Criminal Law 1 Summary: John Harvey Lee Source: RPC; Luis B. Reyes; Eighteenth Edition

Art. 14: Aggravating Circumstances of the as shown by: (1) the motivating power itself, (2) the place of the commission, 1. Advantage of public position (3) the means and ways employed, (4) the time, 2. In contempt of or with insult to public or (5) the personal circumstances of the authorities offender, or of the offended party. 3. With insult or disregard of rank, age, or sex, or in the dwelling of the offended party, if the Four Kinds of aggravating circumstances latter did not provoke 1. Generic: Those that can generally apply to all 4. Abuse of confidence or obvious . (Ex. dwelling, nighttime, or recidivism) ungratefulness 2. Specific: those that apply only to particular 5. Committed in the palace of the Chief crimes. (Ex. Ignominy in crimes against chastity Executive, or in his presence, or where public or cruelty and treachery in crimes against authorities are discharging their duties, or in a persons.) place of religious worship 3. Qualifying: Those that change the nature of 6. Nighttime, or in an uninhabited place, or by a the . (Ex. Alevosia (treachery) or evident band premeditation qualifies the killing of person to 7. Committed during a conflagration, shipwreck, ) earthquake, epidemic, or calamity 4. Inherent: Those that must of necessity 8. With aid of armed men or persons who accompany the commission of the crime. (Ex. insure/afford impunity Those that must of necessity accompany the 9. Recidivism commission of the crime. Ex. Evident 10. Reiteration or Habituality premeditation is inherent in , , 11. Price, reward, or promise estafa, adultery and concubinage). 12. By means of inundation, fire, poison, explosion, stranding of a vessel, derailment of Qualifying aggravating circumstance locomotive, use of any artifice involving waste DISTINGUISHED from generic aggravating and ruin circumstance 13. Evident premeditation Generic Aggravating Qualifying 14. Craft, , or disguise Circumstance Aggravating 15. Superior strength or means employed to Circumstance weaken the defense The effect of a The effect of a 16. Treachery generic AC, not offset qualifying AC is not 17. Ignominy by any mitigating only to give the crime 18. Committed after unlawful entry circumstance, is to its proper and 19. Committed after breaking through a wall, increase the penalty exclusive name but roof, floor, door, or window which should be also to place the 20. With aid of persons under 15 years old, or imposed upon the author thereof in motor vehicles accused to the such a situation as to 21. Cruelty MAXIMUM PERIOD. deserve no other penalty than that Definition: Aggravating circumstances are those specially prescribed which, if attendant in the commission of the by law for said crime. crime, serve to increase the penalty, without, May be compensated Cannot be offset by a however exceeding the maximum of the by a mitigating mitigating penalty provided by law for the offense. circumstance. circumstance. If it is not alleged, it To be such must be Basis: They are based on the greater perversity is a generic alleged in the of the offender manifested in the commission aggravating information. Criminal Law 1 Summary: John Harvey Lee Source: RPC; Luis B. Reyes; Eighteenth Edition circumstance only. liability of those persons only who had knowledge of them at the time of the execution Aggravating Circumstance NOT alleged. An of the act or their cooperation. aggravating circumstance, even if not alleged in the information, maybe proved over the Aggravating Circumstances NOT presumed. objection of the defense. This is true only as It should be proved as fully the as the crime regards a generic aggravating circumstance. As itself in order to increase the penalty. regards as qualifying aggravating circumstance, the same must be alleged in the information To be appreciated, qualifying and aggravating because it is an integral part of the offense. circumstances must be alleged in the information. If not alleged in the information, TREACHERY is only generic aggravating circumstance. - Pursuant to the 2000 Revised Rules of Criminal Procedure, every Complaint or Aggravating circumstances which do not have Information must state not only the the effect of increasing the penalty. qualifying but also the aggravating 1. Aggravating circumstances circumstance. a. Which in themselves constitute a - This rule may be given retroactive effect crime specially punishable by law. in the light of the well-established rule b. Which are included by the law in that statutes regulating the procedure defining a crime and prescribing the penalty of the courts will be construed as therefor shall not be taken into account for the applicable to actions pending and purpose of increasing the penalty. undetermined at the time of their 2. The same rule shall apply with respect to any passage. aggravating circumstance inherent in the crime - The aggravating circumstance of to such a degree that it must of necessity evident premeditation, dwelling & accompany the commission thereof. unlawful entry, NOT having been alleged in the Information, may not Aggravating circumstances which are personal now be appreciated to enhance the to the offenders. liability of accused-appellant. Aggravating circumstances which arise: a. from the moral attributes of the If not alleged, they may still be considered in offender, or the award of damages. b. from his private relations with the Although the aggravating circumstances in offended party; or question cannot be appreciated for the purpose c. from any other personal cause, shall of fixing a heavier penalty in this case, they only serve to aggravate the liability of the should, however, be considered as bases for the principals, accomplices, and accessories as to award of exemplary damages, conformably to whom such circumstances are attendant. current jurisprudence.

PAR. 1- THAT ADVANTAGE BE TAKEN BY Aggravating circumstances which depend for THE OFFENDER OF HIS PUBLIC POSITION. their application upon the knowledge of the offenders. The circumstances which consist: Basis of Par. 1: based on the greater perversity 1. In the material execution of the act, of the offender, as shown by the personal or circumstance of the offender and also by means 2. In the means employed to used to secure the commission of the crime. accomplish it, shall serve to aggravate the Criminal Law 1 Summary: John Harvey Lee Source: RPC; Luis B. Reyes; Eighteenth Edition

a band of brigands made his liability Applicable only when the offender is a public greater. officer. - Applies only when the person NOT aggravating when it is an in integral committing the crime is a public officer element of, or inherent in, the offense. who takes advantage of his public - Such as in malversation under Article position. 217 - Falsification of document committed by Meaning of “advantage be taken by the public officers under Article 171 offender of his public position.” - Taking advantage of public position is The public officer must use the INFLUENCE, inherent in the case of accessories PRESTIGE or ASCENDANCY which his office gives under Art. 19, par. 3 and in crimes him as the means by which he realizes his committed by public officers (Arts 204- purpose. The essence of the matter is presented 245) in the inquiry, “Did the accused ABUSE his office in order to commit the crime?” NOT aggravating if accused could have perpetrated the crime without occupying This aggravating circumstance is NOT present police station. when a CONGRESSMAN offered a resistance to - In other words, if the accused could a peace officer. - Upon being surprised in a have perpetrated the crime even gambling house. without occupying his position, there is Reason: The congressman did not take no abuse of public position. advantage of the influence of reputation of his PAR. 2- THAT THE CRIME BE COMMITTED IN office. CONTEMPT OF OR WITH INSULT TO THE This aggravating circumstance is present when PUBLIC AUTHORITIES. a councilor collects fines and misappropriates them. Basis: based on the greater perversity of the - (US v. Torrida 23 Phil. 189) Page 351 offender, as shown by his lack of respect for the public authorities. When the public officer did not take advantage of the influence of his position, this Requisites: aggravating circumstance is NOT 1. That the public authority is engaged present. in the exercise of his functions. - (US v. Dacuycuy 9 Phil 84) page 351 2. That he who is thus engaged in the - There must be proof that the accused exercise of said functions is not the person took advantage of his public position. against whom the crime is committed. 3. The offender knows him to be a Peace officers taking advantage of their public authority. publications. Page 352 4. His presence has not prevented the - Wearing uniform is immaterial in offender from committing the criminal act. certain cases. Meaning of “Public Authority” Failure in official duties is tantamount to - Sometimes also called a person in abusing of office. authority, is a public officer who is - Ex. The defendant was vice-president of directly vested with jurisdiction, that is, a town at the time he voluntarily joined a public officer who has the power to govern & execute laws. Criminal Law 1 Summary: John Harvey Lee Source: RPC; Luis B. Reyes; Eighteenth Edition

- Ex. Councilor, mayor, governor, barangay captain, barangay chairman.

