.
B. QUESTION: Suppose it was the stranger who gave provocation? The
accused is entitled to this defense.
RELATED PRINCIPLES TO THE
USE OF FORCE DEFENSES
I. Rationale behind these defenses:
A. For self defense: 1. It is the natural and inherent right of every person to
defend himself 2. The state can not protect its citizens at all times hence it
gives them the right to defend themselves
B. For Defense of Relative: It is in recognition of the strong ties of blood i.e
blood is thicker than water.
C. For Defense of Strangers: What a man can do in his defense, another can
do for him.
II. Cases in which the Principle of Self Defense Applies
A. Defense of Life and Limb
B. Defense of Property
C. Defense of Honor/Reputation
D. Defense of Chastity
E. Defense of Civil, Political and natural Rights
III. Factors Affecting the Credibility of the Defenses
A. The claim of self defense, ( as well as of relative and stranger) are
inherently weak and easily fabricated, and must be corroborated by
independent evidence
 B. The location, number and nature of the wounds of the victim must be
considered and may disprove the claim of self-defense
C. The lack of wounds of the accused may disprove self defense and proof
the lack of aggression on the part of the victim
D. A refusal to give a statement upon surrendering, or non-assertion
thereof, is inconsistent with a claim of self defense. A claim of self-defense,
if true, must be asserted promptly.
Par. 5 Any Person Who Acts in Fulfillment of a Duty
Or In Lawful Exercise of a Right or Office
( Trabaho lang walang personalan)
I. Requirements/Elements
A. The accused was in the actual performance of a duty or in the lawful
exercise of a right or office
B. He caused harm or injury to another as a necessary consequence of the
performance of his duty or exercise of a right or office
C. He was not negligent or that there was no abuse, or excess or oppression
on the part of the accused
II. The term office or duty does not necessarily refer to a public office or public
duty as it is to be understood in its generic sense. It includes private office or
employment or duty as well as the exercise of a calling or a profession or
occupation.
III. Illustrations:
A. When injuries are inflicted on a suspect who resists a valid arrest
B. Shooting an escaping prisoner in order to immobilize and prevent his
escape, even if the shooting resulted to his death. But not shooting him
again after he was already immobilized, or he gives up
C. Killing of rebels by soldiers is not homicide or murder; or destruction of
private property in a firefight between rebels/criminals and soldiers/law
enforcers
Amputation of patients by physicians in order to save their lives
D. Lawyers calling witnesses as liars are not liable for defamation or unjust
vexation
E. Scolding lazy students by teachers is not defamation
F. Executioners are not criminally liable
. A lawyer who writes a reply-letter describing the adverse party as
untruthful and hypocrite
IV. Application in Relation to Law Enforcers Who Used Force and kill or Injure
Suspects/accused
1. Cabanlig vs. Sandiganbayan ( July 28, 2005)
FACTS: A suspect who was onboard a police vehicle, suddenly grabbed the
armalite rifle of one of the policemen and jumped from the vehicle. One of
the policemen shouted “hoy” and the accused policeman simultaneously
shot the suspect three times resulting to the death of the suspect. Is he
policeman liable for the death of the victim?
.
HELD: No. He acted in lawful performance of duty.
A policeman in the performance of duty is justified in using force as is
reasonably necessary to secure and detain the offender, over come his
resistance, prevent escape, recapture him if necessary and protect himself
form bodily injury. In case injury or death results from the policeman’s
exercise of such force, the policeman could be justified… if the policeman
had used necessary force. Since the policeman’s duty requires him to
overcome the offender, the force exerted … may there fore differ from that
which ordinarily may be offered in self-defense. However, a policeman is
never justified in using unnecessary force or in treating the offender with
wanton violence, or in resorting to dangerous means when the arrest could
be effected otherwise. ( Cabanlig vs. Sandiganbayan ( July 28, 2005).
2. Re: Duty to Issue Warning.
The duty to issue a warning is not absolutely mandated at all times and at
all cost, to the detriment of the life of law enforcers. The directive to issue
a warning contemplates a situation where several options are still available
to the law enforcers. In exceptional circumstances… where the threat to
the life of a law enforcer is already imminent, and there is no other option
but to use force to subdue the offender, the law enforcer’s failure to issue
a warning is excusable. ( Cabanlig vs. Sandiganbayan) case:
Par. 6. Obedience to a Lawful Order of a Superior
I. Concept and Elements: Any person who acts in obedience to an order issued
by a superior for some lawful purpose. This presupposes that a person carried
out the order of his superior but in so doing he cause armor injury to another.
