Chapter Three PRESUMPTION

CIRCUMSTANCES WHICH MITIGATE • Only reduces penalty, but does not change the nature of
the crime —
CRIMINAL LIABILITY
---------------------------------------------------------
MITIGATING CIRCUMSTANCES CLASSES OF MITIGATING CIRCUMSTANCES
- Ordinary mitigating
- those enumerated in subsections 1 to 10 of Article 13
Article 13. Mitigating circumstances. - The following are
mitigating circumstances; - Privilege mitigating

1. Those mentioned in the preceding chapter, when all the Article 68. Penalty to be imposed upon a person under
requisites necessary to justify or to exempt from criminal eighteen years of age. - When the offender is a minor under
liability in the respective cases are not attendant.
eighteen years and his case is one coming under the
2. That the offender is under eighteen year of age or over provisions of the paragraphs next to the last of Article 80 of
seventy years. In the case of the minor, he shall be proceeded this Code, the following rules shall be observed:
against in accordance with the provisions of Art. 80.
1. Upon a person under fifteen but over nine years of age,
3. That the offender had no intention to commit so grave a
wrong as that committed. who is not exempted from liability by reason of the court
having declared that he acted with discernment, a
4. That sufficient provocation or threat on the part of the discretionary penalty shall be imposed, but always lower by
offended party immediately preceded the act.
two degrees at least than that prescribed by law for the crime
5. That the act was committed in the immediate vindication of a which he committed.(INOEPRATIVE?)
grave offense to the one committing the felony (delito), his
spouse, ascendants, or relatives by affinity within the same 2. Upon a person over fifteen and under eighteen years of
degrees.
age the penalty next lower than that prescribed by law shall
6. That of having acted upon an impulse so powerful as be imposed, but always in the proper period.
naturally to have produced passion or obfuscation.

7. That the offender had voluntarily surrendered himself to a

Article 69. Penalty to be imposed when the crime committed
person in authority or his agents, or that he had voluntarily
confessed his guilt before the court prior to the presentation of is not wholly excusable. - A penalty lower by one or two
the evidence for the prosecution; degrees than that prescribed by law shall be imposed if the
deed is not wholly excusable by reason of the lack of some of
8. That the offender is deaf and dumb, blind or otherwise
the conditions required to justify the same or to exempt from
suffering some physical defect which thus restricts his means
of action, defense, or communications with his fellow beings. criminal liability in the several cases mentioned in Article 11
and 12, provided that the majority of such conditions be
9. Such illness of the offender as would diminish the exercise present. The courts shall impose the penalty in the period
of the will-power of the offender without however depriving
which may be deemed proper, in view of the number and
him of the consciousness of his acts.
nature of the conditions of exemption present or lacking.
10. And, finally, any other circumstances of a similar nature
and analogous to those above mentioned.
Article 64. Rules for the application of penalties which contain
three periods. - In cases in which the penalties prescribed by
law contain three periods, whether it be a single divisible
--------------------------------------------------------- penalty or composed of three different penalties, each one
DEFINITIONS of which forms a period in accordance with the provisions of
- Mitigating Circumstances Articles 76 and 77, the court shall observe for the application
- are those which, if present in the commission of the of the penalty the following rules, according to whether there
crime, do not entirely free the actor from criminal are or are not mitigating or aggravating circumstances:
liability, but serve only to reduce penalty.
- which make the act voluntary or negligent XXXXXXX

BASIS / REASON 5. When there are two or more mitigating circumstances and
no aggravating circumstances are present, the court shall
• Diminution of either: impose the penalty next lower to that prescribed by law, in
- freedom of aciton the period that it may deem applicable, according to the
- intelligence number and nature of such circumstances.
- intent
- Privilege mitigating (special cases)
• Lesser perversity of the offender
Article 268. Slight illegal detention. - The penalty of reclusion
temporal shall be imposed upon any private individual who
• __

shall commit the crimes described in the next preceding article 64

article without the attendance of any of circumstances
enumerated therein.
EXAMPLE: 4 MITIGATING. BUT 1 AGGRAVATING, STILL ORDINARY.
NOT PRIVILEGE? NOTE
The same penalty shall be incurred by anyone who shall
furnish the place for the perpetration of the crime.

If the offender shall voluntarily release the person so

kidnapped or detained within three days from the
commencement of the detention, without having attained
the purpose intended, and before the institution of criminal
proceedings against him, the penalty shall be prision mayor
in its minimum and medium periods and a fine not exceeding
seven hundred pesos.

Article 333. Who are guilty of adultery. - Adultery is committed

by any married woman who shall have sexual intercourse with
a man not her husband and by the man who has carnal
knowledge of her knowing her to be married, even if the Mitigating Circumstances Which Are Personal To
marriage be subsequently declared void.
The Offenders
Adultery shall be punished by prision correccional in its
medium and maximum periods. — The following circumstances shall only
serve to mitigate the liability of the
If the person guilty of adultery committed this offense while
principals, accomplices, and accessories
being abandoned without justification by the offended
spouse, the penalty next lower in degree than that provided
as to whom such circumstances are
in the next preceding paragraph shall be imposed. attendant:
1. Mitigating circumstances which arise
---------------------------------------------------------
from the moral attributes of the
ordinary privileged offender.
mitigating mitigating 2. Mitigating circumstances which arise
circumstance circumstance
from the private relations of the
As to offset May be offset by Cannot be offset offender with the offended party.
any aggravating 3. Mitigating circumstances which arise
circumstance from any personal cause.
As to effect If not offset by
aggravating
circumstance, Circumstances Which Are Neither Exempting Or
Mitigating:
reduces the
penalty provided Reduces the
by law to its penalty by one to 1. Mistake in the blow.
mininum period two degrees than 2. Mistake in the identity of the victim.
provided the that provided by 3. Entrapment of the accused.
penalty is divisible. law for the crime
4. The accused is over 18 years of age.
as to applicability those enumerated applicable only to 5. Performance of righteous action (i.e.
in subsections 1 to particular crimes although the accused saved the lives of a
10 of Article 13 thousand, if he kills a single human being,
he is criminally liable People v. Victoria).
68 + 69 priviliege

2 or more ordinary
and no
aggravating, it
becomes
privilege.

