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Aggravating Circumstances


ART.14

Par. 1. That advantage be taken by the offender of his public 
           position

        Requisites:
        1. Offender is public officer
        2. Public officer must use the influence, prestige, or
           ascendancy which his office gives him as means to
           realize criminal purpose

        It is not considered as an aggravating circumstance where
        taking advantage of official position is made by law an
        integral element of the crime or inherent in the offense,

        Ex: malversation (Art. 217), falsification of a document
        committed by public officers (Art. 171).

        When the public officer did not take advantage of
        the influence of his position, this aggravating
        circumstance is not present

        NOTE : Taking advantage of a public position is
        also inherent in the case of accessories under
        Art. 19, par. 3 (harboring, concealing, or assisting
        in the escape of the principal of the crime), and in
        crimes committed by public officers (Arts. 204-245).

Par. 2. That the crime be committed in contempt of or with 
        insult to public authorities

        Requisites:
        1. That the public authority is engaged in the exercise
           of his functions.
        2. That he who is thus engaged in the exercise of said
           functions is not the person against whom the crime
           is committed.
        3. The offender knows him to be a public authority.
        4. His presence has not prevented the offender from
           committing the criminal act.

        PERSON IN AUTHORITY – public authority, or person who is
        directly vested with jurisdiction and has the power to
        govern and execute the laws
        Ex:
        1. Governor
        2. Mayor
        3. Barangay captain/ chairman
        4. Councilors
        5. Government agents
        6. Chief of Police

        NOTE: A teacher or professor of a public or recognized
        private school is not a “public authority within the
        contemplation of this paragraph. While he is a person
        in authority under Art. 152, that status is only for
        purposes of Art. 148 (direct assault) and Art.
        152 (resistance and disobedience)

           The crime should not be committed against the public
           authority (otherwise it will constitute direct assault
           under Art.148) This is NOT applicable when committed
           in the presence of a mere agent.

           AGENT – subordinate public officer charged w/ the
           maintenance of public order and protection and
           security of life and property
              Ex: barrio vice lieutenant, barrio councilman

Par. 3. That the act be committed:
       (1) with insult or in disregard of the respect due the 
            offended party on account of his
           (a)rank, 
           (b) age, or 
           (c) sex or
       (2) that it be committed in the dwelling of the offended 
            party, if the latter has not given provocation

        Rules regarding par 3(1):
        1. These circumstances shall only be considered as one
           aggravating circumstance.
        2. Rank, age, sex may be taken into account only in
           crimes against persons or honor, they cannot be
           invoked in crimes against property.
        3. It must be shown that in the commission of the crime
           the offender deliberately intended to offend or
           insult the sex, age and rank of the offended party.

        RANK – The designation or title of distinction used to
        fix the relative position of the offended party in
        reference to others (There must be a difference in the
        social condition of the offender and the offended party).

        AGE – may refer to old age or the tender age of the victim.

        SEX– refers to the female sex, not to the male sex.

        The AC of disregard of rank, age, or sex is not
        applicable in the following cases:
        1. When the offender acted with passion and obfuscation.
        2. When there exists a relationship between the
           offended party and the offender.
        3. When the condition of being a woman is indispensable
           in the commission of the crime.
           (Ex: in parricide, abduction, seduction and rape)

        People vs. Lapaz, March 31, 1989
        Disregard of sex and age are not absorbed in treachery
        because treachery refers to the manner of the commission
        of the crime, while disregard of sex and age pertains
        to the relationship of the victim.

        DWELLING – must be a building or structure exclusively
        used for rest and comfort (combination of house and store
        not included), may be temporary as in the case of guests
        in a house or bedspacers. It includes dependencies, the
        foot of the staircase and the enclosure under the house

        NOTES:
        The aggravating circumstance of dwelling requires that
        the crime be wholly or partly committed therein or in
        any integral part thereof.

        Dwelling does not mean the permanent residence or
        domicile of the offended party or that he must be the
        owner thereof. He must, however, be actually living or
        dwelling therein even for a temporary duration or purpose.

        It is not necessary that the accused should have actually
        entered the dwelling of the victim to commit the offense;
        it is enough that the victim was attacked inside his own
        house, although the assailant may have devised means to
        perpetrate the assault from without.

        What aggravates the commission of the crime in one’s dwelling:
        1. The abuse of confidence which the offended party reposed
           in the offender by opening the door to him; or
        2. The violation of the sanctity of the home by trespassing
           therein with violence or against the will of the owner.

