Art 11-13: Justifying Circumstances PDF

Art. 11: Justifying Circumstances -- those wherein the acts of the actor are in accordance with law, hence, he is justified. There is no criminal and civil liability because there is no crime. Self-defense 1 Reason for lawfulness of self-defense: because it would be impossible for the State to pro...

Art. 11: Justifying Circumstances -- those wherein the acts of the actor are in accordance with law, hence, he is justified. There is no criminal and civil liability because there is no crime. Self-defense 1 Reason for lawfulness of self-defense: because it would be impossible for the State to protect all its citizens. Also a person cannot just give up his rights without any resistance being offered. 2 Rights included in self-defense: 1. Defense of person 2. Defense of rights protected by law 1 Defense of property: a. The owner or lawful possessor of a thing has a right to exclude any person from the enjoyment or disposal thereof. For this purpose, he may use such force as may be reasonably necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of his property. (Art. 429, New Civil Code) b. defense of chastity 3 Elements: 1 1. Unlawful Aggression-- is a physical act manifesting danger to life or limb; it is either actual or imminent. 1 Actual/real aggression -- Real aggression presupposes an act positively strong, showing the wrongful intent of the aggressor, which is not merely threatening or intimidating attitude, but a material attack. There must be real danger to life a personal safety. 2 Imminent unlawful aggression -- it is an attack that is impending or on the point of happening. It must not consist in a mere threatening attitude, nor must it be merely imaginary. The intimidating attitude must be offensive and positively strong. 3 Where there is an agreement to fight, there is no unlawful aggression. Each of the protagonists is at once assailant and assaulted, and neither can invoke the right of self-defense, because aggression which is an incident in the fight is bound to arise from one or the other of the combatants. Exception: Where the attack is made in violation of the conditions agreed upon, there may be unlawful aggression. 4 Unlawful aggression in self-defense, to be justifying, must exist at the time the defense is made. It may no longer exist if the aggressor runs away after the attack or he has manifested a refusal to continue fighting. If the person attacked allowed some time to elapse after he suffered the injury before hitting back, his act of hitting back would not constitute self-defense, but revenge. A light push on the head with the hand is not unlawful aggression, but a slap on the face is, because his dignity is in danger. A police officer exceeding his authority may become an unlawful aggressor. The nature, character, location, and extent of the wound may belie claim of selfdefense. 2. Reasonable necessity of the means employed to prevent or repel it; a. Requisites: Means were used to prevent or repel Means must be necessary and there is no other way to prevent or repel it Means must be reasonable -- depending on the circumstances, but generally proportionate to the force of the aggressor. 1 The rule here is to stand your ground when in the right which may invoked when the defender is unlawfully assaulted and the aggressor is armed with a weapon. 2 The rule is more liberal when the accused is a peace officer who, unlike a private person, cannot run away. 3 The reasonable necessity of the means employed to put up the defense. The gauge of reasonable necessity is the instinct of self-preservation, i.e. a person did not use his rational mind to pick a means of defense but acted out of selfpreservation, using the nearest or only means available to defend himself, even if such means be disproportionately advantageous as compared with the means of violence employed by the aggressor. Reasonableness of the means depends on the nature and the quality of the weapon used, physical condition, character, size and other circumstances. 3. Lack of sufficient provocation on the part of the person defending himself. 1 When no provocation at all was given to the aggressor by the person defending himself. 2 When even if provocation was given by the person defending himself, such was not sufficient to cause violent aggression on the part of the attacker, i.e. the amount of provocation was not sufficient to stir the aggressor into the acts which led the accused to defend himself. 3 When even if the provocation were sufficient, it was not given by the person defending himself. 4 When even if provocation was given by the person defending himself, the attack was not proximate or immediate to the act of provocation. 5 Sufficient means proportionate to the damage caused by the act, and adequate to stir one to its commission. 1 Kinds of Self-Defense 1 Self-defense of chastity -- to be entitled to complete self-defense of chastity, there must be an attempt to rape, mere imminence thereof will suffice. 2 Defense of property -- an attack on the property must be coupled with an attack on the person of the owner, or of one entrusted with the care of such property. 