2
• __

2. Any person who, in order to avoid an evil or injury, does an act

which causes damage to another
- RULE: It is justifying only if ALL REQUISITES are present.
- RULE: If any of the last two requisites is absent, there is
only mitigating circumstance.

3. “Any person who acts in the fulfillment of a duty or in the

lawful exercise of a right or office.”
- RULE: People v. Oanis: Appellants are declared guilty of
murder with mitigating circumstance. SC considered
one of two requisites as constituting the majority.
- RULE: People v. Oanis: There is, however, a mitigating
circumstance of weight consisting in the incomplete
justifying circumstance defined in article 11, No. 5, of
the Revised Penal Code. According to such legal
provision, a person incurs no criminal liability when he
acts in the fulfillment of a duty or in the lawful exercise
of a right or office. There are two requisites in order that
the circumstance may be taken as a justifying one: ( a)
that the offender acted in the performance of a duty or
in the lawful exercise of a right; and ( b) that the injury
or offense committed be the necessary consequence
of the due performance of such duty or the lawful
exercise of such right or office. In the instance case,
only the first requisite is present - appellants have
acted in the performance of a duty. The second
requisite is wanting for the crime by them committed is
not the necessary consequence of a due performance
Article 13. Mitigating circumstances. - The following are of their duty.
mitigating circumstances;
4. “Any person who acts in obedience to an order issued by a
1. Those mentioned in the preceding chapter, when all the superior for some lawful purpose.”
requisites necessary to justify or to exempt from criminal liability in - RULE: People v. Bernal (G.R. No. L-4409. July 14, 1952):
the respective cases are not attendant. MITIGATING CIRCUMSTANCE OF HAVING ACTED IN
OBEDIENCE TO AN ORDER ISSUED BY A SUPERIOR
---------------------------------------------------------
DESPITE . — R, having fired at the victim following his
“Those mentioned in the preceding chapter, when sergeant’s order, which was obviously illegal and
all the requisites necessary to justify or to exempt unwarranted, is liable for the killing, although he is
entitled to the mitigating circumstance of having acted
from criminal liability in the respective cases are
"in obedience to an order issued by a superior."
not attendant.” - REQUISITES:
- REQUISITE 1: LAWFUL PURPOSES;
- Circumstances of justification or exemption which may give - REQUISITE 2: ACT IN OBEDIENCE. Only requisite
place to mitigation, because not all requisites necessary to two were present. SC considered it as
justify/exempt the act, are not attendant mitigating.

INCOMPLETE: JUSTIFICATION INCOMPLETE: EXEMPTION

1. (mental condition of a person is indivisible, thus it cannot fall
under mitigating)
1. Incomplete self-defense, defense of relatives and strangers

2. MINORITY ABOVE 15 BUT BELOW 18 YEARS OF AGE (RA 9344)

- SELF DEFENSE
- RULE: Age of mitigated responsibility
- DEFENSE OF RELATIVES
- 15 and 1 day to 18, the offender acting with
- DEFENSE OF STRANGERS discernment;
3. “Any person who, while performing a lawful act with due
RULE: Unlawful aggression should always be present to be care, causes an injury by mere accident without fault or
appreciated as mitigating. intention of causing it.”
- Accident
RULE: It is an ordinary mitigating circumstance if only unlawful - RULE: If the “accident” is attended with fault (culpa) (cf.
aggression is present. fourth element of accident) and without due care
(second element), then the act becomes punishable
RULE: When two of the three requisites are present, it is a under art. 365.
privileged mitigating circumstance. - Article 365. Imprudence and negligence. -
Any person who, by reckless imprudence,

