Aggravating Circumstances

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

NOTE: 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


1994 Bar Exam Question (Aggravating;Nighttime;Band)

At about 9:30 in the evening, while Dino and Raffy were walking along Padre Faura Street, Manila, Johnny hit them with a rock injuring Dino at the back. Raffy approached Dino, but suddenly, Bobby, Steve, Danny, and Nonoy surrounded the duo. Then Bobby stabbed Dino. Steve, Danny, Nonoy, and Johnny kept on hitting Dino and Raffy with rocks. As a result, Dino died. Bobby, Steve, Danny, Nonoy, and Johnny were charged with homicide.

Can the court appreciate the aggravating circumstances of nighttime and band?

No, nighttime can not be appreciated as an aggravating circumstance because there is no indication that the offenders deliberately sought the cover of darkness to facilitate the commission of the crime or that they took advantage of nighttime.(People vs. De los Reyes, 203 SCRA 707).

Besides, judicial notice can be taken of the fact that Padre Faura Street is well lighted.

However, Band should be considered as the crime was committed by more than three armed malefactors. In a recent Supreme Court Decision, stones or rocks are considered deadly weapons.


1996 Bar Examination (Aggravating Circumstances)

Jose,Domingo,Manolo, and Fernando, armed with bolos, at about one o'clock in the morning, robbed a house at a desolate place where Danilo, his wife, and three daughters were living. While the four were in the process of ransacking Danilo's house, Fernando, noticing that one of Danilo's daughters was trying to get away, ran after her and finally caught up with her in a thicket somewhat distant from the house. Fernando, before bringing back the daughter to the house, raped her first. Thereafter, the four carted away the belongings of Danilo and his family.

a. What crime did Jose,Domingo,Manolo, and Fernando commit? Explain.

b. Suppose, after the robbery, the four took turns in raping the three daughters of Danilo inside the latter's house, but before they left, they killed the whole family to prevent identification, what crime did the four commit? Explain.

c. Under the facts of the case, what aggravating circumstances maybe appreciated against the four? Explain.

a. Jose,Domingo, and Manolo committed robbery, while Fernando committed complex crime of Robbery with Rape.

b. The crime would be Robbery with Homicide because the killings were by reason (to prevent identification) and on the occasion of the robbery. The multiple rapes committed and the fact that several persons were killed (homicide), would be considered as aggravating circumstances. The rapes are synonymous with ignominy  and the additional killing synonymous with cruelty.(People vs. Solis, 182 SCRA; People vs. Plaga, 202 SCRA 531)

c. The aggravating circumstances which may be considered in the premises are:
1. Band because all the four offenders are armed.
2. Nocturnity because evidently the offenders took advantage of nighttime.
3. Dwelling; and
4. Uninhabited place because the house where the crimes were committed was "at a desolate place" and obviously the offenders took advantage of this circumstance in committing the  crime.


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.


2001 Bar Exam Question (Aggravating;Recidivism)

Juan de Castro already had three (3) previous convictions by final judgment for theft when he was found guilty of Robbery with Homicide. In the last case, the trial judge considered against the accused both recidivism and habitual delinquency. The accused appealed and contended that in his last conviction, the trial court cannot consider against him a finding of recidivism and, again, of habitual delinquency.

Is the appeal meritorious? Explain.

No, the appeal is not meritorious. Recidivism and habitual delinquency are correctly considered in this case because the basis of recidivism is different from that of habitual delinquency.

Juan is a recidivist because he had been previously convicted by final judgment for theft and again found guilty of Robbery with Homicide, which are both crimes against property, embraced under the same title (title ten, book 2) of the Revised Penal Code. The implication is that he is specializing in the commission of crimes against property, hence aggravating in the conviction for Robbery with Homicide.

Habitual delinquency, which brings about an additional penalty when an offender is convicted a third time or more for specified crimes, is correctly considered.


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.

1997 Bar Examination Question(Treachery;Unlawful Entry)

The accused and the victim occupied adjacent apartments, each being a separate dwelling unit of one big house.The accused suspected his wife of having an illicit relation with the victim. One afternoon, he saw the victim and his wife together on board a vehicle. In the evening of that day, the accused went to bed early and tried to sleep, but being so annoyed over the suspected relation between his wife and the victim, he could not sleep. later in the night, he resolved to kill the victim. He rose from bed and took hold of a knife. He entered the apartment of the victim through an unlock window. Inside, he saw the victim soundly asleep. He thereupon stabbed the victim, inflicting several wounds,
which caused his death within a few hours.

Would you say that the killing was attended by the qualifying or aggravating circumstances of evident premeditation, treachery, nighttime, and unlawful entry?

1. Evident premeditation cannot be considered against the accused because he resolved to kill the victim "later in the night" and there was no sufficient lapse of time between the determination and execution, to allow his conscience to overcome the resolution of his will.

2. Treachery may be present because the accused stabbed the victim while the latter was sound asleep. Accordingly, he employed means and methods which directly and specially insured the execution of the act without risk to himself arising from the defense which the victim might have made.(People vs. Dequina, 60 Phil. 27, People vs. Miranda,et.al, 90 Phil. 91)

3. Nighttime cannot be appreciated because there is no showing that the accused deliberately sought or availed of nighttime to insure the success of his act. The intention to commit the crime was conceived shortly before its commission.(People vs. Pardo, 79 Phil. 568) Moreover, nighttime is absorbed in treachery.

4. Unlawful entry may be appreciated as an aggravating circumstance, in as much as the accused entered the room of the victim through the window, which is not the proper place for entrance into the house.(Art.14. par.18. Revised Penal Code, People vs. Baruga, 61 Phil. 318)

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.


1994 Bar Examination Question (Cruelty;Relationship)

Ben, a widower, driven by bestial desire, poked a gun on his daughter Zeny, forcibly undressed her and tied her legs to the bed. He also burned her face with a lighted cigarette. Like a madman, he laugh while raping her.

What aggravating circumstances are present in this case?

a. Cruelty, for burning the victim's face with a lighted cigarette, thereby deliberately augmenting the victim's suffering by acts clearly unnecessary to the rape, while the offender delighted and enjoyed seeing the victim suffer in pain.(People vs. Lucas, 181 SCRA 316)

b. Relationship, because the offended party is a descendant (daughter) of the offender and considering that the crime is one against chastity.
















 






















     





























 







































 

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