NOT applicable when crime is committed in When all the four aggravating circumstances the presence of an agent only. are present, must they be considered as one? - Ex. Chief of police of a town because he - They will be considered single or is an agent of the authorities. together. - An agent of person in authority is “any - They have the weight of one person who, by direct provision of law aggravating circumstances only. or by election by appointment by competent authority, is charged with Basis of Par 3: based on the greater perversity the maintenance of public order and of the offender, as shown by the personal the protection and security of life and circumstances of the offended party and place property who comes to the aid of of the commission of the crime. persons in authority” - Ex. Barrio councilman, barrio Applicable ONLY to crimes against PERSONS or policeman, barangay leader. HONOR. - This circumstance (rank, age or sex) The crime should NOT be committed against may be taken into account ONLY in the public authority. crimes against persons or honor, when - If the crime is committed against a in the commission of the crime, there is public authority while he is in the some insult or disrespect to rank, age or performance of his official duty, the sex. offender commits DIRECT . It - NOT proper in crimes against property. is a crime committed against him. - Ex. A thing belongs to the president does not make it more valuable than Knowledge that a public authority is present is the things belonging to a private essential. person. - Lack of knowledge on the part of the offender that a public authority is Meaning of “with insult or in present indicates lack of intention to disregard” insult the public authority. - It is necessary to prove the specific fact or circumstance in order that it may be Presence of public authority has not prevented considered as aggravating offender from committing the crime. circumstance. - An offense may be said to have been - There must be evidence that in the committed in contempt of a public commission of the crime, the accused authority, when his presence, made deliberately intended to offend or insult known to the offender, has not the sex or age of the offended party. prevented the latter from committing the criminal act. With insult or in disregard of the PAR. THAT THE ACT BE COMMITTED WITH respect due the offended party on INSULT OR DISREGARD OF THE RESPECT DUE account- THE OFFENDED PARTY ON THE ACCOUNT OF 1. of the rank of the offended party: there must be a difference in the social HIS RANK, AGE OR SEX, OR THAT IT BE condition of the offender and the COMMITTED IN THE DWELLING OF THE offended party. OFFENDED PARTY, IF THE LATTER DID NOT PROVOKE. Criminal Law 1 Summary: John Harvey Lee Source: RPC; Luis B. Reyes; Eighteenth Edition

Meaning of Rank: Page 358 d. seduction Proof of fact of disregard and deliberate intent to insult required. Disregard of sex absorbed in treachery. The aggravating circumstances of disregard of 2. of the age of the offended party sex and age are not absorbed in treachery Ex. a. the offended person, by reason of his because treachery refers to the manner of the age, could be the father of the offender. commission of the crime, while disregard of sex b. An aggressor (45 years old), and the and age pertains to the relationship of the victim was an octogenarian. victim. c. the person killed was 80 y/o and very weak. That the crime be committed in the dwelling of d. the deceased was 65 while the the offended party. offender were 32 and 27 years of age. - Dwelling must be a building or e. the accused being the grandson of structure, exclusively used for rest and the deceased. comfort. - A “combination house and store” is not Deliberate intent to offend or insult required. a dwelling. Disregard of old age not aggravating in robbery Basis: based on the greater perversity of the with homicide. offender, as shown by the place of the commission of the offense. 3. Of the sex of the offended party. - Dwelling is considered an aggravating This refers to the female sex, not the male sex. circumstance primarily because of the sanctity of privacy the law accords to No disregard of respect due to sex: when it was human abode. not proved or admitted by the accused that - One’s dwelling place is a “Sanctuary when he committed the crime, he had the worthy of respect”. intention to offend or disregard the sex of the victim. What aggravates the commission of the crime in one’s dwelling: Killing a woman is not attended by this 1. The abuse of confidence which the offended aggravating circumstances if the offender did party reposed in the offender by opening the NOT manifest any specific insult or disrespect door to him; or towards her sex. 2. The violation of the sanctity of the home by trespassing therein with violence or against the NOT applicable in certain cases. will of the owner. This aggravating circumstance is NOT to be considered in the following cases: Offended party must NOT give provocation. 1. When the offender acted with passion and When it is the offended party who has obfuscation. provoked the incident, he loses his right to the 2. When there exists a relationship between the respect & consideration due him in his own offended party and the offender. house. 3. When the condition of being a woman is indispensable in the commission of the crime. Meaning of provocation in the aggravating Sex is NOT aggravating in the ff, being it circumstance of dwelling. inherent in the crime: The provocation must be: a. parricide 1. Given by the owner of the dwelling. b. 2. Sufficient, & c. abduction 3. Immediate to the commission of the crime. Criminal Law 1 Summary: John Harvey Lee Source: RPC; Luis B. Reyes; Eighteenth Edition

- If all the conditions are present, the Even if the killing took place outside the offended party is deemed to have given dwelling, it is aggravating provided that the provocation, & the fact that the crime is commission of the crime began in dwelling. comitted in the dwelling of the -because the act performed cannot be divided offended party is NOT an aggravating or the unity resulting from its details be broken circumstance. up. - If any of those conditions is NOT present, the offended party is deemed Dwelling is aggravating in abduction or illegal not to have given provocation, & the detention. fact that the crime is committed in the dwelling of the offended party is an aggravating circumstance. What dwelling includes? 1. Dependencies There must be close relation between 2. The foot of the staircase provocation & commission of crime in the 3. Enclosure under the house dwelling. - If the deceased was only about to step Because the provocation is NOT immediate, on the first rung of the ladder when he dwelling is aggravating. was assaulted, the aggravating Ex. even if the defendant came to know of the circumstance of dwelling will NOT be illicit relations immediately before she went to applicable. the house of the deceased, the aggravating circumstance of dwelling may still be When the deceased had two houses where he considered against the defendant because the used to live, the commission of the crime in provocation (the illicit relations) did not take any of them is attended by the aggravating place in that house. circumstance of dwelling.

Owner of dwelling gave immediate Dwelling is NOT aggravating in the following provocation- dwelling is NOT aggravating. cases: Ex. the invasion of privacy of the offended 1. When both offender and offended party are party’s home was the direct & immediate occupants of the same house, and this is true consequence of the provocation given by her. even if offender is a servant in the house. No aggravating circumstance of dwelling. 2. When the robbery is committed by the use of force upon things, dwelling is NOT aggravating Provocation must prove that no provocation because it is inherent. was given by the offended party. - Dwelling is aggravating in robbery with - It is an essential element of the violence against or intimidation of persons and aggravating circumstance of dwelling. robbery with homicide. Entrance into the dwelling house of the offended party is NOT an Even if the offender did not enter the dwelling, element of the offense. circumstance applies. -NOTE: There are two kinds of robbery: -ex. although the triggerman fired the shot from a. Robbery with violence against or outside the house, his victim was inside. intimidation of persons. - NOT necessary that the accused should have b. Robbery with force upon things in actually entered the dwelling of the victim to inhabited house. commit the offense; it is enough that the victim 3. in the crime of trespass to dwelling. was attacked inside his own house. Criminal Law 1 Summary: John Harvey Lee Source: RPC; Luis B. Reyes; Eighteenth Edition

4. When the owner of the dwelling gave sufficient and immediate provocation. Dwelling is NOT included in treachery. 5. When the dwelling where the crime was committed did not belong to the offended PAR. 4- THAT THE ACT BE COMMITTED party. WITH 6. When the rape was committed in the ground 1. ABUSE OF CONFIDENCE, OR floor of a two-story structure, the lower floor 2. OBVIOUS UNGRATEFULNESS being used as a video rental store and NOT as a private place of abode or residence. Basis: based on the greater perversity of the offender, as shown by the means & ways Dwelling was found aggravating in the employed. following cases although crimes were committed NOT in the dwelling of the victims. Abuse of confidence. 1. The victim was raped in the boarding house - When the offended party has trusted where she was a bed spacer. the offender who later abuses such 2. The victims were raped in their paternal trust by committing the crime. home where they were guests at the time & did - Must be a means of facilitating the not reside there. commission of the crime. 3. The victim was killed in the house of her aunt where she was living with her niece. Requisites: 4. The victims, while sleeping in the house of 1. That the offended party had trusted the another person, were shot to death in that offender. house. 2. That the offender abused such trust by NOTE: The code speaks of “dwelling” NOT committing the crime against the offended domicile. party. 3. That the abuse of confidence facilitated the Dwelling is aggravating when the husband commission of the crime. killed his estranged wife in the house solely occupied by her. Confidence does NOT exist. Held: The confidence must facilitate the In case of adultery. commission of the crime, the culprit taking - When adultery is committed in the advantage of offended party’s belief that the dwelling of the husband, even if it is former would not abuse said confidence. NO also the dwelling of the unfaithful wife, aggravating circumstance in this case. it is aggravating, she and & her paramour violated the respect due to Special relation of confidence between the conjugal home and they both accused and victim. injured and committed a very grave Ex. there is NO abuse of confidence where the offense against the head of the house. deceased & the accused happened to be NOTE: Adultery is committed by a married together because the former invited the latter woman who shall have sexual intercourse with nightclubbing and to bring with him the money a man not her husband and by the man who has the latter owed the former. carnal knowledge of her, knowing her to be Betrayal of confidence is NOT aggravating. married. (Article 333, Revised Penal Code) Killing of child by an amah is aggravated by - Dwelling NOT aggravating in adultery abuse of confidence. when paramour also lives there. - The aggravating circumstance present in such case is abuse of confidence. Criminal Law 1 Summary: John Harvey Lee Source: RPC; Luis B. Reyes; Eighteenth Edition

The confidence between the offender and the An electoral precinct during Election Day is a offended party must be immediate and place “where public authorities are engaged in personal. the discharge of their duties.” Abuse of confidence inherent in some : 1. Malversation Place dedicated to religious worship. 2. Qualified theft Cemeteries are NOT such a place, however 3.Estafa by conversion or respectable they may be, are NOT dedicated to misappropriation the worship of God. The church is a place 4. Qualified Seduction. dedicated to religious worship.