3
• __

shall commit any act which, had it been

intentional, would constitute a grave felony,
shall suffer the penalty of arresto mayor in its BASIS / REASON
maximum period to prision correccional in its • Diminution of intelligence
medium period; if it would have constituted a
less grave felony, the penalty of arresto
mayor in its minimum and medium periods ---------------------------------------------------------
shall be imposed; if it would have constituted
a light felony, the penalty of arresto menor in
MITIGATING RULES
- AGE RULE: LOWERING THE PENALTY
its maximum period shall be imposed.
- mitigating because the penalty is lower than - The age of the offender at the time of the commission
of the crime is considered in lowering the penalty.
that which punishes intentional felony
- If the “accident” is intended (dolo) (cf. fourth element) - AGE RULE: SUSPENDING THE SENTENCE
- As for suspending the sentence, it is the age of the
and unlawful (first element), then the act is covered by
art. 4, par. 1 of the RPC – intentional felony. offender at the time the sentence is to be
promulgated.
- no mitigating circumstance at all
4. “Any person who acts under the impulse of an uncontrollable - AGE RULE: penalties and sentence
- 15 and below considered as an exempting
fear of an equal or greater injury.”
- REQUISITES: circumstance.
- no penalty, no criminal liability
- 1. That the threat which causes the fear is of
an evil greater than or at least equal to, that - Above 15 but under 18
- Exempting: acted without discernment.
which he is required to commit
- 2. That it promises an evil of such gravity and - Mitigating: acted with discernment, lowering
the penalty by one degree.
imminence that the ordinary man would have
succumbed to it - The sentence is suspended until the minor
turns 21 years old.
- RULE: If only one of these requisites is present, there is
only a mitigating circumstance. - When over 70
- Appreciated as mitigating circumstance.
---------------------------------------------------------
TAKE NOTE OF: ARTICLE 69 v. Article 13(1)
Article 69. Penalty to be imposed when the crime committed is not ---------------------------------------------------------
wholly excusable. - A penalty lower by one or two degrees than that
DIVERSION
prescribed by law shall be imposed if the deed is not wholly excusable
by reason of the lack of some of the conditions required to justify the - DEFINITIONS
same or to exempt from criminal liability in the several cases - (i) "Diversion" refers to an alternative, child-appropriate
mentioned in Article 11 and 12, provided that the majority of such process of determining the responsibility and treatment
conditions be present. The courts shall impose the penalty in the period of a child in conflict with the law on the basis of his/her
which may be deemed proper, in view of the number and nature of social, cultural, economic, psychological or
the conditions of exemption present or lacking.
educational background without resorting to formal
--------------------------------------------------------- court proceedings.
- (j) "Diversion Program" refers to the program that the
Article 13. Mitigating circumstances. - The following are child in conflict with the law is required to undergo after
mitigating circumstances; he/she is found responsible for an offense without
resorting to formal court proceedings.
2. That the offender is under eighteen year of age or over seventy
years. In the case of the minor, he shall be proceeded against in - SYSTEM OF DIVERSION: NOT MORE THAN 6 YEARS: [mediation,
accordance with the provisions of Art. 80. family conferencing and conciliation]
- (a) Where the imposable penalty for the crime
committee is not more than six (6) years imprisonment,
the law enforcement officer or Punong Barangay with
Art. 68. Penalty to be imposed upon a person under eighteen
the assistance of the local social welfare and
years of age. – When the offender is a minor under eighteen
development officer or other members of the LCPC
years and his case is one coming under the provisions of the
shall conduct mediation, family conferencing and
paragraphs next to the last of Article 80 of this Code, the
conciliation and, where appropriate, adopt indigenous
following rules shall be observed: 1. Upon a person under
modes of conflict resolution in accordance with the
fifteen but over nine years of age, who is not exempted from
best interest of the child with a view to accomplishing
liability by reason of the court having declared that he acted
the objectives of restorative justice and the formulation
with discernment, a discretionary penalty shall be imposed,
of a diversion program. The child and his/her family
but always lower by two degrees at least than that prescribed
shall be present in these activities.
by law for the crime which he committed. 2. Upon a person
over fifteen and under eighteen years of age the penalty
- SYSTEM OF DIVERSION: NOT MORE THAN 6 YEARS: VICTIMLESS
next lower than that prescribed by law shall be imposed, but
CRIMES [diversion program]
always in the proper period
- (b) In victimless crimes where the imposable penalty is
not more than six (6) years imprisonment, the local
social welfare and development officer shall meet with
the child and his/her parents or guardians for the

4
• __

development of the appropriate diversion and the prosecutor or judge concerned for the conduct of
rehabilitation program, in coordination with the BCPC; inquest and/or preliminary investigation to determine
whether or not the child should remain under custody
- SYSTEM OF DIVERSION: MORE THAN 6 YEARS: [court action] and correspondingly charged in court.
- (c) Where the imposable penalty for the crime - The document transmitting said records shall
committed exceeds six (6) years imprisonment, display the word "CHILD" in bold letters.
diversion measures may be resorted to only by the
court.
--------------------------------------------------------- - RESPONSIBILITIES OF THE CHILD IN CONFLICT WITH THE LAW
- The child shall present himself/herself to the competent
--------------------------------------------------------- authorities that imposed the diversion program at least
CONTRACT OF DIVERSION once a month for reporting and evaluation of the
- VOLUNTARY ADMISSION: If during the conferencing, mediation effectiveness of the program.
or conciliation, the child voluntarily admits the commission of the
act, a diversion program shall be developed when appropriate - Failure to comply with the terms and conditions of the
and desirable as determined under Section 30. contract of diversion, as certified by the local social
- Such admission shall not be used against the child in welfare and development officer, shall give the
any subsequent judicial, quasi-judicial or administrative offended party the option to institute the appropriate
proceedings. legal action.

