Criminal Law (8)

Distinction between ignominy and cruelty

Ignominy shocks the moral conscience of man while cruelty is physical. Ignominy refers to the moral effect of a crime and it pertains to the moral order, whether or not the victim is dead or alive. Cruelty pertains to physical suffering of the victim so the victim has to be alive. In plain language, ignominy is adding insult to injury. A clear example is a married woman being raped before the eyes of her husband.

In a case where the crime committed is rape and the accused abused the victims from behind, the Supreme Court considered the crime as aggravated by ignominy. Hence, raping a woman from behind is ignominous because this is not the usual intercourse, it is something which offends the moral of the offended woman. This is how animals do it.

In a case of homicide, while the victim after having been killed by the offender, the offender shoved the body inside a canal, ignominy is held aggravating.

After having been killed, the body was thrown into pile of garbage, ignominy is aggravating. The Supreme Court held that it added shame to the natural effects of the crime.

Cruelty and ignominy are circumstances brought about which are not necessary in the commission of the crime.

Illustration:

A and B are enemies. A upon seeing B pulled out a knife and stabbed B 60 times. Will that fact be considered as an aggravating circumstance of cruelty? No, there is cruelty only when there are evidence that the offender inflicted the stab wounds while enjoying or delighted to see the victim in pain. For cruelty to exist as an aggravating circumstance, there must be evidence showing that the accused inflicted the alleged cruel wounds slowly and gradually and that he is delighted seeing the victim suffer in pain. In the absence of evidence to this effect, there is no cruelty. Sixty stab wounds do not ipso facto make them aggravating circumstances of cruelty. The crime is murder if 60 wounds were inflicted gradually; absence of this evidence means the crime committed is only homicide.

Cruelty is aggravating in rape where the offender tied the victim to a bed and burnt her face with a lighted cigarette while raping her laughing all the way (People v. Lucas, 181 SCRA 315).


Unlawful entry

Unlawful entry is inherent in the crime of robbery with force upon things but aggravating in the crime of robbery with violence against or intimidation of persons.


Motor vehicle

The Supreme Court considers strictly the use of the word “committed”, that the crime is committed with the use of a motor vehicle, motorized means of transportation or motorized watercraft. There is a decision by the Court of Appeals that a motorized bicycle is a motor vehicle even if the offender used only the foot pedal because he does not know how to operate the motor so if a bicycle is used in the commission of the crime, motor vehicle becomes aggravating if the bicycle is motorized.

This circumstance is aggravating only when used in the commission of the offense. If motor vehicle is used only in the escape of the offender, motor vehicle is not aggravating. To be aggravating, it must have been used to facilitate the commission of the crime.

Aggravating when a motorized tricycle was used to commit the crime


Organized or syndicated crime group

In the same amendment to Article 62 of the Revised Penal Code, paragraphs were added which provide that the maximum penalty shall be imposed if the offense was committed by any person who belongs to an organized or syndicated crime group.

An organized or syndicated crime group means a group of two or more persons collaborating, confederating or mutually helping one another for purposes of gain in the commission of a crime.

With this provision, the circumstance of an organized or syndicated crime group having committed the crime has been added in the Code as a special aggravating circumstance. The circumstance being special or qualifying, it must be alleged in the information and proved during the trial. Otherwise, if not alleged in the information, even though proven during the trial, the court cannot validly consider the circumstances because it is not among those enumerated under Article 14 of the Code as aggravating. It is noteworthy, however, that there is an organized or syndicated group even when only two persons collaborated, confederated, or mutually helped one another in the commission of a crime, which acts are inherent in a conspiracy. Where therefore, conspiracy in the commission of the crime is alleged in the information, the allegation may be considered as procedurally sufficient to warrant receiving evidence on the matter during trial and consequently, the said special aggravating circumstance can be appreciated if proven.


Alternative circumstances

Four alternative circumstances

(1) Relationship;

(2) Intoxication;

(3) Degree of instruction; and

(4) Education.

Use only the term alternative circumstance for as long as the particular circumstance is not involved in any case or problem. The moment it is given in a problem, do not use alternative circumstance, refer to it as aggravating or mitigating depending on whether the same is considered as such or the other. If relationship is aggravating, refer to it as aggravating. If mitigating, then refer to it as such.