He is not libel provided the following elements are present:
A. An order was issued by a superior acting within the sphere of his lawful
rights
B. The order is for some lawful purpose
C. The means to carry out the order is lawful
II. The term “superior” includes any person higher in rank to the accused and
who is entitled to demand obedience form the accused. Such rank is not
necessarily in the AFP or PNP but includes both public and private employment
and extends even to rank in social standing or in personal relations.
The Battered Woman Syndrome
1. Legal Provision: Created under R.A. 9262 known as the “Anti Violence
Against Women and their Children Act of 2004”
Section 26: Battered Woman Syndrome as a Defense: Victim-survivors who are
found by the courts to be suffering from battered woman syndrome do not
incur any criminal and civil liability notwithstanding the absence of any of the
elements for justifying circumstances of self-defense under the Revised Penal
code.
In the determination of the state of mind of the woman who was suffering
from battered woman syndrome at the time of the commission of the crime,
the courts shall be assisted by expert psychologists.
2. Concept
a). It is a psychological condition in which a woman commits physical violence
against her husband or mate as a result of the continued physical ort mental
abuse to which he has subjected her.
b). Under this defense a woman who is constantly abused by her husband may
be justified in using force at a time when there is not strictly “immediate
danger”. The theory is that women in such circumstances have two choices:
either wait for their husband to kill them or strike first in a form of offensive
self-defense.
c). Development in the Philippines
1. The Case in which it was first recognized was People vs. Marivic Genosa, Jan
15, 2004 419 SCRA 537) involving a wife who was convicted of Parricide for
killing her husband who was sleeping.
a). Battered woman: a woman who is repeatedly subjected to any forceful
physical or psychological behavior by a man in order to coerce her to do
something he wants her to do without concern for her rights.. (they) include
wives or women in any form of intimate relationship with men. Furthermore,
in order to be classified as a battered woman, the couple must go through the
cycle at least twice”
b) Battered women exhibit common personality traits, such as low self
esteem, traditional beliefs about home, the family and the female sex role;
emotional dependence upon the dominant male; the tendency to accept
responsibility for the batterer’s action; and false hopes that the relationship
will improve.
c) The syndrome is characterized by the so called “Cycle of Violence” which
has three phases:
(i) The Tension Building Phase: minor battering occurs:
it could be verbal or slight physical abuse or other form of
hostile behavior. The woman tries to pacify the man
through a show of kind, nurturing behavior; or by simply
staying out of his way. What actually happens is that she
allows herself to be abused in way that to her fare minor.
Alls he wants is to prevent the escalation of the violence.
But her placatory and passive behavior legitimizes his
belief that he has the right to abuse her.
(ii). The Acute Battering Phase: this is characterized by
brutality, destructiveness an, sometimes death. The
woman deems this incident as unpredictable yet also
inevitable. She has no control: only the man can put an end
tog the violence She realizes that she can not reason with
 him and that resistance would only exacerbate her
condition. She has a sense of detachment although she
may later clearly remember the details. Her apparent
passivity is because the man is stronger physically and it is
useless to fight back
(iii). The Tranquil, Loving or Non-Violent Phase. The
couple experience profound relief. On one hand the man
shows a tender and nurturing behavior and he knows he
has been viciously cruel and tries to make up for it begging
her forgiveness and promising never to beat her again. The
woman also tries to convince herself that the battery will
never happen again; that her partner will change for the
better; that this good, gentle and caring man is the real
person she loves.
d). The foregoing cycle happens because: (i) the woman believes that the
violence was her fault (ii) the woman fears for her life and her children’s lives
(iii) the woman has an irrational belief that the abuser is all powerful and that
she is beer off with him than without him for financial reasons and (iv) Love:
inspite of constant assault, after a little cajoling, the woman is convinced that
the man still loves her.
QUESTION: Must there be unlawful aggression at the time of the killing?
In The Genosa case, it was ruled that the accused was not entitled to
complete exoneration because there was no unlawful aggression- no
immediate and unexpected attack on her at the time she shot him. But the
severe beatings repeatedly inflicted constituted a form of cumulative
psychological paralysis: diminished her will power, thereby entitling her to the
mitigating factor under paragraphs 9 and 10 of Article 13.