- ACCEPTANCE: The diversion program shall be effective and - The period of prescription of the offense shall be
binding if accepted by the parties concerned. suspended during the effectivity of the diversion
- The acceptance shall be in writing and signed by the program,
parties concerned and the appropriate authorities. - but not exceeding a period of two (2) years.
---------------------------------------------------------
- DIVERSION PROGRAM GUIDELINES
---------------------------------------------------------
- WHO: The local social welfare and development officer
shall supervise the implementation of the diversion OVER 70 YEARS OF AGE RULES
program. - Article 47. In what cases the death penalty shall not be
- WHEN: The diversion proceedings shall be completed imposed. - The death penalty shall be imposed in all cases in
within forty-five (45) days. which it must be imposed under existing laws, except in the
- WHEN: The period of prescription of the offense shall be following cases: 1. When the guilty person be more than seventy
suspended until the completion of the diversion years of age. [shall not be imposed]
proceedings
- but not to exceed forty-five (45) days. - Article 83. Suspension of the execution of the death sentence. -
- WHERE: Diversion may be conducted at the The death sentence shall not be inflicted upon a woman within
Katarungang Pambarangay, the police investigation the three years next following the date of the sentence or while
or the inquest or preliminary investigation stage and at she is pregnant, nor upon any person over seventy years of age.
all 1evels and phases of the proceedings including In this last case, the death sentence shall be commuted to the
judicial level. penalty of reclusion perpetua with the accessory penalties
provided in Article 40. [commuted to reclusion perpetua]
- Duty of the Punong Barangay When There is No Diversion. ---------------------------------------------------------
- If the offense does not fall under Section 23(a) and (b),
or if the child, his/her parents or guardian does not
consent to a diversion, the Punong Barangay handling
the case shall, within three (3) days from determination
of the absence of jurisdiction over the case or
termination of the diversion proceedings, as the case
may be, forward the records of the case of the child to
the law enforcement officer, prosecutor or the
appropriate court, as the case may be.
- Upon the issuance of the corresponding document,
certifying to the fact that no agreement has been
reached by the parties, the case shall be filed
according to the regular process.

- Duty of the Law Enforcement Officer When There is No

Diversion.
- - If the offense does not fall under Section 23(a) and
(b), or if the child, his/her parents or guardian does not
consent to a diversion, the Women and Children
Protection Desk of the PNP, or other law enforcement ---------------------------------------------------------
officer handling the case of the child under custody, to

5
• __

offense, such as when the accused helped his victim to

Article 13. Mitigating circumstances. - The following are
mitigating circumstances; secure medical treatment
- People v. Ural, G.R. No. L-30801 (1974): The intention, as
3. That the offender had no intention to commit so grave a wrong as an internal act, is judged not only by the proportion of
that committed.
the means employed by him to the evil produced by
his act, but also by the fact that the blow was or was
not aimed at a vital part of the body.

BASIS / REASON - WHEN NOT APPLICABLE:

• Diminution of intent - Murder results from presence of qualifying
circumstances (premeditation and treachery) based
--------------------------------------------------------- upon the manner of committing the crime, not in the
state of mind of the accused
No Intention to Commit So Grave A Wrong
- People v. Sales, G.R. No. 177218 (2011): However, there
was error in appreciating the mitigating circumstance
(Praeter Intentionem) of lack of intention to commit so grave a wrong.
(the injurious result is greater than that intended) Appellant adopted means to ensure the success of the
savage battering of his sons. He tied their wrists to a
coconut tree to prevent their escape while they were
- Praeter Intentionem : When applicable battered with a stick to inflict as much pain as possible.
- Only applicable to offense resulting in death, physical Noemar suffered injuries in his face, head and legs that
injuries, or material harm (including property damage). immediately caused his death. "The mitigating
- Applied in malversation of public funds circumstance of lack of intent to commit so grave a
- Lack of intention as mitigating in robbery with wrong as that actually perpetrated cannot be
homicide, applied in People v. Abuega, the robber appreciated where the acts employed by the
was not aware that the victim was behind the door. accused were reasonably sufficient to produce and
- Article 257. Unintentional abortion. - The penalty of did actually produce the death of the victim."
prision correccional in its minimum and medium period - There being no mitigating or aggravating
shall be imposed upon any person who shall cause an circumstance present in the commission of
abortion by violence, but unintentionally. the crime, the penalty shall be in its medium
period. The RTC was thus correct in imposing
- Praeter Intentionem : When NOT applicable upon appellant the penalty of twenty (20)
- a. Crime results from criminal negligence or culpa days of arresto menor in its medium period.
- there is no intent in culpa ---------------------------------------------------------
- b. The offender employed brute force
- c. The victim does not die as a result of the assault in
cases of crimes against persons
- only when the victim dies, does it apply
- d. Murder qualified by treachery
- e. It is not applicable to defamation or slander.
- f. Lack of intent to kill is not mitigating in physical injuries

- TIME OF INTENTION
- intention of the offender at the moment when he is
committing/executing the crime
- NOT his intention during the planning stage

- EVIDENCES OF INTENTION:
- Intention being an internal state must be judged by
external acts
- PROPORTION OF MEANS EMPLOYED: There must be a
notable disproportion between the means employed
to execute the criminal act and its consequences.
[People v. Amit, G.R. No. L-29066 (1970)]
- The intention, as an internal act, is judged not only by
the proportion of the means employed by him to the
evil produced by his act, but also by:
- a. The weapon used
- b. The part of the body injured
- c. The injury inflicted
- d. The manner it is inflicted
- Intention can also be inferred from the subsequent acts
of the accused immediately after committing the

6
• __

a wrong and must accordingly be proportionate to its gravity.

[People v. Nabora, G.R. No. L-48101 (1941)]

• Depends upon:
▪ Social standing of person provoked
▪ Act constituting provocation
▪ Time and place where the provocation is made

b. It must originate from the offended party

c. The provocation is immediate to the act, or the commission

of the crime

- • When there is an interval of time between the

provocation and the commission of the crime, the
perpetrator has time to regain his reason [People v
Pagal, G.R. No. L-32040 (1977)]
---------------------------------------------------------
Article 13. Mitigating circumstances. - The following are
mitigating circumstances;

4. That sufficient provocation or threat on the part of the offended

party immediately preceded the act.

