Aggravating Circumstances 206n4c

AGGRAVATING CIRCUMSTANCES • •

•

Definition – Those circumstance which raise the penalty for a crime without exceeding the maximum applicable to that crime. Basis: The greater perversity of the offense as shown by: a) the motivating power behind the act b) the place where the act was committed c) the means and ways used d) the time e) the personal circumstance of the offender f) the personal circumstance of the victim Kinds: a) Generic – generally applicable to all crimes b) Specific – apply only to specific crimes (ignominy – for chastity crimes; treachery – for persons crimes) c) Qualifying – those that change the nature of the crime (evident premeditation – becomes murder) d) Inherent – necessarily accompanies the commission of the crime (evident premeditation in theft, estafa)

QUALIFYING AGGRAVATING GENERIC AGGRAVATING CIRCUMSTANCE CIRCUMSTANCE Gives the proper and exclusive name, Increase penalty to the maximum, without places the author thereof in such a exceeding limit prescribed by law situation as to deserve no other penalty than that specifically prescribed by law Can’t be offset by Mitigating Circumstance May be compensated by Mitigating Circumstance Must be alleged in the information. Integral Need not be alleged. May be proved over part of the offense the objection of the defense. Qualifying if not alleged will make it generic •

•

Aggravating Circumstances which DO NOT have the effect of increasing the penalty: 1) which themselves constitute a crime specifically punishable by law or which are included in the law defining a crime and prescribing the penalty thereof Example: breaking a window to get inside the house and rob it 2) aggravating circumstance inherent in the crime to such degree that it must of necessity accompany the commission thereof Example: evident premeditation inherent in theft, robbery, estafa, adultery and concubinage Aggravating circumstances are not presumed. Must be proved as fully as the crime itself in order to increase the penalty.

Art 14. Aggravating circumstances. — The following are aggravating circumstances: 1. That advantage be taken by the offender of his public position •

Requisite: a. The offender is a public officer

• • •

b. The commission of the crime would not have been possible without the powers, resources and influence of the office he holds. Essential - Public officer used the influence, prestige or ascendancy which his office gives him as the means by which he realized his purpose. Failure in official is tantamount to abusing of office Wearing of uniform is immaterial – what matters is the proof that he indeed took advantage of his position

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

•

• •

• •

Requisites: a. The offender knows that a public authority is present b. The public authority is engaged in the exercise of his functions c. The public authority is not the victim of the crime d. The public authority’s presence did not prevent the criminal act Example: Juan and Pedro are quarrelling and the municipal mayor, upon ing by, attempts to stop them. Notwithstanding the intervention and the presence of the mayor, Juan and Pedro continue to quarrel until Juan succeeds in killing Pedro. Person in authority – public authority who is directly vested with jurisdiction, has the power to govern and execute the laws Examples of Persons in Authority a. Governor b. Mayor c. Barangay captain d. Councilors e. Government agents f. Chief of Police Rule not applicable when committed in the presence of a mere agent. Agent – subordinate public officer charged with the maintenance of public order and protection and security of life and property Example: barrio vice lieutenant, barrio councilman

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

• • •

•

circumstances (rank, age, sex) may be taken into only in crimes against persons or honor, it cannot be invoked in crimes against property Rank – refers to a high social position or standing by which to determine one’s pay and emoluments in any scale of comparison within a position Age – the circumstance of lack of respect due to age applies in case where the victim is of tender age as well as of old age Sex – refers to the female sex, not to the male sex; not applicable when a. The offender acted w/ ION AND OBFUSCATION b. there exists a relation between the offender and the victim (but in cases of divorce decrees where there is a direct bearing on their child, it is applicable) c. the condition of being a woman is indispensable in the commission of the crime (Ex. Parricide, rape, abduction) Requisite of disregard to rank, age, or sex

• • • • •

a. Crimes must be against the victim’s person or his honor b. There is deliberate intent to offend or insult the respect due to the victim’s rank, age, or sex Disregard to rank, age, or sex is absorbed by treachery or abuse of strength Dwelling – must be a building or structure exclusively used for rest and comfort (combination house and store not included) a. may be temporary as in the case of guests in a house or bedspacers b. basis for this is the sanctity of privacy the law accords to human abode dwelling includes dependencies, the foot of the staircase and the enclosure under the house Elements of the aggravating circumstance of dwelling a. Crime occurred in the dwelling of the victim b. No provocation on the part of the victim Requisites for Provocation: ALL MUST CONCUR a. given by the owner of the dwelling b. sufficient c. immediate to the commission of the crime

• • •

•

When dwelling may and may not be considered When it may be considered When it may not be considered although the offender fired the shot from • If the offended party has given outside the house, as long as his victim provocation was inside • If both the offender and the even if the killing took place outside the offended party are occupants of the dwelling, so long as the commission began same dwelling inside the dwelling • In robbery with force upon things, it when adultery is committed in the dwelling is inherent of the husband, even if it is also the dwelling of the wife, it is still aggravating because she and her paramour committed a grave offense to the head of the house In robbery with violence against persons, robbery with homicide, abduction, or illegal detention