Ungratefulness must be obvious, i.e., manifest Offender must have intention to commit a and clear. (page 374) crime when he entered the place. (Page 377) Held: The aggravating circumstance that the PAR 5. THAT THE CRIME BE COMMITTED IN killing was done in a place dedicated to religious THE PLACE OF THE CHIEF EXECUTIVE, OR IN worship cannot be legally considered, where HIS PRESENCE, OR WHERE PUBLIC there is NO evidence to show that the AUTHORITIES ARE ENGAGED IN THE defendant had murder in her heart when she DISCHARGE OF THEIR DUTIES, OR IN A PLACE entered the chapel on the fatal fight. DEDICATED TO RELIGIOUS WORSHIP. PAR. 6- THAT THE CRIME BE COMMITTED: Basis: based on the greater perversity of the 1. IN THE NIGHTTIME, OR offender, as shown by the place of the 2. IN AN UNINHABITED PLACE, OR commission of the crime, which must be 3. BY A BAND, WHENEVER SUCH respected. CIRCUMSTANCE MAY FACILITIATE THE COMMISION OF THE OFFENSE. Place where public authorities are engaged in the discharge of their duties (Par. 5), Basis: They are based on the time and place of distinguished from contempt or insult to public the commission of the crime and means and authorities. (Par. 2) ways employed. 1. In both, the public authorities are in the performance of their duties. Should these circumstances be considered as 2. Under Par. 5, the public authorities who are one only or three separately? in the performance of their duties must be in -The supreme court of Spain (April 5, 1884) held their office; while in Par. 2, the public that they constitute only ONE aggravating authorities are performing their duties outside circumstance IF they concur in the commission of their office. of felony. 3. Under Par 2, the public authority should not -(April 27, 1897) the same court held that the be the offended party while under Par 5, he former decision did not declare an absolute & may be the offended party. general rule which would exclude the possibility of their being considered separately when their Official or religious functions, NOT necessary. elements are distinctly perceived and can -regardless of whether State or religious subsist independently, revealing a greater functions are being held. degree of perversity. -Nighttime and band were considered Other public authorities must be actually separately engaged in the performance of duty. (Page 376) When aggravating. Criminal Law 1 Summary: John Harvey Lee Source: RPC; Luis B. Reyes; Eighteenth Edition

Nighttime, uninhabited place or band is aggravating-. The information must allege that nighttime 1. When it facilitated the commission of the was sought for or taken advantage of by the crime, or accused or that it facilitated the commission of 2. When especially sought for by the offender the crime. to insure the commission of the crime or for the purpose of impunity. NOT aggravating when crime began at 3. When the offender took advantage thereof daytime. for the purpose of impunity. -Ex. the crime was the result of succession of acts which took place within the period of two “Whenever such circumstances may facilitate hours (5:00pm-7:00pm), without a moment of the commission of the offense” interruption in which it can be said that the Par 6 of Art. 14 requires only that nighttime, thought of nighttime, being the most favorable uninhabited place, or band “may facilitate the occasion for committing the crime, occurred to commission of the offense.” The test fixed by the accused, there is NO aggravating the statute is an objective one. circumstance. - The commission of the crime must begin and Meaning of “especially sought for,” “for the be accomplished in the nighttime. purpose of impunity,” and “took advantage - The offense must be actually committed in the thereof.” darkness of the night. -they are all aggravating. - When the place of the crime is illuminated by -Nighttime is NOT especially sought for, when light, nighttime is NOT aggravating. the notion to commit the crime was conceived only shortly before its commission. But where The lighting of a matchstick or use of the accused waited for the night before flashlights does NOT negate the aggravating committing robbery with homicide, nighttime is circumstance of nighttime. especially sought for. (b) Uninhabited place. It is one where there are Nighttime need NOT be specifically sought for NO houses at all, a place at a considerable when (1) it facilitated the commission of the distance from town, or where the houses are offense, or (2) the offender took advantage of scattered at a great distance from each other. the same to commit the crime. “For the purpose of impunity” means to - Should NOT be considered where the prevent his (accused’s) being recognized, or to place where the crime was committed secure himself against detection and could be seen and the voice of the punishment. deceased could be heard from a nearby house. (a) Nighttime: should be understood, that period of darkness beginning at end of dusk and When the victims are the occupants of the only ending at dawn. Nights are from sunset to house in the place, the crime is committed in sunrise. an uninhabited place. (Page 385)

Nighttime by and of itself is NOT an aggravating Solitude must be sought to better attain the circumstance: it becomes so only when it is criminal purpose. especially sought by the offender, or taken The offenders must choose the place as an aid advantage by him to facilitate the commission either: of the crime or to insure his immunity of 1. To an easy and uninterrupted capture. accomplishment of their criminal designs. Criminal Law 1 Summary: John Harvey Lee Source: RPC; Luis B. Reyes; Eighteenth Edition

2. To insure concealment of the Basis: has reference to the time of the offense, that he might thereby be better commission of the crime. secured against detection and punishment. Reason for the aggravation. (c) By a band. Whenever more than three - Is found in the debased form of armed malefactors shall have acted together in criminality met in who, in the midst of a the commission of an offense, it shall be great calamity, instead of lending aid to deemed to have committed by a band. the afflicted, adds to their suffering by taking advantage of their misfortune to The armed men must act together in the despoil them. commission of the crime. The offender must take advantage of the “Stone” is included in the term “arms”. calamity or misfortune.

If one of the four armed persons is a principal “Chaotic condition” as an aggravating by inducement, they do NOT form a band. circumstance. - He has no direct participation in the The phrase “or other calamity or misfortune” perpetration thereof. refers to other conditions of distress similar to NOTE: all the armed men, at least four in those precedingly enumerated, that is, number, must take direct part in the execution “conflagration, shipwreck, earthquake or of the act constituting the crime. epidemic”. Hence, chaotic conditions after liberation is NOT included under this paragraph. When nighttime, uninhabited place, or by a band did not facilitate the commission of the PAR. 8- THAT THE CRIME BE COMMITTED crime, was not especially sought for, or was WITH THE AID OF: not taken advantage of. (Page 387) 1. ARMED MEN, OR

2. PERSONS WHO INSURE OR AFFORD “By a band” is aggravating in crimes against IMPUNITY. property or against persons or in the crime of illegal detention or . Basis: based on the means and ways of committing the crime. NOT applicable to crimes against chastity. Abuse of superior strength and use of firearms, Requisites of this aggravating circumstance. absorbed in aggravating circumstance of “by a 1. That armed men or persons took part in the band”. commission of the crime, directly or indirectly. 2. That the accused availed himself of their aid “By a band” is inherent in brigandage, or relied upon them when the crime was -Not be considered as aggravating. committed

“By a band” is aggravating in robbery with Rule for the application of this circumstance. homicide. The casual presence of armed men near the place where the crime was committed does PAR. 7- THAT THE CRIME BE COMMITTED NOT constitute an aggravating circumstance ON THE OCCASION OF A when it appears that the accused did not avail CONFLAGRATION, SHIPWRECK, himself of their aid or rely upon them to EARTHQUAKE, EPIDEMIC OR OTHER commit the crime. CALAMITY OR MISFIORTUNE.

Criminal Law 1 Summary: John Harvey Lee Source: RPC; Luis B. Reyes; Eighteenth Edition

The armed men must take part directly or 2. That he was previously convicted by final indirectly. judgment of another crime; 3. That both the first and the second offenses Examples of “with the aid of armed men.” are embraced in the same title of the Code; (Page 390) 4. That the offender is convicted of the new Exceptions: offense. 1. NOT be considered when both the attacking party and the party attacked were “At the time of his trial for one crime.” equally armed. What is controlling is the time of trial, NOT the 2. NOT present when the accused as time of the commission of the crime. well as those who cooperated with him in the commission of the crime acted under the same Meaning of “at the time of his trial for plan and for tea me purpose. one crime” It is meant to include everything that is done in “With the aid of armed men” (Par. 8), the course of the trial, from arraignment until distinguished from “By a band.” (par 6) after sentence is announced by the judge in By A Band (Par 6) Aid of armed men open court. (Par 8) Requires that more Is present even if one No recidivism if the subsequent conviction is for than three armed of the offenders an offense committed before the offense malefactors shall merely relied on involved in the prior conviction. have acted together their aid, for actual is in commission of the NOT necessary. “Previously convicted by final judgment.” offense. Sec. 7 of Rule 120 of the Revised Rules of Criminal Procedure provides that except where “Aid of armed men” is absorbed by the death penalty is imposed, a judgment in a “employment of a band” criminal case becomes final: Note: If there are four armed men, aid of armed 1. After the lapse of the period for perfecting an men is absorbed in employment of a band. If appeal, or there are three armed men or less, aid of armed 2. When the sentence has been partially or men may be the aggravating circumstance. totally satisfied or served, or 3. The accused has waived in writing his right to “Aid of armed men” includes “armed women” appeal 4. The accused has applied for probation.

