FREAH GENICE A.
TOLOSA
LLB 1C
DOUBLE JEOPARDY
CONSTITUTIONAL LAW 2
March 5, 2016
1. EDUARDO CUISON, petitioner, vs. COURT OF APPEALS and THE PEOPLE OF THE
PHILIPPINES, respondents.
On February 7, 1989, respondent Presiding Judge of the Regional Trial Court of
Pangasinan rendered a Joint Decision in a Criminal Case which said that :
WHEREFORE, judgment is hereby rendered finding accused Eduardo Cuison
guilty of the crime of double homicide, beyond reasonable doubt and therefore sentences
him to suffer imprisonment from 6 years and 1 day to 12 years and 1 day for each
offense, with the accessories provided by law and to pay the costs. Accused is also
ordered to indemnify the heirs of Rafael Sapigao the amount of P30,000.00 and the heirs
of Rulo Castro also the amount of P30,000.00 without subsidiary imprisonment in case of
insolvency. On appeal to the Court of Appeals, the said decision was affirmed with the
modification that the civil indemnity was increased to P50,000.00. The accused elevated
the decision on a petition for but the Supreme Court denied the said petition on December
1, 1993.
The case was remanded to the Regional Trial Court of Pangasinan for promulgation of the
decision. However, respondent Judge promulgated the decision of [the Court of Appeals]
only with respect to the modified civil liability of the accused but did not commit the accused
to jail to commence service of his sentence.
Issue: whether or not petitioners right against double jeopardy was violated.
Held: Petitioner submits that the trial courts promulgation of the CA Decision on April 4, 1995
cannot be set aside and a second promulgation be ordered because to do so would contravene the
prohibition against double jeopardy. He contends that the judgment as promulgated on April 4,
1995 has become final and that courts have thus lost jurisdiction over the case.
To substantiate a claim of double jeopardy, the following must be proven:
(1) a first jeopardy must have attached prior to the second; (2) the first jeopardy must have
been validly terminated; (3) the second jeopardy must be for the same offense, or the second
offense includes or is necessarily included in the offense charged in the first information, or
is an attempt to commit the same or is a frustration thereof.
And legal jeopardy attaches only: (a) upon a valid indictment; (b) before a competent
court; (c) after arraignment; (d) [when] a valid plea [has] been entered; and (e)the case was
dismissed or otherwise terminated without the express consent of the accused.
Petitioner contends that the promulgation by Judge Ramos on April 4, 1995 of the
Respondent Courts decision of June 30, 1991 by reading its dispositive portion has effectively
terminated the criminal cases against the petitioner . In other words, petitioner claims that the
first jeopardy attached at that point.
The Court is not persuaded. As a rule, a criminal prosecution includes a civil action for the
recovery of indemnity. Hence, a decision in such case disposes of both the criminal as well as the
civil liabilities of an accused. Here, trial court promulgated only the civil aspect of the case, but
not the criminal.
FREAH GENICE A. TOLOSA
LLB 1C
DOUBLE JEOPARDY
CONSTITUTIONAL LAW 2
March 5, 2016
As earlier observed, the promulgation of the CA Decision was not complete. In fact and in
truth, the promulgation was not merely incomplete; it was also void. In excess of its jurisdiction,
the trial judge rendered a substantially incomplete promulgation on April 4, 1995, and he
repeated his mistake in his April 12, 1996 Order. We emphasize that grave abuse of discretion
rendered the aforementioned act of the trial court void. Since the criminal cases have not yet
been terminated, the first jeopardy has not yet attached. Hence, double jeopardy cannot prosper
as a defense. We must stress that Respondent Courts questioned Decision did not modify or
amend its July 30, 1991 Decision. It merely ordered the promulgation of the judgment of
conviction and the full execution of the penalty it had earlier imposed on petitioner.
WHEREFORE, the petition is hereby DENIED and the assailed Decision of the Court of
Appeals is AFFIRMED. Double costs against petitioner.
2. ROBERTO P. ALMARIO, petitioner, vs. COURT OF APPEALS
Petitioner is one of the accused in estafa thru falsification of public document, and estafa,
with respondent RCBC as the offended party in both cases.
Due to continuous resetting of the hearing, and on September 8, 1995, private
complainant failed to appear despite due notice. Hence, upon motion of petitioners counsel,
respondent court issued the following order:
When this case was called for hearing, private complainant is not in Court despite notice.
