Art.13 Mitigating Circumstances

Question 1

What are Mitigating Circumstances?

Answer 1

Mitigating Circumstances

• Those which if present in the commission of the crime, do not entirely free the actor from criminal liability, but serve only to reduce the penalty.
• A mitigating circumstance arising from a single fact absorbs all the other mitigating circumstances arising from the same fact.*

Question 2

What does Par1 of Art.13 Mitigate?

Answer 2

Par. 1.

INCOMPLETE Justifying of Exempting Circumstances.

• Applies when all the requisites necessary to justify the act or to exempt from criminal liability are NOT attendant.
• Provided, majority of the requisites are present.

Question 3

When is there a mitigating circumstance in:

Incomplete self-defense, defense of relatives, and defense of a stranger ?

Answer 3

unlawful aggression must be present, it being an indispensable requisite.

• It is considered ordinary mitigating circumstance if only unlawful aggression is present.
• When two of the three requisities (i.e., unlawful aggression and any one of the other two), the case should be considered a privileged mitigating circumstance referred to in Art. 69 of this Code.

Question 4

When is there Mitigating Circumstance for

“Incomplete justifying circumstance of avoidance of greater evil or injury”?

Answer 4

• if any of the last two requisites (i.e., injury feared be greater than that to avoid it or there be no other practical and less harmful means of preventing it)

Question 5

When is there mitigating circumstance in “Incomplete justifying circumstance of performance of duty” ?

Answer 5

In People vs. Oanis:

when one of the two requisities under par. 5 of Art. 11 was present, Article 69 was applied. Thus, when the justifying or exempting circumstance has two requisites only, it seems that there is no ordinary mitigating circumstance in this case but a privileged mitigating circumstance.

Question 6

Are there mitigating circumstances in “Incomplete justifying circumstance of obedience to an order”?

What element need be present?

Answer 6

The order must always be from a superior.

Question 7

Is there need for a mitigating circumstance in “Incomplete exempting circumstance of a minority over 9 and under 15 years of age” ?

Answer 7

a minor who is over 9 years of age and under 15 years old who acted with discernment, he is entitled to a mitigating circumstance under Art. 68.

BUT….

under RA 9344 said offender is exempt from criminal liability.

so no.. not anymore.

Question 8

When is there mitigating circumstance for “Incomplete exempting circumstance of accident” ?

Answer 8

Under par. 4 of Article 12 there are four requisites, namely:

1. a person is performing a lawful act;
2. with due care;
3. he causes an injury to another by mere accident; and
4. without fault or intention of causing it.

• If the requisites (2) with due care and (4) without fault are absent = Art. 365, in effect there is a mitigating circumstance because the penalty is lower than that provided for intentional felony
• If the requisites (1) a person is performing a lawful act and (4) without intention of causing the accident are absent, (positively stated, the person committed an unlawful act and had the intention of causing the injury) = intentional felony

Question 9

When is there Mitigating Circumstance for “Incomplete exempting circumstance of uncontrollable fear” ?

Answer 9

• If only one of the two requisites are present there is only a mitigating circumstance.

In People vs. Magpantay (C.A., 46 O.G. 1655)

the accused was entitled to the mitigating circumstance of grave fear, not entirely uncontrollable, under par. 1 of Art. 13, in connection with par. 16 of Art. 12 of the RPC the fear of the accused was not entirely uncontrollable for had he not been so hasty and had he stopped a few seconds to think, he would have ascertained that there was no imminent danger.

Question 10

Is ther mitigating circumtance when the accused is:

1.Over 15 and under 18, w/discernment?

or over 70 years old?

Answer 10

• It is the age of the accused at the time of the commission of the crime which should be determined.
• His age at the time of the trial is immaterial.

Question 11

What are the Legal effects of the age of offender if:

15 and below?

Above 15 but below 18?

Answer 11

1. 15 and below – exempting
2. Above 15 but under 18 – exempting unless acted with discernment.

• But even with discernment, penalty is reduced by one (1) degree lower than that imposed. (Art 68, par. 2, amended by RA 9344)
• Child in conflict with the law under 18 years of age who acted with discernment – sentence suspended.(Art. 192, PD 603 as amended by PD 1179, referred to as Children in Conflict with the Law under RA 9344)

Question 12

What is a CHILD IN CONFLICT WITH THE LAW?

Answer 12

Child in Conflict with the Law

• It refers to a child who is alleged as, accused of, or adjudged as, having committed an offense under Philippine laws.

Question 13

Why are those who are 70 years of age or older given a mitigating circumstance?

Answer 13

70 years or over..

• mitigating, no imposition of death penalty; if already imposed, execution of death penalty is suspended and commuted.

Basis: Diminution of intelligence.