4. That the act be committed with (1) abuse of confidence or (2) obvious ungratefulness Requisites of Abuse of Confidence Requisite of Obvious Ungratefulness a) Offended party has trusted the a) ungratefulness must be obvious, that is, offender there must be something which the b) Offender abused such trust offender should owe the victim a debt of c) Abuse of confidence facilitated the gratitude for commission of the crime Note: robbery or theft committed by a visitor in the house of the offended party is aggravated by obvious ungratefulness •

•

Example: A jealous lover, already determined to kill his sweetheart, invited her for a ride and during that ride, he stabbed her Abuse of confidence is inherent in: a. malversation b. qualified theft c. estafa by conversion d. misappropriation e. qualified seduction

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

Requirements of the aggravating circumstance of public office: a. The crime occurred in the public office

b. Public authorities are actually performing their public duties • A polling precinct is a public office during election day • Nature of public office should be taken into , like a police station which is on duty 24 hrs. a day • place of the commission of the felony (par 5): if it is Malacañang palace or a church is aggravating, regardless of whether State or official; functions are being held. • as regards other places where public authorities are engaged in the discharge of their duties, there must be some performance of public functions • the offender must have intention to commit a crime when he entered the place • Requisites for aggravating circumstances for place of worship: a. The crime occurred in a place dedicated to the worship of God regardless of religion b. Offender must have decided to commit the crime when he entered the place of worship When Paragraph 2 and 5 of Article 14 are applicable Committed in the presence of the Chief Committed in contempt of Public Authority Executive, in the Presidential Palace or a (Par. 2, Art 14) place of worship(Par. 5, Art. 14) Public authorities are performing of their Same duties when the crime is committed When crime is committed in the public Outside the office (still performing duty) office, the officer must be performing his duties, except in the Presidential Palace Public authority may be the offended party Public authority is not be the offended party 6a. That the crime be committed (1) in the nighttime, or (2) in an uninhabited place (3) by a band, whenever such circumstances may facilitate the commission of the offense. •

•

•

Nighttime, Uninhabited Place or By a Bang Aggravating when: a. it facilitated the commission of the crime b. especially sought for by the offender to insure the commission of the crime or for the purpose of impunity  Impunity – means to prevent the accused’s being recognized or to secure himself against detection or punishment c. when the offender took the advantage thereof for the purpose of impunity d. commission of the crime must have began and accomplished at nighttime Nighttime begins at the end of dusk and ending at dawn; from sunset to sunrise a. commission of the crime must begin and be accomplished in the nighttime b. when the place of the crime is illuminated by light, nighttime is not aggravating c. absorbed by Treachery Uninhabited Place – 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 Requisites: a. The place facilitated the commission or omission of the crime b. Deliberately sought and not incidental to the commission or omission of the crime

•

c. Taken advantage of for the purpose of impunity 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

6b. - Whenever more than 3 armed malefactors shall have acted together in the commission of an offense, it shall be deemed to have been committed by a band. •

• • • •

Requisites: a. Facilitated the commission of the crime b. Deliberately sought c. Taken advantage of for the purposes of impunity d. 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, Band is inherent in robbery committed in band and brigandage It is not considered in the crime of rape It has been applied in treason and in robbery with homicide

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

• • •

Requisites: a. Committed when there is a calamity or misfortune 1. Conflagration 2. Shipwreck 3. Epidemic b. Offender took advantage of the state of confusion or chaotic condition from such misfortune Basis: Commission of the crime adds to the suffering by taking advantage of the misfortune. based on time offender must take advantage of the calamity or misfortune

Distinction between Paragraphs 7 and 12 of Article 14 Committed during a calamity or misfortune Committed with the use of wasteful means Crime is committed DURING any of the Crime is committed BY using fire, inundation, calamities explosion or other wasteful means 8. That the crime be committed with the aid of (1) armed men or (2) persons who insure or afford impunity • • •

based on the means and ways Requisites: a. that armed men or persons took part in the commission of the crime, directly or indirectly b. that the accused availed himself of their aid or relied upon them when the crime was committed Exceptions: a. when both the attacking party and the party attacked were equally armed b. not present 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. c. Casual presence, or when the offender did not avail himself of any of their aid nor did not knowingly count upon their assistance in the commission of the crime

WITH THE AID OF ARMED MEN BY A BAND Present even if one of the offenders merely Requires more than 3 armed malefactors relied on their aid. Actual aid is not who all acted together in the commission necessary of an offense • if there are more than 3 armed men, aid of armed men is absorbed in the employment of a band. 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