BASIS / REASON Sufficient provocation Provocation as a

• Diminution of intelligence and intent
as a requisite of mitigating
--------------------------------------------------------- incomplete selfdefense circumstance
PROVOCATION OR THREAT (ON THE PART OF THE
It pertains to its absence on It pertains to its presence on
OFFENDED PARTY)
the part of the person the part of the offended
- Provocation
defending himself. [People v. party.
- Any unjust or improper conduct or act of the offended
CA, G.R. No. 103613 (2001)]
party capable of exciting, inciting, or irritating anyone.

there must be ABSENCE there must be PRESENCE

- Threat
- must not be offensive and positively strong, otherwise
part of the person defending part of the offended party
may result to unlawful aggression justifying self-defense.
himself.
- vague threats are insufficient
- vague: “if you follow us, beware” result: justification of self result: mitigated
- clear: “if you follow us, we will kill you” defense

Provocation (par 4) and passion/obfuscation (par 6),

considered together

Romera v. People, G.R. No. 151978 (2004): Provocation and

passion or obfuscation are not two separate mitigating PROVOCATION VINDICATION
circumstances. It is well settled that if these two circumstances
are based on the same facts, they should be treated It is made directly only to the The grave offense may be
together as one mitigating circumstance. It is clear that both person committing the committed against the
circumstances arose from the same set of facts. Hence, they felony. offender’s relatives
should not be treated as two separate mitigating mentioned by law
circumstances.
The offense need not be a The offended party must
grave offense. have done a grave offense to
REQUISITES OF PROVOCATION the offender or his relatives

a. Provocation must be sufficient The provocation or threat The grave offense may be
must immediately precede proximate, which admits of
• “Sufficient” means adequate to excite a person to commit the act an interval of time

7
• __

It is a mere spite against the It concerns the honor of the - A lapse of time is allowed between vindication and
one giving the provocation person. the doing of a grave offense
or threat - The Spanish text uses “proxima.” Although the grave
offense which engendered the perturbation of mind
was not so immediate, it was held that the influence
thereof, by reason of its gravity, lasted until the
moment the crime was committed. [People v.
Parana, G.R. No. L-45373 (1937)]
- However, this circumstance cannot be considered
where sufficient time has elapsed for the accused to
regain his composure. [People v Ventura, G.R. No.
148145- 46 (2004)]

Vindication (para 5) and passion/obfuscation (para 6),

considered together

Vindication of a grave offense and passion or obfuscation

cannot be counted separately and independently. People v.
Torpio, G.R. No. 138984 (2004): The mitigating circumstance of
sufficient provocation cannot be considered apart from the
circumstance of vindication of a grave offense. These two
circumstances arose from one and the same incident, i.e., the
attack on the appellant by the accused, so that they should
be considered as only one mitigating circumstance

---------------------------------------------------------

---------------------------------------------------------
Article 13. Mitigating circumstances. - The following are
mitigating circumstances;

5. That the act was committed in the immediate vindication of a

grave offense to the one committing the felony (delito), his spouse,
ascendants, or relatives by affinity within the same degrees.

---------------------------------------------------------
VINDICATION OF A GRAVE OFFENSE ---------------------------------------------------------
- GRAVITY
- Gravity of personal offense Article 13. Mitigating circumstances. - The following are
- The question whether or not a certain mitigating circumstances;
personal offense is grave must be decided by
6. That of having acted upon an impulse so powerful as naturally to
the court, having in mind: [TimPlaS] have produced passion or obfuscation.
- a. the Time when the insult was made;
- b. the Place; and
- c. the Social standing of the person

REQUISITES FOR VINDICATION OF SELF/KINS

REASON
• diminution of the the conditions of voluntariness —

a. There be a grave offense done to the one committing the ---------------------------------------------------------

felony, his spouse, ascendants, descendants, legitimate,
natural or adopted brothers or sisters, or relatives by affinity Passion or Obfuscation (Arrebato Y Obcecacion)
within the same degree - DEFINITION
b. Felony is committed in vindication of such grave offense - PEOPLE V. OLIVERIO G.R. No. 211159"[T]here is passional

8
• __

obfuscation when the crime was committed due to an

involves physical force.
uncontrollable burst of passion provoked by prior unjust
or improper acts, or due to a legitimate stimulus so
Passion/obfuscation comes Irresistible force comes from a
powerful as to overcome reason."
from the offender himself third person.

- ob·fus·ca·tion /ˌäbfəˈskāSH(ə)n/ the action of making

Must arise from lawful Irresistible force is unlawful.
something obscure, unclear, or unintelligible.
sentiments to be mitigating
- RULE: Cannot coexist with treachery
- Passion cannot co-exist with treachery because in
passion, the offender loses his control and reason while
REQUISITES
in treachery the means employed are consciously
adopted. One who loses his reason and self-control
a. That there be an act, both unlawful and sufficient, to
could not deliberately employ a particular means,
produce such condition of mind
method or form of attack in the execution of the crime.
[People v. Germina, G.R. No. 120881 (1998)]
• Circumstance is not applicable when the act is
committed in a spirit of:
- RULE: Provocation and obfuscation when arising from one and
a. Lawlessness
the same should be treated as only one mitigating circumstance
- People v. Bates, G.R. No. 139907 (2003): To
consider passion and obfuscation as a
- RULE: Vindication and obfuscation cannot co-exist
mitigating circumstance, such must arise
- RULE: Evident premeditation cannot co-exist with obfuscation
from lawful sentiments and not from a spirit
of lawlessness or revenge or from anger
- RULE: Vindication and obfuscation cannot be considered when
and resentment.
the person attacked is not the one who gave cause therefor
b. Revenge
• If the cause of loss of self-control is trivial and slight,
- RULE: Obfuscation is compatible with Praeter Intentionem
obfuscation is not mitigating.

