Criminal Law (6)

Extenuating circumstances

The effect of this is to mitigate the criminal liability of the offender. In other words, this has the same effect as mitigating circumstances, only you do not call it mitigating because this is not found in Article 13.

Illustrations:

An unwed mother killed her child in order to conceal a dishonor. The concealment of dishonor is an extenuating circumstance insofar as the unwed mother or the maternal grandparents is concerned, but not insofar as the father of the child is concerned. Mother killing her new born child to conceal her dishonor, penalty is lowered by two degrees. Since there is a material lowering of the penalty or mitigating the penalty, this is an extenuating circumstance.

The concealment of honor by mother in the crime of infanticide is an extenuating circumstance but not in the case of parricide when the age of the victim is three days old and above.

In the crime of adultery on the part of a married woman abandoned by her husband, at the time she was abandoned by her husband, is it necessary for her to seek the company of another man. Abandonment by the husband does not justify the act of the woman. It only extenuates or reduces criminal liability. When the effect of the circumstance is to lower the penalty there is an extenuating circumstance.

A kleptomaniac is one who cannot resist the temptation of stealing things which appeal to his desire. This is not exempting. One who is a kleptomaniac and who would steal objects of his desire is criminally liable. But he would be given the benefit of a mitigating circumstance analogous to paragraph 9 of Article 13, that of suffering from an illness which diminishes the exercise of his will power without, however, depriving him of the consciousness of his act. So this is an extenuating circumstance. The effect is to mitigate the criminal liability.


Distinctions between justifying circumstances and exempting circumstances

In justifying circumstances –

(1) The circumstance affects the act, not the actor;

(2) The act complained of is considered to have been done within the bounds of law; hence, it is legitimate and lawful in the eyes of the law;

(3) Since the act is considered lawful, there is no crime, and because there is no crime, there is no criminal;

(4) Since there is no crime or criminal, there is no criminal liability as well as civil liability.

In exempting circumstances –

(1) The circumstances affect the actor, not the act;

(2) The act complained of is actually wrongful, but the actor acted without voluntariness. He is a mere tool or instrument of the crime;

(3) Since the act complained of is actually wrongful, there is a crime. But because the actor acted without voluntariness, there is absence of dolo or culpa. There is no criminal;

(4) Since there is a crime committed but there is no criminal, there is civil liability for the wrong done. But there is no criminal liability. However, in paragraphs 4 and 7 of Article 12, there is neither criminal nor civil liability.

When you apply for justifying or exempting circumstances, it is confession and avoidance and burden of proof shifts to the accused and he can no longer rely on weakness of prosecution’s evidence


Justifying circumstances

Since the justifying circumstances are in the nature of defensive acts, there must be always unlawful aggression. The reasonableness of the means employed depends on the gravity of the aggression. If the unlawful aggressor was killed, this can only be justified if it was done to save the life of the person defending or the person being defended. The equation is “life was taken to save life.”


Self Defense

In justifying circumstances, the most important is self-defense. When this is given in the bar, it is the element of unlawful aggression that is in issue. Never confuse unlawful aggression with provocation. Mere provocation is not enough.

Illustration:

A and B are long standing enemies. Because of their continuous quarrel over the boundaries of their adjoining properties, when A saw B one afternoon, he approached the latter in a menacing manner with a bolo in his hand. When he was about five feet away from B, B pulled out a revolver and shot A on the chest, killing him. Is B criminally liable? What crime was committed, if any?

The act of A is nothing but a provocation. It cannot be characterized as an unlawful aggression because in criminal law, an unlawful aggression is an attack or a threatened attack which produces an imminent danger to the life and limb of the one resorting to self-defense. In the facts of the problem given above, what was said was that A was holding a bolo. That bolo does not produce any real or imminent danger unless a raises his arm with the bolo. As long as that arm of A was down holding the bolo, there is no imminent danger to the life or limb of B. Therefore, the act of B in shooting A is not justified.

Defense of rights is included in the circumstances of defense and so is defense of honor.

In US v. Mateo, while a woman was sleeping, her sister and brother-in-law went to see a movie and came home late that evening. The accused was already asleep. The brother-in-law came up first while his wife was still in the staircase. He started feeling through the dark, and in the process, he awakened the accused. Believing that her honor was at stake, she got a pair of scissors and stabbed the man. When the lights were turned on, she realized that she had stabbed her brother-in-law. The accused claimed as having acted in defense of her honor and mistake of fact. She said that she believed that her own honor was at stake. It was held that the whole matter is purely her imagination. Touching the arm could not produce such danger as would really be imminent to the honor of the woman.

Apparently, under the Revised Penal Code, the honor of a woman in respect of her defense is equated with her virginity.