However, RA 9262 has liberalized it in view of the provisions which reads:
“… notwithstanding the absence for the elements of self defense…”
AGGRAVATING CIRCUMSTANCES
1. CONCEPT:
a). They are modifying circumstances which when present will produce the
effect of the divisible penalty being imposed in its maximum period, or which
will change the nature of the crime as to make it more serious as to call for the
imposition of a higher penalty.
b). They indicate a greater perversity on the part of the accused, an unusual
criminality and dangerousness as shown by his motives, his choice of the time
and place of the commission of the crime, or in the manner of its commission,
or in the choice of the victim.
c). They arise either prior to or simultaneous with the commission of the
crime
II. CLASSIFICATION
A. Generic or those applicable to all crimes such as habituality
B). Specific or those applicable only to certain crimes such as cruelty,
ignominy and treachery which apply only to crimes against persons
C). Ordinary or those which may be offset by a mitigating circumstance and
which if not offset, will result to the divisible penalty being imposed in its
maximum period
D.) Qualifying or those which will change the nature of the offense by
making it more serious
E) Special: those which arise under special conditions and cannot be offset
by a mitigating circumstance such that it is mandatory that the penalty is
to be imposed in the maximum period.
1. If there be a Mitigating circumstance it will affect the range of the
maximum period
2. They are as follows:
a) That the act resulted to a complex crime (Art. 48)
b).That there was error in personae or mistake in the identity of the
victim (Article 49)
c). That the accused took advantage of his official position( Article
62)
d). That the crime was committed by an organized syndicated crime
group i.e by at least 2 persons organized to commit a crime for profit
(Article 62)
e). That the accused is a quasi-recidivist under Art. 160.
f). That an unlicensed firearm was used in a killing pursuant to P.D.
1866 as amended by R.A. 8294. (Palaganas vs. PP., Sept. 12, 2006)

III. SOURCES
A). The revised Penal Code
1. The basic source is Article 14 which enumerates the ordinary and
generic aggravating circumstances
2. As to the qualifying, special or specific aggravating, they are found in
certain specific articles in Book II under the respective titles covering the
crimes to which they apply
For example: (i). In Art. 125 as to those which qualify piracy, (ii) Art. 248
as to those which qualify homicide to murder,(iii) Art. 310 as to those
which qualify theft (iv) article 338 as to those which qualify seduction
B). Special Laws
i). The Dangerous Drugs Law of 2002 provides the circumstance of
having been found positive for the use of dangerous drugs
ii). The Heinous Crime Law such that Reclusion Perpetua (death) shall
be imposed in the crime of carnapping if murder, homicide or physical
injuries were committed; or in the crime of Kidnapping
iii). RA 8294 which provides the circumstance of “use of unlicensed
firearm in the commission of murder or homicide”
iv). The Anti Rape Law enumerates several qualifying circumstances of
rape
v). R.A. 7610 “ The Special Protection of children Against Abuse,
Exploitation and Discrimination Act” ( 1992) which provides that if the
victim is below 12 years of age, the penalty for the crimes of murder,
homicide, intentional mutilation, and serious physical injuries shall be
reclusion perpetua ; and incase of qualified seduction, acts of
lasciviousness, corruption of minors and white slave trade, the penalty
shall be one degree higher than that imposed by the Revised Penal
Code.
IV. PRINCIPLES IN THE APPRECIATION
A. Those which are inherent in the crime i.e those which must of necessity
accompany the crime have no effect, such as dwelling in trespass, disregard
f respect due to the sex in crimes against chastity
B. All aggravating must be alleged in the Information in such a manner as
to including a statement of the facts which support their existence. A
general allegation is not sufficient.
C. If there are several aggravating circumstances present:
1. If they are based on separate and distinct facts, all will be appreciated.
2. If they are based on the same circumstance or set of facts, then the
Principle of Absorption applies such that only one will be appreciated..
In crimes against persons for example, treachery is preferred and it will
absorb the other circumstances relating to the mode of the commission,
but it will not absorb the circumstance that the crime was committed in
consideration of a price, promise or reward.
3. In case of qualifying circumstances, those which are not absorbed will
be considered as ordinary aggravating
Those under Article 14
1. That the accused took advantage of his official position
1. This is now a special aggravating under R.A. 7659 ( Heinous Crime Law)
amending Article 62. If the crime is Violation of the Child Abuse Law, the
penalty shall be in the maximum.
2. Applies only to an offender who is a public officer who used the influence,
prestige, or ascendancy of his office as a means to realize his purposes or to
commit eh crime. Did he abuse his office to commit the crime?
3. Does not apply where being a public officer is inherent in the crime like
those under the Title “Crimes By Public Officers”
4. Examples: (a) A Jail Warden who orders the guard to beat up an inmate (b)
A Police officer who orders his subordinates to steal or rob or maul (c) a Judge
who detained his debtor for contempt of Court for refusing to obey the Judge
Order for the debtor to appear in the sala of the Judge
2. In Contempt of, or with Insult to Public Authorities
1. Public Authorities refer to persons in authorities and not to their agents.
Note that teachers and lawyers are persons in authority for purposes of direct
assault but not under this article. What about Chiefs of Police? Yes, in places
where they are allowed to prosecute in the absence of a public prosecutor.