Except for the circumstance of intoxication, the other circumstances in Article 15 may not be taken into account at all when the circumstance has no bearing on the crime committed. So the court will not consider this as aggravating or mitigating simply because the circumstance has no relevance to the crime that was committed.

Do not think that because the article says that these circumstances are mitigating or aggravating, that if the circumstance is present, the court will have to take it as mitigating, if not mitigating, aggravating. That is wrong. It is only the circumstance of intoxication which if not mitigating, is automatically aggravating. But the other circumstances, even if they are present, but if they do not influence the crime, the court will not consider it at all. Relationship may not be considered at all, especially if it is not inherent in the commission of the crime. Degree of instruction also will not be considered if the crime is something which does not require an educated person to understand.


Relationship

Relationship is not simply mitigating or aggravating. There are specific circumstances where relationship is exempting. Among such circumstances are:

(1) In the case of an accessory who is related to the principal within the relationship prescribed in Article 20;

(2) Also in Article 247, a spouse does not incur criminal liability for a crime of less serious physical injuries or serious physical injuries if this was inflicted after having surprised the offended spouse or paramour or mistress committing actual sexual intercourse.

(3) Those commonly given in Article 332 when the crime of theft, malicious mischief and swindling or estafa. There is no criminal liability but only civil liability if the offender is related to the offended party as spouse, ascendant, or descendant or if the offender is a brother or sister or brother in law or sister in law of the offended party and they are living together. Exempting circumstance is the relationship. This is an absolutory cause.

Sometimes, relationship is a qualifying and not only a generic aggravating circumstance. In the crime of qualified seduction, the offended woman must be a virgin and less than 18 yrs old. But if the offender is a brother of the offended woman or an ascendant of the offended woman, regardless of whether the woman is of bad reputation, even if the woman is 60 years old or more, crime is qualified seduction. In such a case, relationship is qualifying.


Intoxication

This circumstance is ipso facto mitigating, so that if the prosecution wants to deny the offender the benefit of this mitigation, they should prove that it is habitual and that it is intentional. The moment it is shown to be habitual or intentional to the commission of the crime, the same will immediately aggravate, regardless of the crime committed.

Intoxication to be considered mitigating, requires that the offender has reached that degree of intoxication where he has no control of himself anymore. The idea is the offender, because of the intoxication is already acting under diminished self control. This is the rational why intoxication is mitigating. So if this reason is not present, intoxication will not be considered mitigating. So the mere fact that the offender has taken one or more cases of beer of itself does not warrant a conclusion that intoxication is mitigating. There must be indication that because of the alcoholic intake of the offender, he is suffering from diminished self control. There is diminished voluntariness insofar as his intelligence or freedom of action is concerned. It is not the quantity of alcoholic drink. Rather it is the effect of the alcohol upon the offender which shall be the basis of the mitigating circumstance.

Illustration:

In a case, there were two laborers who were the best of friends. Since it was payday, they decided to have some good time and ordered beer. When they drank two cases of beer they became more talkative until they engaged in an argument. One pulled out a knife and stabbed the other. When arraigned he invoked intoxication as a mitigating circumstance. Intoxication does not simply mean that the offender has partaken of so much alcoholic beverages. The intoxication in law requires that because of the quality of the alcoholic drink taken, the offender had practically lost self control. So although the offender may have partaken of two cases of beer, but after stabbing the victim he hailed a tricycle and even instructed the driver to the place where he is sleeping and the tricycle could not reach his house and so he has to alight and walk to his house, then there is no diminished self control. The Supreme Court did not give the mitigating circumstance because of the number of wounds inflicted upon the victim. There were 11 stab wounds and this, the Supreme Court said, is incompatible with the idea that the offender is already suffering from diminished self control. On the contrary, the indication is that the offender gained strength out of the drinks he had taken. It is not the quantity of drink that will determine whether the offender can legally invoke intoxication. The conduct of the offender, the manner of committing the crime, his behavior after committing the crime must show the behavior of a man who has already lost control of himself. Otherwise intoxication cannot legally be considered.


Degree of instruction and education

These are two distinct circumstances. One may not have any degree of instruction but is nevertheless educated. Example: A has been living with professionals for sometime. He may just be a maid in the house with no degree of instruction but he may still be educated.

It may happen also that the offender grew up in a family of professionals, only he is the black sheep because he did not want to go to school. But it does not follow that he is bereft of education.