3 Self-defense in libel -- physical assault may be justified when the libel is aimed at a person's good name, and while the libel is in progress, one libel deserves another. \*Burden of proof -- on the accused (sufficient, clear and convincing evidence; must rely on the strength of his own evidence and not on the weakness of the prosecution). Defense of Relative A. Elements: 1 unlawful aggression 2 reasonable necessity of the means employed to prevent or repel the attack; 3 in case provocation was given by the person attacked, that the person making the defense had no part in such provocation. B. Relatives entitled to the defense: 1 spouse 2 ascendants 3 descendants 4 legitimate, natural or adopted brothers or sisters 5 relatives by affinity in the same degree 6 relatives by consanguinity within the 4th civil degree. The third element need not take place. The relative defended may even be the original aggressor. All that is required to justify the act of the relative defending is that he takes no part in such provocation. General opinion is to the effect that all relatives mentioned must be legitimate, except in cases of brothers and sisters who, by relatives by nature, may be illegitimate. The unlawful aggression may depend on the honest belief of the person making the defense. Defense of Stranger A. Elements 1 unlawful aggression 2 reasonable necessity of the means employed to prevent or repel the attack; 3 the person defending be not induced by revenge, resentment or other evil motive. 2 A relative not included in defense of relative is included in defense of stranger. 3 Be not induced by evil motive means that even an enemy of the aggressor who comes to the defense of a stranger may invoke this justifying circumstances so long as he is not induced by a motive that is evil. State of Necessity 1 Art. 11, Par. a provides: Any person who, in order to avoid an evil or injury, does an act which causes damage to another, provided that the following requisites are present: First. That the evil sought to be avoided actually exists; Second. That the injury feared be greater than that done to avoid it; and Third. That there be no other practical and less harmful means of preventing it. 1 A state of necessity exists when there is a clash between unequal rights, the lesser right giving way to the greater right. Aside from the 3 requisites stated in the law, it should also be added that the necessity must not be due to the negligence or violation of any law by the actor. 2 The person for whose benefit the harm has been prevented shall be civilly liable in proportion to the benefit which may have been received. This is the only justifying circumstance which provides for the payment of civil indemnity. Under the other justifying circumstances, no civil liability attaches. The courts shall determine, in their sound discretion, the proportionate amount for which law one is liable Fulfillment of Duty or Lawful Exercise of a Right or Office 1 Elements: 1 that the accused acted in the performance of a duty, or in the lawful exercise of a right or office; 2 that the injury caused or offense committed be the necessary consequence of the due performance of the duty, or the lawful exercise of such right or office. 2 A police officer is justified in shooting and killing a criminal who refuses to stop when ordered to do so, and after such officer fired warning shots in the air. shooting an offender who refused to surrender is justified, but not a thief who refused to be arrested. 3 The accused must prove that he was duly appointed to the position he claimed he was discharging at the time of the commission of the offense. It must be made to appear not only that the injury caused or the offense committed was done in the fulfillment of a duty, or in the lawful exercise of a right or office, but that the offense committed was a necessary consequence of such fulfillment of duty, or lawful exercise of a right or office. 4 A mere security guard has no authority or duty to fire at a thief, resulting in the latter's death. Obedience to a Superior Order 1 Elements: 1 there is an order; 2 the order is for a legal purpose; 3 the means used to carry out said order is lawful. 2 The subordinate who is made to comply with the order is the party which may avail of this circumstance. The officer giving the order may not invoke this. 3 The subordinate's good faith is material here. If he obeyed an order in good faith, not being aware of its illegality, he is not liable. However, the order must not be patently illegal. If the order is patently illegal this circumstance cannot be validly invoked. 4 The reason for this justifying circumstance is the subordinate's mistake of fact in good faith. 5 Even if the order be patently illegal, the subordinate may yet be able to invoke the exempting circumstances of having acted under the compulsion of an irresistible force, or under the impulse of an uncontrollable fear. EXEMPTING CIRCUMSTANCES Exempting circumstances (non-imputability) are those ground for exemption from punishment because there is wanting in the agent of the crime of any of the conditions which make the act voluntary, or negligent. Basis: The exemption from punishment is based on the complete absence of intelligence, freedom of action, or intent, or on the absence of negligence on the part of the accused. A person who acts WITHOUT MALICE (without intelligence, freedom of action or intent) or WITHOUT NEGLIGENCE (without intelligence, freedom of action or fault) is NOT CRIMINALLY LIABLE or is EXEMPT FROM PUNISHMENT. There is a crime committed but no criminal liability arises from it because of the complete absence of any of the conditions which constitute free will or voluntariness of the act. Burden of proof: Any of the circumstances is a matter of defense and must be proved by the defendant to the satisfaction of the court. Art. 12. CIRCUMSTANCES WHICH EXEMPT FROM CRIMINAL LIABILITY. The following are exempt from criminal liability: 1. An imbecile or insane