Criminal Law (7)

Distinctions between aggravating and qualifying circumstances:

In aggravating circumstances –

(1) The circumstance can be offset by an ordinary mitigating circumstance;

(2) No need to allege this circumstance in the information, as long as it is proven during trial. If it is proved during trial, the court would consider the same in imposing the penalty;

(3) It is not an ingredient of a crime. It only affects the penalty to be imposed but the crime remains the same.

In qualifying circumstance –

(1) The circumstance affects the nature of the crime itself such that the offender shall be liable for a more serious crime. The circumstance is actually an ingredient of the crime;

(2) Being an ingredient of the crime, it cannot be offset by any mitigating circumstance;

(3) Qualifying circumstances to be appreciated as such must be specifically alleged in the complaint or information. If not alleged but proven during the trial, it will be considered only as generic aggravating circumstance. If this happens, they are susceptible of being offset by a mitigating circumstance.

An aggravating circumstance is qualifying when it is an ingredient of the crime. Therefore it is included in the provision of law defining the crime. If it is not so included, it is not qualifying.

In Article 248, in the crime of murder, the law specifically mentions thereunder several circumstances which are aggravating under Article 14. All of these will qualify a killing from homicide to murder; however, you understand that only one is qualifying.

If let us say, the accused was charged with murder. Three of these circumstances: treachery, evident premeditation and act was done in consideration of a price, reward or promise were alleged as aggravating. Only one of these is qualifying. If any one of the three circumstances was proven, the crime was already murder. If the other two are also proven, even if they are alleged in the information or complaint, they are only to be taken as generic. If there is any mitigating circumstance in favor of the offender, the two other circumstances which are otherwise qualifying could be offset by the mitigating, provided the mitigating circumstance is not a privileged mitigating circumstance. Therefore, if there are three of the qualifying circumstances alleged in the complaint or information, only one will qualify the crime. The others will merely be considered as generic. Thus, if there is any ordinary mitigating circumstance in favor of the accused, such will be wiped out by these circumstances, although initially they are considered as qualifying. Do not hesitate to offset on the principle that a qualifying circumstance cannot be offset by an ordinary mitigating circumstance because only one is necessary.

Even if any of the qualifying circumstances under Article 248 on murder was proven, if that is not the circumstance alleged in the information, it cannot qualify the crime. Let us say, what was alleged in the information was treachery. During the trial, what was proven was the price, reward or promise as a consideration for killing. The treachery was not proved. Just the same, the accused cannot be convicted of murder because the circumstance proven is not qualifying but merely generic. It is generic because it is not alleged in the information at all. If any of these qualifying circumstances is not alleged in the information, it cannot be considered qualifying because a qualifying is an ingredient of the crime and it cannot be taken as such without having alleged in the information because it will violate the right of the accused to be informed of the nature of the accusation against him.

Correlate Article 14 with Article 62. Article 62 gives you the different rules regarding aggravating circumstances. Aggravating circumstances will not be considered when it is the crime itself. If the crime charged is qualified trespass to dwelling, dwelling is no longer aggravating. When the aggravating circumstance refers to the material execution of the crime, like treachery, it will only aggravate the criminal liability of those who employed the same.

Illustration:

A person induced another to kill somebody. That fellow killed the other guy and employed treachery. As far as the killing is concerned, the treachery will qualify only the criminal liability of the actual executioner. The fellow who induced him becomes a co-principal and therefore, he is liable for the same crime committed. However, let us say, the fellow was hired to kill the parent of the one who hired him. He killed a stranger and not the parent. What was committed is different from what was agreed upon. The fellow who hired him will not be liable for the crime he had done because that was not the crime he was hired to commit.


Taking advantage of public position

Article 62 was also amended by the Republic Act No. 7659. The legal import of this amendment is that the subject circumstance has been made a qualifying or special aggravating that shall not be offset or compensated by a mitigating circumstance. If not alleged in the information, however, but proven during the trial, it is only appreciated as a generic aggravating circumstance.

The mitigating circumstance referred to in the amendment as not affecting the imposition of the penalty in the maximum are only ordinary mitigating circumstances. Privileged mitigating circumstances always lower the penalty accordingly.


Disrespect due to rank, age, sex

Aggravating only in crimes against persons and honor, not against property like Robbery with homicide (People v. Ga, 156 SCRA 790).

