MITIGATING CIRCUMSTANCES – those which if present in the commission of the crime reduces the penalty of the crime but does not erase criminal liability nor change the nature of the crime.

NOTE: A mitigating circumstance arising from a single fact absorbs all the other mitigating circumstances arising from that same fact.


Par. 1 Incomplete Justifying or Exempting Circumstances

NOTE: This applies when not all the requisites are present. If two requisites are present, it is considered a privileged mitigating circumstance. However, in reference to Art.11(4) if any of the last two requisites is absent, there is only an ordinary mitigating circumstance. Remember though, that in self-defense, defense of relative or stranger, unlawful aggression must always be present as it is an indispensable requirement

Par. 2 Under 18 or Over 70 Years Old

NOTE: Age of accused is determined by his age at the date of commission of crime, not date of trial.

Par. 3 No Intention to Commit so Grave a Wrong

NOTE: Can be used only when the proven facts show that there is a notable and evident disproportion between the means employed to execute the criminal act and its consequences.

Factors that can be considered are:
1. weapon used
2. injury inflicted
3. part of the body injured
4. mindset of offender at the time of commission of crime

This provision addresses the intention of the offender at the particular moment when the offender executes or commits the criminal act, not to his intention during the planning stage

NOTE: In crimes against persons – if victim does not die, the absence of the intent to kill reduces the felony to mere physical injuries. It is not considered as mitigating. It is mitigating only when the victim dies.

NOTE: It is not applicable to felonies by negligence because in felonies through negligence, the offender acts without intent. The intent in intentional felonies is replaced by negligence or imprudence. There is no intent on the part of the offender, which may be considered as diminished

Par. 4 Provocation or Threat

Provocation – any unjust or improper conduct or act of the offended party, capable of exciting, inciting or irritating anyone.

1. provocation must be sufficient
2. it must originate from the offended party
3. must be immediate to the commission of the crime by the person who is provoked

NOTE: Threat should not be offensive and positively strong. Otherwise, it would be an unlawful aggression, which may give rise to self-defense and thus no longer a mitigating circumstance.

Par. 5 Vindication of Grave Offense

1. 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 within the same degrees
2. the felony is committed in immediate vindication of such grave offense

NOTE: “Immediate” allows for a lapse of time, as long as the offender is still suffering from the mental agony brought about by the offense to him. (proximate time, not just immediately after)

Par. 6 Passion or Obfuscation

1. offender acted upon an impulse
2. the impulse must be so powerful that it naturally produced passion or obfuscation in him

NOTE: Act must have been committed not in the spirit of lawlessness or revenge; act must come from lawful sentiments.

Act, Which Gave Rise To Passion And Obfuscation:
1. That there be an act, both unlawful and unjust
2. The act be sufficient to produce a condition of mind
3. That the act was proximate to the criminal act, not admitting of time during which the perpetrator might recover his normal equanimity
4. The victim must be the one who caused the passion or obfuscation

NOTE: Passion and obfuscation cannot co-exist with treachery since this means that the offender had time to ponder his course of action.

Passion or Obfuscation from Irresistable Force
1. Passion or obfuscation is mitigating while Irresistable force is exempting
2. Passion or Obfuscation, no physical force needed while irresistable force requires physical force.
3. Passion and Obfuscation must come from the offender himself while Irresistable Force must come from 3rd peson
4. Paasion or Obfuscation must come from lawful sentiments while Irresistable force is unlawful.

Par. 7 Surrender and Confession of Guilt

- must be spontaneous, showing the intent of the accused to submit himself unconditionally to the authorities, either because:
1. he acknowledges his guilt; or
2. he wishes to save them the trouble and expense necessarily incurred in his search and capture.

NOTE: If both are present, considered as two independent mitigating circumstances. Further mitigates penalty

Plea made after arraignment and after trial has begun does not entitle accused to the mitigating circumstance.

If accused pleaded not guilty, even if during arraignment, he is entitled to mitigating circumstance as long as he withdraws his plea of not guilty to the charge before the fiscal could present his evidence.

Plea to a lesser charge is not a Mitigating Circumstance because to be such, the plea of guilt must be to the offense charged.

Plea to the offense charged in the amended info, lesser than that charged in the original info, is Mitigating Circumstance.