        Meaning of provocation in the aggravating circumstance
        of dwelling:
        The provocation must be:
        1. Given by the owner of the dwelling,
        2. Sufficient, and
        3. Immediate to the commission of the crime.

        NOTE: If all these conditions are present, the offended
        party is deemed to have given the provocation, and the
        fact that the crime is committed in the dwelling of the
        offended party is NOT an aggravating circumstance.
            REASON: When it is the offended party who has provoked
            the incident, he loses his right to the respect and
            consideration due him in his own house

        Dwelling is not aggravating in the following cases:
        1. When both the offender and the offended party are
           occupants of the same house, and this is true even
           if offender is a servant in the house.
              exception: In case of adultery in the conjugal
                         dwelling, the same is aggravating.
                         However, if the paramour also dwells
                         in the conjugal dwelling, the applicable
                         aggravating circumstance is abuse of
                         confidence.

        2. When robbery is committed by the use of force upon
           things, dwelling is not aggravating because it is
           inherent.

              However, dwelling is aggravating in robbery with
              violence against or intimidation of persons because
              this class of robbery can be committed without the
              necessity of trespassing the sanctity of the
              offended party’s house.

        3. In the crime needed to see this picture. dwelling,
           it is inherent or included by law in defining the
           crime.

        4. When the owner of the dwelling gave sufficient and
           immediate provocation.

              There must exist a close relation between the
              provocation made by the victim and the
              commission of the crime by the accused.

        5. The victim is not a dweller of the house.

Par. 4. That the act be committed with:
        (1) abuse of confidence or
        (2) obvious ungratefulness

        There are two aggravating circumstances present under
        par.4 which must be independently appreciated if present
        in the same case

        While one may be related to the other in the factual
        situation in the case, they cannot be lumped together.
        Abuse of confidence requires a special confidential
        relationship between the offender and the victim,
        while this is not required for there to be obvious
        ungratefulness

        Requisites Of Abuse Of Confidence:
        1. That the offended party had trusted the offender.
        2. That the offender abused such trust by committing a
           crime against the offended party.
        3. That the abuse of confidence facilitated the
           commission of the crime.

        NOTE: Abuse of confidence is inherent in malversation
        (Art. 217), qualified theft (Art. 310), estafa by
        conversion or misappropriation (Art. 315), and qualified
        seduction (Art. 337).

        Requisites of obvious ungratefulness:
        1. That the offended party had trusted the offender;
        2. That the offender abused such trust by committing a
           crime against the offended party.
        3. That the act be committed with obvious ungratefulness.

        NOTE: The ungratefulness contemplated by par. 4 must be
        such clear and manifest ingratitude on the part of
        the accused.

Par. 5. That the crime be committed in the palace of the Chief 
        Executive, or in his presence, or where public 
        authorities are engaged in the discharge of their duties, 
        or in a place dedicated to religious worship.

        Actual performance of duties is not necessary when crime
        is committed in the palace or in the presence of the
        Chief Executive

        Requisites Regarding Public Authorities:
        1. crime occurred in the public office
        2. public authorities are actually performing their
           public duties

        Requisites (Place Dedicated To Religious Worship):
        1. The crime occurred in a place dedicated to the
           worship of God regardless of religion
        2. The offender must have decided to commit the crime
           when he entered the place of worship

        Except for the third which requires that official
        functions are being performed at the time of the
        commission of the crime, the other places mentioned are
        aggravating per se even if no official duties or acts
        of religious worship are being conducted there.

        Cemeteries, however respectable they may be, are not
        considered as place dedicated to the worship of God.

Par. 6. That the crime be committed
        (1) in the nighttime, or
        (2) in an uninhabited place, or
        (3) by a band,
            whenever such circumstance may facilitate
            the commission of the offense

        NOTE: When present in the same case and their
        element are distinctly palpable and can subsist
        independently, they shall be considered separately.

        When nighttime, uninhabited place or band aggravating:
        1. When it facilitated the commission of the crime; or
        2. When especially sought for by the offender to insure
           the commission of the crime or for the purpose of
           impunity; or
        3. When the offender took advantage thereof for the
           purpose of impunity

        NIGHTTIME (obscuridad) – that period of darkness
        beginning at the end of dusk and ending at dawn.

        Commission of the crime must begin and be accomplished
        in the nighttime. When the place of the crime is
        illuminated by light, nighttime is not aggravating.
        It is not considered aggravating when the crime
        began at daytime.