person, unless the latter has acted during a lucid interval. When the imbecile or an insane person has committed an act which the law defines as a felony (delito), the court shall order his confinement on one of the hospital or asylums established for persons thus afflicted. He shall not be permitted to leave without first obtaining the permission of the same court. Requisites: 1 Offender is an imbecile 2 Offender was insane at the time of the commission of the crime IMBECILITY OR INSANITY An imbecile is exempt in all cases from criminal liability. The insane is not so exempt if it can be shown that he acted during a lucid interval. In the latter, loss of consciousness of ones acts and not merely abnormality of mental faculties will qualify ones acts as those of an insane. Procedure: court is to order the confinement of such persons in the hospitals or asylums established. Such persons will not be permitted to leave without permission from the court. The court, on the other hand, has no power to order such permission without first obtaining the opinion of the DOH that such persons may be released without danger. Presumption is always in favor of sanity. The defense has the burden to prove that the accused was insane at the time of the commission of the crime. For the ascertainment such mental condition of the accused, it is permissible to receive evidence of the condition of his mind during a reasonable period both before and after that time. Circumstantial evidence which is clear and convincing will suffice. An examination of the outward acts will help reveal the thoughts, motives and emotions of a person and if such acts conform to those of people of sound mind. Insanity at the time of the commission of the crime and not that at the time of the trial will exempt one from criminal liability. In case of insanity at the time of the trial, there will be a suspension of the trial until the mental capacity of the accused is restored to afford him a fair trial. Evidence of insanity must refer to the time preceding the act under prosecution or to the very moment of its execution. Without such evidence, the accused is presumed to be sane when he committed the crime. Continuance of insanity which is occasional or intermittent in nature will not be presumed. Insanity at another time must be proved to exist at the time of the commission of the crime. A person is also presumed to have committed a crime in one of the lucid intervals. Continuance of insanity will only be presumed in cases wherein the accused has been adjudged insane or has been committed to a hospital or an asylum for the insane. Instances of Insanity: Reyes: Feeblemindedness is not imbecility because the offender can distinguish right from wrong. An imbecile and an insane to be exempted must not be able to distinguish right from wrong. Relova: Feeblemindedness is imbecility. Crimes committed while in a dream, by a somnambulist are embraced in the plea of insanity. Hypnotism, however, is a debatable issue. Crime committed while suffering from malignant malaria is characterized by insanity at times thus such person is not criminally liable. 1 Basis: complete absence of intelligence, and element of voluntariness. 2 Definition : An imbecile is one who while advanced in age has a mental development comparable to that of children between 2 and 7 years of age. An insane is one who acts with complete deprivation of intelligence/reason or without the least discernment or with total deprivation of freedom of the will. 1 Dementia praecox is covered by the term insanity because homicidal attack is common in such form of psychosis. It is characterized by delusions that he is being interfered with sexually, or that his property is being taken, thus the person has no control over his acts. 2 Kleptomania or presence of abnormal, persistent impulse or tendency to steal, to be considered exempting, will still have to be investigated by competent psychiatrist to determine if the unlawful act is due to the irresistible impulse produced by his mental defect, thus loss of will-power. If such mental defect only diminishes the exercise of his willpower and did not deprive him of the consciousness of his acts, it is only mitigating. 3 Epilepsy which is a chronic nervous disease characterized by convulsive motions of the muscles and loss of consciousness may be covered by the term insanity. However, it must be shown that commission of the offense is during one of those epileptic attacks. 2. A person under nine years of age. MINORITY Under nine years to be construed nine years or less. Such was inferred from the next subsequent paragraph which does not totally exempt those over nine years of age if he acted with discernment. Presumptions of incapability of committing a crime is absolute. Age is computed up to the time of the commission of the crime. Age can be established by the testimonies of families and relatives. Senility or second childhood is only mitigating. 