2. The public authorities are not the victims of the crime but that the crime
was committed in the presence, view or hearing of the public authorities, and
the accused knows them to be such.
 3. Disregard of Respect due the offended party by reason of
(a) Rank (b) Age (c) Sex or that the crime was committed in the
(d) Dwelling of the offended party
1. There must be a conscious or deliberate disregard of the respect due to the
offended party so that these are incompatible when offender acted under
passion, vindication or diminished will power, or was intoxicated.
2. Age, sex and rank apply only to crimes against persons or honor
a). Age: the victim is either advanced in age or is relatively young, in
relation to the accused.
i).There must be a disparity in their age, not when both are in the
same age level
ii). This is inherent if the accused is charged with Child Abuse under
R.A. 7610 but in cases where the victim of death is a child below 12
years, the penalty shall be in the maximum, or one degree higher in
cases of qualified seduction, acts of lasciviousness with the consent
of the minor, corruption of minors and white slave trade
b). Sex. The victim is a female and the accused is a male but this does not
apply to crimes where sex is inherent as in abuses against women under
R.A. 9262.
Under R.A. 7610 and RA 9262, there is an aggravating circumstance
consisting of the fact that the victim is a “Child” who is either (i). below 18
years of age, or (ii). is over 18 but is unable to fully take care of himself or
protect himself from abuse, neglect, cruelty, exploitation or discrimination
because of a physical or mental disability or condition.”
c). Rank: the victim is entitled to respect due to his social standing, high
position or station in life, or employment, from one who is aware thereof
and is lower in rank or position. Examples:
i). Assault on the Company President by an employee thereof
ii). Attacking the head of a church by a member
N.B.: Should there be not be abuse of rank on the part of the accused if he
is higher in station and he uses this to commit a crime against one lower in
rank?
3. Dwelling: refers to any structure habitually used by a person as his place of
rest, comfort, privacy and peace of mind. It may be man-made or a natural
habitat, as a cave used as residence. What is emphasized is not the appearance
but the purpose or use thereof.
a) This includes the basic structure and the dependencies which are either
(i) those so continued with it as to be considered integral parts thereof such
as the roof, stairways, balcony or (ii) any structure attached to the main
structure with a connecting door. Example: store, garage, restaurant,
internet –café
b) A person may have several dwellings such as (i) residential dwellings (ii)
business dwellings (iii) social dwellings (iv) dwellings for educational
purposes (v) recreational dwellings. For example: the dwelling of a
mistress; hotel rooms or suites reserved for business or social functions;
dormitories and boarding houses of students; a vacation cottage
c). The victim may be the owner, the lessee, a boarder, a stay-in employee,
or a temporary visitor
d). This is present in the following:
i). when the accused actually entered the dwelling and committed a
crime therein, whether the commission was previously intended or not
ii). When the accused was outside, the act was committed outside but
the effect or crime was produced inside the dwelling
iii). When the crime was started outside but it continued and was
consumated inside the dwelling
iv). When the crime started in the dwelling even if continued and
consumated outside the dwelling.
v). When the victim was taken from inside the dwelling and then
brought outside where the crime was committed on his person
e) This is not present when :
i). The victim gave sufficient provocation
ii).The accused is also an occupant of the same dwelling
iii). Dwelling is inherent in the crime as in robbery with force upon
things, trespass to dwelling, violation of domicile
4. With Abuse of Confidence or Obvious Ungratefulness
1. Abuse of confidence requires the existence of a relationship between the
accused and victim by reason of which the victim reposed trust and had
confidence on the accused, but which the accused abused or took advantage
of in order to commit the crime.
2. The relationship which involved trust may be:
a). Created by contract such as employment: as in the case of a body
guard, baby sitter, secretary, house help and domestic helps, a lawyer
b). Created by law as an appointed Guardian, an adoptive parent
c). By Blood, such as between close relatives
d) By Affinity as between in-laws
e) By close association and membership in some common organization
or group as fraternal group, teacher-pupil, church leaders-members,
f) By Human relationships such as between lovers, friends, roommates
3. Obvious ungratefulness or ingratitude presupposes that the accused was
the recipient of some gratuitous act or benevolence or liberality from the
victim for which he ought to have been grateful, but instead he committed a
crime against the said victim.