        Nighttime is not especially sought for when the notion
        to commit the crime was conceived of shortly before
        commission or when crime was committed at night upon a
        casual encounter

        However, nighttime need not be specifically sought for
        when
            (1) it facilitated the commission of the offense, or
            (2) the offender took advantage of the same to
                commit the crime

        A bare statement that crime was committed at night is
        insufficient. The information must allege that nighttime
        was sought for or taken advantage of, or that it
        facilitated the crime

        GENERAL RULE: Nighttime is absorbed in treachery.

        EXCEPTION: Where both the treacherous mode of attack and
        nocturnity were deliberately decided upon in the same case,
        they can be considered separately if such circumstances
        have different factual bases. Thus:

           In People vs. Berdida, et. al. (June 30, 1966),
           nighttime was considered since it was purposely sought,
           and treachery was further appreciated because the
           victim’s hands and arms were tied together before he
           was beaten up by the accused.

           In People vs. Ong, et. al. (Jan. 30, 1975), there was
           treachery as the victim was stabbed while lying face
           up and defenseless, and nighttime was considered upon
           proof that it facilitated the commission of the offense
           and was taken advantage of by the accused.

        UNINHABITED PLACE (despoblado) – one where there are no
        houses at all, a place at a considerable distance from
        town, where the houses are scattered at a great distance
        from each other

           Solitude must be sought to better attain the criminal
           purpose

           What should be considered here is whether in the
           place of the commission of the offense, there was
           a reasonable possibility of the victim receiving
           some help.

        BAND (en cuadrilla) – whenever there are more than 3 armed
        malefactors that shall have acted together in the commission
        of an offense

        NOT E: There must be four or more armed men

           If one of the four-armed malefactors is a principal
           by inducement, they do not form a band because
           it is undoubtedly connoted that he had no direct
           participation.

           “By a band” is aggravating in crimes against property or
           against persons or in the crime of illegal detention or
           treason but does not apply to crimes against chastity

           “By a band” is inherent in brigandage

           This aggravating circumstance is absorbed in the
           circumstance of abuse of superior strength

Par. 7. That the crime be committed on the occasion of a 
           conflagration, shipwreck, earthquake, epidemic or other 
           calamity or misfortune.

        Requisites:
        1. The crime was committed when there was a calamity or
           misfortune
        2. The offender took advantage of the state of confusion
           or chaotic condition from such misfortune

           If the offended was PROVOKED by the offended party
           during the calamity/misfortune, this aggravating
           circumstance may not be taken into consideration.

Par. 8.That the crime be committed with the aid of
       (1) armed men or
       (2) persons who insure or afford impunity

        Requisites:
        1. That armed men or persons took part in the commission
           of the crime, directly or indirectly.
        2. That the accused availed himself of their aid
           or relied upon them when the crime was committed

        NOTE: This aggravating circumstance requires that the armed
        men are accomplices who take part in a minor capacity
        directly or indirectly, and not when they were merely
        present at the crime scene. Neither should they constitute
        a band, for then the proper aggravating circumstance
        would be cuadrilla.

        When This Aggravating Circumstance Shall Not Be Considered:
        1. When both the attacking party and the party attacked
           were equally armed.
        2. When the accused as well as those who cooperated with
           him in the commission of the crime acted under the same
           plan and for the same purpose.
        3. When the others were only “casually present” and the
           offender did not avail himself of any of their aid or
           when he did not knowingly count upon their assistance
           in the commission of the crime

        If there are four armed men, aid of armed men is absorbed
        in employment of a band. If there are three armed men or
        less, aid of armed men may be the aggravating circumstance.

        “Aid of armed men” includes “armed women.”

Par. 9. That the accused is a recidivist

        RECIDIVIST – one who at the time of his trial for one
        crime, shall have been previously convicted by final
        judgment of another crime embraced in the same title
        of the RPC.

           Requisites:
           1. That the offender is on trial for an offense;
           2. That he was previously convicted by final judgment
              of another crime;
           3. That both the first and the second offenses are
              embraced in the same title of the Code;
           4. That the offender is convicted of the new offense.

        MEANING OF “at the time of his trial for one crime.”
        It is employed in its general sense, including the
        rendering of the judgment. It is meant to include
        everything that is done in the course of the trial, from
        arraignment until after sentence is announced by the
        judge in open court.