4 periods of the life of a human being: 1 Requisite: Offender is under 9 years of age at the time of the commission of the crime. There is absolute criminal irresponsibility in the case of a minor under 9-years of age. 2 Basis: complete absence of intelligence. Age Criminal Responsibility 9 years and below Absolute irresponsibility Between 9 and 15 years old Conditional responsibility Without discernment -- no liability With Discernment -- mitigated liability Between 15 and 18 years old Mitigated responsibility Between 18 and 70 years old Full responsibility Over 70 years old Mitigated responsibilit 3. A person over nine years of age and under fifteen, unless he has acted with discernment, in which case, such minor shall be proceeded against in accordance with the provisions of article 80 of this Code. When such minor is adjudged to be criminally irresponsible, the court, in conformity with the provisions of this and the preceding paragraph, shall commit him to the care and custody of his family who shall be charged with his surveillance and education; otherwise, he shall be committed to the care of some institution or person mentioned in said article 80. QUALIFIED MINORITY: Basis: complete absence of intelligence Such minor over 9 years and under 15 years of age must have acted without discernment to be exempted from criminal liability. If with discernment, he is criminally liable. Presumption is always that such minor has acted without discernment. The prosecution is burdened to prove if otherwise. Discernment means the mental capacity of a minor between 9 and 15 years of age to fully appreciate the consequences of his unlawful act. Such is shown by: (1) manner the crime was committed (i.e. commission of the crime during nighttime to avoid detection; taking the loot to another town to avoid discovery), or (2) the conduct of the offender after its commission (i.e. elation of satisfaction upon the commission of his criminal act as shown by the accused cursing at the victim). Facts or particular facts concerning personal appearance which lead officers or the court to believe that his age was as stated by said officer or court should be stated in the record. If such minor is adjudged to be criminally liable, he is charged to the custody of his family, otherwise, to the care of some institution or person mentioned in article 80. This is because of the court's presupposition that the minor committed the crime without discernment. Allegation of "with intent to kill" in the information is sufficient allegation of discernment as such conveys the idea that he knew what would be the consequences of his unlawful act. Thus is the case wherein the information alleges that the accused, with intent to kill, willfully, criminally and feloniously pushed a child of 8 1/2 years of age into a deep place. It was held that the requirement that there should be an allegation that she acted with discernment should be deemed amply met. 4. Any person who, while performing a lawful act with due care, causes an injury by mere accident without fault or intention of causing it. ACCIDENT: Basis: lack of negligence and intent. Elements: Discharge of a firearm in a thickly populated place in the City of Manila being prohibited by Art. 155 of the RPC is not a performance of a lawful act when such led to the accidental hitting and wounding of 2 persons. Drawing a weapon/gun in the course of self-defense even if such fired and seriously injured the assailant is a lawful act and can be considered as done with due care since it could not have been done in any other manner. With the fact duly established by the prosecution that the appellant was guilty of negligence, this exempting circumstance cannot be applied because application presupposes that there is no fault or negligence on the part of the person performing the lawful act. Accident happens outside the sway of our will, and although it comes about some act of our will, lies beyond the bounds of humanly foreseeable consequences. The accused, who, while hunting saw wild chickens and fired a shot can be considered to be in the performance of a lawful act executed with due care and without intention of doing harm when such short recoiled and accidentally wounded another. Such was established because the deceased was not in the direction at which the accused fired his gun. The chauffeur, who while driving on the proper side of the road at a moderate speed and with due diligence, suddenly and unexpectedly saw a man in front of his vehicle coming from the sidewalk and crossing the street without any warning that he would do so, in effect being run over by the said chauffeur, was held not criminally liable, it being by mere accident. 1 A person is performing a lawful act 2 Exercise of due dare 3 He causes injury to another by mere accident 4 Without fault or intention of causing it. 5. Any person who acts under the compulsion of an irresistible force. IRRESISTIBLE FORCE: Basis: complete absence of freedom, an element of voluntariness Elements: Force, to be irresistible, must produce such an effect on an individual that despite of his resistance, it reduces him to a mere instrument and, as such, incapable of committing a crime. It compels his member to act and his mind to obey. It must act upon him from the outside and by a third person. Baculi, who was accused but not a member of a band which murdered some American school teachers and was seen and compelled by the leaders of the band to bury the bodies, was not criminally liable as accessory for concealing the body of the crime. Baculi acted under the compulsion of an irresistible force. Irresistible force can never consist in an impulse or passion, or obfuscation. It must consist of an extraneous force coming from a third person. 1 That the compulsion is by means of physical force 2 That the physical force must be irresistible. 