ART.

5
Duty of the court in connection with the act which should be repressed but which
are not covered by the law, and in cases of excessive penalties.------ Whenever
the court has knowledge of any act which it may deem proper to repress but
which is not punishable by the law, it shall render proper decision, and shall
report to the Chief Executive, through the department of justice, the reasons
which induce the court to believe that said act should be made the subject of
penal legislation.

In the same way, the court shall submit to the Chief Executive, through the
Department of Justice, such statement which may be deemed proper, without
suspending the execution of sentence, when a strict enforcement of the
provision of this code would result in the imposition of a clearly excessive
penalty, taking into consideration the degree of malice and the injury caused by
the offense.

The first paragraph of this article which contemplates a trial of a criminal case requires
the following:

1. The act committed by the accuse appears not punishable by any law;
2. But the court deems it proper to repress such act;
3. In that case, the court must render the proper decision by dismissing the case
and acquitting the accused;
4. The judge must then make a report to the Chief Executive, through the Secretary
of Justice, stating the reasons which induce him to believe that the said act
should be made the subject of penal legislation.

BASIS OF PARAGRAPH 1, ARTICLE 5

The provision contained in paragraph 1 of Article 5 is based on the legal maxim “nullum
crimen, nulla poena sine lege”, that is, that there is no crime if there is no law punishes
the act.

PARAGRAPH 2 OF ARTICLE 5

The second paragraph of Article 5 requires that----

1. The court after trial finds the accused guilty.

2. The penalty provided by law and which the court imposes for the crime
committed appears to be clearly excessive, because---

a. The accused acted with lesser degree of malice, and/or,

b. There is no injury or the injury caused is of lesser gravity.

3. The court should not suspend the execution of the sentence.

 4. The judge should submit a statement to the Chief Executive, through the
Secretary of Justice, recommending executive clemency.

Example of the accused acting with lesser degree of malice:

People v. Monleon, No. L-36282, December 10, 1976, 74 SCRA 263,269

Example of injury caused is of lesser gravity

People v. Acbangin, G.R no. 117216, August 9,2000

Example of total absence of injury

People v. Cabagsan and Montano, 57 Phil. 598

EXECUTIVE CLEMENCY, FOR THE WIFE WHO KILLED HER CRUEL HUSBAND
Montemayor, J., concurring in People V. Canja, 86 Phil. 518, 522-523

EXECUTIVE CLEMENCY, BECAUSE OF THE SEVERITY OF THE PENALTY OF

RAPE
People V. Manlapaz, No. L-41819, February 28, 1979, 88 SCRA 704, 719

THE PENALTIES ARE NOT EXCESSIVE WHEN INTENDED TO ENFORCE A

PUBLIC POLICY
1.People v. Estoista, 93 Phil. 647, 654
2.People v. Tiu Ua, 96 Phil. 738, 741

COURTS HAVE THE DUTY TO APPLY THE PENALTY PROVIDED BY THE LAW

a. The only function of the judiciary is to interpret the laws and, if not in disharmony
with the constitution, to apply them.
People v. Limaco, 88 Phil. 35

b. The courts should interpret and apply the laws as they find them on the statute
books, regardless of the manner their judgements are executed and
implemented by the executive department.
People v. Olaes, 105 Phil. 502

JUDGE HAS THE DUTY TO APPLY THE LAW AS INTERPRETED BY THE

SUPREME COURT

If a judge of a lower court feels, in the fulfillment of his mission of deciding cases, that
the application of a doctrine promulgated by the Supreme Court is against his way of
reasoning, or against his conscience, he may state his opinion on the matter, but rather
than disposing of the case in accordance with his personal view, he must think first that
it is his duty to apply the law as interpreted by the Highest Court of the Land.
People v. Santos, et. al., 104 Phil.560
Accused-appellant claims that the penalty of reclusion perpetua is too cruel and harsh a
penalty and pleads of sympathy. In this case, the maxim DURA LEX SED LEX shall
apply.
People v. Amigo, GR No. 116719, January 18, 1996

When strict enforcement of the provision of this CODE

The wording of the second paragraph of Article 5 of the RPC clearly states that it
applies only “when a strict enforcement of the provisions” of the R.P.C would result in
the imposition of a clearly excessive penalty, taking into consideration the degree of
malice and the injury cause by the offense. However, said paragraph has been applied
to violation of special laws.

ART. 6

Consummated, frustrated, and attempted felonies.

Consummated felonies, as well as those which are frustrated and attempted, are
punishable.

A felony is consummated when all the elements necessary for its execution and
accomplishment are present; and it is frustrated when the offender performs all
the acts of execution which would produce the felony as a consequence but
which, nevertheless, do not produce it by reason of causes independent of the
will of the perpetrator.