Examples: the accused pick pocketed the doctor who save his life; a guest
attacked his host; the accused stole from one who loaned money to pay off a
debt; boxing the finder of one’s lost property or who protected a missing
relative.
5. Commission of a Crime in Certain Places
1. The specified places are : (a) palace of the chief executive even if absent, i.e
malacanang and the mansion, These represent the seat of sovereign authority
and must therefore be respected (b) any other place where the president is
present, provided that the crime was committed within his view or hearing or
so near as to disrupt or disturb the president; like when the president is
making the rounds in the market to check on prices ,or where he goes to cut
ribbons, or even play golf (c) where public authorities are in the actual
performance of their functions, as in their offices, (d) in a place dedicated to
religious worship, even if no religious ceremony is going on.
2. Any of these places must have been purposely sought for or they were
deliberately chosen. Example: a thief who plies his trade inside church while
victims are busy with their prayers
6. (a) Nocturnity (b( Uninhabited place and (c) band
1. Nocturnity or nighttime: refers to the period of darkness between sunset
and sunrise or from dawn to dusk
a). The crime must be wholly committed at night and not when it started
at daytime and ended at night time or that it began at night time and was
consummated at daytime. In short it began and ended at night.
b). The emphasis is the absence of day light hence night time is not
appreciated if the place is well lighted or illuminated, or it takes place
inside a public establishment, even if dimly lighted as in nite clubs
c). That the crime was at night time should not be an accidental fact.
d). The two test to determine its presence :
(i) The Subjective Test: that the accused purposely sought the night.
He could have committed the crime during day time but he waited for
night time
(ii) The Objective Test: the accused took advantage of it in order to
(a) facilitate the commission of the crime (b) hide his identity (c) prevent
aid from coming to the victim (d) minimize the defenses of the victim or
(e) facilitate his escape
e). Maybe absorbed in treachery if it forms part of the attack.
2. Uninhabited Place or Solitude (despoblador): may mean either:
(a) Uninhabited in that there are no persons habitually staying thereat such
as the sea, a forest or the stretch of the beach
(b) the place is isolated in that it is far from where people reside, or if there
are houses, they are few and distant to one another. Thus help to the
victims difficult to come by. Examples: athletic bowl; the road from the gate
of Club John Hay to EPZA; Kennon Road; long stretches of highway; the
farms in the provinces
© As in night time the place must have been purposely sought for
3. Band (cuadrilla) it exist when more than three armed malefactors (bad
elements) shall have acted together in the commission of the crime
(a) Armed means all of the accused, not just some, are provided with
weapons or means of violence or instruments or tools capable of causing
injury to a person. E.g. bladed weapons, stones, sticks
(b) This is considered in crimes against persons, chastity and even property.
But this is inherent in Robbery By a Band and in Brigandage
© It is distinguished from Organized Syndicated Crime Group which was a
creation of R.A. 7659 and placed under Article 62. The latter refers to a
group of two or more persons collaborating, confederating or mutually
helping one another for purposes of gain in the commission of the crime
7. On the Occasion of a Calamity or Misfortune
1. The calamity or misfortune must be serious such as conflagration,
shipwreck, earthquake, epidemic, tsunami, volcanic eruption, resulting to
widespread panic, chaos, confusion and a break down of discipline due to
actual or impending danger to lives or to property.
2. May be due to an action of nature or to the action of man. Example: looting
stores abandoned due to flood
8. With the Aid of Armed Men or
Persons Who Insure or Afford Impunity
1. There is no conspiracy between the accused and the armed men. He merely
calls upon them to intimidate, threaten cow or break the resistance of the
victim. The armed men participate in some minor capacity.
(REPETITION OF CRIMES)
The four forms of repetition of crimes, or those which involve at least two
convictions, are:
1. Recidivism: this is ordinary or generic aggravating and is treated under
Paragraph 9 of Article 14
2. Habituality: this is also ordinary or generic and is treated under
paragraph 10 of article 14
3. Habitual Delinquency: this is an extraordinary aggravating circumstance
and is covered under Article 62. An additional penalty is added o the
penalty for the crime committed
4. Quasi Recidivism: a special aggravating in that it cannot be offset by
mitigating circumstances and is covered under Article 160
9. Recidivism
1. A recidivist is one who, at the time of his trial for one offense, shall have
been previously convicted by final judgment of another crime embraced under
the same title of the Revised peal Code.
