Title 1 - Chapter 3

CRIMINAL
LAW 1 REVIEWER

CHAPTER 3: CIRCUMSTANCES WHICH MITIGATE CRIMINAL

LIABILITY

I. Mitigating Circumstances
Definition 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.
Basis on the diminution of either freedom of action,
intelligence, or intent, or on the lesser perversity of the
offender.

II. Classes Of Mitigating Circumstances
Ordinary mitigating those enumerated in subsections 1 to 10
of Article 13; those mentioned in subsection 1 of Article 13, if
Article 69, for instance, is not applicable.
Privileged mitigating
o Article 68
o Article 69
o Article 64
o Privileged mitigating circumstances applicable only to
particular crimes
Article 268, par. 3 - Voluntary release of the
person illegally detained within 3 days without
the offender attaining his purpose and before
the institution of criminal action (penalty is one
degree lower)
Article 333, par. 3 abandonment without
justification of the spouse who committed
adultery (penalty is one degree lower)

III. Distinctions

Ordinary Mitigating Circumstance
Privileged Mitigating
Circumstance
Susceptible of being offset by any Cannot be offset by aggravating

aggravating circumstance.
circumstance.
When not offset by an aggravating Produces the effect of imposing
circumstance, produces only the upon the offender the penalty
effect of applying the penalty lower by one or two degrees than
provided by law for the crime in that provided by law.
its minimum period, in case of
divisible penalty,

IV. Mitigating Circumstances Only Reduce The Penalty, But Do Not
Change The Nature Of The Crime
Accused is charged with murder
o The fact that there is a generic or privileged mitigating
circumstance does not change the felony to homicide.
o If there is an ordinary or generic mitigating
circumstance not offset by any aggravating
circumstance penalty imposed is reduced to the
minimum of the penalty for murder.
o If there is a privileged mitigating circumstance
penalty for murder will be reduced by one or two
degrees lower.
o In every case, the accused should be held guilty of
murder.
o The mitigating circumstance reduces the penalty
provided by law but does not change the nature of the
crime.

Article 13. Mitigating circumstances.
The following are mitigating circumstances:
1. Those mentioned in the preceding chapter, when all the
requisites necessary to justify or to exempt from criminal
liability in the respective cases are not attendant.
2. That the offender is under eighteen years of age or over
seventy years. In the case of the minor, he shall be proceeded

Original Material from TABLE TURNERS (2012-2013). Edited by Rachelle Anne Gutierrez (2015-2016)
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CRIMINAL LAW 1 REVIEWER

3.
4.
5.
6.
7.
8.
9.
10.
against in accordance with the provisions of Article 80.

That the offender had no intention to commit so grave a
wrong as that committed.
That sufficient provocation or threat on the part of the
offended party immediately preceded the act.
That the act was committed in the immediate vindication of a
grave offense to the one committing the felony (delito), his
spouse, ascendants, or relatives by affinity within the same
degrees.
That of having acted upon an impulse so powerful as naturally
to have produced passion or obfuscation.
That the offender had voluntarily surrendered himself to a
person in authority or his agents, or that he had voluntarily
confessed his guilt before the court prior to the presentation
of the evidence for the prosecution;
That the offender is deaf and dumb, blind or otherwise
suffering some physical defect which thus restricts his means
of action, defense, or communications with his fellow beings.
Such illness of the offender as would diminish the exercise of
the will-power of the offender without however depriving him
of the consciousness of his acts.
And, finally, any other circumstances of a similar nature and
analogous to those above mentioned.

POINTS

PAR. 1: THOSE MENTIONED IN THE PRECEDING CHAPTER, WHEN ALL
THE REQUISITES NECESSARY TO JUSTIFY OR EXEMPT FROM CRIMINAL
LIABILITY IN THE RESPECTIVE CASES ARE NOT ATTENDANT.

I. Important Words And Phrases
Those mentioned in the preceding chapter
o This clause has reference to (1) justifying circumstances
and (2) exempting circumstances.
Circumstances of justification or exemption which may give

place to mitigation:

Source
Circumstance
Article 11, par. 1
Self-defense
Article 11, par. 2
Defense of relatives
Article 11, par. 3
Defense of stranger
Article 11, par. 4
State of necessity
Article 11, par. 5
Performance of duty
Article 11, par. 6
Obedience to order of superior
Republic Act No. No. Minority above 15 but below 18
9344
years of age
Article 12, par. 4
Causing by mere accident
Article 12, par. 6
Uncontrollable fear

Article 12, par. 1 & 2 cant give place to mitigation because
there is no middle ground between sanity and insanity or
between the absence or presence of intelligence.
Any illness which would diminish will-power, without depriving
the offender of consciousness of his acts are considered to be
within the scope of Article 13, par. 9.

II. When All The Requisites Necessary To Justify An Act Are Not
Attendant
1. Incomplete self-defense, defense of relatives and defense of
stranger.
o Article 13, par. 1 is applicable ONLY when unlawful
aggression is present but the other two requisites (in
the cases referred to in Article 11, par. 1,2,3) are not
present.
If there is no unlawful aggression, there could
be no self-defense or defense of a relative,
whether complete or incomplete.