1999 Bar Exam Question (Mitigating;Plea of Guilty)

An accused charged with the crime of homicide pleaded "not guilty" during the preliminary investigation before the municipal court. Upon the elevation of the case to the Regional Trial Court of competent jurisdiction, he pleaded guilty freely and voluntarily upon arraignment.

Can his plea of guilty before the Regional Trial Court be considered spontaneous and thus entitle him to the mitigating circumstance of spontaneous plea of guilty under Art.13(7), RPC?

Yes, his plea of guilty before the Regional Trial Court can be considered spontaneous, for which he is entitled to the mitigating circumstance of plea of guilty. His plea of not guilty before the Municipal Court is immaterial as it was made during the preliminary investigation only and before a court not competent to render judgment.

1999 Bar Exam Question (Mitigating;Plea of Guilty;Requisites)

In order that the plea of guilty may be mitigating, what requisites must be complied with?

For plea of guilty to be mitigating, the requisites are:

1. That the accused spontaneously pleaded to the crime charged;
2. That such plea was made before the court competent to try the case and render judgment; and
3. That such plea was made prior to the presentation of evidence for the prosecution.

1997 Bar Exam Question (Mitigating;Plea of Guilty;Requisites)

After killing the victim, the accused absconded. He succeeded in eluding the police until he surfaced and surrendered to the authorities about two years later. Charged with murder, he pleaded not guilty but, after the prosecution had presented two witnesses implicating him to the crime, he changed his plea to that of guilty.

Should the mitigating circumstances of voluntary surrender and plea of guilty be considered in favor of the accused?

Suggested Answer:

Voluntary surrender should be considered as a mitigating circumstance. After two years, the police were still unaware of the whereabouts of the accused and the latter could have continued to elude arrest. Accordingly, the surrender of the accused should be considered mitigating because it was done spontaneously, indicative of the remorse or repentance on the part of said accused and therefore, by his surrender, the accused saved the government expenses, efforts, and time.

Alternative Answer:

Voluntary surrender may not be appreciated in favor of the accused. Two years is too long a time to consider the surrender spontaneous (People vs. Ablao, 183 SCRA 658). For sure the government had already incurred considerable efforts and expenses in looking for the accused.

Plea of guilty can no longer be appreciated as a mitigating circumstance because the prosecution had already started with the presentation of evidence (Art.13, par.7 RPC).

1996 Bar Examination (Mitigating;Voluntary Surrender)

Hilario, upon seeing his son engaged in a scuffle with Rene, stabbed and killed and latter. After the stabbing, he brought his son home. The Chief of police of the town, accompanied by several policemen, went to hilario's house, Hilario, upon seeing the approaching policemen, came down from his house to meet them and voluntarily went with them to the police station to be investigated in connection with the killing. When eventually charged with and convicted of homicide, Hilario, on appeal, faulted the trial court for not appreciating in his favor the mitigating circumstance of voluntary surrender.

Is he entitled to such a mitigating circumstance?

Yes, Hilario is entitled to the mitigating circumstance of voluntary surrender. The crux of the issue is whether the fact that Hilario went home after the incident, but came down and met the police officers and went with them is considered "voluntary surrender". The voluntariness of surrender is tested if the same is spontaneous showing the intent of the accused to submit himself unconditionally to the authorities. This must be either (a) because he acknowledges his guilt, or (b) because he wishes to save the trouble and expenses necessarily incurred in his search and capture. Thus, the act of the accused in hiding after commission of the crime, but voluntarily went with the policemen  who had gone to his hiding place to investigate, was held to be mitigating circumstance.(People vs. Dayrit)

Par. 8 Physical Defect of Offender

The offender is deaf and dumb, blind or otherwise suffering from some physical defect, restricting his means of action, defense or communication with others.

NOTE: The physical defect must relate to the offense committed.

Par. 9 Illness of the Offender

1. The illness of the offender must diminish the exercise of his will-power.
2. Such illness should not deprive the offender of consciousness of his acts.

Par. 10 Similar and Analogous Circumstances

1. Defendant who is 60 years old with failing eyesight is similar to a case of one over 70 years old.
2. Outraged feeling of an owner of an animal taken for ransom is analogous to vindication of grave offense.
3. Impulse of jealous feeling, similar to passion and obfuscation.
4. Voluntary restitution of property, similar to voluntary surrender.
5. Extreme poverty, similar to incomplete justification based on state necessity.