Teachers, professors, supervisors of public and duly recognized private schools, colleges and universities, as well as lawyers are persons in authority only for purposes of direct assault and simple resistance, but not for purposes of aggravating circumstances in paragraph 2, Article 14. (People v. Taoan, 182 SCRA 601).


Abuse of confidence

Do not confuse this with mere betrayal of trust. This is aggravating only when the very offended party is the one who reposed the confidence. If the confidence is reposed by another, the offended party is different from the fellow who reposed the confidence and abuse of confidence in this case is not aggravating.

Illustrations:

A mother left her young daughter with the accused because she had nobody to leave the child with while she had to go on an errand. The accused abused the child. It was held that the abuse of confidence is not aggravating. What is present is betrayal of trust and that is not aggravating.

In a case where the offender is a servant, the offended party is one of the members of the family. The servant poisoned the child. It was held that abuse of confidence is aggravating. This is only true however, if the servant was still in the service of the family when he did the killing. If he was driven by the master already out of the house for some time and he came back and poisoned the child, abuse of confidence is no longer aggravating. The reason is because that confidence has already been terminated when the offender was driven out of the house.




Dwelling

Dwelling will only be aggravating if it is the dwelling of the offended party. It should also not be the dwelling of the offender. If the dwelling is both that of the offended party and the offender, dwelling is not aggravating.

Dwelling need not be owned by the offended party. It is enough that he used the place for his peace of mind, rest, comfort and privacy. The rule that dwelling, in order to be aggravating must be owned by the offended party is no longer absolute. Dwelling can be aggravating even if it is not owned by the offended party, provided that the offended party is considered a member of the family who owns the dwelling and equally enjoys peace of mind, privacy and comfort.

Illustration:

Husband and wife quarreled. Husband inflicted physical violence upon the wife. The wife left the conjugal home and went to the house of her sister bringing her personal belongings with her. The sister accommodated the wife in the formers home. The husband went to the house of the sister-in-law and tried to persuade the wife to come back to the conjugal home but the wife refused because she is more at peace in her sister's house than in the conjugal abode. Due to the wife's refusal to go back to the conjugal home and live with the husband, the husband pulled out a knife and stabbed the wife which caused her death. It was held that dwelling was aggravating although it is not owned by the offended party because the offended party is considered as a member of the family who owns the dwelling and that dwelling is where she enjoyed privacy. Peace of mind and comfort.

Even a room in a hotel if rented as a dwelling, like what the salesmen do when they are assigned in the provinces and they rent rooms, is considered a dwelling. A room in a hotel or motel will be considered dwelling if it is used with a certain degree of permanence, where the offended party seeks privacy, rest, peace of mind and comfort.

If a young man brought a woman in a motel for a short time and there he was killed, dwelling is not aggravating.

A man was killed in the house of his common law wife. Dwelling is aggravating in this case because the house was provided by the man.

Dwelling should not be understood in the concept of a domicile. A person has more than one dwelling. So, if a man has so many wives and he gave them a places of their own, each one is his own dwelling. If he is killed there, dwelling will be aggravating, provided that he also stays there once in a while. When he is only a visitor there, dwelling is not aggravating.

The crime of adultery was committed. Dwelling was considered aggravating on the part of the paramour. The paramour is not a resident of the same dwelling. However, if the paramour was also residing on the same dwelling, dwelling is not considered aggravating.

The term “dwelling” includes all the dependencies necessary for a house or for rest or for comfort or a place of privacy. If the place used is on the second floor, the stairs which are used to reach the second floor is considered a dwelling because the second floor cannot be enjoyed without the stairs. If the offended party was assaulted while on the stairs, dwelling is already aggravating. For this reason, considering that any dependency necessary for the enjoyment of a place of abode is considered a dwelling.

Illustrations:

A and B are living in one house. A occupies the ground floor while B the upper floor. The stairs here would form part only of B's dwelling, the same being necessary and an integral part of his house or dwelling. Hence, when an attack is made while A is on the stairs, the aggravating circumstance of dwelling is not present. If the attack is made while B was on the stairs, then the aggravating circumstance of dwelling is present.

Whenever one is in his dwelling, the law is presuming that he is not intending to commit a wrong so one who attacks him while in the tranquility of his home shows a degree of perversity in him. Hence, this aggravating circumstance.