3 That the physical force must come from a third person 6. Any person who acts under the impulse of an uncontrollable fear of an equal or greater injury. UNCONTROLLABLE FEAR: Basis: complete absence of freedom Elements 1 that the threat which causes the fear is of an evil greater than, or at least equal to that w/c he is required to commit 2 that it promises an evil of such gravity and imminence that the ordinary man would have succumbed to it. Duress, to be a valid defense, should be based on real, imminent or reasonable fear for one's life or limb. It should not be inspired by speculative, fanciful or remote fear. Threat of future injury is not enough. The compulsion must leave no opportunity to the accused for escape or self-defense in equal combat. Duress is the use of violence or physical force. There is uncontrollable fear is when the offender employs intimidation or threat in compelling another to commit a crime, while irresistible force is when the offender uses violence or physical force to compel another person to commit a crime. "an act done by me against my will is not my act" 7. Any person who fails to perform an act required by law, when prevented by some lawful or insuperable cause. LAWFUL OR INSUPERABLE CAUSE: Basis: acts without intent, the third condition of voluntariness in intentional felony Elements: 1 That an act is required by law to be done 2 That a person fails to perform such act 3 That his failure to perform such act was due to some lawful or insuperable cause Examples of lawful cause: To be an EXEMPTING circumstance -- INTENT IS WANTING INTENT -- presupposes the exercise of freedom and the use of intelligence Distinction between justifying and exempting circumstance: 1 Priest can't be compelled to reveal what was confessed to him 2 No available transportation -- officer not liable for arbitrary detention 3 Mother who was overcome by severe dizziness and extreme debility, leaving child to die -- not liable for infanticide 1 Exempting -- there is a crime but there is no criminal. Act is not justified but the actor is not criminally liable. General Rule: There is civil liability Exception: Par 4 (causing an injury by mere accident) and Par 7 (lawful cause) b. Justifying -- person does not transgress the law, does not commit any crime because there is nothing unlawful in the act as well as the intention of the actor. Distinction between Exempting and Justifying Circumstances Exempting Circumstance Justifying Circumstance Existence of a crime There is a crime but there is no criminal, the actor is exempted from liability of his act There is no crime, the act is justified Absolutory Causes -- are those where the act committed is a crime but for some reason of public policy and sentiment, there is no penalty imposed. Exempting and Justifying Circumstances are absolutory causes. Other examples of absolutory causes: 1) Art 6 -- spontaneous desistance 2) Art 20 -- accessories exempt from criminal liability 3) Art 19 par 1 -- profiting one's self or assisting offenders to profit by the effects of the crime Instigation v. Entrapment INSTIGATION ENTRAPMENT Instigator practically induces the would-be accused into the commission of the offense and himself becomes co-principal The ways and means are resorted to for the purpose of trapping and capturing the lawbreaker in the execution of his criminal plan. Accused will be acquitted NOT a bar to accused's prosecution and conviction Absolutory cause NOT an absolutory cause MITIGATING CIRCUMSTANCES Definition -- Those circumstance which reduce the penalty of a crime Effect -- Reduces the penalty of the crime but does not erase criminal liability nor change the nature of the crime Kinds of Mitigating Circumstance: Privileged Mitigating Ordinary Mitigating Offset by any aggravating circumstance Cannot be offset by any aggravating circumstance Can be offset by a generic aggravating circumstance Effect on the penalty Has the effect of imposing the penalty by 1 or 2 degrees than that provided by law If not offset, has the effect of imposing the penalty in the minimum period Kinds Minority, Incomplete Self-defense, two or more mitigating circumstances without any aggravating circumstance (has the effect of lowering the penalty by one degree) Those circumstances enumerated in paragraph 1 to 10 of Article 13 Article 13. 1. Those mentioned in the preceding chapter, when all the requisites necessary to justify the act or to exempt from criminal liability in the respective cases are not attendant Justifying circumstances 1 Self-defense/defense of relative/defense of stranger -- unlawful aggression must be present for Art 13 to be applicable. Other 2 elements not necessary. If 2 requisites are present -- considered a privileged mitigating circumstance. Example: Juan makes fun of Pedro. Pedro gets pissed off, gets a knife and tries to stab Juan. Juan grabs his own knife and kills Pedro. Incomplete self-defense because although there was unlawful aggression and reasonable means to repel was taken, there was sufficient provocation on the part of Juan. But since 2 elements are present, it considered as privileged mitigating. b. State of Necessity (par 4) avoidance of greater evil or injury; if any of the last 2 requisites is absent, there's only an ordinary Mitigating Circumstance. Example: While driving his car, Juan sees Pedro carelessly crossing the street. Juan swerves to avoid him, thus hitting a motorbike with 2 passengers, killing them instantly. Not all requisites to justify act were present because harm done to avoid injury is greater. Considered as mitigating. c. Performance of Duty (par 5) Example: Juan is supposed to arrest Pedro. He thus goes to Pedro's hideout. Juan sees a man asleep. Thinking it was Pedro, Juan shot him. Juan may have acted in the performance of his duty but the crime was not a necessary consequence thereof. Considered as mitigating. Exempting circumstance a. Minority over 9 and under 15 -- if minor acted with discernment, considered mitigating Example: 13 year old stole goods at nighttime. Acted with discernment as shown by the manner in which the act was committed. b. Causing injury by mere accident -- if 2nd requisite (due care) and 1st part of 4th requisite (without fault -- thus negligence only) are ABSENT, considered as mitigating because the penalty is lower than that provided for intentional felony. Example: Police officer tries to stop a fight between Juan and Pedro by firing his gun in the air. Bullet ricocheted and killed Petra. Officer willfully discharged his gun but was unmindful of the fact that area was populated. c. Uncontrollable fear -- only one requisite present, considered mitigating Example: Under threat that their farm will be burned, Pedro and Juan took turns guarding it at night. Pedro fired in the air when a person in the shadows refused to reveal his identity. Juan was awakened and shot the unidentified person. Turned out to be a neighbor looking for is pet. Juan may have acted under the influence of fear but such fear was not entirely uncontrollable. Considered mitigating 2. That the offender is under 18 years of age or over 70 years. In the case of a minor, he shall be proceeded against in accordance with the provisions of Art 192 of PD 903 Applicable to: a. Offender over 9, under 15 who acted with discernment b. Offender over 15, under 18 c. Offender over 70 years Age of accused which should be determined as his age at the date of commission of crime, not date of trial Various Ages and their Legal Effects a. under 9 -- exemptive circumstance b. over 9, below 15 -- exemptive; except if acted with discernment c. minor delinquent under 18 -- sentence may be suspended (PD 603) d. under 18 -- privileged mitigating circumstance e. 18 and above -- full criminal responsibility f. 70 and above -- mitigating circumstance; no imposition of death penalty; execution g. of death sentence if already imposed is suspended and commuted. 3. That the offender had no intention to commit so grave a wrong as that committed (praeter intentionam) Can be used only when the facts prove to show that there is a notable and evident disproportion between means employed to execute the criminal act and its consequences Intention: as an internal act, is judged by the proportion of the means employed to the evil produced by the act, and also by the fact that the blow was or was not aimed at a vital part of the body. Judge by considering (1) the weapon used, (2) the injury inflicted and (3) the attitude of mind when the accuser attacked the other. Example: Pedro stabbed Tomas on the arm. Tomas did not have the wound treated, so he died from loss of blood. Not applicable when offender employed brute force Example: Rapist choked victim. Brute force of choking contradicts claim that he had no intention to kill the girl. Art 13, par 3 addresses itself to the intention of the offender at the particular moment when he executes or commits the criminal act, not to his intention during the planning stage. In crimes against persons -- if victim does not die, the absence of the intent to kill reduces the felony to mere physical injuries. It is not considered as mitigating. Mitigating only when the victim dies. Example: As part of fun-making, Juan merely intended to burn Pedro's clothes. Pedro received minor burns. Juan is charged with physical injuries. Had Pedro died, Juan would be entitled to the mitigating circumstance. Not applicable to felonies by negligence. Why? In felonies through negligence, the offender acts without intent. The intent in intentional felonies is replaced by negligence, imprudence, lack of foresight or lack of skill in culpable felonies. There is no intent on the part of the offender which may be considered as diminished. Basis of par 3: intent, an element of voluntariness in intentional felony, is diminished 4. That the sufficient provocation or threat on the part of the offended party immediately preceded the act. Provocation -- any unjust or improper conduct or act of the offended party, capable of exciting, inciting or irritating anyone. Basis: diminution of intelligence and intent Requisites: a. Provocation must be sufficient. 1. Sufficient -- adequate enough to excite a person to commit the wrong and must accordingly be proportionate to its gravity. 2. Sufficiency depends on: the act constituting the provocation the social standing of the person provoked time and place provocation took place 3. Example: Juan likes to hit and curse his servant. His servant thus killed him. There's mitigating circumstance because of sufficient provocation. 4. When it was the defendant who sought the deceased, the challenge to fight by the deceased is NOT sufficient provocation. b. It must originate from the offended party 1. Why? Law says the provocation is "on the part of the offended party" 2. Example: Tomas' mother insulted Petra. Petra kills Tomas because of the insults. No Mitigating Circumstance because it was the mother who insulted her, not Tomas. 3. Provocation by the deceased in the first stage of the fight is not Mitigating Circumstance when the accused killed him after he had fled because the deceased from the moment he fled did not give any provocation for the accused to pursue and attack him. c. Provocation must be immediate to the act., i.e., to the commission of the crime by the person who is provoked 1 Why? If there was an interval of time, the conduct of the offended party could not have excited the accused to the commission of the crime, he having had time to regain his reason and to exercise self-control. 