• •

• •

• • • • • •

Basis: Greater perversity of the offender as shown by his inclination to commit crimes Requisites: a. offender is on trial for an offense b. he was previously convicted by final judgment of another crime c. that both the first and the second offenses are embraced in the same title of the RPC d. the offender is convicted of the new offense What is controlling is the time of the trial, not the time of the commission of the offense. At the time of the trial means from the arraignment until after sentence is announced by the judge in open court. When does judgment become final? (Rules of Court) a. after the lapse of a period for perfecting an appeal b. when the sentence has been partially or totally satisfied or served c. defendant has expressly waived in writing his right to appeal d. the accused has applied for probation Example of Crimes embraced in the Same title of the RPC a. robbery and theft – title 10 b. homicide and physical injuries – title 8 Q: The accused was prosecuted and tried for theft, robbery and estafa. Judgments were read on the same day. Is he a recidivist? A: No. Because the judgment in any of the first two offenses was not yet final when he was tried for the third offense Recidivism must be taken into no matter how many years have intervened between the first and second felonies Pardon does not obliterate the fact that the accused was a recidivist, but amnesty extinguishes the penalty and its effects To prove recidivism, it must be alleged in the information and with attached certified copies of the sentences rendered against the accused Exceptions: if the accused does not object and when he its in his confession and on the witness stand

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 • •

Reiteracion or Habituality – it is essential that the offender be previously punished; that is, he has served sentence. Par. 10 speaks of penalty attached to the offense, not the penalty actually imposed

REITERACION RECIDIVISM Necessary that offender shall have served Enough that final judgment has been out his sentence for the first sentence rendered in the first offense Previous and subsequent offenses must Same title not be embraced in the same title of the Code Not always an aggravating circumstance Always aggravating • 4 Forms of Repetition a. Recidivism – generic b. Reiteracion or Habituality – generic c. Multiple recidivism or Habitual delinquency – extraordinary aggravating d. Quasi-Recidivism – special aggravating

• •

Habitual Delinquency – when a person within a period of 10 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 any of said crimes a third time or oftener. Quasi-Recidivism – any person who shall commit a felony after having been convicted by final judgment, before beginning to serve such sentence, or while serving the same, shall be punished by the maximum period of the penalty prescribed by law for the new felony

11. That the crime be committed in consideration of a price, reward or promise. •

•

Requisites: a. At least 2 principals 1. The principal by inducement 2. The principal by direct participation b. the price, reward, or promise should be previous to and in consideration of the commission of the criminal act Applicable to both principals.

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

Requisite: The wasteful means were used by the offender to accomplish a criminal purpose

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

• • • •

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 Requisites: a. the time when the offender determined to commit the crime b. an act manifestly indicating that the culprit has clung to his determination c. 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 Conspiracy generally presupposes premeditation When victim is different from that intended, premeditation is not aggravating. Although it is not necessary that there is a plan to kill a particular person for premeditation to exist (e.g. plan to kill first 2 persons one meets, general attack on a village…for as long as it was planned) The premeditation must be based upon external facts, and must be evident, not merely suspected indicating deliberate planning Evident premeditation is inherent in robbery, adultery, theft, estafa, falsification, and etc.

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

Craft – involves intellectual trickery and cunning on the part of the accused. It is employed as a scheme in the execution of the crime (e.g. accused pretended to be of the constabulary, accused in order to perpetrate rape, used chocolates containing drugs) Fraud –involves insidious words or machinations used to induce victim to act in a manner which would enable the offender to carry out his design.

•

as distinguished from craft which involves acts done in order not to arouse the suspicion of the victim, fraud involves a direct inducement through entrapping or beguiling language or machinations

•

Disguise – resorting to any device to conceal identity. Purpose of concealing identity is a must.

Distinction between Craft, Fraud, and Disguise Craft Fraud Disguise Involves the use of intellectual Involves the use of direct Involves the use of trickery and cunning to arouse inducement by insidious devise to conceal suspicion of the victim words or machinations identity • Requisite: The offender must have actually taken advantage of craft, fraud, or disguise to facilitate the commission of the crime. • Inherent in: estafa and falsification 15. That (1) advantage be taken of superior strength, or (2) means be employed to weaken the defense •

• •

To purposely use excessive force out of the proportion to the means of defense available to the person attacked. a. Superiority may arise from aggressor’s sex, weapon or number as compared to that of the victim (e.g. accused attacked an unarmed girl with a knife; 3 men stabbed to death the female victim). b. No advantage of superior strength when one who attacks is overcome with ion and obfuscation or when quarrel arose unexpectedly and the fatal blow was struck while victim and accused were struggling. c. Vs. by a band : circumstance of abuse of superior strength, what is taken into is not the number of aggressors nor the fact that they are armed but their relative physical might vis-à-vis the offended party Requisite of Means to Weaken Defense a. Means were purposely sought to weaken the defense of the victim to resist the assault b. The means used must not totally eliminate possible defense of the victim, otherwise it will fall under treachery To weaken the defense – illustrated in the case where one struggling with another suddenly throws a cloak over the head of his opponent and while in the said situation, he wounds or kills him. Other means of weakening the defense would be intoxication or disabling thru the senses (casting dirt of sand upon another’s eyes)