2. It is important that: (a) there be two separate convictions so that it can not
be considered in contemporaneous convictions (b) both be felonies and are
found in the same title i.e. Crimes against persons, against property, against
chastity and (c) the convictions must follow the chronology of the commission
of the crimes
3. It does not prescribe no matter how far ago was the first conviction
4. The accused need not serve the penalty of his first conviction as he may
have been pardoned or placed under probation because what matters is the
fact of conviction and not service of sentence. The first penalty may be a fine
5. Once alleged and proven the court must appreciate it
6. The purpose is to prevent specialization of crimes
10. Habituality or reiteracion
1. Concept: the accused has previously been punished for an offense to which
the law attaches an equal or greater penalty, or for two or more offenses to
which the law attaches a lighter penalty.
2. The accused must have served sentence on his previous penalties
3. The prior offenses may be violations of special laws
4. Its appreciation is discretionary with the court
(NOTE: THE CIRCUMSTANCES COVERED UNDER PARAGRAPHS 11 TO 18
ARE LIKEWISE THE QUALIFYING CIRCUMSTANCES OF MURDER UNDER
ARTICLE 148)

11. In consideration of a Price, Promise or Reward
1. This deals with the motive. It involves the giver of the price, promise or
reward known as the Principal by Inducement and the actor as Principal by
Direct Participation.
2. “In consideration” means the PPR was the sole reason for the commission
of the crime. Had it not been for the PPR the accused would not have
committed the crime. The actor should not have his own reasons for
committing the crime. Thus motive is essential.
3. The PPR may be in any form: money, chattels, material services. The
recipient may be the actor himself or a person closely associated with him such
as: promise of a promotion or employment of a family member
12. By Means of Innundation, Fire, Poison, Explosion etc
1. These artifices used involve great waste, destruction and ruin
2. These may be (a) inherent in the crime as in Crimes Involving Destruction
under Article 332 or (b) they constitute the crimes in themselves, as in Arson
3. In cases where both burning and death occurs, in order to determine what
crime/crimes was/were perpetrated- whether arson, murder, or arson and
homicide/murder, it is de rigueur to ascertain the main objective of the
malefactor, thus:
a). If the main objective is the burning of the building or edifice, ( or
enclosure for that matter) but death results by reason or on the occasion
of arson, the crime is simply arson, and the resulting homicide is absorbed
b). if the main objective is to kill a particular person who may be in a
building or edifice ( or enclosure) when fire is resorted to as a means to
accomplish such goal, the use of fire becomes a qualifying aggravating
circumstance and the crime is murder only even if a property is burned
c). if the objective is to kill particular person, and in fact the offender has
already done so, but fire is resorted as a means to cover up the killing, then
there are two separate and distinct crimes committed- homicide/murder
and arson ( PP. vs. Malngan 503 SCRA 294, Sept. 26, 2006)
d) If a person is killed, then the corpse is burned, the burning constitutes
the qualifying circumstance of scoffing or ignominy and the crime would be
murder
d) If the body of the dead is placed in an enclosure as a car or a house,
4. Examples: opening the irrigation canal to flood the crops or to drown
animals; placing a bomb under a bus; parricide/infanticide by poison
13. With Evident Premeditation
1. Concept (pre is prior, meditate is to think or to reflect) this means the
commission of the crime was the result of cool thought and reflection. The
accused carefully planned and deliberated on the crime. The commission is not
the result of a reflex action or an-on-the-spur of the moment decision.
2. It must however be shown that the crime was intentionally planned hence
there must be clear, positive and convincing evidence on the following
elements:
a) the time when the accused decided to commit the crime
b). an act manifestly indicting the accused clung to his determination
c) the lapse of a sufficient time between the decision and the actual
commission of the crime, such that the accused could have desisted from
continuing with his plan but he did not
3. This is however inherent in crimes against property, such as in theft, robbery
and estafa. But in Robbery with Homicide, the premeditation must be to cause
death in the course of the robbery
4. In cases of aberration ictus, it does not apply unless the accused determined
to kill not only the intended victim but others who might help or interpose a
resistance
5. Examples: Assassinations, ambuscades, assaults due to a desire for
vengeance
14. Craft, Fraud or Disguises
1. These are referred to as the intellectual means of committing a crime
because they involve cunning, deception and the use of the intellect
2. Both craft (trickery) and fraud (deception) are intended to catch the victim
unaware and to throw him off guard
3. Examples of craft: luring the victim to the killing place; pretending to be
relatives or employees of the Post Office to gain entry; pretending to be
collecting agents; pretending to be legitimate passengers of taxicabs and
thereafter the driver is robbed and killed; pretending a person needs help and
thereby vehicles are stopped in the highway only to be robbed; the modus
operandi of carnappers of telling the driver to stop due to a defect and then
taking over the car when the driver stops
4. Examples of fraud: inducing a victim to sleep in one’s house; sending a letter
purportedly written by a friend of the victim to lure the victim to come to the
place where he is robbed. Telling a maid to give money and valuables as his
employer met an accident and needs money for hospitalization; courting a
lady and pretending to be an ardent suitor
5. Fraud is inherent in estafa by means of deceit
6. Disguise includes all attempt to hide one’s identity in the commission of a
crime. It is not limited to wearing mask, moustaches, false glasses but also
hiding one’s identity in crimes of libel as hiding under the name” concerned
citizen” ;or muffling one’s voice.