Question 14

What is the RULE on the application of the Mitigating Circumstance, “No intention to commit so grave a wrong” (Praeter Intentionem) Par. 3.

?

Answer 14

Rule for the application:

• Can be taken into account only when the facts proven show that there is a notable and evident disproportion between the means employed to execute the criminal act and its consequences.
• If the resulting felony could be expected from the means employed, this circumstance cannot be availed of.

Question 15

How does one ascertain INTENTION?

Answer 15

Intention may be ascertained by considering:

1. The weapon used
2. The injury inflicted
3. The manner it is inflicted
4. The part of the body injured

(WIMB)

• Intent at the time of the commission of the felony, not during the planning stage, should be considered.

Basis: Diminution of intent.

Question 16

When is Praeter Intentionem NOT APPLICABLE?

Answer 16

• Not applicable to felonies by negligence.
• Not applicable to felonies where intention is immaterial.
• Not appreciated in murder qualified by treachery.
• Not appreciated in cases where there is no material harm done.

Question 17

What is PROVOCATION?

Answer 17

Provocation

• It is any unjust or improper conduct or act of the offended party, capable of exciting, inciting or irritating any one.

Question 18

What are the REQUISITES for the Mitigating circumstance “that there be sufficient provocation or threat on the part of the offended party immediately preceeded the act.”?

Answer 18

Requisites: (SOPI)
1. The provocation must be sufficient;

SUFFICIENT means adequate to excite a person to commit the wrong and must accordingly be proportionate to its gravity. Provocation is sufficient depends upon: (SPAT)

a. The act constituting the provocation,
b. The social standing of the person provoked,
c. The place and time when the provocation is made.

• *2.** It must originate from the offended party;
• *3.** The provocation must be personal and directed to the accused; and
• *4.** That the provocation must be immediate to the act, or the commission of the crime.

Question 19

What are the Requisites necessary for there to be the mitigating circumstance of “…immidiate vindication of a grave offense to the one commiting the folony, A/D/LNAbro+sis/RbyA”

?

Answer 19

Par. 5. Vindication of grave offense
Requisites:
1. That there be a grave offense done to the one committing the felony, his spouse, ascendants, descendants, legitimate, natural or adopted brothers or sisters or relatives by affinity within the same degrees;

2. That the felony is committed in immediate vindication of such grave offense.

“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.

“Grave offense” includes any act that is offensive to the offender or his relatives and the same need not be unlawful.

• The grave offense must be the proximate cause or proximate to the act of the offender.
• When the aggression is in retaliation for an insult, injury or threat, the offender cannot successfully claim self-defense but he can be given the benefit of the mitigating circumstance of under the provisions of paragraph 4, Article 13.
• Provocation must be immediate to the commission of the crime.

Question 20

What are the factors to determine gravity of offense in vindication:

Answer 20

1. Social standing of the person
2. Place
3. Time when the insult was made

Basis: Diminution of the conditions of voluntariness.

Question 21

What are the requisites for the mitigating cirumstance “an impulse so powerful as naturally to have produced Passion or obfuscation”

?

Answer 21

Par. 6. Passion or obfuscation

Requisites:

• *1.** That there be an act, both unlawful and sufficient to produce such a condition of mind;
• *2.** That said act which produced the obfuscation was not far removed from the commission of the crime by a considerable length of time, during which the perpetrator might recover his normal equanimity; and
• *3.** The act causing such obfuscation was committed by the victim himself.

Question 22

Passion and Obfuscation

When is it a mitigating circumstance?

Answer 22

• A mitigating circumstance only when the same arises from lawful sentiments.
• May lawfully arise from causes existing only in the honest belief of the offender.
• The act of the offended party must be unlawful or unjust. Exercise of a right or fulfillment of duty is not a proper source of passion and obfuscation.
• This mitigating circumstance may be appreciated even if the reported act causing the obfuscation was not true, as long as it was honestly and reasonably believed by the accused to be true. (People vs. Guhiting, 88 Phil. 672)

Question 23

Passion and obfuscation CANNOT co-exist with?

Answer 23

(VET)

1. Vindication of grave offense
2. Evident premeditation
3. Treachery

Question 24

When is there mitigating circumstance for Surrender or confession of guilt?

Answer 24

Par. 7. Surrender and confession of guilt

Two mitigating circumstances:

1. Voluntary surrender to a person in authority or his agents.

2. Voluntary confession of guilt before the court prior to the presentation of evidence for the prosecution.

• If both are present, there will be two independent ordinary mitigating circumstances.

Question 25

What are the REQUISITES of voluntary surrender?

Answer 25

Requisites of voluntary surrender: (NSV) 1. That the offender had Not been actually arrested; 2. That the offender Surrendered himself to a person in authority or to the latter’s agent; and 3. That the surrender was Voluntary.