If the offender did not go higher than Grade 3 and he was involved in a felony, he was invoking lack of degree of education. The Supreme Court held that although he did not receive schooling, yet it cannot be said that he lacks education because he came from a family where brothers are all professionals. So he understands what is right and wrong.

The fact that the offender did not have schooling and is illiterate does not mitigate his liability if the crime committed is one which he inherently understands as wrong such as parricide. If a child or son or daughter would kill a parent, illiteracy will not mitigate because the low degree of instruction has no bearing on the crime.

In the same manner, the offender may be a lawyer who committed rape. The fact that he has knowledge of the law will not aggravate his liability, because his knowledge has nothing to do with the commission of the crime. But if he committed falsification, that will aggravate his criminal liability, where he used his special knowledge as a lawyer.


PERSONS WHO ARE CRIMINALLY LIABLE

Under the Revised Penal Code, when more than one person participated in the commission of the crime, the law looks into their participation because in punishing offenders, the Revised Penal Code classifies them as:

(1) principal;

(2) accomplice; or

(3) accessory.

This classification is true only under the Revised Penal Code and is not used under special laws, because the penalties under the latter are never graduated. Do not use the term principal when the crime committed is a violation of special law. Only use the term “offender.” Also only classify offenders when more than one took part in the commission of the crime to determine the proper penalty to be imposed. So, if only one person committed a crime, do not use principal. Use the “offenders,” “culprits,” or the “accused.”

When a problem is encountered where there are several participants in the crime, the first thing to find out is if there is a conspiracy. If there is, as a general rule, the criminal liability of all will be the same, because the act of one is the act of all.

However, if the participation of one is so insignificant, such that even without his cooperation, the crime would be committed just as well, then notwithstanding the existence of a conspiracy, such offender will be regarded only as an accomplice. The reason for this ruling is that the law favors a milder form of criminal liability if the act of the participant does not demonstrate a clear perversity.

As to the liability of the participants in a felony, the Code takes into consideration whether the felony committed is grave, less grave, or light.

When the felony is grave, or less grave, all participants are criminally liable.

But where the felony is only light only the principal and the accomplice are liable. The accessory is not.

But even the principal and the accomplice will not be liable if the felony committed is only light and the same is not consummated unless such felony is against persons or property. If they are not and the same is not consummated, even the principal and the accomplice are not liable.

Therefore it is only when the light felony is against person or property that criminal liability attaches to the principal or accomplice, even though the felony is only attempted or frustrated, but accessories are not liable for liable for light felonies.


Principal by indispensable cooperation distinguished from an accomplice

It is not just a matter of cooperation, it is more than if the crime could hardly be committed. It is not that the crime would not be committed because if that is what you would imply it becomes an ingredient of the crime and that is not what the law contemplates.

In the case of rape, where three men were accused, one was on top of the woman, one held the hands, one held the legs, the Supreme Court ruled that all participants are principals. Those who held the legs and arms are principals by indispensable cooperation.

The accused are father and son. The father told his son that the only way to convince the victim to marry him is to resort to rape. So when they saw the opportunity the young man grabbed the woman, threw her on the ground and placed himself on top of her while the father held both legs of the woman and spread them. The Supreme Court ruled that the father is liable only as an accomplice.

The point is not just on participation but on the importance of participation in committing the crime.

In the first situation, the facts indicate that if the fellow who held the legs of the victim and spread them did not do so, the offender on top could hardly penetrate because the woman was strong enough to move or resist. In the second situation, the son was much bigger than the woman so considering the strength of the son and the victim, penetration is possible even without the assistance of the father. The son was a robust farm boy and the victim undernourished. The act of the father in holding the legs of the victim merely facilitated the penetration but even without it the son would have penetrated.

The basis is the importance of the cooperation to the consummation of the crime. If the crime could hardly be committed without such cooperation, then such cooperation would bring about a principal. But if the cooperation merely facilitated or hastened the consummation of the crime, this would make the cooperator merely an accomplice.

In a case where the offender was running after the victim with a knife. Another fellow came and blocked the way of the victim and because of this, the one chasing the victim caught up and stabbed the latter at the back. It was held that the fellow who blocked the victim is a principal by indispensable cooperation because if he did not block the way of the victim, the offender could not have caught up with the latter.