2 Threat should not be offensive and positively strong because if it was, the threat to inflict real injury is an unlawful aggression which may give rise to self-defense and thus no longer a Mitigating Circumstance 5. That the act was committed in the immediate vindication of a grave offense to the one committing the felony (delito), his spouse, ascendants, descendants, legitimate, natural or adopted brother or sisters, or relatives by affinity within the same degree. 1. Requisites: there's a grave offense done to the one committing the felony etc. that the felony is committed in vindication of such grave offense. 2. Lapse of time is allowed between the vindication and the one doing the offense (proximate time, not just immediately after) 3. Example: Juan caught his wife and his friend in a compromising situation. Juan kills his friend the next day -- still considered proximate. PROVOCATION VINDICATION Made directly only to the person committing the felony Grave offense may be also against the offender's relatives mentioned by law Cause that brought about the provocation need not be a grave offense Offended party must have done a grave offense to the offender or his relatives Necessary that provocation or threat immediately preceded the act. No time interval May be proximate. Time interval allowed More lenient in vindication because offense concerns the honor of the person. Such is more worthy of consideration than mere spite against the one giving the provocation or threat. Vindication of a grave offense and passion and obfuscation can't be counted separately and independently 6. That of having acted upon an impulse so powerful as naturally to have produced passion or obfuscation Passion and obfuscation is mitigating: when there are causes naturally producing in a person powerful excitement, he loses his reason and self-control. Thereby dismissing the exercise of his will power. PASSION AND OBFUSCATION are Mitigating Circumstances only when the same arise from lawful sentiments (not Mitigating Circumstance when done in the spirit of revenge or lawlessness) Requisites for Passion & Obfuscation a. The offender acted on impulse powerful enough to produce passion or obfuscation b. That the act was committed not in the spirit of lawlessness or revenge c. The act must come from lawful sentiments Act which gave rise to passion and obfuscation a. That there be an act, both unlawful and unjust b. The act be sufficient to produce a condition of mind c. That the act was proximate to the criminal act d. The victim must be the one who caused the passion or obfuscation Example: Juan saw Tomas hitting his (Juan) son. Juan stabbed Tomas. Juan is entitled to Mitigating Circumstance of P&O as his actuation arose from a natural instinct that impels a father to rush to the rescue of his son. The exercise of a right or a fulfillment of a duty is not the proper source of P&O. Example: A policeman arrested Juan as he was making a public disturbance on the streets. Juan's anger and indignation resulting from the arrest can't be considered passionate obfuscation because the policeman was doing a lawful act. The act must be sufficient to produce a condition of mind. If the cause of the loss of selfcontrol was trivial and slight, the obfuscation is not mitigating. Example: Juan's boss punched him for not going to work he other day. Cause is slight. There could have been no Mitigating Circumstance of P&O when more than 24 hours elapsed between the alleged insult and the commission of the felony, or several hours have passed between the cause of the P&O and the commission of the crime, or at least ½ hours intervened between the previous fight and subsequent killing of deceased by accused. Not mitigating if relationship is illegitimate The passion or obfuscation will be considered even if it is based only on the honest belief of the offender, even if facts turn out to prove that his beliefs were wrong. Passion and obfuscation cannot co-exist with treachery since the means that the offender has had time to ponder his course of action. PASSION AND OBFUSCATION arising from one and the same cause should be treated as only one mitigating circumstance Vindication of grave offense can't co-exist w/ PASSION AND OBFUSCATION PASSION AND OBFUSCATION IRRESITIBLE FORCE Mitigating Exempting No physical force needed Requires physical force From the offender himself Must come from a 3rd person Must come from lawful sentiments Unlawful PASSION AND OBFUSCATION PROVOCATION Produced by an impulse which may be caused by provocation Comes from injured party Offense, which engenders perturbation of mind, need not be immediate. It is only required that the influence thereof lasts until the crime is committed Must immediately precede the commission of the crime Effect is loss of reason and self-control on the part of the offender Same 7. That the offender had voluntarily surrendered himself to a person in authority or his agents, or that he had voluntarily confessed his guilt before the court prior to the presentation of the evidence for the prosecution. 