Dwelling is not limited to the house proper. All the appurtenances necessary for the peace and comfort, rest and peace of mind in the abode of the offended party is considered a dwelling.

Illustrations:

A man was fixing something on the roof of his house when he was shot. It was held that dwelling is aggravating. Roof still part of the house.

In the provinces where the comfort rooms are usually far from the house proper, if the offended party while answering the call of nature is killed, then dwelling is aggravating because the comfort room is a necessary dependency of the house proper.

A person while in the room of his house, maintaining the room, was shot. Dwelling is aggravating.

If the offender entered the house and the offended party jumped out of the house, even if the offender caught up with him already out of the house, dwelling is still aggravating. The reason is because he could not have left his dwelling were it not for the fact that the attacker entered the house.

If the offended party was inside the house and the offender was outside and the latter shot the former inside the house while he was still outside. Dwelling is still aggravating even if the offender did not enter the house.

A garage is part of the dwelling when connected with an interior passage to the house proper. If not connected, it is not considered part of the dwelling.

One-half of the house is used as a store and the other half is used for dwelling but there is only one entrance. If the dwelling portion is attacked, dwelling is not aggravating because whenever a store is open for business, it is a public place and as such is not capable of being the subject of trespass. If the dwelling portion is attacked where even if the store is open, there is another separate entrance to the portion used for dwelling, the circumstance is aggravating. However, in case the store is closed, dwelling is aggravating since here, the store is not a public place as in the first case.

Balcony is part of the dwelling because it is appurtenant to the house

Dwelling is aggravating in robbery with homicide because the crime can be committed without necessarily transgressing the sanctity of the home (People v. De Los Reyes, decided October 22, 1992).

Dwelling is aggravating where the place is, even for a brief moment, a “home”, although he is not the owner thereof as when victim was shot in the house of his parents.


Band

In band, there should at least be four persons. All of them should be armed. Even if there are four, but only three or less are armed, it is not a band. Whenever you talk of band, always have in mind four at least. Do not say three or more because it is four or more. The way the law defines a band is somewhat confusing because it refers simply to more than 3, when actually it should be 4 or more.

Correlate this with Article 306 - Brigandage. The crime is the band itself. The mere forming of a band even without the commission of a crime is already a crime so that band is not aggravating in brigandage because the band itself is the way to commit brigandage.

However, where brigandage is actually committed, band becomes aggravating.


Uninhabited place

It is determined not by the distance of the nearest house to the scene of the crime but whether or not in the place of the commission of the offense , there was a reasonable possibility of the victim receiving some help.

Illustration:

A is on board a banca, not so far away. B and C also are on board on their respective bancas. Suddenly, D showed up from underwater and stabbed B. Is there an aggravating circumstance of uninhabited place here? Yes, considering the fact that A and C before being able to give assistance still have to jump into the water and swim towards B and the time it would take them to do that, the chances of B receiving some help was very little, despite the fact that there were other persons not so far from the scene.

Evidence tending to prove that the offender took advantage of the place and purposely availed of it is to make it easier to commit the crime, shall be necessary.


Nighttime

What if the crime started during the daytime and continued all the way to nighttime? This is not aggravating.

As a rule, the crime must begin and end during the nighttime. Crime began at day and ended at night, as well as crime began at night and ended at day is not aggravated by the circumstance of nighttime.

Darkness is what makes this circumstance aggravating.


Illustration:

One evening, a crime was committed near the lamp post. The Supreme Court held that there is no aggravating circumstance of nighttime. Even if the crime was committed at night, but there was light, hence, darkness was not present, no aggravating circumstance just by the fact of nighttime alone.

Even if there was darkness but the nighttime was only an incident of a chance meeting, there is no aggravating circumstance here. It must be shown that the offender deliberately sought the cover of darkness and the offender purposely took advantage of nighttime to facilitate the commission of the offense.

Nocturnity is the period of time after sunset to sunrise, from dusk to dawn.


Different forms of repetition or habituality of the offender

(1) Recidivism under Article 14 (9) – The offender at the time of his trial for one crime shall have been previously convicted by final judgment of another embraced in the same title of the Revised Penal Code.

(2) Repetition or reiteracion under Article 14 (10) – The offender has been previously punished for an offense which the law attaches an equal or greater penalty or for two or more crimes to which it attaches a lighter penalty.