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When 2 of 3 requisites mentioned are present, the case
should be considered under privileged mitigating
circumstance (Article 69)1.
o People v. Martin When there is unlawful aggression
on the part of the deceased, without sufficient
provocation by the defendant, but the defendant used
means not reasonably necessary, for after having
snatched the rope from the deceased, he should not
have wound it around her neck and tightened it, the
defendant is only entitled to privileged mitigating
circumstance as there is incomplete self-defense.
2. Incomplete justifying circumstance of avoidance of greater evil
or injury
o Avoidance of a greater evil or injury is a justifying
circumstance ONLY if all 3 requisites in Article 11, par.4
are present.
o If any of the last two requisites is absent, there is ONLY
mitigating circumstance.
3. Incomplete justifying circumstance of performance of duty.
o People v. Oanis
Facts: The deceased was killed while asleep, as
he was mistaken to be Balagtas a person who
was to be apprehended dead or alive if there is
resistance. The arresting officers through
impatience or their desire to take no chances
thus killed the deceased.
Issue: Whether or not there is mitigating
circumstance.
o
1 Article 69. Penalty to be imposed when the crime committed is not wholly excusable. A penalty
lower by one or two degrees than that prescribed by law shall be imposed if the deed is not wholly
excusable by reason of the lack of some of the conditions required to justify the same or to
exempt from criminal liability in the several cases mentioned in Article 11 and 12, provided that
the majority of such conditions be present. The courts shall impose the penalty in the period which
may be deemed proper, in view of the number and nature of the conditions of exemption present
or lacking.
Ruling: Appellants are declared guilty of

murder with the mitigating circumstance. The
Supreme Court considered one of the two
requisites as constituting the majority.
4. Incomplete justifying circumstance of obedience to an order.
o People v. Bernal
Facts: Roleda fired at Pilones following the
order of his superior Sgt. Benting. It was found
that Roleda may have acted without
questioning his superior because he had a
feeling of resentment resulting from Pilones
having killed a member of the military police.
Issue: Whether or not the absence of one of
two justifying circumstance requirements
constitutes a mitigating circumstance.
Ruling: The first circumstance (order by
superior) is present, but the second (order is
for some lawful purposes) is wanting.

III. When All The Requisite Necessary To Exempt From Criminal
Liability Are Not Attendant
1. Incomplete exempting circumstance of minority over 15 and
under 18 years of age.
o If the minor is over 15 and under 18, but acted with
discernment, he is entitled only to a mitigating
circumstance.
2. Incomplete exempting circumstance of accident.
o There are 2 requisites for Article 12, par. 4.
o If the 2nd requisite (done with due care) and the first
part of the 4th requisite (no fault) are ABSENT, case will
fall under Article 365, which punishes a felony by
negligence or imprudence mitigating because the
penalty is lower than that which punishes intentional
felony.

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If the 1st requisite (lawful act) and second part of the 4th
requisite (intention of causing harm) are ABSENT, that
is the person committed an unlawful act and had the
intention of causing injury, it will be an intentional
felony no mitigating circumstance at all.
3. Incomplete exempting circumstance of uncontrollable fear.
o If only 1 of 2 requisites of Article 12, par. 6 are present,
there only a mitigating circumstance.
o

PAR. 2: THAT THE OFFENDER IS UNDER EIGHTEEN YEAR OF AGE OR
OVER SEVENTY YEARS. IN THE CASE OF THE MINOR, HE SHALL BE
PROCEEDED AGAINST IN ACCORDANCE WITH THE PROVISIONS OF
ARTICLE 80.

I. Basis Of Paragraph 2
The diminution of intelligence, a condition of voluntariness.

II. Article 13, Par. 2 Of Revised Penal Code Impliedly Repealed By
Republic Act No. 9344
Under R.A 9344, a child above 15 but below 18 years of age
shall be exempt from criminal liability unless he acted with
discernment.
If the child acted with discernment, he shall undergo diversion
programs.

III. Diversion Programs (Republic Act No. 9344)
If the child acted with discernment, he shall undergo diversion
programs.
o Diversion alternative child-appropriate process of
determining the responsibility and treatment of a child
in conflict with the law on the basis of his/her social,
cultural, economic, psychological, or educational
background without resulting to formal court
proceedings.
Diversion Program refers to the program that the

child in conflict with the law is required to undergo
after he/she is found responsible for an offense
without resorting to formal court proceedings

A. System Of Diversion
Children in conflict with the law shall undergo diversion
programs without undergoing court proceedings

Penalty
Procedure
Imposable penalty Mediation, family conferencing and conciliation
for the crime is not and, where appropriate, adopt indigenous modes
more than 6 years of conflict resolution in accordance with the best
imprisonment.
interest of the child with a view to accomplishing
the objectives of restorative justice.