There is an attempt when the offender commences the commission of a felony

directly by the overt acts, and does not perform all the acts of execution which
should produce the felony by reason of some cause or accident other than his
own spontaneous desistance.

Consummated felony, defined

A felony is consummated when all the elements necessary for its execution and
accomplishment present.

Frustrated felony, defined.

It is frustrated when the offender performs all the acts of execution which would produce
the felony as a consequence but which, nevertheless, do not produce it by reason of
causes independent of the will of the perpetrator.

Attempted Felony, defined

There is an attempt when the offender commences the commission of a felony directly
by over acts, and does not perform all the acts of execution which should produce the
felony by reason of some cause or accident other than his own spontaneous
desistance.

Development of crime
From the moment the culprit conceives the idea of committing a crime up to the
realization of the same, his act passes through certain stages.

These stages are:

1. Internal acts
2. External acts

Internal Acts is not punishable by law

External Acts cover:

a. Preparatory acts
Is not punishable by law
However, it becomes punishable when it is provided by the law.

For example;
Possession of pick lock, under article 304 possession of pick locks is preparatory
act to the commission of robbery.
b. Acts of execution
Punishable by the R.P.C
Composed of three stages: attempted, frustrated, and consummated

ATTEMPTED FELONY
Elements of attempted felony:

1. The offender commences the commission of the felony directly by overt acts;
2. He does not perform all the acts of execution which should produce the felony;
3. The offender’s act is not stopped by his own spontaneous desistance;
4. The non-performance of all acts of execution was due to cause or accident other
than his spontaneous desistance.

“Overt acts” defined

An overt act is some physical activity or deed, indicating the intention to commit a
particular crime, more than a mere planning or preparation, which if carried to its
complete termination following its natural course, without being frustrated by external
obstacles nor by the voluntary desistance of the perpetrator , will logically and
necessarily ripen into a concrete offense.

PREPARATORY ACTS V. OVERT ACTS

PREPARATORY
Buying a poison is not an overt act for murder, because it has no direct relation to the
crime.

OVERT
A mixed a poison to the food of B, but for some reasons b threw away the food. Hence,
a is liable for attempted murder.

What is an indeterminate offense?

It is one where the purpose of the offender in performing an act is not certain. Its nature
in relation to its objective is ambiguous.

FRUSTRATED FELONY
Elements:

1. The offender performs all the acts of execution;

2. All the acts performed would produce the felony as a consequence;
3. But the felony is not produce;
4. By reason of causes independent of the will of the perpetrator.

Requisites:

1. That the offender has performed all the acts of execution which would produce
the felony; and
2. That the felony is not produced due to causes independent of the perpetrator’s
will.

CONSUMMATED FELONY
A felony is consummated when all the elements necessary for its execution and
accomplishment are present.

MANNER OF COMMITTING THE CRIME

1. Formal crimes ---- consummated in one instance, no attempt.

There are crimes, like slander and false testimony, which are consummated in
one instant, by single act. These are formal crimes.

In the sale of marijuana and other prohibited drugs, the mere act of selling or
even acting as broker consummates the crime

2. Crimes consummated by mere attempt or proposal or by overt act

Flight to enemy’s country (Art. 121)

In this crime, the mere attempt to flee to an enemy country is a consummated crime.

Corruption of minors (Art. 340)

A mere proposal to the minor to satisfy the lust of another will consummate the offense.

There is no attempted treason, because the overt act in itself consummates the crime

3. Felony by omission
There can be no attempted stage when the felony is by omission, because in this kind
of felony the offender does not execute acts. He omits to perform an act which the
requires him to do.

But killing a child by starving him, although apparently by omission, is in fact by

commission.

4. Crimes requiring the intervention of two persons to commit them are

consummated by mere agreement.
In those crimes, like betting in sport contests and corruption of public offer (Act. 197 and
Art. 212), which require the intervention of two persons to commit them, the same are
mere consummated by agreement.

Cases:
U.S v. BASA, 8 Phil. 89
PEOPLE V. DIEGO QUIN, G.R No. L-42653
U.S v. TE TONG, 26 PHIL. 453

5. Material Crimes --- There are three stages of execution.

Thus, homicide, rape, etc. are not consummated in one or single act. These are
material crimes.

a. Consummated rape--- the accused lay on top of a girl nine years of age for over
15 minutes. The girl testified that there was partial penetration of the male organ
in her private part and she felt intense pain.

Held: entry of the labia or lips of the female organ without rupture of the hymen or
laceration of the vagina is generally held sufficient to warrant conviction of the
accused for consummated crime of rape (PEOPLE V. HERNANDEZ, 49 phil.
980,982).

b. Frustrated rape--- there is no crime of frustrated rape.