(3) Habitual delinquency under Article 62 (5) – The offender within the period of 10 years from the date of his release or last conviction of the crimes of serious or less serious physical injuries, robo, hurto, estafa or falsification, is found guilty of the any of said crimes a third time or oftener.

(4) Quasi-recidivism under Article 160 – Any person who shall commit a felony after having been convicted by final judgment before beginning to serve such sentence or while serving such sentence shall be punished by the maximum period prescribed by law for the new felony.

Distinctions between recidivism and habitual delinquency

In recidivism –

(1) Two convictions are enough.

(2) The crimes are not specified; it is enough that they may be embraced under the same title of the Revised Penal Code.

(3) There is no time limit between the first conviction and the subsequent conviction. Recidivism is imprescriptible.

(4) It is a generic aggravating circumstance which can be offset by an ordinary mitigating circumstance. If not offset, it would only increase the penalty prescribed by law for the crime committed to its maximum period.

(5) The circumstance need not be alleged in the information.

In habitual delinquency –

(1) At least three convictions are required.

(1) The crimes are limited and specified to: (a) serious physical injuries, (b) less serious physical injuries, (c) robbery, (d) theft, (e) estafa or swindling and (f) falsification.

(3) There is a time limit of not more than 10 years between every convictions computed from the first conviction or release from punishment thereof to conviction computed from the second conviction or release therefrom to the third conviction and so on . . .
(4) Habitual delinquency is a special aggravating circumstance, hence it cannot be offset by any mitigating circumstance. Aside from the penalty prescribed by law for the crime committed, an additional penalty shall be imposed depending upon whether it is already the third conviction, the fourth, the fifth and so on . . .

(5) The circumstance must be alleged in the information; otherwise the court cannot acquire jurisdiction to impose additional penalty.


Recidivism

In recidivism, the emphasis is on the fact that the offender was previously convicted by final judgement of a felony and subsequently found guilty of another felony embraced in the same title of the Revised Penal Code. The law considers this aggravating when a person has been committing felonies embraced in the same title because the implication is that he is specializing on such kind of crime and the law wants to prevent any specialization. Hence, ordinarily, when a person commits a crime under different titles, no aggravating circumstance is present. It is important that the conviction which came earlier must refer to the crime committed earlier than the subsequent conviction.

Illustration:

In 1980, A committed robbery. While the case was being tried, he committed theft in 1983. He was found guilty and was convicted of theft also in 1983. The conviction became final because he did not appeal anymore and the trial for his earlier crime which was robbery ended in 1984 where he was also convicted. He also did not appeal this decision. Is the accused a recidivist? The subsequent conviction must refer to a felony committed later in order to constitute recidivism. The reason for this is as the time the first crime was committed, there was no other crime of which he was convicted so he cannot be regarded as a repeater.

In recidivism, the crimes committed should be felonies. Recidivism cannot be had if the crime committed is a violation of a special law.

Recidivism does not prescribe. No matter how long ago the offender was convicted, if he is subsequently convicted of a crime embraced in the same title of the Revised Penal Code, it is taken into account as aggravating in imposing the penalty.

Pardon does not erase recidivism, even if it is absolute because only excuses the service of the penalty, but not the conviction.

If the offender has already served his sentence and he was extended an absolute pardon, the pardon shall erase the conviction including recidivism because there is no more penalty so it shall be understood as referring to the conviction or the effects of the crime.

Recidivism may be considered even though not alleged in the information because this is only a generic aggravating circumstance.

It is necessary to allege recidivism in the information, but if the defense does not object to the presentation of evidence during the trial and the same was proven, the court shall consider such aggravating circumstance because it is only generic.

In recidivism, although the law defines it as a circumstance where a person having been convicted by final judgement was previously convicted also by final judgement for a crime embraced in the same title in the Revised Penal Code, it is necessary that the conviction must come in the order in which they are committed.


Question & Answer

In 1975, the offender committed robbery. While the same was being tried in 1978, he committed theft. In 1980, he was convicted of theft and he did not appeal this decision. The trial for robbery ended in 1981. May the judge in imposing the penalty for robbery consider the accused a recidivist considering that he was already convicted in 1980 for the crime of theft which is under the same title of the Revised Penal Code as that of robbery?