In US v. Jaurigue, it was held that it was not possible to rape the accused because the whole thing transpired in the church, where there were so many people. Therefore, her availing of defense of honor is not tenable. She could not possibly be raped in that place. Defense of honor here is being equated with one of abuse of chastity of a woman. In this case, the offended party placed his hand on the thigh of the woman who was then praying. There was already some sort of aggression but it was not enough to warrant the act resorted to by the accused in getting a small knife from her bag and thrusting it on the chest of the offended party.

Do not confuse unlawful aggression with provocation. What justifies the killing of a supposed unlawful aggressor is that if the offender did not kill the aggressor, it will be his own life that will be lost. That will be the situation. If that is not the situation, even if there was an unlawful aggression that has already begun, you cannot invoke self-defense.

Illustration:

Two policemen quarreled inside a police precinct. One shot the other. The other was wounded on his thigh. The policeman who was wounded on the thigh jumped on the arm of the fellow who shot him. In the process, they wrestled for possession of the gun. The policeman who shot the other guy fell on the floor. On that point, this policeman who was shot at the thigh was already able to get hold of the revolver. In that position, he started emptying the revolver of the other policeman who was lying on the floor. In this case, it was held that the defense of self-defense is no available. The shooting was not justified.

In People v. Rodriguez, a woman went into the house of another woman whom she suspected of having an affair with her husband. She started pouring gasoline on the house of the woman. Since the woman has children inside the house, she jumped out to prevent this other woman from pouring gasoline around the house. The woman who was pouring gasoline had a bolo, so she started hacking the other woman with it. They grappled with the bolo. At that moment, the one who jumped out of the house was able to wrest the bolo away and started hacking the other woman. It was held that the hacking was not justified. Actually, when she killed the supposed unlawful aggressor, her life and limb were no longer in imminent danger. That is the focal point.

At the time the accused killed the supposed unlawful aggressor, was her life in danger? If the answer is no, there is no self-defense. But while there may be no justifying circumstance, do not forget the incomplete self-defense. This is a mitigating circumstance under paragraph 1 of Article 13. This mitigating circumstance is either privileged or ordinary. If ordinary, it has the effect of reducing the imposable penalty to the minimum period. But if it is privileged, it has the effect of lowering the penalty by one to two degrees, depending on how the court will regard the absence or presence of conditions to justify the act.


Defense of property rights

This can only be invoked if the life and limb of the person making the defense is also the subject of unlawful aggression. Life cannot be equal to property.

Defense of stranger

If the person being defended is already a second cousin, you do not invoke defense of relative anymore. It will be defense of stranger. This is vital because if the person making the defense acted out or revenge, resentment or some evil motive in killing the aggressor, he cannot invoke the justifying circumstance if the relative defended is already a stranger in the eyes of the law. On the other hand, if the relative defended is still within the coverage of defense of relative, even though he acted out of some evil motive, it would still apply. It is enough that there was unlawful aggression against the relative defended, and that the person defending did not contribute to the unlawful aggression.


Question & Answer

The person being defended was a relative – a first cousin. But the fellow who killed the aggressor had some score to settle with the aggressor. Is he entitled to a justifying circumstance?

Yes. In law, the condition that a person making the defense did not act out of revenge, resentment or evil motive is not a requirement in defense of relative. This is only required in defense of strangers.


Incomplete self-defense or incomplete justifying circumstance or incomplete exempting circumstances

When you say incomplete justifying circumstance, it means that not all the requisites to justify the act are present or not the requisites to exempt from criminal liability are present.

How, if at all, may incomplete self-defense affect the criminal liability of the offender?

If the question specifically refers to incomplete self-defense, defense of relative or defense of stranger, you have to qualify your answer.

First, to have incomplete self-defense, the offended party must be guilty of unlawful aggression. Without this, there can be no incomplete self-defense, defense of relative, or defense of stranger.

Second, if only the element of unlawful aggression is present, the other requisites being absent, the offender shall be given only the benefit of an ordinary mitigating circumstance.

Third, if aside from the element of unlawful aggression another requisite, but not all, are present, the offender shall be given the benefit of a privileged mitigating circumstance. In such a case, the imposable penalty shall be reduced by one or two degrees depending upon how the court regards the importance of the requisites present. Or absent.

If the question refers generally to justifying or exempting circumstances, the question should be, “how may incomplete justifying circumstance affect criminal liability of the offender, if at all?”

Make a separate answer with respect to self-defense, defense of relative or defense of stranger because in these cases, you always have to specify the element of unlawful aggression; otherwise, there would be no incomplete self-defense, defense of relative or defense of stranger. In general, with respect to other circumstances, you need only to say this:
If less than a majority of the requisites necessary to justify the act or exempt from criminal liability are present, the offender shall only be entitled to an ordinary mitigating circumstance.