           What is controlling is the TIME OF THE TRIAL,
           not the time of the commission of the offense.

        GENERAL RULE: To prove recidivism, it is necessary to
        allege the same in the information and to attach thereto
        certified copy of the sentences rendered against the accused.

           Exception: If the accused does not object and when he
           admits in his confession and on the witness stand.

           Recidivism must be taken into account no matter
           how many years have intervened between the
           first and second felonies.

           Amnesty extinguishes the penalty and its effects.
           However, pardon does not obliterate the fact that
           the accused was a recidivist. Thus, even if the
           accused was granted a pardon for the first
           offense but he commits another felony embraced
           in the same title of the Code, the first conviction
           is still counted to make him a recidivist

           Being an ordinary aggravating circumstance,
           recidivism affects only the periods of a penalty,
           except in prostitution and vagrancy (Art. 202) and
           gambling (PD 1602) wherein recidivism increases
           the penalties by degrees. No other generic
           aggravating circumstance produces this effect

           In recidivism it is sufficient that the succeeding
           offense be committed after the commission of the
           preceding offense provided that at the time of his
           trial for the second offense, the accused had
           already been convicted of the first offense.

           If both offenses were committed on the same date,
           they shall be considered as only one, hence, they
           cannot be separately counted in order to constitute
           recidivism. Also, judgments of convicted handed down
           on the same day shall be considered as only one
           conviction.
         
           REASON: Because the Code requires that to be
           considered as a separate convictions, at the time of
           his trial for one crime the accused shall have
           been previously convicted by final judgment of the other.

Par. 10. That the offender has been previously punished for an 
            offense to which the law attaches an equal or greater 
            penalty or for two or more crimes to which it attaches a
            lighter penalty.

         Requisites Of Reiteracion Or Habituality:
         1. That the accused is on trial for an offense;
         2. That he previously served sentence for another offense
            to which the law attaches an
            a) Equal or
            b) Greater penalty, or
            c) For two or more crimes to which it attaches a lighter
               penalty than that for the new offense; and
         3. That he is convicted of the new offense

         Habituality vs Recidivism
         1. As To The First offense
            Habituality - It is necessary that the offender shall
            shall have served out his sentence for the first
            offense.
            Recidivism - It is enough that a final judgment  has
            been rendered in the first offense.
         2. As to the kind of offenses involved
            Habituality - The previous and subsequent offenses must
            not be embraced in the same title of the code.
            Recidivism - Requires that the offenses be included
            in the same title of the code.

         THE FOUR FORMS OF REPETITION ARE:
         1. Recidivism (par. 9, Art. 14) – Where a person, on
            separate occasions, is convicted of two offenses
            embraced in the same title in the RPC. This is a
            generic aggravating circumstance.
         2. Reiteracion or Habituality (par. 10, Art. 14) –
            Where the offender has been previously punished for
            an offense to which the law attaches an equal or
            greater penalty or for two crimes to which it attaches
            a lighter penalty. This is a generic aggravating
            circumstance.
         3. Multi-recidivism or Habitual delinquency (Art.
            62, par, 5) – Where a person within a period of ten
            years from the date of his release or last conviction of
            the crimes of serious or less serious physical injuries,
            robbery, theft, estafa or falsification, is found guilty of
            the said crimes a third time or oftener. This is an
            extraordinary aggravating circumstance.
         4. Quasi-recidivism (Art. 160) – Where a person
            commits felony before beginning to serve or while
            serving sentence on a previous conviction for a
            felony. This is a special aggravating circumstance.

            Since reiteracion provides that the accused has duly
            served the sentence for his previous conviction/s, or
            is legally considered to have done so, quasi-recidivism
            cannot at the same  time  constitute  reiteracion,
            hence  this  aggravating circumstance cannot apply
            to a  quasi-recidivist.

            If the same set of facts constitutes recidivism and
            reiteracion, the liability of the accused should be
            aggravated by recidivism which can easily be proven.

Par. 11. That the crime be committed in consideration of price, 
         reward or promise.
     
         Requisites:
         1. There are at least 2 principals:
               - The principal by inducement (one who offers)
               - The principal by direct participation (accepts)
         2. The price, reward, or promise should be previous to
            and in consideration of the commission of the
            criminal act

         NOTE: The circumstance is applicable to both principals.
         It affects the person who received the price / reward as
         well as the person who gave it.