7. Disguise is not aggravating if the accused was nevertheless identified.
15. Taking Advantage of Superior Strength
1.Concept: the use of excessive force out of proportion to the means of
defense available to the victim. It connotes inequality of forces based on
factors such as: (a) superiority in numbers (b) weapons used (c) physique, body
built, age, sex (d) others such as the weakened condition of the victim on
account of illness, physical defect ort diminished reasoning (e) skill of the
accused in unarmed combat or martial arts
16. Means Used to Weaken Defense
1. Example: Throwing sand in the face of the victim; covering him with sack;
pulling down his pants; putting a sleeping pill to get him drowsy
17. Treachery
1. Concept: When the offender commits any of the crimes against persons
employing means, methods, or forms in the execution thereof which tend
directly and specially to ensure the execution thereof without risk to himself
arising from the defenses which the victim might make.
The attack comes without warning and in a swift, deliberate and unexpected
manner, affording the hapless, unarmed, and unsuspecting victim no chance
to resist or escape.
2. The elements to be proved are
a) that the means, methods or forms of execution are such that the victim
was rendered defenseless or was in no position to make a defense and
b). that the method of attack was consciously or deliberately adopted and
not an on- the spur-of-the-moment decision
3. This is the qualifying circumstance of murder which is preferred over the
others and it usually absorbs the other circumstances which have relation to
the means or method of attack such as nighttime, uninhabited place, use of
poison or explosion, fire or evident premeditation. If they are not absorbed
they are appreciated as ordinary aggravating
4. Applies even if the crime against persons is complexed with other crimes,
such as direct assault
5. Killing a child is always treacherous
6. Rule as to Frontal Attacks: generally there is no treachery as the victim
cannot be said to be unaware as he is face-to-face with his attacker. But not
(a) if the attack was so sudden, deliberate and unexpected and consciously
adopted or (b) if the victim was forced into a position where he is defenseless,
as in the Teehankee case
7. In case the attack was preceded by a quarrel: there is no treachery
8. In case of Attack from Behind: Generally considered as treacherous if this
mode was consciously adopted.
9. Rule in case of a continuous attack or if there was a break in the attack.
Applies to situations where, at the time of the infliction of the wound, the
victim was defenseless
a). There is no treachery if there was no treachery at the inception of the
attack
b) Even if there be no treachery at the inception of the attack but there
was a break in the attack, then treachery is to be appreciated
10. Other situations where victim is said to be defenseless:
a) where he was preoccupied: as when he was busy studying or eating or
watching an ongoing activity or was answering the call of nature, or was
working
b) victim was asleep or resting
 c) body was found with hands tied
11. In case of several accused, treachery affects only those who had prior
knowledge of or were aware of it
18. Ignominy
1. Concept: adding mental torture or insult to the injury. The time, place, and
other circumstances in the commission of the crime are such that they caused
unnecessary humiliation or embarrassment either to the victim or to the
surviving relatives
2. This is appreciated in crimes against persons, chastity, honor, coercion,
unjust vexation
3. Examples: kissing a girl in public; hanging the victim in a tree; throwing the
body in a urinal or garbage pit; removing the pants; boxing the priest who is
saying mass; committing rape dog style
4. This is the only aggravating which may arise after the commission of the
crime; as chopping off the arms and legs or sex organ of the victim after killing
him.
19. Unlawful Entry
1. The entrance is effected by a way not intended for entrance into a dwelling
or in an uninhabited place. The passage is other than the door.