If a majority of the requisites needed to justify the act or exempt from criminal liability are present, the offender shall be given the benefit of a privileged mitigating circumstance. The penalty shall be lowered by one or two degrees. When there are only two conditions to justify the act or to exempt from criminal liability, the presence of one shall be regarded as the majority.


State of necessity

The state of necessity must not have been created by the one invoking the justifying circumstances. For example, A drove his car beyond the speed limit so much so that when he reached the curve, his vehicle skidded towards a ravine. He swerved his car towards a house, destroying it and killing the occupant therein. A cannot be justified because the state of necessity was brought about by his own felonious act.

Civil liability referred to in a state of necessity is based not on the act committed but on the benefit derived from the state of necessity. So the accused will not be civilly liable if he did not receive any benefit out of the state of necessity. On the other hand, persons who did not participate in the damage or injury would be pro tanto civilly liable if they derived benefit out of the state of necessity.

Civil liability is based on the benefit derived and not on the act, damage or injury caused. It is wrong to treat this as an exception to the rule that in justifying circumstances, there is no criminal nor civil liability, on the principle that “no one should enrich himself at the expense of another”.

Illustration:

A and B are owners of adjoining lands. A owns the land for planting certain crops. B owns the land for raising certain goats. C used another land for a vegetable garden. There was heavy rain and floods. Dam was opened. C drove all the goats of B to the land of A. The goats rushed to the land of A to be saved, but the land of A was destroyed. The author of the act is C, but C is not civilly liable because he did not receive benefits. It was B who was benefited, although he was not the actor. He cannot claim that it was fortuitous event. B will answer only to the extent of the benefit derived by him. If C who drove all the goats is accused of malicious mischief, his defense would be that he acted out of a state of necessity. He will not be civilly liable.
Fulfillment of duty

In the justifying circumstance of a person having acted out of fulfillment of a duty and the lawful exercise of a right or office, there are only two conditions:

(1) The felony was committed while the offender was in the fulfillment of a duty or in the lawful exercise of a right or office; and

(2) The resulting felony is the unavoidable consequence of the due fulfillment of the duty or the lawful exercise of the right or office.

Invariably, when you are given a problem on this premise, and the first condition is present, but the second is not because the offender acted with culpa, the offender will be entitled to a privelege mitigating circumstance. This is what you call incomplete justification of fulfillment of duty or incomplete justification of exercise of a right. In that case, the penalty would be reduced by one or two degrees.

In People v. Oanis and Callanta, the accused Chief of Police and the constabulary soldier were sent out to arrest a certain Balagtas, supposedly a notorious bandit. There was an order to kill Balagtas if he would resist. The accused arrived at the house of a dancer who was supposedly the girlfriend of Balagtas. When they were there, they saw a certain person who resembled Balagtas in all his bodily appearance sleeping on a bamboo bed but facing the other direction. The accused, without going around the house, started firing at the man. They found out later on that the man was not really Balagtas. They tried to invoke the justifying circumstance of having acted in fulfillment of a duty.

The second requisite is absent because they acted with negligence. There was nothing that prevented them from looking around the house and looking at the face of the fellow who was sleeping. There could not be any danger on their life and limb. Hence, they were held guilty of the crime of murder because the fellow was killed when he was sleeping and totally defenseless. However, the Supreme Court granted them the benefit of incomplete justification of fulfillment of duty and the penalty was reduced by one or two degrees.

Do not confuse fulfillment of a duty with self-defense.

Illustration:

A, a policeman, while waiting for his wife to go home, was suddenly stabbed at the back by B, a hoodlum, who mistook him for someone else. When A saw B, he drew his revolver and went after B. After firing a shot in the air, B did not stop so A shot B who was hit at a vital part of the body. B died. Is the act of A justified?

Yes. The justifying circumstance of self-defense cannot be invoked because the unlawful aggression had already ceased by the time A shot B. When the unlawful aggressor started fleeing, the unlawful aggression ceased. If the person attacked runs after him, in the eyes of the law, he becomes the unlawful aggressor. Self-defense cannot be invoked. You apply paragraph 5 on fulfillment of duty. The offender was not only defending himself but was acting in fulfillment of a duty, to bring the criminal to the authorities. As long as he was not acting out of malice when he fired at the fleeing criminal, he cannot be made criminally liable. However, this is true only if it was the person who stabbed was the one killed. But if, let us say, the policeman was stabbed and despite the fact that the aggressor ran into a crowd of people, the policeman still fired indiscriminately. The policeman would be held criminally liable because he acted with imprudence in firing toward several people where the offender had run. But although he will be criminally liable, he will be given the benefit of an incomplete fulfillment of duty.