PAR. 9- THAT THE ACCUSED IS A RECIDIVIST. The present crime and the previous crime must Basis: based on the greater perversity of the be “embraced in the same title of this Code” offender, as shown by his inclination to crimes. - When the offense is punishable by an ordinance or special law and the other Who is a recidivist? by the Revised Penal Code, the two - Is one who, at the time of his trial for offenses are NOT embraced in the same one crime, shall have been previously title of the Code. convicted by final judgment of another crime embraced in the same title of the Examples of Crimes embraced in the same title Revised Penal Code. of the Revised Penal Code. Requisites: Crimes against Crimes against 1. That the offender is on trial for an offense; property persons Robbery and theft Homicide and Criminal Law 1 Summary: John Harvey Lee Source: RPC; Luis B. Reyes; Eighteenth Edition

(title ten) physical injuries (title “Punished x x x for two more crimes to which eight) it attaches a lighter penalty.” (page 397)

There is recidivism even if the lapse of time It is the penalty attached to the offense, NOT between two felonies is more than 10 years. the penalty actually imposed. -no matter how many years have intervened between the first and second felonies. Reiteracion or habituality, NOT always aggravating. (page 397) Pardon does NOT obliterate the fact that the accused was a recidivist; but amnesty Recidivism and reitaeracion, Distinguished. extinguishes the penalty and its effects. -therefore, pardon does not prevent a former Reiteracion Recidivism conviction from being considered as an It is necessary that It is enough that a aggravating circumstance. the offender shall final judgment has have served out his been rendered in the PAR. 10- THAT THE OFFENDER HAS BEEN sentence for the first first offense. PREVIOUSLY PUNISHED FOR AN OFFENSE TO offense. WHICH THE LAW ATTACHES AN EQUAL OR The previous and It requires that the GREATER PENALTY OR FOR TWO OR MORE subsequent offenses offenses be included CRIMES TO WHICH IT ATTACHES A LIGHTER must not be in the same title of PENALTY. embraced in the this Code. same title of this Basis: the greater perversity of the offender as Code shown by his inclination to crimes. (Same as Is not always an Is always to be taken that of recidivism). aggravating into consideration in Requisites: circumstance. fixing the penalty to 1. That the accused is on trial for an be imposed upon the offense. accused. 2. That he previously served sentence for another offense to which the law attaches The four forms of repetition are: an equal or greater penalty, or for two or more 1. Recidivism Generic aggravating crimes to which it attaches lighter penalty than circumstance that for the new offense; and 2. Reiteracion or Generic aggravating 3. That he is convicted of the new habituality. circumstance offense. 3. Multi-recidivism Extraordinary “Has been previously punished.” or habitual aggravating -means that the accused previously served delinquency. circumstance sentence for another offense or sentences for 4. Quasi-recidivism. Special aggravating other offenses before his trial for the new circumstance offense. Habitual delinquency. “Punished for an offense to which the law - There is habitual delinquency when a attaches an equal x x x penalty” (page 396) person, within a period of ten years from the date of his release or last “Punished for an offense to which the law conviction of the crimes of serious or attaches x x x greater penalty” (page 396) less serious physical injuries, robbery, theft, estafa or falsification, is found Criminal Law 1 Summary: John Harvey Lee Source: RPC; Luis B. Reyes; Eighteenth Edition

guilty of any of the said crime a third time or oftener. - The offender is either a recidivist - Shall suffer an additional penalty

Quasi-recidivism. - Any person who shall commit a felony Basis: The basis has reference to means and after having been convicted by final ways employed. judgment, before beginning to serve such sentence, or while serving the Unless used by the offender as a means to same, shall be punished by the accomplish a criminal purpose, any of the maximum period of the penalty circumstances in paragraph 12 cannot be prescribed by law for the new felony. considered to increase the penalty or to - change the nature of the offense. PAR. 11- THAT THE CRIME BE COMMITTED IN THE CONSIDERATION OF A PRICE, REWARD OR As generic aggravating circumstance: when PROMISE another aggravating circumstance already qualifies the crime, any of these aggravating Basis: based on the greater perversity of the circumstances shall be considered as generic offender, as shown by the motivating power aggravating circumstance. itself. When there is no actual design to kill a person This aggravating circumstance presuppose the in burning a house, it is plain even if a concurrence of two or more offenders. (page person is killed. 399) When used as a means to kills another person, Is this paragraph applicable to the one who the crime is murder. gave the price or reward? The killing of the victim by means of such -it affects not only the person who received the circumstances as inundation, fire, poison, or price or the reward, but also the person who explosion qualifies it to murder. gave it. 1. “By means of fire”: Held: in order to - affects equally the offeror and the acceptor. constitute murder, there should be an actual design to kill and that the use of fire should be purposely adopted as a means to that end. 2.”By means of explosion”: If there is Price, reward or promise must be for the intent to kill and explosion is used by the purpose of inducing another to perform the offender to accomplish his criminal purpose, it deed. is murder if the victim dies as a direct - The evidence must show that one of consequence thereof. the accused used money or other 3. “By means of derailment of valuable consideration for the purpose locomotive”: Under Art 330, which defines and of inducing another to perform the penalizes the crime of damage to railway, deed. telegraph, telephone lines. - If without promise, it should not be But this is without prejudice to the taken consideration for the purpose of criminal liability for other consequences of increasing the penalty. criminal act. Questions Answer PAR. 12- THAT THE CRIME BE COMMITTED BY What crime is Damage to means of MEANS OF INUNDATION, FIRE, POISON, EXPLOSION, STRANDING OF A VESSEL OR INTENTIONAL DAMAGE THERETO, DERAILMENT OF A LOCOMOTIVE, OR BY THE USE OF ANY OTHER ARTIFICE INVOLVING GREAT WASTE AND RUIN. Criminal Law 1 Summary: John Harvey Lee Source: RPC; Luis B. Reyes; Eighteenth Edition committed if as a communication (Art. or ruin. misfortune. result of the 330) derailment of cars PAR. 13- THE ACT BE COMMITTED WITH only property is EVIDENT PREMIDITATION. damaged? What is the crime if Complex crime of the death of a person damage to means of Basis: the basis has reference to the ways of also results without communication with committing the crime, because the evident intent to kill on the homicide (Art 330 & premeditation implies a deliberate planning of part of the offender? 249 in relation to the act before executing it. Arts 4 and 48) What is the crime Murder (Art 248), Illustration of deliberate planning of the act committed, if the because the before executing it. (page 404) death of a person derailment of cars or resulted and there locomotives was the Evident premeditation may be considered as was intent to kill on means used to kill to principal by induction. (page 405) the part of the the victim. offender? Essence of premeditation. The essence of premeditation is that Must this aggravating No, because of Art. the execution of the criminal act must be circumstance be 62, par. 1, which preceded by cool thought and reflection upon considered to raise provides that when the resolution to carry out the criminal intent the penalty, if it the aggravating during the space of time sufficient to arrive at a already qualifies the circumstance is calm judgment. crime to murder? included by the law

in defining a crime, it The premeditation must be “evident.” shall NOT be taken There must be evidence showing that into consideration the accused meditated and reflected on his for the purpose of intention between the time when the crime was increasing the conceived by him and the time it was actually penalty. perpetrated.

NOTE: each of the circumstances of “fire”, Requisites of evident premeditation: “explosion”,& “derailment of a locomotive” The prosecution must prove: may be a part of the definition of particular 1. The time when the offender determined to crime, such as, arson (Art 320), crime involving commit the crime; destruction (Art 324, and damages & 2. An act manifestly indicating that the culprit obstruction to means of communication. In has clung to his determination; and these cases, they do NOT serve to increase the 3. A sufficient lapse of time between the penalty, because they are already included by determination and execution, to allow him to the law in defining the crimes. reflect upon the consequences of his act and to

allow his conscience to overcome the resolution Par. 12 distinguished from Par. 7: of his will. Paragraph 12 Paragraph 7

The crime is The crime is Manalinde illustrates the three committed by means committed on the requisites of evident premeditation. of any of such acts occasion of a (U.S v. Manalinde, page 406-407) involving great waste calamity or

Criminal Law 1 Summary: John Harvey Lee Source: RPC; Luis B. Reyes; Eighteenth Edition

The date and time when the offender in the absence of proof as to how and when the determined to commit the crime plan to kill the victim was hatched or what time essential. had elapsed before it was carried out. The date and, if possible, the time when the offender determined to commit the crime is Evident premeditation and price or reward can essential, because the lapse of time for the co-exist. purpose of the third requisite is computed from The aggravating circumstance of price, that date and time. reward, or promise may be taken into consideration independently of the fact that Second requisite necessary. premeditation has already been considered, The premeditation must be based upon inasmuch as there exists no incompatibility external acts and NOT presumed from mere between these two circumstances, because if it lapse of time. is certain that as a general rule price or reward implies premeditation, it is no less certain that Second requisite exists. the latter may be present without the former. After the offenders had determined (conceived) Premeditation is absorbed by reward or to commit the crime, they manifestly indicated promise. that they clung to their determination. (Ex. Page But this rule is applicable only to the 409) inductor. The mere fact that another executed the act on the promise of reward does not Mere threats without the second element does necessarily mean that he had sufficient time to NOT show evident premeditation. (Ex. page reflect on the consequences of his act. 410) When victim is different from that intended, Existence of ill-feeling or grudge alone is NOT premeditation is NOT aggravating. proof of evident premeditation. (Ex. page 411) Evident premeditation may not be properly taken into account when the person What is sufficient lapse of time? (Ex.page 411- whom the defendant proposed to kill was 412) different from the one who became his victim.