         If without previous promise it was given voluntarily after
         the crime had been committed asan expression of his      
         appreciation for the sympathy and aid shown by the other
         accused, it should not be taken into consideration for the
         purpose of increasing the penalty.

         The price, reward or promise need not consist of or refer
         to material things or that the same were actually delivered,
         it being sufficient that the offer made by the principal
         by inducement be accepted by the principal by direct
         participation before the commission of the offense.

         The inducement must be the primary consideration for the
         commission of the crime.

Par. 12. That the crime be committed by means of inundation, fire,
             explosion, stranding of a vessel or intentional damage thereto,
             derailment of a locomotive, or by use of any artifice involving 
             great waste and ruin 

   The circumstances under this paragraph will only be considered
   as aggravating if and when they are used by  the offender as a
   means to accomplish a criminal purpose

   When another aggravating circumstance already qualifies the
   crime, any of these aggravating circumstances shall be
   considered as generic aggravating circumstance only

   When used as a means to kill another person, the crime is
   qualified to murder.

Par. 13. That the act be committed with evident premeditation

   Requisites:
   The prosecution must prove –
   1. The time when the offender determined to commit the crime;
   2. An act manifestly indicating that the culprit has clung to
      his determination; and
   3. A sufficient lapse of time between the determination and
      execution, to allow him to reflect upon the consequences
      of his act and to allow his conscience to overcome the
      resolution of his will.

   Essence of premeditation: The execution of the criminal act
   must be preceded by cool thought and reflection upon the
   resolution to carry out the criminal intent during the space
   of time sufficient to arrive at a calm judgment.

   To establish evident premeditation, it must be shown that there
   was a period sufficient to afford full opportunity for
   meditation and reflection, a time adequate to allow the
   conscience to overcome the resolution of the will, as well as
   outward acts showing the intent to kill. It must be shown that
   the offender had sufficient time to reflect upon the
   consequences of his act but still persisted in his determination
   to commit the crime. (PEOPLE vs. SILVA, et. al., GR No.
   140871, August 8, 2002)

   Premeditation is absorbed by reward or promise.

   When the victim is different from that intended, premeditation
   is not aggravating. However, if the offender premeditated on
   the killing of any person, it is proper to consider against
   the offender the aggravating circumstance of premeditation,
   because whoever is killed by him is contemplated in his
   premeditation.

Par. 14. That (1) craft, 
                       (2) fraud, or 
                       (3) disguise be employed.

   Requisite
   The offender must have actually used craft, fraud, or disguise
   to facilitate the commission of the crime.

   CRAFT (astucia) – involved the use of intellectual trickery or
   cunning on the part of the accused. A chicanery resorted to
   by the accused to aid in the execution of his criminal design.
   It is employed as a scheme in the execution of the crime

   FRAUD (fraude) – insidious words or machinations used to induce
   the victim to act in a manner which would enable the offender
   to carry out his design

   Craft and fraud may be absorbed in treachery ifthey have been
   deliberately adopted as the means, methods or forms for the
   treacherous strategy, or they may co-exist independently where
   they are adopted for a different purpose in the commission
   of the crime.

      Ex:
      In People vs. San Pedro (Jan. 22, 1980),
      where the accused pretended to hire the driver in order to
      get his vehicle, it was held that there was craft directed
      to the theft of the vehicle, separate from the means
      subsequently used to treacherously kill the defenseless
      driver.

      In People vs. Masilang (July 11, 1986)
      there was also craft where after hitching a ride, the accused
      requested the driver to take them to a place to visit somebody,
      when in fact they had already planned to kill the driver.

   DISGUISE (disfraz) – resorting to any device to conceal identity

   The test of disguise is whether the device or contrivance
   resorted to by the offender was intended to or did make
   identification more difficult, such as the use of a mask or
   false hair or beard.

   The use of an assumed name in the publication of a libel
   constitutes disguise.

Par. 15. That (1) advantage be taken of superior strength, or 
                        (2) means be employed to weaken the defense.

   Par. 15 contemplates two aggravating circumstances, either of
   which qualifies a killing to murder.

   MEANING OF “advantage be taken”:To deliberately use excessive
   force that is out of proportion to the means for self-defense
   available to the person attacked. (PEOPLE vs. LOBRIGAS, et.
   al., GR No. 147649, December 17, 2002)

   No Advantage Of Superior Strength In The Following:
   1. One who attacks another with passion and obfuscation does
      not take advantage of his superior strength.
   2. When a quarrel arose unexpectedly and the fatal blow was
      struck at a time when the aggressor and his victim were
      engaged against each other as man to man.