2. The entry must be to commit a crime and not just to violate the dwelling
else the unlawful entry becomes trespass
3. This is inherent in crimes of trespass to dwelling, robbery with force upon
things
20. Breaking of a Wall, Roof, Floor, Window
1. These pertains to the wall, roof, floor of a dwelling and the breaking is for
the purpose of gaining entry in order to commit a crime inside. Else it is
attempted trespass or malicious mischief
2. It is inherent in Robbery With Force Upon Things
21. (a) With the Aid of a Minor and (b) Use of a Motor Vehicle
1. The minor is one below 15.
a). Suppose the accused is a minor over 15 but below 18?
b). The purpose is to prevent the corruption of minors
3. Motor vehicle refers to modes of transporting people and goods ran by
motor energy not muscle effort. A bicycle to which is attached a motor is a
motor vehicle
a) Must be used to commit, or to facilitate the commission of the crime
b) If used to kill a person as by hitting running over him, this may qualify
the killing to murder
c). Examples: (i) transporting the victim on board a car as in abduction or
kidnapping (ii) widespread robbery using a vehicle to go around the
neighborhood
22. By Inflicting Another Wrong Not Necessary
to the Commission
1. May refer either to:
a). Cruelty: making the victim suffer slowly and deliberately. It is
synonymous to torture or slow death or acts of sadism. It is usually done
by inflicting wounds on the victim while the victim is still alive and at
intervals of time to cause maximum pain. Or that the method of killing
involves lingering pain or suffering. Example: death by skinning him alive,
or by slow fire. ( Memory Aid: Pinikpikan)
b). Other crimes such as rape, unnecessary deaths or physical injuries are
appreciated as aggravating the crimes of robbery with homicide
ARTICLE 15. ALTERNATIVE CIRCUMSTANCES
1. Concept: Those which may be considered either as mitigating or aggravating
according to the nature and effects of the crime and other conditions
attendant to the crime. They must affect the commission of the crime. They
are: (i) relationship (2) intoxication and (3) degree of instruction.
2. Relationship: This is taken into account when the offended party is the
spouse, ascendant, descendant, legitimate or natural , or adopted brother or
sister, or relative by affinity in the same degree of the offender.
A. Effect of Relationship In general:
i). As basis for a justifying circumstance
 ii).As an absolutory cause under Articles 20, 247 and 332
iii). As an alternative circumstance under Article 15
B. Under Article 15, relatives by consanguinity within the 4th civil degree are
not included. However step parents and step children are included.
C. When relationship is appreciated as Aggravating:
i). Where the offense is a grave felony
ii). In crimes against chastity
iii) If the offense is a less grave or light felony, it is aggravating if the
victim is a relative of an equal or higher degree
D. When it is mitigating
i) In less grave or light offenses where the victim is a relative of a lower
degree
ii) In crimes against property as in case by a mother- in- law who stole
from his son-in -law
3. Intoxication: Presupposes that when the accused committed the crime, he
had taken in alcohol in such quantity as to have affected his mental faculties,
blurred his reasoning and diminished his self control.
A. There is no fixed rule as to the minimum quantity of alcohol in- take
required before it is said that a person’s mental faculties had been affected.
This is dependent on several factors such as the type or kind of liquor taken
in i.e. hard vs. soft liquor or wine, brandy vs. gin vs. scotch vs. beer; manner
of in-take e.g. straight or on the rocks or food is taken; as well as the
personal factors such as sex, age, state of health and other factors affecting
the alcohol tolerance of a person.
E. When it is proven that the accused was intoxicated when he committed
the crime, the presumption is in favor of mitigation and it is for the
prosecution to prove it was intentional or habitual.
4. Degree of Instruction and Education.
A. What is involved is whether or not the accused finished formal education
or schooling. However what is considered is not so much the illiteracy but
the level of intelligence. The emphasis is the lack of sufficient intelligence
and knowledge of the full significance of one’s actions
i) Some are naturally intelligent and mentally alert though illiterate
while some literates are densely ignorant
ii). Note that the rule does not apply to persons 15 years of age or below
even if naturally intelligent or gifted in secondary school because they
are presumed ot be incapable of forming criminal intent
B. Generally it is mitigating, especially to crimes mala prohibita, but not to
crimes universally condemned as evil or those which are mala in se
C. Aggravating: when the accused has a high degree of education which he
used or availed of to commit or facilitate the commission of the crime
i) A law student who used his knowledge to defraud another
ii) Physician who kills his patients
iii) A handwriting expert who falsifies using his knowledge
iv). A Financial Analyst defrauding a business entity
v) Computer expert who hacks

B. Test: (i) external conduct of a person (ii) breathalyzer to determine if a

person was driving under the influence of liquor (iii) Rhomberg test and
tandem gait, etc
C. It is Mitigating if intoxication is not habitual or intentional such that the
crime is said to be the result of an impulse or urge or delusion due to the
effects of alcohol
D. It is aggravating when the intoxication is intentional i.e. to strengthen
the resolve or to use as shield or excuse or habitual i.e the accused is used
to taking in alcohol as to be alcoholic. However the drinking of wine as an
appetizer is not included.