Exempting circumstances

In exempting circumstances, the reason for the exemption lies on the involuntariness of the act – one or some of the ingredients of voluntariness such as criminal intent, intelligence, or freedom of action on the part of the offender is missing. In case it is a culpable felony, there is absence of freedom of action or intelligence, or absence of negligence, imprudence, lack of foresight or lack of skill.


Imbecility and insanity

There is complete absence of intelligence. Imbecile has an IQ of 7. The intellectual deficiency is permanent. There is no lucid interval unlike in insanity.

The insanity that is exempting is limited only to mental aberration or disease of the mind and must completely impair the intelligence of the accused. Under common law countries, emotional or spiritual insanity are exempting circumstances unlike in this jurisdiction because the Revised Administrative Code, as defined is limited to mental aberration of the mind. This was the ruling in People v. Dungo.

In People v. Rafanan, decided on November 21, 1991, the following are the two tests for exemption on grounds of insanity:

(1) The test of cognition, or whether the accused acted with complete deprivation of intelligence in committing said crime; and

(2) The test of volition, or whether the accused acted in total deprivation of freedom of will.

Schizoprenia (dementia praecox) can only be considered a mitigating circumstance because it does not completely deprive the offender of consciousness of his acts.



Minority

In exempting circumstances, the most important issue is how the minority of the offender affected his criminal liability. It seems that the view of many is that when the offender is a youthful offender, he must necessarily be confined in a reformatory. This is wrong. A youthful offender can only be confined in a reformatory upon order of the court. Under the amendment to Presidential Decree No. 603, Presidential Decree No. 1179 requires that before a youthful offender may be given the benefit if a suspension of sentence, there must be an application filed with the court which should pronounce sentence. Note that the commitment of the offender in a reformatory is just a consequence of the suspension of the sentence. If the sentence is not suspended, there is no commitment in a reformatory. The commitment is in a penitentiary, since suspension of sentence requires certain conditions:

(1) The crime committed should not be punishable by reclusion perpetua or death penalty;

(2) The offender should not have been given the benefit of a suspended sentence before. This means he is a first timer;

(3) He must be below 18 years old because a youthful offender is one who is below 18.

Note that the age of majority has been reduced to 18. There is no more bracket where the offender is a minor yet no longer entitled to a mitigating circumstance. An offender below 18 is always entitled to a mitigating or exempting circumstance.

How does the minority of the offender affect his criminal liability?

(1) If the offender is within the bracket of nine years old exactly or less, he is exempt from criminal liability but not from civil liability. This type of offenders are absolutely exempt. Even if the offender nine years or below acted with discernment, this should not be taken against him because in this age bracket, the exemption is absolute.

(2) If over nine but below 15, a distinction has to be made whether the offender acted with or without discernment. The burden is upon the prosecution to prove that the offender acted with discernment. It is not for the minor to prove that he acted without discernment. All that the minor has to show is that he is within the age bracket. If the prosecution would want to pin criminal liability on him, it has to prove that the crime was committed with discernment. Here, if the offender was exempt from criminal liability because the prosecution was not able to prove that the offender acted with discernment, he is only civilly liable but he will be committed to the surveillance of his parents who will be required to report to the court periodically on the progress or development of the offender.

If the offender is proven to have acted with discernment, this is where the court may give him the benefit of a suspended sentence. He may be given the benefit of a suspended sentence under the conditions mentioned earlier and only if he would file an application therefor.

Suspension of sentence is not automatic. If the youthful offender has filed an application therefor.

(3) If at the time the judgment is to be promulgated he is already above 18, he cannot avail of a suspended sentence. The reason is because if the sentence were to be suspended, he would be committed in a reformatory. Since he cannot be committed to a reformatory anymore because he is not less than 18 years old, he would have to be committed to a penitentiary. That means promulgation of the sentence shall not be suspended. If the sentence should not be suspended, although the minor may be qualified, the court will promulgate the sentence but the minor shall be entitled to the reduction of the penalty by at least two degrees.

When the offender is over nine but below 15, the penalty to be imposed is discretionary on the court, but lowered by at least two degrees. It may be lowered by three or four degrees, depending upon whether the court deems best for the interest of the offender. The limitation that it should be lowered by at least two degrees is just a limitation on the power of the court to reduce the penalty. It cannot be less than two degrees.

(4) If the offender is 15 years old and above but below 18, there is no exemption anymore but he is also given the benefit of a suspended sentence under the conditions stated earlier and if at the time the sentence is promulgated, he is not 18 years old or over yet. If the sentence is promulgated, the court will impose a penalty one degree lower. This time it is fixed. It is to be imposed one degree lower and in the proper periods subject to the rules in Article 64.


Damnum absque injuria

Under Article 12, paragraph 4, the offender is exempt not only from criminal but also from civil liability. This paragraph embodies the Latin maxim “damnum absque injuria”.