Atty. Alabastro, counsel for accused Roberto Almario, moved that the case against the latter be
dismissed for failure to prosecute and considering that accused is entitled to a speedy trial.
WHEREFORE, the case against accused Roberto Almario is hereby dismissed. With respect to
accused Spouses Susensio and Guillerma Cruz and Dante Duldulao, 1 st warrant be issued for
their arrest.
Petitioner sought a reconsideration of the above order. Acting on the Motion for Reconsideration
dated November 9, 1995, respondent Judge issued his assailed Order of April 11, 1996, the
dispositive portion of which reads as follows:
IN VIEW OF THE FOREGOING, the Motion for Reconsideration dated 9 November
1995 is hereby denied for lack of merit considering that, based on the foregoing facts, the
proceedings in this case have not been prolonged unreasonably nor were there oppressive delays
and unjustified postponements in violation of the Accused's constitutional right to speedy
trial.SO ORDERED.
Issue: whether or not, double jeopardy had set in so that petitioner's constitutional right against
such jeopardy had been violated.
Held: The order of dismissal based on a violation of the right to speedy trial was made upon
motion by counsel for petitioner before the trial court. It was made at the instance of the accused
before the trial court, and with his express consent. Generally, the dismissal of a criminal case
resulting in acquittal made with the express consent of the accused or upon his own motion will
not place the accused in double jeopardy. However, this rule admits of two exceptions, namely:
insufficiency of evidence and denial of the right to speedy trial. 9 Double jeopardy may attach
when the proceedings have been prolonged unreasonably, in violation of the accused's right to
speedy trial.
FREAH GENICE A. TOLOSA
LLB 1C
DOUBLE JEOPARDY
CONSTITUTIONAL LAW 2
March 5, 2016
It follows that petitioner cannot invoke the constitutional right against double jeopardy
when that order was reconsidered seasonably.16 For as petitioner's right to speedy trial was not
transgressed, this exception to the fifth element of double jeopardy - that the defendant was
acquitted or convicted, or the case was dismissed or otherwise terminated without the express
consent of the accused - was not met. The trial court's initial order of dismissal was upon motion
of petitioner's counsel, hence made with the express consent of petitioner. That being the case,
despite the reconsideration of said order, double jeopardy did not attach.
It is true that in an unbroken line of cases, we have held that the dismissal of cases on the
ground of failure to prosecute is equivalent to an acquittal that would bar further prosecution of
the accused for the same offense. It must be stressed, however, that these dismissals were
predicated on the clear right of the accused to speedy trial. These cases are not applicable to the
petition at bench considering that the right of the private respondents to speedy trial has not been
violated by the State. For this reason, private respondents cannot invoke their right against
double jeopardy.
WHEREFORE, the resolutions of the Court of Appeals upheld the orders of the Regional Trial
Court of Makati, are hereby AFFIRMED. Costs against petitioner.
3. GEORGE MANANTAN, petitioner, vs. THE COURT OF APPEALS
Provincial Fiscal of Isabela filed an information charging petitioner Manantan with reckless
imprudence resulting in homicide, allegedly committed as follows:
That on or about the 25th day of September 1982, in the municipality of Santiago, province
of Isabela, Philippines, and within the jurisdiction of this Honorable Court, the said accused,
being then the driver and person-in-charge of an automobile, willfully and unlawfully drove and
operated the same while along the Daang Maharlika at Barangay Malvar, in said municipality, in
a negligent, careless and imprudent manner, without due regard to traffic laws, regulations and
ordinances and without taking the necessary precaution to prevent accident to person and
damage to property, causing by such negligence, carelessness and imprudence said automobile
driven and operated by him to sideswipe a passenger jeep, thereby causing the said automobile to
turn down resulting to the death of Ruben Nicolas a passenger of said automobile.
In its decision dated June 30, 1988, promulgated on August 4, 1988, the trial court decided
the case in favor to the petitioner: WHEREFORE, in the light of the foregoing considerations,
the Court finds the accused NOT GUILTY of the crime charged and hereby acquits him.
On August 8, 1988, private respondents filed their notice of appeal on the civil aspect of the
trial courts judgment. In their appeal, the Nicolas spouses prayed that the decision appealed from
be modified and that appellee be ordered to pay indemnity and damages.