2 Mitigating Circumstances present: a) voluntarily surrendered b) voluntarily confessed his guilt If both are present, considered as 2 independent mitigating circumstances. Mitigate penalty to a greater extent Requisites of voluntary surrender: a) offender not actually arrested b) offender surrendered to a person in authority or the latter's agent c) surrender was voluntary Surrender must be spontaneous -- shows his interest to surrender unconditionally to the authorities Spontaneous -- emphasizes the idea of inner impulse, acting without external stimulus. The conduct of the accused, not his intention alone, after the commission of the offense, determines the spontaneity of the surrender. Example: Surrendered after 5 years, not spontaneous anymore. Example: Surrendered after talking to town councilor. Not V.S. because there's an external stimulus Conduct must indicate a desire to own the responsibility Not mitigating when warrant already served. Surrender may be considered mitigating if warrant not served or returned unserved because accused can't be located. Surrender of person required. Not just of weapon. Person in authority -- one directly vested with jurisdiction, whether as an individual or as a member of some court/government/corporation/board/commission. Barrio captain/chairman included. Agent of person in authority -- person who by direct provision of law, or be election, or by appointment by competent authority is charged with the maintenance of public order and the protection and security of life and property and any person who comes to the aid of persons in authority. RPC does not make distinction among the various moments when surrender may occur. Surrender must be by reason of the commission of the crime for which defendant is charged Requisites for plea of guilty a) offender spontaneously confessed his guilt b) confession of guilt was made in open court (competent court) c) confession of guilt was made prior to the presentation of evidence for the prosecution plea made after arraignment and after trial has begun does not entitle accused to have plea considered as Mitigating Circumstance plea in the RTC in a case appealed from the MTC is not mitigating -- must make plea at the first opportunity plea during the preliminary investigation is no plea at all even if during arraignment, accused pleaded not guilty, he is entitled to Mitigating Circumstance as long as withdraws his plea of not guilty to the charge before the fiscal could present his evidence plea to a lesser charge is not Mitigating Circumstance because to be voluntary plea of guilty, must be to the offense charged plea to the offense charged in the amended info, lesser than that charged in the original info, is Mitigating Circumstance present Rules of Court require that even if accused pleaded guilty to a capital offense, its mandatory for court to require the prosecution to prove the guilt of the accused being likewise entitled to present evidence to prove, inter alia, Mitigating Circumstance 8. That the offender is deaf and dumb, blind or otherwise suffering from some physical defect w/c thus restricts his means of action, defense or communication w/ his fellow beings. Basis: one suffering from physical defect which restricts him does not have complete freedom of action and therefore, there is diminution of that element of voluntariness. No distinction between educated and uneducated deaf-mute or blind persons The physical defect of the offender should restrict his means of action, defense or communication with fellow beings, this has been extended to cover cripples, armless people even stutterers. The circumstance assumes that with their physical defect, the offenders do not have a complete freedom of action therefore diminishing the element of voluntariness in the commission of a crime. 9. Such illness of the offender as would diminish the exercise of the will-power of the offender w/o depriving him of consciousness of his acts. Basis: diminution of intelligence and intent Requisites: a) illness of the offender must diminish the exercise of his will-power b) such illness should not deprive the offender of consciousness of his acts when the offender completely lost the exercise of will-power, it may be an exempting circumstance deceased mind, not amounting to insanity, may give place to mitigation 10. And any other circumstance of a similar nature and analogous to those abovementioned Examples of "any other circumstance": a) defendant who is 60 years old with failing eyesight is similar to a case of one over 70 years old b) outraged feeling of owner of animal taken for ransom is analogous to vindication of grave offense c) impulse of jealous feeling, similar to PASSION AND OBFUSCATION d) voluntary restitution of property, similar to voluntary surrender e) extreme poverty, similar to incomplete justification based on state of necessity NOT analogous: a) killing wrong person b) not resisting arrest not the same as voluntary surrender c) running amuck is not mitigating MITIGATING CIRCUMSTANCE which arise from: a) moral attributes of the offender Example: Juan and Tomas killed Pedro. Juan acted w/ PASSION AND OBFUSCATION. Only Juan will be entitled to Mitigating Circumstance b) private relations with the offended party Example: Juan stole his brother's watch. Juan sold it to Pedro, who knew it was stolen. The circumstance of relation arose from private relation of Juan and the brother. Does not mitigate Pedro. c) other personal cause Example: Minor, acting with discernment robbed Juan. Pedro, passing by, helped the minor. Circumstance of minority, mitigates liability of minor only. Shall serve to mitigate the liability of the principals, accomplices and accessories to whom the circumstances are attendant. Circumstances which are neither exempting nor mitigating a) mistake in the blow b) mistake in the identity of the victim c) entrapment of the accused d) accused is over 18 years old e) performance of a righteous action Example: Juan saved the lives of 99 people but caused the death of the last person, he is still criminally liable