Illustration:

A person who is driving his car within the speed limit, while considering the condition of the traffic and the pedestrians at that time, tripped on a stone with one of his car tires. The stone flew hitting a pedestrian on the head. The pedestrian suffered profuse bleeding. What is the liability of the driver?

There is no civil liability under paragraph 4 of Article 12. Although, this is just an exempting circumstance, where generally there is civil liability, yet, in paragraph 4 of Article 12, there is no civil liability as well as criminal liability. The driver is not under obligation to defray the medical expenses.

However, correlate paragraph 4 of Article 12 with the second paragraph of Article 275. Article 275 gives you the crime of abandoning the victim of one’s own accident. It is a crime. Here, the accident referred to in paragraph 2 of Article 275 is in the concept of paragraph 4 of Article 12. This means that the offender must be performing a lawful act, that he was doing it with due care but somehow, injury resulted by mere accident without fault or intention of causing it.

If at the very beginning, the offender was negligent, you do not apply Article 275, paragraph 2. Instead, it will be Article 365 on criminal negligence. Notice that in the last paragraph of Article 365, in the case of the so-called hit and run drivers who have injured somebody and would abandon the victim of the accident, the penalty is qualified to a higher degree. Here, under paragraph 4 of Article 12, the infliction of the injury by mere accident does not give rise to a criminal or civil liability, but the person who caused the injury is duty bound to attend to the person who was injured. If he would abandon him, it is in that abandonment that the crime arises which is punished under the second paragraph of Article 275.

Compulsion of irresistible force and under the impulse of an uncontrollable fear

The offender must be totally deprived of freedom. If the offender has still freedom of choice, whether to act or not, even if force was employed on him or even if he is suffering from uncontrollable fear, he is not exempt from criminal liability because he is still possessed with voluntariness. In exempting circumstances, the offender must act without voluntariness.

In a situation where the offender would otherwise be exempt, but the requisites for exemption are not all present, the offender is still entitled to a mitigating circumstance of incomplete exemption under paragraph 1 of Article 13. Apply the rule if majority of the requisites to exempt from criminal liability are present. The offender shall be given the benefit of privelege mitigating circumstances. That means that the penalty prescribed of the crime committed shall be reduced by one or two degrees in accordance with Article 69 of the Revised Penal Code. If less than a majority of the requisites for exemption are present, the offender shall be given only the benefit of ordinary mitigating circumstances. That means the penalty shall be reduced to the minimum period of the prescribed penalty, unless the mitigating circumstance is offset by an aggravating circumstance.


Mitigating circumstances

Distinctions between ordinary mitigating circumstances and privileged mitigating circumstances

(1) As to the nature of the circumstances

Ordinary mitigating circumstances can be offset by aggravating circumstances.

Privilege mitigating circumstance can never be offset by any aggravating circumstance.

(2) As to effect

Ordinary mitigating circumstances, if not offset, will operate to reduce the penalty to the minimum period, provided the penalty is a divisible one.

Privilege mitigating circumstances operate to reduce the penalty by one or two degrees, depending upon what the law provides.

You can easily detect whether the circumstance which mitigates the liability of the offender is privilege or not, that is, if the penalty is reduced by degree. If the penalty is lowered by one or two degrees, it is privilege; therefore, even if there is an aggravating circumstance, do not compensate because that would be violating the rules.

The circumstances under Article 13 are generally ordinary mitigating, except in paragraph 1, where it is privilege, Article 69 would apply. So also, paragraph 2, in cases where the offender is below 18 years old, such an offender if criminally liable is entitled to the lowering of penalty by one degree. But if over nine but under 15, he is entitled to a discretionary penalty of at least two degrees lower. When there is a lowering of penalties by degrees, it is a privilege. It cannot be offset by an aggravating circumstance.

Although the bulk of the circumstances in Article 13 are ordinary mitigating circumstances, yet, when the crime committed is punishable by a divisible penalty, two or more of this ordinary mitigating circumstances shall have the effect of a privilege mitigating circumstances if there is no aggravating circumstance at all.

Correlate Article 13 with Articles 63 and 64. Article 13 is meaningless without knowing the rules of imposing the penalties under Articles 63 and 64.

In bar problems, when you are given indeterminate sentences, these articles are very important.

When the circumstance which mitigates criminal liability is privileged, you give effect to it above all considerations. In other words, before you go into any circumstance, lower first the penalty to the proper degree. That is precisely why this circumstance is considered privileged. It takes preference over all other circumstances.


Question & Answer

A 17 year old boy committed parricide. Will he be given the benefit of Indeterminate Sentence Law? Then, the facts state, penalty for parricide is reclusion perpetua to death.