No, because the robbery which was committed earlier would be decided later. It must be the other way around. This is because in 1975 when he committed the robbery, there was no crime committed yet. Thus, even though in imposing the penalty for the robbery, there was already a previous conviction, if that conviction is subsequent to the commission of the robbery, he is not a recidivist. If you will interpret the definition of recidivism, this would seem to be covered but that is not so.


Habitual delinquency

We have to consider the crimes in it and take note of the titles of crimes in the Revised Penal Code.

If the offender had committed and was convicted of each of the crimes under each category so that no two crimes fall under the same title of the Revised Penal Code, you have a situation where the offender is a habitual delinquent but not a recidivist because no two crimes fall under the same title of the Code.

If the first conviction is for serious physical injuries or less serious physical injuries and the second conviction is for robbery, theft or estafa and the third is for falsification, then the moment the habitual delinquent is on his fourth conviction already, you cannot avoid that he is a habitual delinquent and at the same time a recidivist because at least, the fourth time will have to fall under any of the three categories.

When the offender is a recidivist and at the same time a habitual delinquent, the penalty for the crime for which he will be convicted will be increased to the maximum period unless offset by a mitigating circumstance. After determining the correct penalty for the last crime committed, an added penalty will be imposed in accordance with Article 62.

Habitual delinquency, being a special or specific aggravating circumstance must be alleged in the information. If it is not alleged in the information and in the course of the trial, the prosecution tried to prove that the offender is a habitual delinquent over the objection of the accused, the court has no jurisdiction to consider the offender a habitual delinquent. Even if the accused is in fact a habitual delinquent but it is not alleged in the information, the prosecution when introducing evidence was objected to, the court cannot admit the evidence presented to prove habitual delinquency over the objection of the accused.

On the other hand, recidivism is a generic aggravating circumstance. It need not be alleged in the information. Thus, even if recidivism is not alleged in the information, if proven during trial, the court can appreciate the same. If the prosecution tried to prove recidivism and the defense objected, the objection should be overruled. The reason is recidivism is a generic aggravating circumstance only. As such, it does not have to be alleged in the information because even if not alleged, if proven during trial, the trial court can appreciate it.

Right now, the present rule is that it can be appreciated even if not alleged in the information. This is the correct view because recidivism is a generic aggravating circumstance. The reason why habitual delinquency cannot be appreciated unless alleged in the information is because recidivism has nothing to do with the crime committed. Habitual delinquency refers to prior conviction and therefore this must be brought in the information before the court can acquire jurisdiction over this matter.

Generally, the procedure you know that when the prosecutor alleges habitual delinquency, it must specify the crimes committed, the dates when they were committed, the court which tried the case, the date when the accused was convicted or discharged. If these are not alleged, the information is defective.

However, in a relatively recent ruling of the Supreme Court, it was held that even though the details of habitual delinquency was not set forth in the information, as long as there is an allegation there that the accused is a habitual delinquent, that is enough to confer jurisdiction upon the court to consider habitual delinquency. In the absence of the details set forth in the information, the accused has the right to avail of the so-called bill of particulars. Even in a criminal case, the accused may file a motion for bill of particulars. If the accused fails to file such, he is deemed to have waived the required particulars and so the court can admit evidence of the habitual delinquency, even though over and above the objection of the defense.


Reiteracion

This has nothing to do with the classification of the felonies. In reiteracion, the offender has already tasted the bitterness of the punishment. This is the philosophy on which the circumstance becomes aggravating.

It is necessary in order that there be reiteracion that the offender has already served out the penalty. If the offender had not yet served out his penalty, forget about reiteracion. That means he has not yet tasted the bitterness of life but if he had already served out the penalty, the law expects that since he has already tasted punishment, he will more or less refrain from committing crimes again. That is why if the offender committed a subsequent felony which carries with it a penalty lighter than what he had served, reiteracion is not aggravating because the law considers that somehow, this fellow was corrected because instead of committing a serious crime, he committed a lesser one. If he committed another lesser one, then he becomes a repeater.

So, in reiteracion, the penalty attached to the crime subsequently committed should be higher or at least equal to the penalty that he has already served. If that is the situation, that means that the offender was never reformed by the fact that he already served the penalty imposed on him on the first conviction. However, if he commits a felony carrying a lighter penalty; subsequently, the law considers that somehow he has been reformed but if he, again commits another felony which carries a lighter penalty, then he becomes a repeater because that means he has not yet reformed.