- RULE: Believe of the defendant may be allowed for mitigating

b. The said act was not far removed from the commission of
via passion or obfuscation
the crime by a considerable length of time

Passion/Obfuscation Provocation • The perpetrator must not have been able to recover his
normal equanimity
Passion/obfuscation is Provocation comes from the
produced by an impulse injured party not the attacker
which may be caused by • Period that has lapse is long enough for pause and
provocation of the injured . . . .reflection
party
• 24 hours between, several hours between, or even half
The offense which engenders Must immediately precede . . . . an hour between, the Court will decide.
the perturbation of mind the commission of the crime.
need not be immediate.
c. Act causing obfuscation was committed by the victim
It is only required that the himself
influence thereof lasts until
the moment the crime is
committed Article 247. Death or physical injuries inflicted under exceptional
circumstances. - Any legally married person who having surprised his
In both, the effect is the loss of reason and self-control on the spouse in the act of committing sexual intercourse with another
part of the offender. person, shall kill any of them or both of them in the act or immediately
thereafter, or shall inflict upon them any serious physical injury, shall
suffer the penalty of destierro.

If he shall inflict upon them physical injuries of any other kind, he shall
be exempt from punishment.

These rules shall be applicable, under the same circumstances, to

parents with respect to their daughters under eighteen years of age,
and their seducer, while the daughters are living with their parents.
Passion/Obfuscation Irresistible force
Any person who shall promote or facilitate the prostitution of his wife or
Mitigating Circumstance Exempting circumstance daughter, or shall otherwise have consented to the infidelity of the
other spouse shall not be entitled to the benefits of this article.
Cannot give rise to physical Physical force is a condition
force because it does not sine qua non.

9
• __

by direct provision of law, or by election or

--------------------------------------------------------- by competent authority, is charged with
the maintenance of public order and the
Article 13. Mitigating circumstances. - The following are
mitigating circumstances; protection and security of life and property
and any person who comes to the aid of
7. That the offender had voluntarily surrendered himself to a person persons in authority. [Art. 152]
in authority or his agents, or that he had voluntarily confessed his c. The surrender was voluntary
guilt before the court prior to the presentation of the evidence for
the prosecution; [VOLUNTARY AND SPONTANEOUS]] - If the only reason for the supposed surrender is to
ensure the safety of the accused whose arrest is
inevitable, the surrender is not spontaneous and
hence not voluntary. [People v. Pinca, G.R. No.

REASON -
129256 (1999)]
The surrender must be unconditional
• Lesser perversity of the offender — - Merely requesting a policeman to accompany the
o Act of repentance and respect of the law accused to the police headquarters is not voluntary
surrender. [People v. Flores, G.R. No. 137497 (1994)]
o Indicates a moral disposition favorable to the ---------------------------------------------------------
accused’s reform
VOLUNTARY
- VOLUNTARY
--------------------------------------------------------- - Surrender is voluntary if spontaneous showing the
RULES interest of the accused to surrender unconditionally to
- Two mitigating circumstance in the paragraph the authorities, either because
- 1 voluntarily surrendered himself to a person in authority or - (1) he acknowledges his guilt or
his agents, - (2) wishes to save them the trouble and
- 2 voluntarily confessed his guilt before the court prior to the expenses that would be necessarily incurred
presentation of the evidence for the prosecution; in his search and capture. [Andrada v.
- they should have an effect as two independent People, G.R. No. 135222 (2005)].
circumstance - If none of these two reasons impelled the
- When they mitigate the penalty, when both are accused to surrender, the surrender is not
present, they should produce this effect to a greater spontaneous and therefore not voluntary.
extent. [People v. Laurel, G.R. No. 120353 (1998)].
---------------------------------------------------------
VOLUNTARILY SURRENDERED HIMSELF TO A PERSON - SPONTANEOUS
- Spontaneous - idea of an inner impulse, acting without
IN AUTHORITY OR HIS AGENTS external stimulus.
- RULE: The accused must actually surrender his own person to
- There is spontaneity even if the surrender is induced by
the authorities, admitting complicity of the crime.
fear of retaliation by the victim’s relatives
- When the offender imposed a condition or acted with
Requisites external stimulus, his surrender is not voluntary.
- A surrender is not voluntary when forced by
a. Offender has not been actually arrested circumstances.
- EXCEPTION: Where a person, after committing the
offense and having opportunity to escape, - RULE: Whether or not a warrant of arrest had been issued is
voluntarily waited for the agents of the authorities immaterial and irrelevant. The RPC does not distinguish among
and voluntarily gave up, he is entitled to the benefit the various moments when the surrender may occur. [Reyes].
of the circumstance, even if he was placed under - The fact that a warrant of arrest had already been
arrest by a policeman then and there. [People v. issued is no bar to the consideration of that
Parana, G.R. No. L-45373 (1937)] circumstance because the law does not require that
- EXCEPTION: Where the arrest of the offender was the surrender be prior the arrest. [People v. Yecla, G.R.
after his voluntary surrender or after his doing an act Nos. 46526-27(1939)]. What is important is that the
amounting to a voluntary surrender to the agent of surrender be spontaneous.
a person in authority. [People v. Babiera, G.R. No.
28871 (1928); People v. Parana, supra.] - RULE: Even if accused did not go into hiding and even
accompanied the police to the scene of the crime, such act is
b. Offender surrendered himself to a person in authority or to not voluntary surrender if he did not submit himself or admit
the latter’s agent complicity to the crime.