   TEST for abuse of superior strength: the relative strength of
   the offender and his victim and whether or not he took
   advantage of his greater strength.

   When there are several offenders participating in the crime,
   they must ALL be principals by direct participation and their
   attack against the victim must be concerted and intended
   to be so.

   Abuse of superior strength is inherent in the crime of
   parricide where the husband kills the wife. It is generally
   accepted that the husband is physically stronger than the wife.

   Abuse of superior strength is also present when the offender
   uses a weapon which is out of proportion to the defense
   available to the offended party.

   NOTE: Abuse of superior strength absorbs cuadrilla (“band”).

   MEANING OF “Means employed to weaken defense” - the offender
   employs means that materially weaken the resisting power of
   the offended party.

      Ex:
      1. Where one, struggling with another, suddenly throws a
         cloak over the head of his opponent and while in this
         situation he wounds or kills him.
      2. One who, while fighting with another, suddenly casts sand
         or dirt upon the latter eyes and then wounds or kills him.
      3. When the offender, who had the intention to kill the
         victim, made the deceased intoxicated, thereby materially
         weakening the latter’s resisting power.

   NOTE: This circumstance is applicable only to  crimes against
   persons, and sometimes against person and property, such as
   robbery with physical injuries or homicide.

Par. 16. That the act be committed with treachery (alevosia)

   TREACHERY – when the offender commits any of the crimes against
   the person, employing means, methods or forms in the execution
   thereof which tend directly and specially to insure its
   execution without risk to himself arising from the defense
   which the offended party might make.

   Requisites:
   1. That at the time of the attack, the victim was not in a
      position to defend himself; and
   2. That the offender consciously adopted the particular means,
      method or form of attack employed by him.

   TEST: It is not only the relative position of the parties but,
   more specifically, whether or not the victim was forewarned or
   afforded the opportunity to make a defense or to ward off
   the attack.

   Rules Regarding Treachery:
   1. Applicable only to crimes against persons.
   2. Means, methods or forms need not insure accomplishment of crime.
   3. The mode of attack must be consciously adopted.

   Treachery is taken into account even if the crime against the
   person is complexed with another felony involving a different
   classification in the Code. Accordingly, in the special complex
   crime of robbery with homicide, treachery but can be
   appreciated insofar as the killing is concerned.

   The suddenness of attack in itself does not constitute treachery,
   even if the purpose was to kill, so long as the decision was
   made all of a sudden and the victim’s helpless position was
   accidental.

   Treachery applies in the killing of a child even if the manner
   of attack is not shown.

   Treachery must be convincing evidence proved by clear and

   Treachery is considered against all the offenders when there
   is conspiracy.

   WHEN MUST TREACHERY BE PRESENT:
   1. When the aggression is continuous, treachery must be present
      in the beginning of the assault. (PEOPLE vs. MANALAD, GR
      No. 128593, August 14, 2002)

      Thus, even if the deceased was shot while he was lying wounded
      on the ground, it appearing that the firing of the shot was
      a mere continuation of the assault in which the deceased was
      wounded, with no appreciable time intervening between the
      delivery of the blows and the firing of the shot, it cannot
      be said that the crime was attended by treachery.

   2. When the assault was not continuous, in that there was
      interruption, it is sufficient that treachery was present
      at the moment the fatal blow was given.

         Hence, even though in the inception of the aggression
         which ended in the death of the deceased, treachery
         was not present, if there was a break in the continuity of
         the aggression and at the time of the fatal wound was
         inflicted on the deceased he was defenseless, the
         circumstance of treachery must be taken into account.

   Treachery Should Be Considered Even If:
   1. The victim was not predetermined but there was a generic
      intent to treacherously kill any first two persons belonging
      to a class. (The same rule obtains for evident premeditation).
   2. There was aberratio ictus and the bullet hit a person different
      from that intended. (The rule is different in evident
      premeditation).
   3. There was error in personae, hence the victim was not the
      one intended by the accused. (A different rule is applied in
      evident premeditation).

   REASON FOR THE RULE: When there is treachery, it is impossible
   for either the intended victim or the actual victim to defend
   himself against the aggression.