In another case, A was mauling B. C, a friend of B tried to approach but D stopped C so that A was able to continuously maul B. The liability of the fellow who stopped the friend from approaching is as an accomplice. Understandably he did not cooperate in the mauling, he only stopped to other fellow from stopping the mauling.

In case of doubt, favor the lesser penalty or liability. Apply the doctrine of pro reo.


Principal by inducement

Concept of the inducement – one strong enough that the person induced could hardly resist. This is tantamount to an irresistible force compelling the person induced to carry out the execution of the crime. Ill advised language is not enough unless he who made such remark or advice is a co-conspirator in the crime committed.
While in the course of a quarrel, a person shouted to A, “Kill him! Kill him.” A killed the other fellow. Is the person who shouted criminally liable. Is that inducement? No. It must be strong as irresistible force.

There was a quarrel between two families. One of the sons of family A came out with a shotgun. His mother then shouted, “Shoot!”. He shot and killed someone. Is the mother liable? No.

Examples of inducement:

“I will give you a large amount of money.”

“I will not marry you if you do not kill B”(let us say he really loves the inducer).

They practically become co-conspirators. Therefore you do not look into the degree of inducement anymore.

In People v. Balderrama, Ernesto shouted to his younger brother Oscar, “Birahin mo na, birahin mo na.” Oscar stabbed the victim. It was held that there was no conspiracy. Joint or simultaneous action per se is not indicia of conspiracy without showing of common design. Oscar has no rancor with the victim for him to kill the latter. Considering that Ernesto had great moral ascendancy and influence over Oscar being much older, 35 years old, than the latter, who was 18 yrs old, and it was Ernesto who provided his allowance, clothing as well as food and shelter, Ernesto is principal by inducement.

In People v. Agapinay, 186 SCRA 812, the one who uttered “Kill him, we will bury him,” while the felonious aggression was taking place cannot be held liable as principal by inducement. Utterance was said in the excitement of the hour, not a command to be obeyed.
In People v. Madali, 188 SCRA 69, the son was mauled. The family was not in good graces of the neighborhood. Father challenged everybody and when neighbors approached, he went home to get a rifle. The shouts of his wife “Here comes another, shoot him” cannot make the wife the principal by inducement. It is not the determining cause of the crime in the absence of proof that the words had great dominance and influence over the husband. Neither is the wife’s act of beaming the victim with a flashlight indispensable to the commission of the killing. She assisted her husband in taking good aim, but such assistance merely facilitated the felonious act of shooting. Considering that it was not so dark and the husband could have accomplished the deed without his wife’s help, and considering further that doubts must be resolved in favor of the accused, the liability of the wife is only that of an accomplice.

Accessories

Two situations where accessories are not criminally liable:

(1) When the felony committed is a light felony;

(2) When the accessory is related to the principal as spouse, or as an ascendant, or descendant or as brother or sister whether legitimate, natural or adopted or where the accessory is a relative by affinity within the same degree, unless the accessory himself profited from the effects or proceeds of the crime or assisted the offender to profit therefrom.

One cannot be an accessory unless he knew of the commission of the crime. One must not have participated in the commission of the crime. The accessory comes into the picture when the crime is already consummated. Anyone who participated before the consummation of the crime is either a principal or an accomplice. He cannot be an accessory.

When an offender has already involved himself as a principal or accomplice, he cannot be an accessory any further even though he performs acts pertaining to an accessory.

Accessory as a fence

The Revised Penal Code defines what manners of participation shall render an offender liable as an accessory. Among the enumeration is “by profiting themselves or by assisting the offender to profit by the effects of the crime”. So the accessory shall be liable for the same felony committed by the principal. However, where the crime committed by the principal was robbery or theft, such participation of an accessory brings about criminal liability under Presidential Decree No. 1612 (Anti-Fencing Law). One who knowingly profits or assists the principal to profit by the effects of robbery or theft is not just an accessory to the crime, but principally liable for fencing under Presidential Decree No. 1612.

Any person who, with intent to gain, acquires and/or sell, possesses, keeps or in any manner deals with any article of value which he knows or should be known to him to be the proceeds of robbery or theft is considered a “fence” and incurs criminal liability for “fencing” under said decree. The penalty is higher than that of a mere accessory to the crime of robbery or theft.