You will only consider the penalty in reiteracion if there is already a second conviction. When there is a third conviction, you disregard whatever penalty for the subsequent crimes committed. Even if the penalty for the subsequent crimes committed are lighter than the ones already served, since there are already two of them subsequently, the offender is already a repeater.

However, if there is only a second conviction, pay attention to the penalty attached to the crime which was committed for the second crime. That is why it is said that reiteracion is not always aggravating. This is so because if the penalty attached to the felony subsequently committed is not equal or higher than the penalty already served, even if literally, the offender is a repeater, repetition is not aggravating.


Quasi-recidivism

This is found in Article 160. The offender must already be convicted by final judgement and therefore to have served the penalty already, but even at this stage, he committed a felony before beginning to serve sentence or while serving sentence.

Illustration:

Offender had already been convicted by final judgement. Sentence was promulgated and he was under custody in Muntinlupa. While he was in Muntinlupa, he escaped from his guard and in the course of his escape, he killed someone. The killing was committed before serving sentence but convicted by final judgement. He becomes a quasi-recidivist because the crime committed was a felony.

The emphasis here is on the crime committed before sentence or while serving sentence which should be a felony, a violation of the Revised Penal Code. In so far as the earlier crime is concerned, it is necessary that it be a felony.

Illustration:

The offender was convicted of homicide. While serving sentence in Muntinlupa, he was found smoking marijuana. He was prosecuted for illegal use of prohibited drugs and was convicted. Is he a quasi-recidivist? No, because the crime committed while serving sentence is not a felony.

Reverse the situation. Assume that the offender was found guilty of illegal use of prohibited drugs. While he was serving sentence, he got involved in a quarrel and killed a fellow inmate. Is he a quasi-recidivist? Yes, because while serving sentence, he committed a felony.

The emphasis is on the nature of the crime committed while serving sentence or before serving sentence. It should not be a violation of a special law.

Quasi-recidivism is a special aggravating circumstance. This cannot be offset by any mitigating circumstance and the imposition of the penalty in the maximum period cannot be lowered by any ordinary mitigating circumstance. When there is a privileged mitigating circumstance, the penalty prescribed by law for the crime committed shall be lowered by 1 or 2 degrees, as the case may be, but then it shall be imposed in the maximum period if the offender is a quasi-recidivist.



In consideration of a price, reward or promise

The Supreme Court rulings before indicate that this circumstance aggravates only the criminal liability of the person who committed the crime in consideration of the price, promise, or reward but not the criminal liability of the person who gave the price, reward or consideration. However, when there is a promise, reward or price offered or given as a consideration for the commission of the crime, the person making the offer is an inducer, a principal by inducement while the person receiving the price, reward or promise who would execute the crime is a principal by direct participation. Hence, their responsibilities are the same. They are both principals and that is why the recent rulings of the Supreme Court are to the effect that this aggravating circumstance affects or aggravates not only the criminal liability of the receiver of the price, reward or promise but also the criminal liability of the one giving the offer.


By means of inundation or fire

Fire is not aggravating in the crime of arson.

Whenever a killing is done with the use of fire, as when to kill someone, you burn down his house while the latter is inside, this is murder.

There is no such crime as murder with arson or arson with homicide. The crime committed is only murder.

If the victim is already dead and the house is burned, the crime is arson. It is either arson or murder.

If the intent is to destroy property, the crime is arson even if someone dies as a consequence. If the intent is to kill, there is murder even if the house is burned in the process.

Illustration:

A and B were arguing about something. One argument led to another until A struck B to death with a bolo. A did not know that C, the son of B was also in their house and who was peeping through the door and saw what A did. Afraid that A might kill him, too, he hid somewhere in the house. A then dragged B's body and poured gasoline on it and burned the house altogether. As a consequence, C was burned and eventually died too.

As far as the killing of B is concerned, it is homicide since it is noted that they were arguing. It could not be murder. As far as the killing of C is concerned, the crime is arson since he intended to burn the house only.

No such crime as arson with homicide. Law enforcers only use this to indicate that a killing occurred while arson was being committed. At the most, you could designate it as “death as a consequence of arson.”