Thus the appellate court decided to modify the ruling: WHEREFORE, the decision appealed
from is MODIFIED in that defendant-appellee is hereby held civilly liable for his negligent and
reckless act of driving his car which was the proximate cause of the vehicular accident, and
sentenced to indemnify plaintiffs-appellants in the amount of P174,400.00 for the death of Ruben
Nicolas.
ISSUE: WON the appellate court put the petitioner in double jeopardy.
FREAH GENICE A. TOLOSA
LLB 1C
DOUBLE JEOPARDY
CONSTITUTIONAL LAW 2
March 5, 2016
HELD: Preliminarily, petitioners claim that the decision of the appellate court awarding
indemnity placed him in double jeopardy is misplaced.
The constitution provides that no person shall be twice put in jeopardy for the same
offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall
constitute a bar to another prosecution for the same act. When a person is charged with an
offense and the case is terminated either by acquittal or conviction or in any other manner
without the consent of the accused, the latter cannot again be charged with the same or identical
offense. This is double jeopardy. For double jeopardy to exist, the following elements must be
established: (a) a first jeopardy must have attached prior to the second; (2) the first jeopardy must
have terminated; and (3) the second jeopardy must be for the same offense as the first.
In the instant case, petitioner had once been placed in jeopardy by the filing of Criminal
Case No. 066 and the jeopardy was terminated by his discharge. The judgment of acquittal
became immediately final. Note, however, that what was elevated to the Court of Appeals by
private respondents was the civil aspect of Criminal Case No. 066. Petitioner was not charged
anew in CA-G.R. CV No. 19240 with a second criminal offense identical to the first offense. The
records clearly show that no second criminal offense was being imputed to petitioner on
appeal. In modifying the lower courts judgment, the appellate court did not modify the judgment
of acquittal. Nor did it order the filing of a second criminal case against petitioner for the same
offense. Obviously, therefore, there was no second jeopardy to speak of. Petitioners claim of
having been placed in double jeopardy is incorrect.
WHEREFORE, the instant petition is DISMISSED for lack of merit.
4. PEOPLE OF THE PHILIPPINES vs. DANILO FELICIANO
At around 5:30 in the morning of 5 June 1995, the lifeless body of Teresita Fuentes was
found in Brgy. Buswang, Kalibo, Aklan. The autopsy report showed that whoever bludgeoned
the hapless Teresita Fuentes to death had used a blunt instrument, indicting twelve different
wounds on her head and face. An Information for the crime of Robbery with Homicide was then
led against Rodel de la Cruz and Carlos Feliciano. The prosecution sought the discharge of
accused Rodel de la Cruz so that the latter could testify against his co-accused Carlos Feliciano.
Pending resolution by the trial court, on motion, the two accused were arraigned and pleaded not
guilty to the offense charged. Thereafter, the court a quo granted the motion of the prosecution
and Rodel de la Cruz was utilized as state witness. Rodel de la Cruz testi:ed that before two
o'clock in the morning of June 5, 1995, Carlos Feliciano, as security guard of "Superstar" disco
pub, told de la Cruz to assist him in going after a customer who did not pay his bill. He
accompanied Feliciano who rented a tricycle from its driver, Ruben Barte, who stayed behind.
But, instead, Feliciano waited for Teresita Fuentes, poked his gun at her face, dragged her
towards the tricycle and ordered her to board it. Feliciano threatened de la Cruz and instructed
him where to proceed, being the driver of the rented tricycle.
Contrarily, Carlos Feliciano, in his testimony, denied the asseverations of state witness de la
Cruz. He claimed that the accusations were motivated out of pure spite and revenge borne of the
hostility between them due to work-related differences. Two additional witnesses for the defense
testified that it was de la Cruz with one male and the other female who were responsible for the
FREAH GENICE A. TOLOSA
LLB 1C
DOUBLE JEOPARDY
CONSTITUTIONAL LAW 2
March 5, 2016
death of Teresita Fuentes. Accordingly, Carlos Feliciano was convicted of the crime charged and
the supreme penalty of death was imposed upon him.
ISSUE: did the trial court erred in discharging the accused Rodel Dela Cruz to be the State
Witness against co-accused Carlos Feliciano despite strong objection from the defense?