Likewise, the participation of one who conceals the effects of robbery or theft gives rise to criminal liability for “fencing”, not simply of an accessory under paragraph 2 of Article 19 of the Code. Mere possession of any article of value which has been the subject of robbery or theft brings about the presumption of “fencing”.

Presidential Decree No. 1612 has, therefore, modified Article 19 of the Revised Penal Code.


Questions & Answers

1. May one who profited out of the proceeds of estafa or malversation be prosecuted under the Anti-Fencing Law?

No. There is only a fence when the crime is theft or robbery. If the crime is embezzlement or estafa, still an accessory to the crime of estafa, not a fence.
2. If principal committed robbery by snatching a wristwatch and gave it to his wife to sell, is the wife criminally liable? Can she be prosecuted as an accessory and as a fence?

The liability of the wife is based on her assisting the principal to profit and that act is punishable as fencing. She will no longer be liable as an accessory to the crime of robbery.

In both laws, Presidential Decree No. 1612 and the Revised Penal Code, the same act is the basis of liability and you cannot punish a person twice for the same act as that would go against double jeopardy.


Acquiring the effects of piracy or brigandage

It is relevant to consider in connection with the criminal liability of accessories under the Revised Penal Code, the liability of persons acquiring property subject of piracy or brigandage.

The act of knowingly acquiring or receiving property which is the effect or the proceeds of a crime generally brings about criminal liability of an accessory under Article 19, paragraph 1 of the Revised Penal Code. But if the crime was piracy of brigandage under Presidential Decree No. 533 (Anti-piracy and Anti-Highway Robbery Law of 1974), said act constitutes the crime of abetting piracy or abetting brigandage as the case may be, although the penalty is that for an accomplice, not just an accessory, to the piracy or brigandage. To this end, Section 4 of Presidential Decree No. 532 provides that any person who knowingly and in any manner… acquires or receives property taken by such pirates or brigands or in any manner derives benefit therefrom… shall be considered as an accomplice of the principal offenders and be punished in accordance with the Rules prescribed by the Revised Penal Code.

It shall be presumed that any person who does any of the acts provided in this Section has performed them knowingly, unless the contrary is proven.

Although Republic Act No. 7659, in amending Article 122 of the Revised Penal Code, incorporated therein the crime of piracy in Philippine territorial waters and thus correspondingly superseding Presidential Decree No. 532, Section 4 of the Decree which punishes said acts as a crime of abetting piracy or brigandage, still stands as it has not been repealed nor modified, and is not inconsistent with any provision of Republic Act No. 7659.


Destroying the corpus delicti

When the crime is robbery or theft, with respect to the second involvement of an accessory, do not overlook the purpose which must be to prevent discovery of the crime.

The corpus delicti is not the body of the person who is killed, even if the corpse is not recovered, as long as that killing is established beyond reasonable doubt, criminal liability will arise and if there is someone who destroys the corpus delicti to prevent discovery, he becomes an accessory.


Harboring or concealing an offender

In the third form or manner of becoming an accessory, take note that the law distinguishes between a public officer harboring, concealing or assisting the principal to escape and a private citizen or civilian harboring concealing or assisting the principal to escape.

In the case of a public officer, the crime committed by the principal is immaterial. Such officer becomes an accessory by the mere fact that he helped the principal to escape by harboring or concealing, making use of his public function and thus abusing the same.

On the other hand, in case of a civilian, the mere fact that he harbored concealed or assisted the principal to escape does not ipso facto make him an accessory. The law requires that the principal must have committed the crime of treason, parricide, murder or attempt on the life of the Chief Executive. If this is not the crime, the civilian does not become an accessory unless the principal is known to be habitually guilty of some other crime. Even if the crime committed by the principal is treason, or murder or parricide or attempt on the life of the Chief Executive, the accessory cannot be held criminally liable without the principal being found guilty of any such crime. Otherwise the effect would be that the accessory merely harbored or assisted in the escape of an innocent man, if the principal is acquitted of the charges.

Illustration:

Crime committed is kidnapping for ransom. Principal was being chased by soldiers. His aunt hid him in the ceiling of her house and aunt denied to soldiers that her nephew had ever gone there. When the soldiers left, the aunt even gave money to her nephew to go to the province. Is aunt criminally liable? No. Article 20 does not include an auntie. However, this is not the reason. The reason is because one who is not a public officer and who assists an offender to escape or otherwise harbors, or conceals such offender, the crime committed by the principal must be either treason, parricide murder or attempt on the life of the Chief executive or the principal is known to be habitually guilty of some other crime.