You have learned that the Indeterminate Sentence Law does not apply, among other situations, when the penalty imposed is death or life imprisonment. But then in the problem given, the offender is a 17-year old boy. That circumstance is privileged. So before you go in the Indeterminate Sentence Law, you have to apply that circumstance first. Being a 17-year old boy, therefore, the penalty would go one degree lower and the penalty for parricide which now stands at reclusion perpetua will go down to reclusion temporal. Reclusion temporal is already governed by the Indeterminate Sentence Law.

The answer, therefore, is yes. He shall be given the benefit of the Indeterminate Sentence Law. Although the penalty prescribed for the crime committed is reclusion perpetua, that is not the imposable penalty, since being 17 years old is a privilege mitigating circumstance. That privilege lowers the penalty by one degree. The imposable penalty, therefore, is reclusion temporal. The Indeterminate Sentence Law applies to this and so the offender will be given its benefit.

Criminal laws are to be construed always in a manner liberal or lenient to the offender. Between giving the offender the benefit of the Indeterminate Sentence Law and withholding it away from him, there is more reason to give him its benefit. It is wrong for you to determine whether the Indeterminate Sentence Law will apply or not on the basis of reclusion perpetua because that is not the imposable penalty. The moment you do that, you disregard the privileged character of minority. You are only treating it as an ordinary mitigating circumstance. Privilege mitigating circumstance will apply over and above all other considerations. When you arrive at the correct penalty, that is the time when you find out whether the Indeterminate Sentence Law will apply or not.

For purposes of lowering the penalty by one or two degrees, the age of the offender at the time of the commission of the crime shall be the basis, not the age of the offender at the time the sentence is to be imposed. But for purposes of suspension of the sentence, the age of the offender at the time the crime was committed is not considered, it is the age of the offender at the time the sentence is to be promulgated.


Praeter intentionem

The common circumstance given in the bar of praeter intentionem, under paragraph 3, means that there must be a notable disproportion between the means employed by the offender compared to that of the resulting felony. If the resulting felony could be expected from the means employed, this circumstance does not avail. This circumstance does not apply when the crime results from criminal negligence or culpa. When the crime is the product of reckless imprudence or simple negligence, mitigating circumstances does not apply. This is one of the three instances where the offender has performed a felony different from that which he intended. Therefore, this is the product of intentional felony, not a culpable one.


Sufficient threat or provocation

This is mitigating only if the crime was committed on the very person who made the threat or provocation. The common set-up given in a bar problem is that of provocation was given by somebody. The person provoked cannot retaliate against him; thus, the person provoked retaliated on a younger brother or on an elder father. Although in fact, there is sufficient provocation, it is not mitigating because the one who gives the provocation is not the one against whom the crime was committed.


Question & Answer

A was walking in front of the house of B. B at that time was with his brother C. C told B that sometime in the past, A boxed him, and because he was small, he did not fight back. B approached A and boxed him, but A cannot hit back at B because B is bigger, so A boxed C. Can A invoke sufficient provocation to mitigate criminal liability?

No. Sufficient provocation must come from the offended party. There may actually be sufficient provocation which immediately preceded the act, but if provocation did not come from the person offended, paragraph 4, Article 13 will not apply.


The commission of the felony must be immediate to the threat or provocation in order that this circumstance be mitigating. If there is sufficient break of time before the provocation or threat and the consequent commission of the crime, the law presupposes that during that interval, whatever anger or diminished self control may have emerged from the offender had already vanished or disappeared. In applying this mitigating circumstance, the courts are generally considering that there must be no break between the provocation or threat and the commission of the felony. In other words, the felony was committed precisely because he was then and there provoked.

However, the recent rulings of the Supreme Court, as well as the Court of Appeals, has stretched this criterion – it is not only a matter of time anymore. Before, there was a ruling that if a period of one hour had lapsed between the provocation and the commission of the felony, this mitigating circumstance is no longer applicable.

Illustration:

The accused went to a barrio dance. In that gathering, there was a bully and he told the accused that he is not allowed to go inside. The accused tried to reason out but the bully slapped him several times in front of so many people, some of whom were ladies who were being courted by the accused, so he was humiliated and embarrassed. However, he cannot fight the bully at that time because the latter was much bigger and heavier. Accused had no choice but to go home. When he saw the bully again, this time, he was armed with a knife and he stabbed the bully to death. The evidence for the accused showed that when he went home, he was not able to sleep throughout the night, thinking of the humiliation and outrage done to him, despite the lapse of about 22 hours. The Supreme Court gave him the benefit of this mitigating circumstance. The reason stated by the Supreme Court for allowing the accused to be benefited by this mitigating circumstance is that the effect of the humiliation and outrage emitted by the offended party as a provocation upon the accused was still present when he committed the crime and, therefore, the reason for paragraph 4 still applies. The accused was still acting under a diminished self control because he was thinking of the humiliation he suffered in the hands of the offended party. The outrage was so serious unless vindicated.