HELD: In this jurisdiction, it is the trial court judge who has the exclusive responsibility of
ensuring that the conditions prescribed by the rules exist. This grant is not one of arbitrary
discretion but rather a sound judicial prerogative to be exercised with due regard to the proper
and correct dispensation of criminal justice. But that there would be the possibility of error on
the part of the judge is understandable. A trial judge cannot be expected or required to inform
himself with absolute certainty at the outset of the trial as to everything which may develop in
the course of the trial in regard to the guilty participation of the accused in the commission of the
crime charged in the complaint. If that were possible, the judge would conveniently rely on large
part upon the suggestion and the information furnished by the prosecuting officer in coming to
the conclusion as to the "necessity for the testimony" of the accused whose discharge is
requested, as to the "availability of other direct or corroborative evidence," and as to who among
the accused is the "most guilty," and so the like. Thus, here, even while one might be convinced
that state witness Rodel de la Cruz would, on the basis of evidence ultimately submitted, appear
to be equally as, and not less than, guilty in conspiracy with appellant Carlos Feliciano, the hands
of the State are now stayed and the Court must assure the exemption of the witness from
punishment.
It is widely accepted that the discharge of an accused to become a state witness has the same
effect as an acquittal. The impropriety of the discharge would not have any effect on the
competency and quality of the testimony, nor would it have the consequence of withdrawing his
immunity from prosecution. A discharge, if granted at the stage where jeopardy has already
attached, is equivalent to an acquittal, such that further prosecution would be tantamount to the
state reneging on its part of the agreement and unconstitutionally placing the state witness in
double jeopardy. The rule, of course, is not always irreversible. In an instance where the
discharged accused fails to fulfill his part of the bargain and refuses to testify against his coaccused, the benefit of his discharge can be withdrawn and he can again be prosecuted for the
same offense. Not only is treachery an aggravating circumstance merely applicable to crimes
against persons but neither also has the mode of attack on the victim of the robbery been shown
to have been consciously adopted.
5. LETICIA R. MERCIALES, petitioner, vs. THE HONORABLE COURT OF APPEALS
On August 12, 1993, Criminal Case for rape with homicide, in connection with the death
of one Maritess Ricafort Merciales, were filed against the private respondents.
During the trial, after presenting seven witnesses, the public prosecutor filed a motion for
the discharge of accused Joselito Nuada, in order that he may be utilized as a state witness.
However, the prosecution contended that it was not required to present evidence to warrant the
discharge of accused Nuada, since the latter had already been admitted into the Witness
Protection Program of the Department of Justice.
On July 13, 1994, herein private respondents filed a motion to set the case for hearing, invoking
their constitutional right to speedy trial. The respondent judge granted the motion, and set the
case for hearing on July 29, 1994.
On August 9, 1994, again the prosecution filed a motion for reconsideration, invoking its
pending petition for certiorari with the Supreme Court. The private respondents, thru counsel,
objected to any further resetting as this would constitute a violation of their right to a speedy
trial. The respondent judge called for a recess so as to let the prosecution decide whether or not
FREAH GENICE A. TOLOSA
LLB 1C
DOUBLE JEOPARDY
CONSTITUTIONAL LAW 2
March 5, 2016
to present an NBI agent, who was then present, to prove the due execution of the accused
Nuada's extrajudicial confession.
On October 21, 1994 the trial court issued the assailed order which acquitted all of the accused.
Petitioner merciales, who is the mother of the victim in the said crimininal cases, filed before the
respondent CA a petition to annul the order of the trial court. However the CA dismissed the
petition.
ISSUE: WON the order of the trial court is valid.
Held: NO, It is clear from the foregoing that the public prosecutor was guilty of serious
nonfeasance. In the case at bar, the public prosecutor knew that he had not presented sufficient
evidence to convict the accused. Yet, despite repeated moves by the accused for the trial court to
continue hearing the case, he deliberately failed to present an available witness and thereby
allowed the court to declare that the prosecution has rested its case. In this sense, he was remiss
in his duty to protect the interest of the offended parties. More specifically, the public prosecutor
in this case was guilty of blatant error and abuse of discretion, thereby causing prejudice to the
offended party. Indeed, the family of the deceased victim, Maritess Merciales, could do nothing
during the proceedings, having entrusted the conduct of the case in the hands of the said
prosecutor. All they could do was helplessly watch as the public prosecutor, who was under legal
obligation to pursue the action on their behalf, renege on that obligation and refuse to perform
his sworn duty.