The crime committed by the principal is determinative of the liability of the accessory who harbors, conceals knowing that the crime is committed. If the person is a public officer, the nature of the crime is immaterial. What is material is that he used his public function in assisting escape.

However, although under paragraph 3 of Article 19 when it comes to a civilian, the law specifies the crimes that should be committed, yet there is a special law which punishes the same act and it does not specify a particular crime. Presidential Decree No. 1829, which penalizes obstruction of apprehension and prosecution of criminal offenders, effective January 16, 1981, punishes acts commonly referred to as “obstructions of justice”. This Decree penalizes under Section 1(c) thereof, the act, inter alia, of
“(c) Harboring or concealing, or facilitating the escape of any person he knows or has reasonable ground to believe or suspect, has committed any offense under existing penal laws in order to prevent his arrest, prosecution and conviction.”

Here, there is no specification of the crime to be committed by the offender for criminal liability to be incurred for harboring, concealing, or facilitating the escape of the offender, and the offender need not be the principal – unlike paragraph 3, Article 19 of the Code. The subject acts may not bring about criminal liability under the Code, but under this decree. Such an offender if violating Presidential Decree No. 1829 is no longer an accessory. He is simply an offender without regard to the crime committed by the person assisted to escape. So in the problem, the standard of the Revised Penal Code, aunt is not criminally liable because crime is kidnapping, but under Presidential Decree No. 1829, the aunt is criminally liable but not as an accessory.

Whether the accomplice and the accessory may be tried and convicted even before the principal is found guilty.

There is an earlier Supreme Court ruling that the accessory and accomplice must be charged together with the principal and that if the latter be acquitted, the accomplice and the accessory shall not be criminally liable also, unless the acquittal is based on a defense which is personal only to the principal. Although this ruling may be correct if the facts charged do not make the principal criminally liable at all, because there is no crime committed.

Yet it is not always true that the accomplice and accessory cannot be criminally liable without the principal first being convicted. Under Rule 110 of the Revised Rules on Criminal Procedure, it is required that all those involved in the commission of the crime must be included in the information that may be filed. And in filing an information against the person involved in the commission of the crime, the law does not distinguish between principal, accomplice and accessory. All will be accused and whether a certain accused will be principal or accomplice or accessory will depend on what the evidence would show as to his involvement in the crime. In other words, the liability of the accused will depend on the quantum of evidence adduced by the prosecution against the particular accused. But the prosecutor must initiate proceedings versus the principal.

Even if the principal is convicted, if the evidence presented against a supposed accomplice or a supposed accessory does not meet the required proof beyond reasonable doubt, then said accused will be acquitted. So the criminal liability of an accomplice or accessory does not depend on the criminal liability of the principal but depends on the quantum of evidence. But if the evidence shows that the act done does not constitute a crime and the principal is acquitted, then the supposed accomplice and accessory should also be acquitted. If there is no crime, then there is no criminal liability, whether principal, accomplice, or accessory.

Under paragraph 3, Article 19, take note in the case of a civilian who harbors, conceals, or assists the escape of the principal, the law requires that the principal be found guilty of any of the specified crimes: treason, parricide, etc. The paragraph uses the particular word “guilty”. So this means that before the civilian can be held liable as an accessory, the principal must first be found guilty of the crime charged, either treason, parricide, murder, or attempt to take the life of the Chief Executive. If the principal is acquitted, that means he is not guilty and therefore, the civilian who harbored, concealed or assisted in the escape did not violate art. 19. That is as far as the Revised Penal Code is concerned. But not Presidential Decree No. 1829. This special law does not require that there be prior conviction. It is a malum prohibitum, no need for guilt, or knowledge of the crime.
In Taer v. CA, accused received from his co-accused two stolen male carabaos. Conspiracy was not proven. Taer was held liable as an accessory in the crime of cattle rustling under Presidential Decree No. 533. [Taer should have been liable for violation of the Anti-fencing law since cattle rustling is a form of theft or robbery of large cattle, except that he was not charged with fencing.]

In Enrile v. Amin, a person charged with rebellion should not be separately charged under Presidential Decree No. 1829. The theory of absorption must not confine itself to common crimes but also to offenses punished under special laws which are perpetrated in furtherance of the political offense.