Evident premeditation

For evident premeditation to be aggravating, the following conditions must concur:

(1) The time when the accused determined to commit the crime;

(2) An act manifestly indicating that the accused has clung to his determination;

(3) Sufficient lapse of time between such determination and execution, to allow him to reflect upon the consequences of his act.


Illustration:

A, on Monday, thought of killing B on Friday. A knew that B is coming home only on Friday so A decided to kill B on Friday evening when he comes home. On Thursday, A met B and killed him. Is there evident premeditation? None but there is treachery as the attack was sudden.

Can there be evident premeditation when the killing is accidental? No. In evident premeditation, there must be a clear reflection on the part of the offender. However, if the killing was accidental, there was no evident premeditation. What is necessary to show and to bring about evident premeditation aside from showing that as some prior time, the offender has manifested the intention to kill the victim, and subsequently killed the victim.

Illustrations:

A and B fought. A told B that someday he will kill B. On Friday, A killed B. A and B fought on Monday but since A already suffered so many blows, he told B, "This week shall not pass, I will kill you." On Friday, A killed B. Is there evident premeditation in both cases? None in both cases. What condition is missing to bring about evident premeditation? Evidence to show that between Monday and Friday, the offender clung to his determination to kill the victim, acts indicative of his having clung to his determination to kill B.

A and B had a quarrel. A boxed B. A told B, "I will kill you this week." A bought firearms. On Friday, he waited for B but killed C instead. Is there evident premeditation? There is aberratio ictus. So, qualify. Insofar as B is concerned, the crime is attempted murder because there is evident premeditation. However, that murder cannot be considered for C. Insofar as C is concerned, the crime is homicide because there was no evident premeditation.

Evident premeditation shall not be considered when the crime refers to a different person other than the person premeditated against.

While it is true that evident premeditation may be absorbed in treachery because the means, method and form of attack may be premeditated and would be resorted to by the offender. Do not consider both aggravating circumstances of treachery and evident premeditation against the offender. It is only treachery because the evident premeditation is the very conscious act of the offender to ensure the execution.

But there may be evident premeditation and there is treachery also when the attack was so sudden.

A and B are enemies. They fought on Monday and parted ways. A decided to seek revenge. He bought a firearm and practiced shooting and then sought B. When A saw B in the restaurant with so many people, A did not dare fire at B for fear that he might hit a stranger but instead, A saw a knife and used it to stab B with all suddenness. Evident premeditation was not absorbed in treachery because treachery refers to the manner of committing the crime. Evident premeditation is always absorbed in treachery.

This is one aggravating circumstance where the offender who premeditated, the law says evident. It is not enough that there is some premeditation. Premeditation must be clear. It is required that there be evidence showing meditation between the time when the offender determined to commit the crime and the time when the offender executed the act. It must appear that the offender clung to his determination to commit the crime. The fact that the offender premeditated is not prima facie indicative of evident premeditation as the meeting or encounter between the offender and the offended party was only by chance or accident.

In order for evident premeditation to be considered, the very person/offended party premeditated against must be the one who is the victim of the crime. It is not necessary that the victim is identified. It is enough that the victim is determined so he or she belongs to a group or class who may be premeditated against. This is a circumstance that will qualify a killing from homicide to murder.

Illustration:

A person who has been courting a lady for several years now has been jilted. Because of this, he thought of killing somebody. He, then bought a knife, sharpened it and stabbed the first man he met on the street. It was held that evident premeditation is not present. It is essential for this aggravating circumstance for the victim to be identified from the beginning.

A premeditated to kill any member of particular fraternity. He then killed one. This is murder – a homicide which has been qualified into murder by evident premeditation which is a qualifying circumstance. Same where A planned to kill any member of the Iglesio ni Kristo.

There are some crimes which cannot be aggravated by evident premeditation because they require some planning before they can be committed. Evident premeditation is part of the crime like kidnapping for ransom, robbery with force upon things where there is entry into the premises of the offended party, and estafa through false pretenses where the offender employs insidious means which cannot happen accidentally.


Craft

Aggravating in a case where the offenders pretended to be bona fide passengers of a jeepney in order not to arouse suspicion, but once inside the jeepney, robbed the passengers and the driver (People v. Lee, decided on December 20, 1991).