Three hours or less considered sufficient lapse Distinguish the ruling in Timbol case from that of time.(Ex. page 413) in the Guillen case.( Page 415)

Why sufficient time is required. It is NOT necessary that there is a plan to kill a The offender must have the opportunity to particular person. coolly and serenely think and deliberate on the For premeditation to exist, it is NOT meaning and the consequences of what he necessary that the accused planned to kill a planned to do, an interval long enough for his particular person. (Ex. Page 415-416) conscience and better judgment to overcome his evil desire and scheme. There must be sufficient time between the Reason for the difference of the rulings. outward acts and the actual commission of the When the offender decided to kill a crime. (ex. Page 414) particular person and premeditated on the killing of the latter, but when he carried out his generally presupposes plan he actually killed another person, it cannot premeditation. properly be said that he premeditated on the Exception: when conspiracy is only implied, killing of the actual victim. ( Ex. page 416-417) evident premeditation may not be appreciated, Criminal Law 1 Summary: John Harvey Lee Source: RPC; Luis B. Reyes; Eighteenth Edition

Distinguished from the Caranto case. would enable the offender to carry out his In the Caranto case, it appears that the design) victim was also undetermined, and the threats -Where the defendants induced their made by defendant who had lost a fishing boat victims to give up their arms upon a promise was that either he or the thief would be turned that no harm should be done to them. into ghost. The killing of the ghost afterwards was held not to be murder qualified by evident Does gaining entrance by pretending to buy premeditation, because there was merely a cigarettes or to drink water constitute craft? threat which was not a direct and specific -it was held that the aggravating character. circumstance of craft attended the commission of the crime. (Page 421) Evident premeditation, while inherent in robbery, may be aggravating in robbery with Hairline distinction between craft and fraud homicide if the premeditation included the There is craft or fraud when by trickery, killing of the victim. (Ex. Page 417) accused gained entrance in victim’s house. By pretending they had pacific intentions (to buy chickens)PAR. 14 - desiring THAT (1) to CRAFT, enter (2) Argenio’s FRAUD, OR home , they(3) DISGUISE allayed BE his EMPLOYED suspicions. They gained entrance into the house with his consent Basis: the basis has reference to the means through trickery or deceit. (People v. Saliling, employed in the commission of the crime. No. L-27974, February 27, 1976, 69 SCRA 427, 443) Application of this paragraphs How is craft distinguished from fraud? This circumstances is characterized by the FRAUD CRAFT intellectual or mental rather than the physical When there is a The act of the means to which the criminal resorts to carry out direct inducement by accused done in his design. insidious words or order not to arouse machinations. the suspicion of the Craft (involves intellectual trickery and cunning victim on the part of the accused). It is not attendant where the accused was practically in a stupor Disguise (resorting to any device to conceal when the crime was committed. identity). -is chicanery resorted to by the accused Applied when: to aid in the execution of his criminal design. It -he had his face blackened in order that is employed as a scheme in the execution of the he should not be recognized. crime. - covered his face with handkerchief -but craft is not attendant where the before committing the crime. unlawful scheme could have been carried out -illegally wore a constabulary uniform. just the same even without the pretense. -use of an assumed name in the publication of libel. Craft, when not an aggravating circumstance. NOT applied when: Where craft partakes of an element of the -The culprits were recognized by the offense, the same may NOT be appreciated victim. independently for the purpose of aggravation. -The mask subsequently fell down.

Fraud (insidious words or machinations used to Disguise, not considered induce the victim to act in a manner which Criminal Law 1 Summary: John Harvey Lee Source: RPC; Luis B. Reyes; Eighteenth Edition

-appellant was readily recognizable because his When the attack was made on the victim face could easily be seen together with the alternately, there is no abuse of superior identifying feature of his mustache. strength.

The purpose of the offender in using any Abuse of superior strength when a man attacks device must be to conceal his identity. a woman with a weapon. (Examples in Page 423). It constitutes the circumstances of abuse of that superiority which his sex and the weapon used PAR. 15- THAT (1) ADVANTAGE BE TAKEN in the act afforded him, and from which the woman was unable to defend herself. OF SUPERIOR STRENGTH, OR (2) MEANS BE Illustrations: EMPLOYED TO WEAKEN THE DEFENSE. a. the accused attacked an unarmed 4 feet, 11- Meaning of “advantage be taken” inch girl with a knife. Note the word “advantage” in this paragraph. b. the accused was armed while the victim was -advantage of superior strength means unarmed. The latter was shot in the back after to use purposely excessive force out of her hands were tied together. proportion to the means of the defense c. An attack by three men against a helpless and available to the person attacked. defenseless woman.

Illustrations of NO advantage of superior No abuse of superior strength in parricide strength. against the wife. 1. One who attacks another with passion and -Abuse of superior strength is inherent obfuscation does not take advantage of his in the crime of parricide. superior strength. 2. This aggravating circumstance does not apply That the victim is a woman is inherent in when a quarrel arose unexpectedly and the parricide. fatal blow was struck at a time when the aggressor and his victim were engaged against Evidence of relative physical strength each other as man to man. necessary. In these two cases, the offenders may -There must be evidence that the accused were or might have superior strength, but they do physically stronger and that they abused such not or did not take advantage of it. superiority. -the mere fact of there being a superiority of Illustrations of abuse of superior strength. numbers is NOT sufficient to bring the case 1. Ex. A strong man has ill-treated a child, an old within aggravating circumstance. or decrepit person, or one weakened by Illustrations: Page 427 disease, or where a person’s physical strength has been overcome by the use of drugs or When abuse of superior strength is intoxicants. aggravating. 2. The deceased was unarmed, under the The aggravating circumstance of abuse of influence of liquor and was much smaller than superior strength depends on the age, size, and the accused. strength of the parties. It is considered 3. The victim who died was an innocent and whenever there is a notorious inequality of tender baby, barely six months old, and the forces between the victim and the aggressor, wounded children were aged five and twelve assessing a superiority of strength notoriously years old. advantageous for the aggressor which is selected or taken advantage of by him in the commission of the crime. Criminal Law 1 Summary: John Harvey Lee Source: RPC; Luis B. Reyes; Eighteenth Edition

Number of aggressors, if armed, may point to malefactors regardless of the comparative abuse of superior strength. (Ex. Page 427-428) strength of the victims. The indispensable components of cuadrilla are: Abuse of superior strength by numerical 1. At least 4 malefactors, and superiority. (Page 428- 430) 2. All the four malefactors are armed.

There is abuse of superior strength when -the gravamen of abuse of superiority is taking weapon used is out of proportion to the advantage by the culprits of their collective defense available to the offended party. strength to overpower their relatively weaker victim or victims. Simultaneous attack by two persons with -What is taken into account is NOT the number revolvers against a defenseless person is of aggressors nor the fact that they are armed, aggravated by superior strength. but their relative physical might vis-à-vis the offended party. There is no abuse of superior strength when one acted as principal and the other two as Aggravating circumstances absorbing band. accomplices. -Abuse of superiority absorbs cuadrilla. -abuse of superior strength cannot be taken -If treachery absorbs abuse of superiority and into consideration, because it would be band then it is reasonable to hold that band inconsistent. should NOT be treated separately and distinct -it must appear that the accused cooperated from abuse of superior strength. together in some way designed to weaken the -the two circumstances have the same essence defense. which is the utilization of the combines strength of the assailants to overpower the victim and When there is an allegation of treachery, consummate the killing. superior strength is absorbed. -the aggravating of a band is absorbed in -like nighttime, superior strength is absorbed treachery. and inherent in treachery. Means employed to weaken defense. (Page Abuse of superior strength is aggravating in 433) coercion and forcible abduction, when greatly -Employ means which weaken the defense of in excess of that required to commit the the opponent. offense. -abuse of superior strength should be Intoxicating the victim to weaken defense. considered for the purpose of increasing the This aggravating circumstance exists also when penalty. the offender, who had the intention to kill the victim, made the deceased intoxicated, thereby The circumstance of “by a band” and that of materially weakening the latter’s resisting “abuse of superior strength”, distinguished. power. -the offense of robbery with homicide was committed by a band, the element of cuadrilla If the state of intoxication is such that the necessarily absorbs the circumstance of abuse victim cannot put up any sort of defense- of superior strength. The court believes that treachery. said withdrawal was ill-advised since the If in his intoxicated state it was impossible for circumstances of band and abuse of superiority the victim to put up any sort of resistance at the are separate and distinct legal concepts. time he was attacked, treachery may be - the element of a band is appreciated when the considered. offense is committed by more than three armed Criminal Law 1 Summary: John Harvey Lee Source: RPC; Luis B. Reyes; Eighteenth Edition