PENALTIES


Measures of prevention not considered as penalty

The following are the measures of prevention or safety which are not considered penalties under Article 24:

(1) The arrest and temporary detention of accused persons as well as their detention by reason of insanity or imbecility or illness requiring their confinement in a hospital.

(2) The commitment of a minor to any of the institutions mentioned in art. 80 for the purposes specified therein.

(3) Suspension from the employment or public office during the trial or in order to institute proceedings.

(4) Fines and other corrective measures which, in the exercise of their administrative disciplinary powers, superior officials may impose upon their subordinates.

(5) Deprivation of rights and reparations which the civil laws may establish in penal form.

Why does the Revised Penal Code specify that such detention shall not be a penalty but merely a preventive measure?

This article gives justification for detaining the accused. Otherwise, the detention would violate the constitutional provision that no person shall be deprived of life, liberty and property without due process of law. And also, the constitutional right of an accused to be presumed innocent until the contrary is proved.


Repeal of Article 80

When may a minor be committed to a reformatory?

If the minor is between 9 - 15 years old and acted with discernment, sentence must first be suspended under the following conditions:

(1) Crime committed is not punishable by death or reclusion perpetua;

(2) He is availing of the benefit of suspension for the first time;

(3) He must still be a minor at the time of promulgation of the sentence.


Correlating Article 24 with Article 29

Although under Article 24, the detention of a person accused of a crime while the case against him is being tried does not amount to a penalty, yet the law considers this as part of the imprisonment and generally deductible from the sentence.

When will this credit apply? If the penalty imposed consists of a deprivation of liberty. Not all who have undergone preventive imprisonment shall be given a credit

Under Article 24, preventive imprisonment of an accused who is not yet convicted, but by express provision of Article24 is not a penalty. Yet Article 29, if ultimately the accused is convicted and the penalty imposed involves deprivation of liberty, provides that the period during which he had undergone preventive detention will be deducted from the sentence, unless he is one of those disqualified under the law.

So, if the accused has actually undergone preventive imprisonment, but if he has been convicted for two or more crimes whether he is a recidivist or not, or when he has been previously summoned but failed to surrender and so the court has to issue a warrant for his arrest, whatever credit he is entitled to shall be forfeited.

If the offender is not disqualified from the credit or deduction provided for in Article 29 of the Revised Penal Code, then the next thing to determine is whether he signed an undertaking to abide by the same rules and regulations governing convicts. If he signed an undertaking to abide by the same rules and regulations governing convicts, then it means that while he is suffering from preventive imprisonment, he is suffering like a convict, that is why the credit is full.

But if the offender did not sign an undertaking, then he will only be subjected to the rules and regulations governing detention prisoners. As such, he will only be given 80% or 4/5 of the period of his preventive detention.

From this provision, one can see that the detention of the offender may subject him only to the treatment applicable to a detention prisoner or to the treatment applicable to convicts, but since he is not convicted yet, while he is under preventive imprisonment, he cannot be subjected to the treatment applicable to convicts unless he signs and agrees to be subjected to such disciplinary measures applicable to convicts.

Detention prisoner has more freedom within the detention institution rather than those already convicted. The convicted prisoner suffers more restraints and hardship than detention prisoners.

Under what circumstances may a detention prisoner be released, even though the proceedings against him are not yet terminated?

Article 29 of the Revised Penal Code has been amended by a Batas Pambansa effective that tool effect on September 20, 1980. This amendment is found in the Rules of Court, under the rules on bail in Rule 114 of the Rules on Criminal Procedure, the same treatment exactly is applied there.

In the amendment, the law does not speak of credit. Whether the person is entitled to credit is immaterial. The discharge of the offender from preventive imprisonment or detention is predicated on the fact that even if he would be found guilty of the crime charged, he has practically served the sentence already, because he has been detained for a period already equal to if not greater than the maximum penalty that would be possibly be imposed on him if found guilty.

If the crime committed is punishable only by destierro, the most the offender may be held under preventive imprisonment is 30 days, and whether the proceedings are terminated or not, such detention prisoner shall be discharged.

Understand the amendment made to Article 29. This amendment has been incorporated under Rule 114 precisely to do away with arbitrary detention.

Proper petition for habeas corpus must be filed to challenge the legality of the detention of the prisoner.