- PERSON IN AUTHORITY - RULE: The surrender must be by reason of the commission of the
- Person in authority – one directly vested crime for which defendant is prosecuted
with jurisdiction. [Art. 152] - Thus, if the defendant surrendered as a Huk to take
- Agent of person in authority – person, who, advantage of the amnesty, but the crime for which he
was prosecuted was distinct and separate from

10
• __

rebellion, his surrender is not mitigating (People v because it was made outside the court. [People v.
Semañada). Pardo, G.R. No. L-562 (1947)]
- WHY? So the confession is final and sworn, because
- RULE: Surrender through an intermediary there are felons who are forced to confess in police
- Surrender of an accused through his father who acted stations. In the court lessen the possibility of coercion.
as mediator was appreciated to be mitigating (People
v. De la Cruz). - LEGAL EFFECT:
- While the plea of guilty is mitigating, it is also
considered an admission of all material facts alleged in
the information, including aggravating circumstances.
The admission covers both the crime and its attendant
circumstances qualifying and/or aggravating. [People
v Jose, G.R. No. L-28232 (1971)]

- RULE: However, it is also an established rule that a plea of guilty

cannot be held to include treachery and evident premeditation
where the evidence adduced does not adequately disclose its
--------------------------------------------------------- existence. [People v Gravino, G.R. No. L-31327-29 (1983)]

VOLUNTARILY CONFESSED HIS GUILT BEFORE THE

Requisites
COURT PRIOR TO THE PRESENTATION OF THE
EVIDENCE FOR THE PROSECUTION a. Offender spontaneously confessed his guilt
b. Confession was made in open court, that is, before the
- DEADLINE: competent court that is to try the case
- When it must be made: c. Made prior to the presentation of evidence for the
o The plea must be made before trial begins. prosecution d. Confession of guilt was to the offense charged
- WHEN STILL MITIGATING [usually during in the information
arraignment/pretrial]
- The change of plea should be made at the
first opportunity when his arraignment was first
PLEA TO A LESSER OFFENSE
set.
Sec. 2, Rule 116, ROC – At arraignment, the accused, with the
a. Withdrawal of plea of not guilty
consent of the offended party and prosecutor, may be
before presentation of evidence by
allowed by the trial court to plead guilty to a lesser offense
prosecution is still mitigating. All that
which is necessarily included in the offense charged. After
the law requires is voluntary plea of
arraignment but before trial, the accused may still be allowed
guilty prior to the presentation of the
to plead guilty to said lesser offense after withdrawing his plea
evidence by the prosecution.
of not guilty. No amendment of the complaint or information
b. A plea of guilty on an amended
is necessary.
information will be considered as an
attenuating (reduce the force,
effect, or value of) circumstance if
no evidence was presented in Plea of guilty is not mitigating in culpable felonies and in
connection with the charges made crimes punished by special laws:
therein. [People v. Ortiz]
- Plea of guilty to amended information o Article 365, paragraph 5 of Revised Penal Code: “in
- Plea of not guilty at the preliminary the imposition of these penalties, the courts shall
investigation is no plea at all. Plea made in exercise their sound discretion, without regard to the
the court of competent jurisdiction is the one rules
recognized.
prescribed in Article 64.”
- WHEN NO LONGER MITIGATING o When there is a mitigating circumstance without any
a. A conditional plea of guilty is not aggravating circumstance, the penalty to be
mitigating. imposed is the minimum period of the divisible
b. Plea of guilt on appeal is not mitigating. penalty.
o When the crime is punished by a special law, the
- Plea of guilty to lesser offense than that court shall also exercise its sound discretion
charged, not mitigating To be voluntary, the o Article 64 is applicable only when the penalty has 3
plea of guilty must be to the offense charged. periods.
If voluntary confession is conditional or
qualified, it is not mitigating.

- NOT EXTRA-JUDICIAL CONFESSION

- Extrajudicial confession The extrajudicial confession
made by the accused is not voluntary confession

11
• __

Searching Inquiry

Guidelines:
Ascertain from the accused himself:

(a) how he was brought into the custody of the law;

(b) whether he had the assistance of a competent counsel
during the custodial and preliminary investigations and
(c) under what conditions he was detained and interrogated
during the investigations

Ask defense counsel a series of questions as to whether he

had conferred with and completely explained to the accused
the meaning and consequences of a plea of guilty
o Elicit information about the personality
profile of the accused
o Inform the accused of the exact length of
imprisonment or nature of penalty under
the law and the certainty that he will serve
such sentence.

o Inquire if the accused knows the crime with

which he is charged and to fully explain to
him the elements of the crime which is the
basis of his indictment
o Use language that is known and
understood by the accused
o Trial judge must satisfy himself that the
accused in pleading guilty, is truly guilty.

---------------------------------------------------------

---------------------------------------------------------
SEARCHING INQUIRY

WHAT IS THE MEANING OF THE DUTY OF THE JUDGE TO

CONDUCT A SEARCHING INQUIRY?
In all cases, the judge must convince himself:
1. That the accused is entering the plea of guilty
voluntarily and intelligently
2. That he is truly guilty
3. That there exists a rational basis for a finding of
guilt based on his testimony

> In addition, the judge must inform the accused of

the exact length of imprisonment and the certainty that he
will serve it at the national penitentiary or a penal
colony. The judge must dispel any false notion that the
accused may have that he will get off lightly because of
his plea of guilty

12
• __

mitigating circumstances;

8. That the offender is deaf and dumb, blind or otherwise suffering

some physical defect which thus restricts his means of action,
defense, or communications with his fellow beings.