   TREACHERY ABSORBS:
   1. Craft
   2. Abuse of superior strength
   3. Employing means to weaken the defense
   4. Cuadrilla (“band”)
   5. Aid of armed men
   6. Nighttime

Par. 17. That means be employed or circumstances brought about 
              which add ignominy to the natural effects of the act

   IGNOMINY – is a circumstance pertaining to the moral order,
   which adds disgrace and obloquy to the material injury caused
   by the crime.
 
   MEANING OF “which add ignominy to the natural effects thereof”
   The means employed or the circumstances brought about must tend
   to make the effects of the crime more humiliating to victim or
   to put the offended party to shame, or add to his moral
   suffering. Thus it is incorrect to appreciate ignominy where
   the victim was already dead when his body was dismembered, for
   such act may not be considered to have added to the victim’s
   moral suffering or humiliation. (People vs. Carmina,
   G.R. No. 81404, January 28, 1991)

   Applicable to crimes against chastity, less serious physical
   injuries, light or grave coercion, and murder.

Par. 18. That the crime be committed after an unlawful entry.

   UNLAWFUL ENTRY - when an entrance is effected by a way not
   intended for the purpose.

   NOTE: Unlawful entry must be a means to effect entrance and
    not for escape.

   REASON FOR AGGRAVATION: One who acts, not respecting the
   walls erected by men to guard their property and provide for
   their personal safety, shows a greater perversity, a greater
   audacity; hence, the law punishes him with more severity.

Par. 19. That as a means to the commission of a crime, a wall, 
               roof, floor, door, or window be broken.

   Applicable only if such acts were done by the offender to
   effect ENTRANCE. If the wall, etc., is broken in order to get
   out of the place, it is not an aggravating circumstance.

   It is NOT necessary that the offender should have entered the
   building Therefore, If the offender broke a window to enable
   himself to reach a purse with money on the table near that
   window, which he took while his body was outside of the building,
   the crime of theft was attended by this aggravating circumstance.

   NOTE: Breaking in is lawful in the following instances:
   1. An officer, in order to make an arrest, may break open a door
      or window of any building in which the person to be arrested
      is or is reasonably believed to be;
   2. An officer, if refused admittance, may break open any door
      or window to execute the search warrant or liberate himself,
   3. Replevin, Section 4, Rule 60 of the Rules of Court

Par. 20. That the crime be committed
         (1) with the aid of persons under fifteen (15) years of age, or
         (2) by means of motor vehicles, airships, or other similar means.

   TWO DIFFERENT CIRCUMSTANCES GROUPED IN THIS PARAGRAPH:
   1. With the aid of persons under fifteen years of age:

         Intends to repress, so far as possible, the frequent
         practice resorted to by professional criminals to avail
         themselves of minors taking advantage of their
         irresponsibility.
 
   2. By means of motor vehicles, airships, or other similar means:

         Intended to counteract the great facilities found by
         modern criminals in said means to commit crime and flee
         and abscond once the same is committed.

         Use of motor vehicle is aggravating where the accused
         purposely and deliberately used the motor vehicle in
         going to the place of the crime, in carrying away the
         effects thereof, and in facilitating their escape.

   MEANING OF “or other similar means” Should be understood
   as referring to motorized vehicles or other efficient means
   of transportation similar to automobile or airplane.

Par. 21. That the wrong done in the commission of the crime be 
             deliberately augmented by causing other wrong not 
             necessary for its commission

   CRUELTY – there is cruelty when the culprit enjoys and delights
   in making his victim suffer slowly and gradually, causing
   unnecessary physical pain in the consummation of the
   criminal act.

      Requisites:
      1. That the injury caused be deliberately increased by
         causing other wrong;
      2. That the other wrong be unnecessary for the execution of
         the purpose of the offender.

      Cruelty is not inherent in crimes against persons.

      In order for it to be appreciated, there must be positive
      proof that the wounds found on the body of the victim were
      inflicted while he was still alive in order unnecessarily
      to prolong physical suffering.

      Cruelty cannot be presumed

      If the victim was already dead when the acts of mutilation
      were being performed, this would also qualify the killing
      to murder due to outraging of his corpse.

      Ignominy involves moral suffering. Cruelty refers to
      physical suffering.

   Unlike mitigating circumstances (par. 10, Art. 13), there is
   NO provision for aggravating circumstances of a similar or
   analogous character.


     








     














































 






















     





























 







































 






















     





























 












































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Bigwas

I'm Bigwas, It is just an Alias. I have a degree in Criminology. I'm a blogger who loves to write about anything that cross my mind. I hope you learn something from my blog.

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