However, in the case of People v. Orita, 184 SCRA 114, 115, the supreme court held
that, consummation of rape, perfect penetration is not essential.

c. Attempted rape—the woman was awakened when she felt that accused, was
pulling down her pajamas and panties. However, the woman had escape.
Held: Attempted rape (TIBONG v. PEOPLE, GR. No. 1911000, September 15, 2010)

d. Consummated Homicide-- (PEOPLE v. SAZON, GR No. 89684, September 18,

1990, 189 SCRA 700, 703, 711, 713)

e. Frustrated murder--- (PEOPLE v. Mision, GR No. 63480, February 26, 1991,

194 SCRA 432,445-446)

f. Attempted homicide--- (PEOPLE v. Ramolete, No. L- 28108, March 27, 1974, 56

SCRA 66, 82-83)

Article 7

When light felonies are punishable. Light felonies are punishable only when they
have been consummated, with the exception of those committed against person
or property.

What are light felonies?

Light felonies are those infractions of law for the commission of which the penalty of
arresto menor or fine not exceeding P200, or both, is provided.

The light felonies punishable by the RPC:

1. Slight physical injuries (Art. 266)

2. Theft (Art. 309, pars. 7 and 8)
3. Alteration of boundary marks (Art. 313)
4. Malicious Mischief (Art. 328, par. 3; Art. 329, par. 3)
5. Intriguing against honor (Art. 364)

General Rule

Light felonies are punishable only when they have been consummated.

Exception

Light felonies committed against persons or property, are punishable even if attempted
or frustrated.
Article 8

Conspiracy and proposal to commit felony.

Conspiracy and proposal to commit felony are punishable only in cases in cases
in which the law specially provides a penalty therefor.
A conspiracy exists when two or more persons come to an agreement concerning
the commission of felony and decided to commit it.

There is proposal when the person who has decided to commit a felony proposes
its execution to some other person or persons.

CONSPIRACY IS NOT A CRIME EXCEPT WHEN THE LAW SPECIFICALLY

PROVIDES A PENALTY THEREFOR

Treason (Art. 115)

Rebellion (Art. 136)
Sedition (Art. 141)

GENERAL RULE
Conspiracy and proposal to commit a felony are not punishable.

Reason for the rule

Conspiracy and proposal to commit a crime are only preparatory acts, and the law
regards them as innocent or at least permissible except in rare and exceptional cases.

Requisites of conspiracy

1. That two or more persons came to an agreement;

2. That the agreement concerned the commission of the felony; and
3. That the execution of the felony is decided upon

a. First element--- agreement presupposes meeting of the minds of two or more

persons.

b. Second element--- the agreement must refer to the commission of a crime. It

must be an agreement to act, to effect, to bring about what has already been
conceived and determined.

c. Third element—the conspirators have made up their minds to commit the

crime of treason, rebellion, or sedition.

QUANTUM OF PROOF REQUIRED TO ESTABLISH CONSPIRACY

A conspiracy must be established by positive and conclusive evidence. It must be

shown to exist as clearly and convincingly as the commission of crime itself. Mere
presence of a person at the scene of the crime does not make him a conspirator for
conspiracy transcends companionship.
(People v. Comadre, GR No. 153559, June 8, 2004)

THE REVISED PENAL CODE SPECIALLY PROVIDES A PENALTY FOR MERE

PROPOSAL IN ARTICLES 115 AND 136.
Art. 115
Proposal to commit treason- Penalty- prision correctional and a fine not exceeding
5,000 pesos.

Art. 136
Proposal to commit coup d’etat or insurrection punished by prision mayor in its minimum
period and a fine which shall exceed 8,000 pesos.

The proposal to commit rebellion or insurrection shall be punished by prision

correctional and a fine not exceeding 2,000 pesos.

The proposal to commit rebellion or rebellion or insurrection shall be punished by prision

correctional and fine not exceeding 2,000 pesos. (as amended by R.A No. 6998)

Requisites of proposal

1. That person has decided to commit a felony;

2. That he proposes its execution to some other person or persons

There is no criminal proposal when

1. The person who proposes is not determined to commit the felony

2. There is no decided, concrete and formal proposal
3. It is not the execution of a felony that is proposed

Art. 9

Grave felonies, less grave felonies, and light felonies.

Grave felonies are those to which the law attaches the capital punishment or
penalties which in any of their periods are affective, in accordance with Article 25
of this code.

Less grave felonies are those which the law punishes with penalties which in
their maximum period are correctional, in accordance with the above-mentioned
article.

Light felonies are those infractions of law for the commission of which the
penalty of arresto menor or a fine not exceeding 200 pesos, or both, is provided.