Applicable only to crimes against persons, etc. party might make, it being the sufficient that it -Sometimes against person and property, such tends to this end. as robbery with physical injuries or homicide. -treachery was considered, even if the offense was not consummated. Means to weaken the defense absorbed in treachery. Treachery cannot be presumed. The aggravating circumstance of employing -The qualifying circumstance of treachery may means to weaken the defense is absorbed by not be simply deduce d from presumption as it treachery. is necessary that the existence of this qualifying or aggravating circumstance should be proven as fully as the crime itself in order to aggravate PAR. 16.- THAT THE ACT BE COMMITTED WITH the liability or penalty incurred by the culprit, TREACHERY (ALEVOSIA) -it can no way be established from mere suppositions that the accused perpetrated the BASIS: the means and ways employed in the killing with treachery. commission of the crime. NO TREACHERY - The meeting of the victim and the Meaning of treachery. assailant was only accidental. -there is treachery when the offender commits - No witness who could have seen how any of the crimes against person, employing the deceased was shot was means, methods or forms in the execution presented. thereof which tend directly and specially to - The witness did not see how it all insure its execution, without risk to himself began and could not provide the arising from the defense which the offended details on how the initial attacked party might make. was commenced and how it -treachery means that the offended party was developed. not given the opportunity to make a defense. - Attack was frontal. -treachery attended when the attack was EXCEPTIONS sudden, unexpected, without warning, and - The victim was tied, treachery may without giving the victim an opportunity to be considered though now witness defend himself or repel the aggression. saw the killing. - Tying the hands of the victims. The Rules regarding treachery. victims had no opportunity to defend 1. Applicable only to crimes against persons. themselves. 2. Means, methods or forms need not insure - Treachery must be appreciated when accomplishment of crime. an adult person illegally attacks a 3. The mode of attack must be consciously child of tender years and causes his adopted. death even if the manner of attack is not shown. Applicable only to crimes against persons. The mode of attack must be consciously It is not necessary that the mode of attack adopted. insures the consummation of the offense. This means that: -the law does not require that the treacherous 1. The accused must make some preparation to means insure the execution of the aggression, kill the deceased. without risk to the person of the aggressor 2. The mode of attack must be thought of by arising from the defense which the offended the offender, and must not spring from the unexpected turn of events. Criminal Law 1 Summary: John Harvey Lee Source: RPC; Luis B. Reyes; Eighteenth Edition

with the use of a bolo, hacked the deceased at In the following cases, it was held that there his back causing a deep fracture of the 5th rib. was treachery: 14. The deceased was stabbed without warning. 1.The assailant deliberately employed a mode So sudden and unanticipated was the attack of execution which tended directly and specially that the victim was given no chance to defend to insure the consummation of the killing himself. without any risk to himself. 2. They perpetrated the killings in such a When treachery is NOT present. manner that there was no risk to themselves 1. The attack was perpetrated in a frontal arising from any defense which the victims encounter, shown by the location of the might have made. wounds on the frontal part of the victim’s body. 3. The part and parcel of the means of There were no wounds on the back. execution deliberately resorted by the 2. The initial assault on the victim was not made assailants to inside to insure the assassination in a sudden and unexpected manner. They first of the deceased without any risk to themselves. mauled him presumably in a frontal encounter. 4. The accused employed a mode of execution 3. The accused and his companions did not that insured the consummation of the killing camouflage their hostile intentions. They without any risk arising from any defense that announced their presence at the scene of the the victim could have made. crime with shouts and gunshots. 5. The victim, a woman, was first reduced to helplessness before she was shot. When treachery cannot be considered. 6. The victim was unarmed and defenseless. He -when there is nothing in the record to show was not expecting to be assaulted and did not that the accused had pondered upon the mode give any immediate provocation. or method to insure the killing of the deceased 7. The victim was urinating on the porch and or remove or diminish any risk to himself that when he did not expect at all that his enemy, might arise from the defense that the deceased was only four meters away from him. might make, as when his decision to shoot the 8. The victim was tied and gagged before being victim is sudden, brought about by a stinging stabbed. provocation from the latter. 9. The victim was unarmed and he had no time -when there is no evidence that the accused to defend himself in view of the suddenness of had, prior to the moment of the killing, resolved the assault and the fact that he was drunk at to commit the crime. the time. -when there is no proof that the death of the 10. The attack on the victim was deliberate, victim was the result of meditation, calculation sudden and unexpected and from behind. Most or reflection. of the wounds sustained by the victim were -if the decision to kill was sudden, even if the fatal were found on his back. position of the victim was vulnerable, because it 11. The employment of means or methods or was not deliberately sought by the accused, but manner of execution which insured the was purely accidental. attacker’s safety from any defensive or retaliatory act on the part of the victim, who In the following cases, it was held that there was perched on top of the coconut tree quite was treachery: helpless. - Treachery (alevosia) was manifest in 12. The victim had no effective opportunity to that manner of assault because it defend himself and to strike back at the insured the killing without any risk to assassin. the assailant. 13. The accused, after having made two steps - Appellant chased the victim, upon behind the victim, suddenly and unexpectedly, overtaking her, struck her on the head. Criminal Law 1 Summary: John Harvey Lee Source: RPC; Luis B. Reyes; Eighteenth Edition

employed means which assured the execution Reason for the rulings: of the crime without risk to themselves. “There is treachery when the culprit employed -treachery is present where the numerous stab means, methods or forms of execution which wounds, some f which were inflicted at the back tend directly and specially to insure the of the victim, show that the attack was sudden execution of the crime, without risk to himself”. and brutal. There must be evidence that such form of attack was purposely adopted and showing that Where the meeting between the accused and the accused reflected on the means, methods the victim is casual and the attack impulsively and forms of the killing of the victim. done, there is NO treachery. Held: there is No treachery even if the attack -The characteristic and unmistakable was sudden and unexpected and while the manifestation of treachery is the deliberate, victim was running away with his back towards sudden and unexpected attack of the victim the accused. from behind, without any warning and without Reason for this ruling: The accused could not giving him an opportunity to defend himself or have made preparation for the attack, the repel the initial assault. meeting between him and the deceased being -Mere suddenness of the attack is NOT enough, casuabl, and the means, methods and form of the attack must be deliberately chosen by the attack could not have been thought of by the accused. accused, because the attack was impulsively -The means, method of form of attack must be done. shown to have been deliberately adopted by -The meeting of the victim and his assailants the appellant. was casual. Treachery did not attend. -The manner in which the aggression was made That the mode of attack was consciously or how the act which resulted in the death of adopted may be inferred from the the victim began and developed was not shown. circumstances. The meeting between the accused and the -the accused approached the victim from deceased was accidental. Alevosia cannot be behind…the victim was thus rendered helpless appreciated. and unable to defend himself. -the assailants hid behind a pile of logs…and Attacks showing intention to eliminate risk. shot the victim as he turned around. a. Victim asleep. -The acts of the accused of showering the house b. Victim half-awake or just awakened. with bullets, executed in the darkness of the c. Victim grappling or being held. night. d. Attacked from behind. -The accused was well hidden behind a tree d.1 With a firearm. when he shot the victim who, unarmed and d.2 With a bladed weapon. unaware, had no way of defending himself. d.3 Other modes of armed attack. (BUT… treachery is not appreciated IF the defendant did not take advantage of the REQUISITES OF TREACHERY circumstance to kill the victim without risk to 1. That at the time of the attack, the victim was himself. He did so because he was scared, not in a position to defend himself; and believing that the deceased was armed with a 2. That the offender consciously adopted the gun) particular means, method or form of attack -Treachery is attended when three men, armed employed by him. with a knife, crept up in the dark against a defenseless and unsuspecting victim who was TO CONSTITUTE TREACHERY, TWO answering a call of nature. They thereby CONDITIONS MUST BE PRESENT: Criminal Law 1 Summary: John Harvey Lee Source: RPC; Luis B. Reyes; Eighteenth Edition