The accused would not be placed in double jeopardy because, from the very beginning, the
lower tribunal had acted without jurisdiction. Precisely, any ruling issued without jurisdiction is,
in legal contemplation, necessarily null and void and does not exist.
Otherwise put, the dismissal of the case below was invalid for lack of a fundamental
prerequisite, that is, due process. In rendering the judgment of dismissal, the trial judge in this
case acted without or in excess of jurisdiction, for a judgment which is void for lack of due
process is equivalent to excess or lack of jurisdiction. Indeed, jurisdiction is the right to hear and
determine, not to determine without hearing.
Lack of jurisdiction is one of the grounds for the annulment by the Court of Appeals of
judgments or final orders and resolutions of Regional Trial Courts. Hence, the remedy taken by
petitioner before the Court of Appeals was correct.
WHEREFORE, in view of the foregoing, the petition is GRANTED.
6. JOEY POTOT y SURIO, petitioner, vs. PEOPLE OF THE PHILIPPINES
Petitioner, was charged with homicide. That on or about the 2nd day of November, 1999, at
about 3:00 oclock in the early morning in the public cemetery of the Municipality of Mondragon,
Province of Northern Samar, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, armed with a knife locally called dipang, with deliberate intent to kill and
without justifiable cause, did then and there wifully, unlawfully and feloniously attack, assault
and stab RODOLFO DAPULAG @ PILI with the use of said weapon which the accused had
provided himself for the purpose, thereby inflicting upon said Rodolfo Dapulag @ Pili a mortal
wound which caused the death of said victim.
Upon arraignment on February 1, 2000, wherein the information was read to him in his own
dialect, petitioner, assisted by counsel, pleaded guilty to the charge. Forthwith, he invoked not
FREAH GENICE A. TOLOSA
LLB 1C
DOUBLE JEOPARDY
CONSTITUTIONAL LAW 2
March 5, 2016
only the mitigating circumstance of plea of guilty, but also the circumstance of voluntary
surrender since, as shown in the records, he surrendered voluntarily to the Philippine National
Police (PNP) Headquarters immediately after the commission of the crime. The public
prosecutor did not raise any objection. Instead, he manifested that there is no aggravating
circumstance which attended the commission of the crime.
Thereupon, the trial court, after being satisfied that petitioner understood the meaning and
consequences of his plea of guilty, rendered and promulgated its Decision in open court
convicting him of homicide, with the mitigating circumstances of plea of guilty and voluntary
surrender appreciated in his favor.
However, on February 11, 2000, the private complainant, Rosalie Dapulag (wife of the
victim), filed through counsel, a motion for reconsideration/retrial praying that the Decision be
set aside and that the case be heard again because there were irregularities committed before and
during the trial which caused miscarriage of justice. Petitioner opposed the motion, asserting that
there was no irregularity in the preliminary investigation of the case and in the proceedings
before the trial court; and that the decision can no longer be modified or set aside because it
became final when he formally waived his right to appeal.
Issue: WON the court, can set aside the said judgment and remand the records of the case to
the Office of the Provincial Prosecutor for re-evaluation of the evidence and the filing of the
corresponding charge?
Held: no, only the accused may ask for a modification or setting aside of a judgement of
conviction which he must do before the said judgement becomes final or before he perfects his
appeal. It is stated under section 7 rule 120 of the revised penal code on criminal procedure that a
judgement of conviction may upon motion of the accused, be modified or set aside before it
becomes final or before appeal is perfected.
The Supreme Court agree with the petitioner that the assailed orders would violate his
constitutional right against double jeopardy. Such right prohibits any subsequent prosecution of
any person for a crime of which he has previously been acquitted or convicted. The objective is
to set the effects of the first prosecution forever at rest, assuring the accused that he shall not
thereafter be subjected to the peril and anxiety of a second charge against him for the same
offense. Records show that petitioner was charged with homicide under a valid information
before the trial court which has jurisdiction over it. He was arraigned and pleaded guilty to the
charge. On the basis of his plea, petitioner was convicted and meted the corresponding
penalty. As petitioner has been placed in jeopardy for the crime of homicide, he cannot be
prosecuted anew for the same offense, or any offense which necessarily includes or is necessarily
included in the first offense charged.