IMPORTANT WORDS AND PHRASES

1. Capital punishment is death penalty

2. Grave felonies are punishable by the following afflictive penalties
a. Reclusion perpetua,
 b. Reclusion temporal,
c. Perpetual or temporary absolute disqualification,
d. Perpetual or temporary special disqualification
3. Penalties which in their maximum period are correctional

The following are correctional penalties:

Prision correctional,
Arresto mayor,
Suspension,
Destierro.

4. Light felonies are punishable by Arresto menor or a fine not exceeding 200
pesos.

Article 10

Offenses not subject to the provisions of this Code.

Offenses which are or in the future may be punishable under special laws are not
subject to the provisions of this Code. This Code shall be supplementary to such
laws, unless the latter should specially provide the contrary.

The two clauses of Article 10.

First clause only restates the elemental rule of statutory construction that special legal
provisions prevail over general one/ Lex specialis derogant generali.

Second clause is the soul of the article. The purpose of the article is embodied in the
provision that the “code shall be supplementary” to special laws, unless the latter should
specifically provide the contrary.
(Landonga v. People, GR No. 141066, February 17, 2005)

IMPORTANT PHRASES

1. “Special laws”
As defined in U.S v. Serapio, 23 Phil. 584, as a penal law which punishes acts
not defined and penalized by the Penal Code.

Special law is a statute enacted by the legislative branch, penal in character,

which is not amendment to the R.P.C.

Revised Penal Code, not suppletory when the penalties under special law are
different from those under the special law are different from those under the
Revised Penal Code.
When the penalties under the special law are different from and are without reference or
relation to those under the RPC, there can be no suppletory effect of the rules.
(PEOPLE v. SIMON, 234 SCRA 576)

Offenses under special laws, not subject to the provisions of this Code relating to
attempted and frustrated crimes.

CASE: ( U.S v. BASA, 8 Phil. 89)

Article 10 is not applicable to punish an accomplice under the special law.

The offense involved is punished by CA No. 466, Section 174. The penalty imposed is
clearly intended only for the person who is found in possession’’ of the prohibited article.
Although by Article 10 of the R.P.C., its provisions may be applied to offenses punished
by special laws in a supplementary manner, the pertinent provisions thereof on
accomplices simply cannot be given effect in the case at bar.

The special law has to fix penalties for attempted and frustrated crime

The special law has to fix a penalty for the attempt and a penalty for the frustration of
the crime defined by it, in order that the crime may be punished in case its commission
reached only the attempted or frustrated stage of execution.

When a special law covers the mere attempt to commit the crime defined by it, the
attempted stage is punishable by the penalty provided by that law.

Mitigating or aggravating circumstances, not applied to the offenses punishable

under special laws.

The plea of guilty as mitigating circumstance under the RPC is not available to offenses
punishable under special laws.

No accessory penalty, unless the special law provides therefor.

People v. Santos, 44 O.G 1289, the CA refused to impose accessory penalty upon the
accused, because Act 3992 does not provide for any.

Where the special law adopted penalties from the Revised Penal Code, the rules
for graduating penalties by degrees or determining the proper period should be
applied.

Although R.A No. 7610 is a special law, the rules in the RPC for graduating penalties by
degrees or determining the proper period should be applied. Thus, where the special
law adopted penalties from the RPC., the indeterminate Sentence Law will apply just as
it would in felonies.

CASE: PEOPLE V. SIMON GR NO. 93028

Supplementary means supplying what is lacking; additional.

Indemnity and subsidiary imprisonment in the Revised Penal Code applied to

violation of Motor Vehicle Law.
Case; People v. Moreno

Subsidiary Imprisonment for violation of B.P. Blg. 22

Case: Abarquez v. Court of Appeals and People, G.R No. 148557

Suppletory Application of the Revised Penal Code

SUBSIDIARY PENALTY
Cases violation to Act No. 3992 (Revised Motor Vehicle Law)
People v. Moreno, 60 phil. 712

CIVIL LIABILITY
Cases violation to act no. 3992
Copiaco v. Luzon Brokerage, GR no. 46135

RULES ON SERVICE OF SENTENCE

Violations of RA No. 6425 known as Dangerous Drug Act of 1972

DEFINITION ON PRINCIPALS, ACCOMPLICES AND ACCESSORIES

Accomplices and accessories under RA No. 8042, otherwise know as the Migrant
Workers and Overseas Filipinos Act of 1995.

PRINCIPLE OF CONSPIRACY
B.P Blg. 22

--------------------------------xxxxx

Article 12, Paragraph 3, of the Revised Penal Code, applied to minor over nine but
less than 15 years old who violated the law

CASE; People v. Navarro