1. The employment of means of execution that Treachery does NOT connote the element of gave the person attacked no opportunity to surprise. defend himself or retaliate; and -Treachery does not connote the element of 2. The means of execution were deliberately or surprise alone, but exists when the offender consciously adopted. employs means which tend directly and specially to insure the execution of the offense, FOR TREACHERY TO EXIST, TWO CONDITIONS without risk to himself arising from the defense MUST CONCUR: which the offended party might make. 1. The employment of the means, methods or manner of execution which would insure the Mere sudden and unexpected attack does not offender’s safety from any defense or necessarily give rise to treachery. retaliatory act on the part of the offended It does not always follow that because the party; and attack is sudden and unexpected it is tainted 2. Such means, method or manner of execution with treachery. Indeed, it could have been done was deliberately or consciously chosen by the on impulse, as a reaction to an actual or offender. imagined provocation offered by the victim. The victim was not in a position to defend himself. When the accused gave the deceased a chance -the victims were made to lie face down, their to prepare, there was no treachery. hands tied at the back before they were killed. -the victim was shoot from behind while No treachery where the attack is preceded by dancing. a warning. -without warning, the victim was hit in the When the accused first asked “what did you head, then stabbed in the back. say?” before starting the aggression, there is -the victim was beaten to death while his hands NO treachery because that question was and feet were tied with a rope. already a warning to the offended party of the -the victim was attacked defenseless in the hostile attitude of the accused. driver’s seat of his jeep. Calling attention of victim NOT necessarily a There is treachery when the offenders made a warning. deliberate surprise or unexpected attack on the The fact that the assailant called out, “fiscal” victim. before shooting the victim does not negate the -treachery is NOT present where the accused presence of treachery. The assailant being a and the victim grappled with each other. hired killer, he wanted to insure that he was shooting the correct person. When the victim Does the fact that advantage was taken of turned his face to find out who was calling him, relative confusion, so that the act and identity the assailants fired immediately, rendering no of the offender would not be detected, and so opportunity for the victim do defend himself. that his escaped would be facilitated adequately establish treachery? No treachery where shooting is preceded by -treachery has been adequately established. heated discussion. Advantage was therefore taken by the Held: since the shooting was preceded by a defendant of the relative confusion created by heated discussion between the two, it must the shower on the crowd, so that his act and have placed the deceased on his guard, and the identity would not be detected by the people in alleged treachery cannot be legally considered the dance hall, and so that his escape would be - No treachery where the commission of facilitated. the crime was pre. Ceded shortly before the by a boxing incident. Criminal Law 1 Summary: John Harvey Lee Source: RPC; Luis B. Reyes; Eighteenth Edition

- There is no treachery where the assault - Treachery attended where the victim upon the deceased was preceded by a was completely taken by surprise and heated exchange of words. shot, where he was seated peacefully eating with his family. Killing unarmed victim whose hands are - Treachery attends although the attack upraised is committed with treachery. is frontal where the victim was - Where the victim was shot when his completely helpless, as when both his hands were raised, to show that he hands were held by the attackers would not fight, or because of fright, or numbering five ganging up on him. to try to ward off the shots that were to come, he was clearly in a defenseless Flashing the beam of a flashlight on the face of position. the victim. -Thus, it momentarily blinding the latter, the Killing a woman asking for mercy is committed attack, though frontal, was sudden and with treachery. perpetrated in a manner tending directly to insure its execution, free from any danger that the victim might defend himself. There is treachery in killing a child. Killing a child is characterized by treachery Treachery must be proved by clear and because the weakness of the victim due to his convincing evidence. tender age results in the absence of any danger Treachery is NOT be presumed or taken for to the accused. granted from the mere statement of a witness that “the attack was sudden.” There must be a Intent to kill is NOT necessary in murder with clear showing from the narration of facts why treachery. the attack or assault is said to be “sudden”. It Thus, one who struck another with the first must be proved by clear and convincing from behind causing the latter to fall evidence. backwards, his head striking the asphalt pavement which caused death resulting from a Attack from behind is NOT always alevosia. fracture of the skull, is guilty of murder - It must appear that such mode of attack although he did not intend to kill the deceased. was consciously adopted and the - But intent to kill is necessary in murder question of risk to the offender must be committed by means of fire. taken into account. - The finding must be based on some Treachery may exist even if the attack is face positive proof and not merely by an to face. inference drawn more or less logically Treachery should be taken into account even if from hypothetical facts. The facts the deceased was face to face with his assailant preceding the actual shooting must be at the time the blow was delivered, where it in evidence. appears that the attack was not preceded by a - If the evidence clearly shows that the dispute and the offended party was unable to stab wound at the back was the last to prepare himself for his defense. be inflicted. - Treachery is present although the - If it does not appear that the assailant shooting was frontal, as when the purposely chose to employ such means attack was so sudden and unexpected of attack so that there would be no risk that the victim was not in a position to to himself from any defense which he offer an effective defense. offended party might make.

Criminal Law 1 Summary: John Harvey Lee Source: RPC; Luis B. Reyes; Eighteenth Edition

Must treachery be present at the When treachery is NOT to be considered as to beginning of the assault? the principal by induction. - It depends upon the circumstance of When it is not shown, treachery cannot be the case. taken into consideration as to the principal by - It must be shown that the treacherous induction. It shall aggravate the liability of the acts were present and preceded the actual killer only. commencement of the attack which caused the injury complained of. Treachery, abuse of superior strength, and - It is an established rule that treachery means employed to weaken the defense, must be present from the distinguished. commencement of the attack. - Treachery was NOT present, if there Treachery was a break in the continuity of the Means, methods of forms of attack are aggression and at the time the fatal employed by the offender to make it impossible wound was inflicted on the deceased he or hard for the offended party to put up any was defenseless, the circumstance of resistance. treachery must be taken into account. Abuse of Superior strength - Treachery need NOT exist in the The offender does not employ means, methods beginning of the assault IF the victim or forms of attack; he only takes advantage of was first seized and bound and then his superior strength. killed. Means employed to weaken the defense - If wounding of the victim while lying on The offender, like on treachery, employs means the ground was merely incidental to the but the means employed only materially ensuing pursuit, not intended to ensure weakens the resisting power of the offended the safety of the attackers themselves, party. there is NO treachery. When there is conspiracy, treachery is Summary of the rules. considered against all the offenders. (1) When the aggression is continuous, Treachery should be considered against all treachery must be present at the beginning of persons participating or cooperating in the the assault. perpetration of the crime, except when there is (2) When the assault was not continuous, in no conspiracy among them. that there was an interruption, it is sufficient - Treachery should be considered against that treachery was present at the moment the “those persons only who had fatal blow was given. knowledge” of the employment of treachery “at the time of the execution In treachery, it makes no difference whether of the act or their cooperation therein” or not the victim was the same person whom - When there is conspiracy, treachery the accused intended to kill. attends against all conspirators, It does not modify the nature of the crime nor although only one did the actual lessen his criminal responsibility, and he is stabbing of the victim. responsible for the consequences of his acts. - The reason for this rule is that when The mastermind should have knowledge of the there is treachery, it is impossible for employment of treachery if he was NOT either the intended victim or the actual present when the crime was committed. victim to defend himself against the The rule is that every conspirator is responsible aggression. for the acts of the others in furtherance of the conspiracy. Criminal Law 1 Summary: John Harvey Lee Source: RPC; Luis B. Reyes; Eighteenth Edition

Illustration of aggravating If the intervention of other persons did not circumstance absorbed by another. directly and especially insure the execution of (page 469) the crime without risk to the accused, there is NO treachery. Dwelling is NOT included in treachery. - When there is still risk to the person from the defense which the victim Defenseless condition of victims is included in might make. abuse of superior strength, NOT treachery. - When his freedom of movement was being restrained by one of the culprits Treachery is inherent in murder by poisoning. when the others fired at him. - Under the circumstances, there was no Treachery cannot co-exist with passion or risk to the aggressor arising from any obfuscation. defense which the deceased might One who loses his reason and self-control could make. not deliberately employ a particular means, method or form of attack in the execution of Treachery, evident premeditation and use of the crime. superior strength are absorbed in treason by PAR. 17- THAT MEANS BE EMPLOYED OR killing. CIRCUMSTANCES BROUGHT ABOUT WHICH - By their nature, inherent in the offense ADD IGNOMINY TO THE NATURAL EFFECTS OF of treason. THE ACT.