WHEREFORE, the instant petition is hereby GRANTED.
7. PEOPLE OF THE PHILIPPINES, appellee, vs. CLARENCE ASTUDILLO
FREAH GENICE A. TOLOSA
LLB 1C
DOUBLE JEOPARDY
CONSTITUTIONAL LAW 2
March 5, 2016
This is an appeal from the decisionof the Regional Trial Court convicting appellants
Clarence Astudillo, Crisanto Astudillo and Hilario Astudillo of the crime of Murder; sentencing
them to suffer the penalty reclusion perpetua and ordering them, jointly and severally, to pay
damages to the heirs of the deceased, Silvestre Aquino, Jr.
The prosecutions account of the antecedent facts are as follows: At around 7:00 p.m., of
November 12, 1995, brothers Clarence, Crisanto and Hilario Astudillo, went to house of Alberto
Damian who was celebrating the eve of his birthday. Clarence greeted Alberto and thereafter
asked the victim, Silvestre Aquino, who was one of the visitors, to go with him. Silvestre
acceded and the two walked towards Floras Store, where they were later joined by Crisanto and
Hilario. While at the store, Crisanto and Silvestre had an argument.
Clarence delivered several stab blows at the back and on the chest of the victim until the
latter fell to the ground. Thereafter, the three appellants fled on board a tricycle. Silvestre was
rushed to the Municipal Health Office of Bangued, Abra, where he was pronounced dead on
arrival.
On March 16, 1998, the trial court rendered a decision convicting appellants of the crime of
Murder qualified by abuse of superior strength. Appellants filed a motion for reconsideration
contending that the prosecution failed to prove their guilt beyond reasonable doubt. Appellants
motion for reconsideration was denied. However, an Amended Decision was rendered where the
phrase abuse of superior strength was replaced with TREACHERY in the body of the Decision.
ISSUE: WON the trial court committed a reversible error and acted with grave abuse of
discretion when it rendered the second decision dated july 10, 1998.
RULING: A motion for reconsideration of a judgment of conviction may be filed by the accused,
or initiated by the court, with the consent of the accused. A judgment of conviction may be
modified or set aside only upon motion of the accused. The requisite consent of the accused to
such motion for reconsideration or modification is intended to protect the latter from having to
defend himself anew from more serious offenses or penalties which the prosecution or the court
may have overlooked. Accordingly,once the judgment has been validly promulgated, any
reconsideration or amendment to correct a manifest substantial error, even if unwittingly
committed by the trial court through oversight or an initially erroneous comprehension, can be
made only with the consent or upon the instance of the accused. Errors in the decision cannot be
corrected unless the accused consents thereto, or himself moves for reconsideration of, or
appeals from, the decision.
It must be stressed, however, that the protection against double jeopardy in the foregoing
rules may be waived by the accused. Thus, when the accused himself files or consents to the
filing of a motion for reconsideration or modification, double jeopardy cannot be invoked
because the accused waived his right not to be placed therein by filing such motion. His motion
gives the court an opportunity to rectify its errors or to reevaluate its assessment of facts and
conclusions of law and make them conformable with the statute applicable to the case in the new
judgment it has to render. In effect, a motion for reconsideration or modification filed by or with
consent of the accused renders the entire evidence open for the review of the trial court without,
however, conducting further proceedings, such as the taking of additional proof.
Clearly, therefore, appellants cannot dictate upon the trial court which aspects of the
judgment of conviction should be reviewed. Having filed a timely motion for reconsideration
asking the court to acquit, or in the alternative, convict them of the lesser offense of homicide,
appellants waived the defense of double jeopardy and effectively placed the evidence taken at the
trial open for the review of the trial court. WHEREFORE, in view of all the foregoing, the
Decision of the Regional Trial Court finding appellants, guilty beyond reasonable doubt of the
FREAH GENICE A. TOLOSA
LLB 1C
DOUBLE JEOPARDY
CONSTITUTIONAL LAW 2
March 5, 2016
crime of murder and sentencing them to suffer the
perpetua is AFFIRMED with MODIFICATION as to the civil liability.
penalty
of reclusion