Question 26

Who is a "Person in authority"?

Answer 26

* He is one directly vested with jurisdiction which is the power to govern and to execute the laws, whether as an individual or as a member of some court or governmental corporation, board or commission.

Question 27

What is an "Agent of a person in authority"?

Answer 27

* He is one who by direct provision of the law or by election or by appointment by competent authority, is charged with the maintenance of public order and the protection and security of life and property and any person who comes to the aid of persons in authority (Art. 152, as amended by RA 1978).

Question 28

When is surrender considered VOLUNTARY?

Answer 28

1. Must be **spontaneous**. 2. **Intent** of the accused to submit himself unconditionally to the authorities must be either because: * He _acknowledges his guilt_; or * He wishes to _save them the **trouble** and **expense**_ necessarily incurred in his search and capture. 3. The **conduct** of the accused determines the spontaneity of the arrest. * Intention to surrender without actually surrendering is not mitigating. * Not mitigating when defendant was in fact arrested. 4. It is not required that, to be appreciated, it be prior t the issuance of a warrant of arrest. (People vs.Turalba) * Surrender of weapons cannot be equated with voluntary surrender.

Question 29

What are the REQUISITES of VOLUNTARY PLEA OF GUILTY for mitigating circumstances?

Answer 29

_Requisites of voluntary plea of guilty: (SOPO)_ 1. That the offender **s**pontaneously confessed his guilt; 2. That the confession of guilt was made in **o**pen court, that is, before the competent court that is to try the case; 3. That the confession of guilt was made **p**rior to the presentation of evidence for the prosecution; and 4. That the confession of guilt was to the **o**ffense charged in the information. * Plea of guilty is **not mitigating** in _culpable felonies_ and in _crimes punished by special laws_. * Where in the original information the accused pleaded not guilty, but he pleaded guilty to the amended information, it is considered a voluntary plea of guilty and considered a mitigating circumstance. Basis: Lesser perversity of the offender.

Question 30

When is there a mitigating circumstance for persons with physical defects?

Answer 30

Par. 8. Physical defect of offender * When the offender is _deaf and dumb_, _blind_ or otherwise suffering from some _physical defect_, **restricting** his means of *action*, *defense* or *communication* with others. **The physical defect must relate to the offense committed.** E.g. blindness does not mitigate estafa. “Dumb” – lacking the power of human speech. * This paragraph does not distinguish between the educated and uneducated person with physical defect. Basis: Diminution of freedom of action, therefore diminution of voluntariness.

Question 31

When is there a mitigating circumstance of illness? Requisites? Basis?

Answer 31

Par. 9. Illness of the offender **Requisites:** 1. That the illness of the offender must **diminish** the _exercise of his will-power_; and 2. That such illness should _not deprive the offender_ of **consciousness** of his acts. * Includes illness of the mind not amounting to insanity. Kleptomania, feeblemindedness, mistaken belief that killing witches was for public good and illness of nerves or moral faculty may be considered as mitigating circumstances under this subparagraph Basis: Diminution of intelligence and intent.

Question 32

What are similar or analogous circumstances which are MITIGATING?

Answer 32

Par. 10. Similar or Analogous Circumstances Examples: 1. Impulse of jealousy, similar to passion and obfuscation. 2. Manifestations of Battered Wife Syndrome, analogous to an illness that diminishes the exercise of will power. 3. Over 60 years old with failing sight, similar to over 70 years of age under par. 2. 4. The act of the accused leading the law enforcers to the place where he buried the instruments he used to commit the crime is similar to voluntary surrender. 5. Extreme poverty, as similar to a state of necessity, which may apply to crimes against property but not of violence, such as murder. 6. Outraged feeling of unpaid creditor, as akin to vindication or obfuscation. 7. Appeal to the esprit de corps of the accused, as analogous to passion. 8. Wartime state of confusion resulting in illegal possession of firearm after the liberation, as being similar to lack of intent to commit so grave a wrong 9. Voluntary return of funds malversed by the accused, as equivalent to voluntary surrender. 10. Testifying for the prosecution without being discharged from the information, as being like a plea of guilty.

Question 33

What are Circumstances which are _neither_ **exempting** nor **mitigating**?

Answer 33

1. Mistake in the blow or (aberratio ictus) 2. Mistake in the identity (error en personae) 3. Entrapment 4. Accused is over 18 years of age 5. Performance of righteous action

Question 34

What are some specific mitigating circumstances?

Answer 34

Specific Mitigating Circumstances 1. Illegal detention (voluntary release within 3 days; without attaining purpose; before criminal action) 2. Adultery (abandonment of spouse) 3. Infanticide/abortion (intent to conceal dishonor of mother)