This is the correct interpretation of paragraph 4, Article 13. As long as the offender at the time he committed the felony was still under the influence of the outrage caused by the provocation or threat, he is acting under a diminished self control. This is the reason why it is mitigating.

You have to look at two criteria:

(1) If from the element of time, there is a material lapse of time stated in the problem and there is nothing stated in the problem that the effect of the threat or provocation had prolonged and affected the offender at the time he committed the crime, then you use the criterion based on the time element.

(2) However, if there is that time element and at the same time, facts are given indicating that at the time the offender committed the crime, he is still suffering from outrage of the threat or provocation done to him, then he will still get the benefit of this mitigating circumstance.

In People v. Diokno, a Chinaman eloped with a woman. Actually, it was almost three days before accused was able to locate the house where the Chinaman brought the woman. Here, sufficient provocation was one of the mitigating circumstances considered by the Supreme Court in favor of the accused.


Vindication of a grave offense

The word “offense” should not be taken as a crime. It is enough if what was imputed or what was done was wrong. In considering whether the wrong is a grave one upon the person who committed the crime, his age, education and social status will be considered.

Here, in vindication of a grave offense, the vindication need not be done by the person upon whom the grave offense was committed. So, unlike in sufficient threat or provocation where the crime should be inflicted upon the very person who made the threat or provocation, here, it need not be the same person who committed the grave offense or who was offended by the wrong done by the offended party.

The word “immediate” here does not carry the same meaning as that under paragraph 4. The word “immediate” here is an erroneous Spanish translation because the Spanish word is “proxima” and not “immediatementa.” Therefore, it is enough that the offender committed the crime with the grave offense done to him, his spouse, his ascendant or descendant or to his brother or sister, whether natural, adopted or legitimate and that is the proximate cause of the commission of the crime.


Passion or obfuscation

This stands on the premise or proposition that the offender is suffering from a diminished self control because of the passion or obfuscation. The same is true with the circumstances under paragraphs 4 and 5. So, there is a ruling to the effect that if the offender is given the benefit of paragraph 4, he cannot be given the benefit of paragraph 5 or 6, or vice-versa. Only one of the three mitigating circumstances should be given in favor of the offender.

However, in one case, one of the mitigating circumstances under paragraphs 4, 5 and 6 stands or arises from a set of facts, and another mitigating circumstance arises from another set of facts. Since they are predicated on different set of facts, they may be appreciated together, although they arose from one and the same case. Hence, the prohibition against considering all these mitigating circumstances together and not as one applies only if they would be taken on the basis of the same set of facts.

If the case involves a series of facts, then you can predicate any one of these circumstances on one fact and the other on another fact and so on.

The passion must be legitimate. As a rule, it cannot be based on common law relationship because common law relationships are illicit. However, consider whether passion or obfuscation is generated by common law relationship or by some other human consideration.

In a case where the relationship between the accused and the woman he was living with was one of common law, he came home and surprised his common law wife having sexual intercourse with a friend. This infuriated him. He killed the friend and he claimed passion or obfuscation. The trial court denied his claim because the relationship was a common law one.

On review, the accused was given the benefit of the circumstances and the basis of considering passion or obfuscation in favor of the accused was the act of the common law wife in committing adultery right from the conjugal bed. Whether or not they are married, any man who discovers that infidelity was committed on the very bed provided by him to the woman would naturally be subjected to obfuscation.

When a married person surprised his better half in the act of sexual intercourse with another, he gets the benefit of Article 247. However, that requisite which in the first place, the offender must have surprised his/her spouse actually committing sexual intercourse should be present. If the surprising was done not in the actual act of sexual intercourse but before or after it, then Article 247 does not apply.

Although this is the ruling, still, the accused will be given the benefit of sufficient provocation if the intercourse was done in his dwelling. If this act was done somewhere else and the accused kills the paramour or the spouse, this may be considered as mitigation of a grave offense to him or otherwise as a situation sufficient to create passion or obfuscation. Therefore, when a married man upon coming home, surprises his wife who was nude and lying with another man who was also nude, Article 247 does not apply. If he kills them, vindication of a grave offense will be mitigating in favor of the offender.

Illustrations:

A is courting B, a receptionist in a beerhouse. C danced with B. A saw this and stabbed C. It was held that jealousy is an acknowledged basis of passion.

A, a male classmate is escorting B, a female classmate. On the way out, some men whistled lustfully. The male classmate stabbed said men. This was held to be obfuscation.

When a man saw a woman bathing, almost naked, for which reason he raped her, such man cannot claim passion as a mitigating circumstance.