REASON
• DIMINUTION OF THAT ELEMENT OF VOLUNTARINESS —
- Considers the fact that one suffering from physical
defect does not have complete freedom of action,
and therefore there is a diminution of that element
of voluntariness.
- limited his means of action, defense or
communication, nor affect his free will.

---------------------------------------------------------
- RULE: The physical defect must have a relation to the
commission of the crime.
- related: Physical injuries
- If a person is deaf and dumb and has been
slandered, he cannot talk so instead he got a
piece of wood and struck the fellow on the
head. The crime committed was physical
injuries. The Supreme Court held that being a
deaf and dumb is mitigating because the
only way is to use his force because he
cannot strike back in any other way
- not related: E.G. Estafa
- Where the offender is deaf and dumb and he
misappropriated property entrusted to him,
the crime committed was estafa. The fact that
he was deaf and dumb is not mitigating since
that does not bear any relation to the crime
committed.

- RULE: Such defect restricts or limits his means to act, defend

himself, or communicate with others.

- RULE: Here, there is no distinction between educated and

uneducated deafmute or blind persons.

People v. Doepante, G.R. No. 102772 (1996):

The appellant was convicted of murder. He claims that the

mitigating circumstance of physical defect should be
appreciated in his case because he has no left arm.

Held: The fact that appellant suffers from a physical defect, a

severed left hand, does not mean that he should
automatically be credited with the mitigating circumstance.
In order for this condition to be appreciated, it must be shown
that such physical defect limited him to such an extent that
he did not have complete freedom of action, consequently
resulting in diminution of the element of voluntariness.

Such cannot be appreciated in the case at bar where the

appellant’s physical condition clearly did not limit his means
of action, defense or communication, nor affect his free will.
---------------------------------------------------------
In fact, despite his handicap, appellant nevertheless
Article 13. Mitigating circumstances. - The following are managed to attack, overcome and fatally stab his victim.

13
• __

o One who is feebleminded warrants the

finding in his favor of the mitigating
circumstance.
— People v. Antonio
o One suffering from schizo-affective disorder
or psychosis, which diminishes the exercise
---------------------------------------------------------
of his will-power but does not deprive him
Article 13. Mitigating circumstances. - The following are of the consciousness of his acts, may be
mitigating circumstances; credited with this mitigating circumstance.

9. Such illness of the offender as would diminish the exercise of the

will-power of the offender without however depriving him of the
consciousness of his acts.

REASON ---------------------------------------------------------
• The circumstance in paragraph 9 of Article 13 is mitigating Article 13. Mitigating circumstances. - The following are
because there is a diminution of intelligence and intent. — mitigating circumstances;

--------------------------------------------------------- 10. And, finally, any other circumstances of a similar nature and
analogous to those above mentioned.
ILNESS
- DEFINITIONS
- It is said that this paragraph refers only to diseases of
pathological state that trouble the conscience or will. If
a psychological disease does not lead someone to REASON
experience insanity (i.e., complete deprivation of • Analogous Mitigating Circumstances —
intelligence) during the commission of a crime, it may
be appreciated as mitigating provided there is ---------------------------------------------------------
diminution of will power. Analogous Mitigating Circumstances
- The foregoing legal provision refers only to diseases of - DEFINITION
pathological state that trouble the conscience or will. - This paragraph authorizes the court to consider in favor
of the accused “any other circumstance of a similar
Requisites nature and analogous to those mentioned” in par. 1 –
a. The illness of the offender must diminish the exercise of 9.
willpower
b. Such illness should not deprive the offender of - EXAMPLES
consciousness of his acts a. Offender leading the law enforcers to the place where he
buried the instrument of the crime has been considered as
equivalent to voluntary surrender
Examples Where Illness Of The Offender Considered Mitigating
b. Stealing driven to do so out of extreme poverty is considered
— as analogous to incomplete state of necessity
— People v. Balneg
o The mistaken belief of the accused that the c. Over 60 years old with failing sight, similar to over 70 years of
killing of a witch was for the public good age mentioned in par. 2. [People v. Reantillo, G.R. No L-45685
may be considered a mitigating (1938)]
circumstance for the reason that those
who have obsession (that witches are to d. Voluntary restitution of stolen goods similar to voluntary
be killed) does not have real control over surrender [People v. Luntao, 50 O.G. 1182]
his will. e. Impulse of jealous feelings, similar to passion and obfuscation.
[People v. Libria, G.R. No. L6585 (1954)]
— People v. Amit
o Although being mentally sane, the f. Extreme poverty and necessity, similar to incomplete
appellant is suffering from a mild behavior justification based on state of necessity. [People v. Macbul, G.R.
disorder, which the court regarded as a No. L-48976 (1943)]
mitigating circumstance.
— People v. Carpenter g. Testifying for the prosecution, without previous discharge,
o One suffering from acute neurosis, which analogous to a plea of guilty. [People v. Navasca, G.R. No. L-
diminished exercise of will power, is entitled 29107 (1977)]
to this mitigating circumstance.
— People v. Formigones h, Canta v. People, G.R. No. 140937 (2001): Canta stole a cow
but alleges that he mistook the cow for his missing cow. He

14
• __

made a calf suckle the cow he found and when it did, Canta
thought that the cow he found was really his. However, he
falsified a document describing the said cow’s cowlicks and
markings. After getting caught, he surrendered the cow to the
custody of the authorities in the municipal hall. Held: Canta’s act
of voluntarily taking the cow to the municipal hall to place it in
the custody of authorities (to save them the time and effort of
having to recover the cow) was an analogous circumstance to
voluntary surrender
---------------------------------------------------------

15