Treachery absorbs use of superior strength, aid of armed men, by a band and means to Basis: has reference to the means employed. weaken the defense. Ignominy, defined. Nighttime inherent in treachery. Ignominy is a circumstance pertaining to the The reason for this rule is that nighttime forms moral order, which adds disgrace and obloquy part of the peculiar means and manner adopted to the material injury caused by the crime. to insure the execution of the crime. Applicable to crimes against chastity, less When nighttime is NOT absorbed in treachery. serious physical injuries, light or grave The victim’s hands were tied at the time they coercion, and murder. were beaten. Since the treachery rests upon an independent factual basis, the circumstance of “That means be employed” nighttime is NOT absorbed therein, but can be When the accused raped a woman after perceived distinctly therefrom. A special case winding cogon grass around his genital organ, therefore is present to which the rule that he thereby augmented the wrong done by nighttime is absorbed in treachery does NOT increasing its pain and adding ignominy thereto. apply. “That x x x circumstances be brought about.” Craft is included in and absorbed by treachery. (page 471) - Because it was used to insure the commission of the crime without any “Which add ignominy to the natural effects of risk to the culprits. the act.” The means employed or the circumstances Age and sex are included in treachery. brought about must tend to make the effects of

Criminal Law 1 Summary: John Harvey Lee Source: RPC; Luis B. Reyes; Eighteenth Edition

the crime more humiliating or to put the Dwelling and unlawful entry taken separately in offended party to shame. committed in a dwelling.(page 475) - it is required that the offense be committed in a manner that tends to Unlawful entry is NOT aggravating in trespass make its effects more humiliating to the to dwelling. victim, that is, add to his moral - Trespass to dwelling: a private suffering. individual shall enter the dwelling of another against the latter’s will and No ignominy when a man is killed in the may be committed by means of presence of his wife. violence. The circumstance of ignominy was NOT present, - if the offender entered the dwelling not because no means was employed nor did any intended for the purpose, like the circumstance surround the act tending to make window, the unlawful entry was an the effects of the crime more humiliating. integral part of the circumstance of violence with which the crime of Rape as ignominy in robbery with homicide. trespass was committed. -it increases the moral evil of the crime. PAR. 19- THAT AS A MEANS TO THE PAR. 18- THAT THE CRIME BE COMMITTED COMMISSION OF A CRIME, A WALL, ROOF, AFTER AN UNLAWFUL ENTRY FLOOR, DOOR, OR WINDOW BE BROKEN.

Basis: has reference to the means and ways Basis: has reference to means and ways employed to commit the crime. employed to commit the crime.

Is the cutting of the canvas of the tent where Meaning of unlawful entry. soldiers are sleeping covered by paragraph 19? There is unlawful entry when an entrance is - The SC called it “the aggravating effected by a way not intended for the purpose. circumstance of forcible entry.” “As a means to the commission of a crime.” To effect entrance, NOT for escape. - It is not necessary that the offender Unlawful entry must be a means to effect should have entered the building. What entrance and not for escape. aggravates the liability of the offender is the breaing of a part of the builidng Reason for aggravation. as a means to the commission of the It shows a greater perversity, a greater crime. audacity; hence, the law punishes him with - Breaking the door must be utilized as a more severity. means to the commission of the crime. Breaking of the shutters and the Application for this circumstance. framing of the door to insure the - Ex. Entry through the window. The elements of surprise does NOT window is NOT intended for entrance aggravate the commission of the crime. into the building. - Unlawful entry is one of the ways of To effect entrance only. committing robbery with force upon - Breaks a wall or a window of the house things. It is inherent in this kind of for the purpose of entering the house robbery. of the victim.

Criminal Law 1 Summary: John Harvey Lee Source: RPC; Luis B. Reyes; Eighteenth Edition

- If the wall, etc., is broken in order to get - Ex. The jeep having played an important out of the place, it is not aggravating role in the accomplishment of the crime circumstance. and the accused and his companions - Breaking a part of the building is one of having made good their escape by the means of entering the building to spending away aboard the jeep in order commit robbery with force upon things. to avoid discovery of their identities, It is inherent in this kind of robbery. use of motor vehicle is aggravating. Breaking a part of the building is NOT aggravating in that crime. NOTE: if the motor vehicle was used only in facilitating the escape, it should not be an Where breaking of door or window is lawful. aggravating circumstance. (Page 476) - The use of motor vehicle was merely incidental; not aggravating. PAR. 20- THAT THE CRIME BE COMMITTED - Not aggravating where there is no (1) WITH THE AID OF PERSONS UNDER showing that the motor vehicle was purposely used to facilitate the FIFTEEN YEARS OF AGE, OR (2) BY MEANS commission of the crime or where it is OF MOTOR VEHICLES, AIRSHIPS, OR OTHER not shown that without it, the offense SIMILAR MEANS. charged could not have been committed. Basis: has reference to means and ways employed to commit the crime. Estafa, which is committed by means of deceit or abuse of confidence, cannot be committed Two aggravating circumstances in Paragraph by means of motor vehicle. 20. FIRST SECOND Theft, which is committed by merely taking Tends to repress, so Intended to personal property which need NOT be carried far as possible, the counteract the great away, cannot be committed by means of frequent practice facilities found by motor vehicles. resorted by modern criminals in professional said means to Examples of crimes committed by means of criminals to avail commit crime and motor vehicle. themselves of minors flee and abscond - The crime of forcible abduction. taking advantage of once the same is - Truck was used in carrying the stolen their irresponsibility. committed. rails and iron and wooden ties from the scene of the theft to the place where “With the aid of persons under fifteen years of they sold. age” (page 477) - Motor vehicle was used in transporting the accused. “By means of motor vehicles” - Even if the victims rode voluntarily in - The accused used the motor vehicle in the jeepney, since they were lured and going to the place of the crime, in taken to the place where they killed. carrying away the effects thereof, and - A jeep was used by the appellants in in facilitating their escape. fetching and luring the deceased. - The use of motor vehicles is aggravating - The accused stabbed and inflicted upon “because the same furnish a quick his girlfriend, mortal wounds which means for the flight or concealment of caused her death, while they were in a the offender” taxi which was hired and used by him. Criminal Law 1 Summary: John Harvey Lee Source: RPC; Luis B. Reyes; Eighteenth Edition

- The accused used a motor vehicle to 2. That the other wrong be unnecessary for the insure the success of their nefarious execution of the purpose of the offender. enterprise. “Be deliberately augmented by causing other “Or other similar means.” wrong.” -it refers to motorized vehicles or other means -This means that the accused at the time of the of transportation similar to automobile or commission of the crime had a deliberate airplane. intention to prolong the suffering of the victim. -thus if the culprit, before committing and after committing the crime, rode in a bicycle and “Other wrong not necessary for its escaped, there is NO aggravating circumstance. commission.” It is aggravating if he used a motorcycle. -Ex. Striking him with the gun is “other wrong,” but it is necessary for the commission of the PAR. 21- THAT THE WRONG DONE IN THE crime of robbery, particularly to get C’s money. COMMISSION OF THE CRIME BE DELIBERATELY Hence, there is NO cruelty. AUGMENTED BY CAUSING OTHER WRONG NOT NECESSARY FOR ITS COMMISSION. Cruelty refers to physical suffering of victim purposely intended by offender. Basis: has reference to ways employed in Cruelty requires deliberate prolongation of the committing the crime. physical suffering of victim.

What is cruelty? Cruelty cannot be presumed. -there is cruelty when the culprit enjoys and delights in making his victim suffer slowly and Cruelty considered in murder by burning gradually, causing him unnecessary physical mouth of child. pain in the consummation of the criminal act. If the desire of the defendant had been only to Cruelty to be aggravating kill the child, he could have carried out his -it is essential that the wrong done was purpose without compelling the victim to intended to prolong the suffering of the victim, undergo such great suffering and for so long a causing him unnecessary moral and physical time. pain. Cruelty or vindictiveness to be appreciated Cruelty considered in extracting victim’s eye -the evidence must show that the sadistic and stuffing his mouth with mud. culprit, for his pleasure and satisfaction, caused the victim to suffer slowly and gradually, and When the series of acts causing unnecessary inflicted on him unnecessary moral and physical sufferings of victim took place in rapid pain. succession, is there cruelty? Cruelty to exist Held: there was unnecessary cruelty. -it must be shown that the accused enjoyed and delighted in making his victim suffer slowly and Was there a deliberate intention on the part of gradually, causing him unnecessary physical or the accused to prolong the suffering of the moral pain in the consummation of the criminal victim? There seems to be no appreciable time act. intervening between or among the series of acts of the accused. Requisites of cruelty. 1. That the injury caused be deliberately Plurality of wounds alone does NOT show increased by causing other wrong; cruelty. Criminal Law 1 Summary: John Harvey Lee Source: RPC; Luis B. Reyes; Eighteenth Edition

- it is necessary to show that the accused deliberately and inhumanly increased the sufferings of the victims. The absence of showing it, it cannot be concluded that cruelty was duly proven. Cruelty cannot be presumed.

Nu cruelty when other wrong was done after the victim was dead. There must be positive proof that the wounds found on the body of the victim were inflicted while he was still alive in order unnecessarily to prolong physical suffering.

Ignominy distinguished from cruelty Ignominy Cruelty Involves moral Refers to physical suffering suffering.

Rape as aggravating in robbery with homicide.

Rape as aggravating in murder.

Aggravating circumstances peculiar to certain offenses. (page 485)