A man and a woman were living together for 15 years. The man left the village where they were living and never returned home. The common law wife learned that he was getting married to a classmate. On the scheduled wedding day, she stabbed the groom in the chest, instantly killing him. She confessed and explained that any woman cannot tolerate what he did to her. She gave him the best years of her life. She practically waited for him day and night. It was held that passion and obfuscation were considered mitigating. Ingratitude was shown here.


Voluntary surrender

The essence of voluntary surrender requires that the offender, after having committed the crime, had evaded the law enforcers and the law enforcers do not know of his whereabouts. In short, he continues to elude arrest. If, under this circumstance, the offender would come out in the open and he gives himself up, his act of doing so will be considered as indicative of repentance and he also saves the government the time and the expense of looking for him.

As a general rule, if after committing the crime, the offender did not flee and he went with the responding law enforcers meekly, voluntary surrender is not applicable.

However, there is a ruling that if after committing the crime, the offender did not flee and instead waited for the law enforcers to arrive and he surrendered the weapon he used in killing the victim, the ruling was that voluntary surrender is mitigating. In this case, the offender had the opportunity to go into hiding, the fact that he did not flee is not voluntary surrender.

However, if he comes out from hiding because he is seriously ill and he went to get medical treatment, the surrender is not considered as indicative of remorse or repentance. The surrender here is only done out of convenience to save his own self. Hence, it is not mitigating.

Even if the offender may have gone into hiding, if the law enforcers had already known where he is hiding and it is just a matter of time before he is flushed out of that place, then even if the law enforcers do not know exactly where he was hiding and he would come out, this is not voluntary surrender.

Whether or not a warrant of arrest had been issued against the offender is immaterial and irrelevant. The criterion is whether or not the offender had gone into hiding or had the opportunity to go into hiding and the law enforcers do not know of his whereabouts. If he would give up, his act of surrendering under such circumstance indicates that he is willing to accept the consequences of the wrong he has done and also thereby saves the government the effort, the time and the expenses to be incurred in looking for him.

Where the offender went to the municipal building not to own responsibility for the killing, such fact is not tantamount to voluntary surrender as a mitigating circumstance. Although he admitted his participation in the killing, he tried to avoid responsibility by claiming self-defense which however he was not able to prove. People v. Mindac, decided December 14, 1992.

Surrender to be considered voluntary and thus mitigating, must be spontaneous, demonstrating an intent to submit himself unconditionally to the person in authority or his agent in authority, because (1) he acknowledges his guilt (2) he wishes to save the government the trouble and expenses of searching and capturing him. Where the reason for the surrender of the accused was to insure his safety, his arrest by policemen pursuing him being inevitable, the surrender is not spontaneous.


Physical defect

The physical defect that a person may have must have a relation to the commission of the crime. In a case where the offender is deaf and dumb, personal property was entrusted to him and he misappropriated the same. The crime committed was estafa. The fact that he was deaf and dumb is not mitigating because that does not bear any relation to the crime committed.

Not any physical defect will affect the crime. It will only do so if it has some relation to the crime committed. If a person is deaf and dumb and he has been slandered, he cannot talk so what he did was, he got a piece of wood and struck the fellow on the head. The crime committed was physical injuries. The Supreme Court held that being a deaf and dumb is mitigating because the only way is to use his force because he cannot strike back.

If the offender is blind in one eye, as long as his means of action, defense or communication with others are not restricted, such circumstance is not mitigating. This circumstance must also have a bearing on the crime committed and must depend on how the crime was committed.


Analogous cases

The act of the offender of leading the law enforcers to the place where he buried the instrument of the crime has been considered as equivalent to voluntary surrender. The act of a thief in leading the authorities to the place where he disposed of the loot has been considered as analogous or equivalent to voluntary surrender.

Stealing by a person who is driven to do so out of extreme poverty is considered as analogous to incomplete state of necessity. However, this is not so where the offender became impoverished because of his own way of living his life. If his lifestyle is one of having so many vices, as a result of which he became poor, his subsequent stealing because of his poverty will not be considered mitigated by incomplete state of necessity.


Aggravating circumstances

Kinds of aggravating circumstances:
(1) Generic or those that can generally apply to all crime;
(2) Specific or those that apply only to a particular crime;
(3) Qualifying or those that change the nature of the crime;
(4) Inherent or those that must of necessity accompany the commission of the crime.

The aggravating circumstances must be established with moral certainty, with the same degree of proof required to establish the crime itself.

Most important of the classification of aggravating circumstances are the qualifying and the generic aggravating circumstances.

In practice, the so-called generic aggravating circumstances are referred to simply as aggravating circumstances. The so-called qualifying aggravating circumstances are simply referred to as qualifying circumstances. This is so because there is no qualifying circumstance that is not aggravating. To say qualifying aggravating circumstance is redundant. In the examination, if you find qualifying circumstances, you have to think about these as aggravating circumstances which are the ingredients of the crime.