Abuse of superior strength

There must be evidence of notorious inequality of forces between the offender and the offended party in their age, size and strength, and that the offender took advantage of such superior strength in committing the crime. The mere fact that there were two persons who attacked the victim does not per se constitute abuse of superior strength (People v. Carpio, 191 SCRA 12).


Treachery

Treachery refers to the employment of means, method and form in the commission of the crime which tend directly and specially to insure its execution without risk to himself arising from the defense which the offended party might make. The means, method or form employed my be an aggravating circumstance which like availing of total darkness in nighttime or availing of superior strength taken advantage of by the offender, employing means to weaken the defense.

Illustration:

A and B have been quarreling for some time. One day, A approached B and befriended him. B accepted. A proposed that to celebrate their renewed friendship, they were going to drink. B was having too much to drink. A was just waiting for him to get intoxicated and after which, he stabbed B.

A pretended to befriend B, just to intoxicate the latter. Intoxication is the means deliberately employed by the offender to weaken the defense of the offended party. If this was the very means employed, the circumstance may be treachery and not abuse of superior strength or means to weaken the defense.

What is the essence of treachery?

The essence of treachery is that by virtue of the means, method or form employed by the offender, the offended party was not able to put up any defense. If the offended party was able to put up a defense, even only a token one, there is no treachery anymore. Instead some other aggravating circumstance may be present but not treachery anymore.

Illustration:

A and B quarreled. However A had no chance to fight with B because A is much smaller than B. A thought of killing B but then he cannot just attack B because of the latter's size. So, A thought of committing a crime at nighttime with the cover of darkness. A positioned himself in the darkest part of the street where B passes on his way home. One evening, A waited for B and stabbed B. However, B pulled a knife as well and stabbed A also. A was wounded but not mortal so he managed to run away. B was able to walk a few steps before he fell and died. What crime was committed?

The crime is only homicide because the aggravating circumstance is only nocturnity and nocturnity is not a qualifying circumstance. The reason why treachery cannot be considered as present here is because the offended party was able to put up a defense and that negates treachery. In treachery, the offended party, due to the means, method or form employed by the offender, the offended party was denied the chance to defend himself. If because of the cover of darkness, B was not able to put up a defense and A was able to flee while B died, the crime is murder because there is already treachery. In the first situation, the crime was homicide only, the nighttime is generic aggravating circumstance.

In the example where A pretended to befriend B and invited him to celebrate their friendship, if B despite intoxication was able to put up some fight against A but eventually, B died, then the attendant circumstance is no longer treachery but means employed to weaken the defense. But in murder, this is also a qualifying circumstance. The crime committed is murder but then the correct circumstance is not treachery but means employed to weaken the defense.

In the same manner, if the offender avails of the services of men and in the commission of the crime, they took advantage of superior strength but somehow, the offended party fought back, the crime is still murder if the victim is killed. Although the qualifying circumstance is abuse of superior strength and not treachery, which is also a qualifying circumstance of murder under Article 248.

Treachery is out when the attack was merely incidental or accidental because in the definition of treachery, the implication is that the offender had consciously and deliberately adopted the method, means and form used or employed by him. So, if A and B casually met and there and then A stabbed B, although stabbing may be sudden since A was not shown to have the intention of killing B, treachery cannot be considered present.

There must be evidenced on how the crime was committed. It is not enough to show that the victim sustained treacherous wound. Example: A had a gunshot wound at the back of his head. The SC ruled this is only homicide because treachery must be proven. It must be shown that the victim was totally defenseless.

Suddenness of the attack does not by itself constitute treachery in the absence of evidence that the manner of the attack was consciously adopted by the offender to render the offended party defenseless (People v. Ilagan, 191 SCRA 643).

But where children of tender years were killed, being one year old and 12 years old, the killing is murder even if the manner of attack was not shown (People v. Gahon, decided on April 30, 1991).

In People v. Lapan, decided on July 6, 1992, the accused was prosecuted for robbery with homicide. Robbery was not proven beyond reasonable doubt. Accused held liable only for the killings. Although one of the victims was barely six years old, the accused was convicted only for homicide, aggravated by dwelling and in disregard of age.

Treachery not appreciated where quarrel and heated discussion preceded a killing, because the victim would be put on guard (People v. Gupo). But although a quarrel preceded the killing where the victim was atop a coconut tree, treachery was considered as the victim was not in a position to defend himself (People v. Toribio).