Involves:
(1) Law enforcement office/Punong Barangay
(2) Local social welfare and development
officer/other members of the Local Councils
for the Protection of Children (LCPC)
(3) Child and his/her family
Victimless crime Develop appropriate diversion and rehabilitation
where imposable program.
penalty is not
more than 6 years Involves:
imprisonment.
(1) Coordinate with Barangay Council for the
Protection of Children (BCPC)
(2) Local social welfare development officer
(3) Child and his/her parents or guardians
Imposable penalty Diversion measure may be resorted only by the
exceeds 6 years court.
imprisonment

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B. Conferencing, Mediation, Conciliation
A child in conflict with the law may undergo conferencing,
mediation or conciliation outside the criminal justice system or
prior to his entry into said system.

C. Contract Of Diversion
If during the conferencing, mediation or conciliation, the child
voluntarily admits the commission of the act a diversion
program shall be developed when appropriate and desirable.
Such admission shall not be used against the child in any
subsequent judicial, quasi-judicial or administrative
proceedings.
Diversion program shall be effective and binding by the written
acceptance signed by authorities and parties concerned.
The local social welfare and development officer shall supervise
the implementation of the diversion.
Diversion proceedings shall be completed in 45 days.
Period of prescription of the offense shall be suspended until
the completion of the diversion.
Child shall present himself/herself to authorities who imposed
diversion program at least once a month for reporting and
evaluation of the effectiveness of the program.
Failure to comply with the program shall give the offended
party the option to institute appropriate legal action.
Where it may be conducted Katarungang Pambarangay
during the investigation phase and during all levels of the
proceedings including judicial level.
Duty of the Punong Barangay or the Law Enforcement Officer
when there is no diversion if the imposable penalty is over 6
years or the child/his parents do not consent to a diversion, the
Punong Barangay shall forward the records of the case to the
law enforcement officer, prosecutor or appropriate court
within 3 days.

IV. That The Offender Is 70 Years Of Age Is Only A Generic Mitigating

Circumstance
Article 68 (privileged mitigating circumstances) does not
include offenders over 70 years old.

PAR. 3: THAT THE OFFENDER HAD NOT INTENTION TO COMMIT SO
GRAVE A WRONG AS THAT COMMITTED

Intent, an element of voluntariness in intentional felony, is
diminished.

II. Rule For Application
This circumstance 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.
o US v. Bertucio The accused confined himself to
giving a single blow with a bolo on the right arm of the
victim and did not repeat the blow. The death of the
victim was due to neglect and the lack of medical
treatment, his death having resulted from hemorrhage
which those who attended to him did not know how to
stop or control in time.
o NOTE: There is still criminal liability (in consonance
with Article 4). It is simply mitigated.

III. Evidence Of Intention As A Factor For Mitigating Circumstance
A. Intention, Being An Internal State, Must Be Judged By External Acts
The intention, as an internal act is judged not only by the
proportion of the means employed by him to the evil produced
by his act, but also by the fact that the blow was or was not
aimed at a vital part of the body.

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B. How To Determine Intent
The weapon used, the part of the body injured, the injury
inflicted, and the manner it is inflicted may show that the
accused intended the wrong committed
How to determine intent:
o The kind of weapon used.
o The part of the body injured.
o The kind/extent of the injury inflicted.
Intention must be judged by considering the weapon used, the
injury inflicted, and his attitude of the mind when the accused
attacked the deceased (People v. Flores).
When a person stabs another with a lethal weapon upon a vital
part of the body, death could presumably be anticipated and
the accused must be presumed to have intended the natural
consequences of his wrongful act (People v. Reyes).
The weapon used, the force of the blow, the spot where the
blow was directed and landed, and the cold blood in which it
was inflicted, all tend to negative any notion that the plan was
anything less than to finish the victim (People v. Banlos).
Inflicting of five stab wounds in rapid succession negates
pretense of lack of intention to cause so serious an injury. It
brings forth in bold relief the intention of the accused to snuff
out the life of the deceased (People v. Braa).

C. Whose Intention Matters
Article 13, paragraph 3, is not applicable when the offender
employed brute force It is the intention of the offender at the
moment when he is committing the crime which is considered.
o Article 13, par. 3 addresses itself to the intention of
the offender at the particular moment when he
executes or commits the criminal act; not to his
intention during the planning stage.

D. When Appreciated
Lack of intention to commit so grave a wrong, mitigating in

robbery with homicide.
o People v. Abuega it has not be satisfactorily
established that in forcing entrance through the door
which was then closed, with the use of pieces of wood,
the accused were aware that the deceased was behind
the door and would be hurt, and there is not clear
showing that they ever desired to kill the deceased as
they sought to enter the house.
Appreciated in murder qualified by circumstance based on
manner of commission, not on state of mind of accused.
o People v. Enriquez
Facts: Several accused decided to have the
foreman beaten up. Foreman died as a result of
hemorrhage.
Ruling: Murder results from presence of
qualifying circumstances (premeditation and
treachery) based upon the manner of
committing the crime, not in the state of mind
of the accused.
Lack of intent to kill, not mitigating in physical injuries.
o People v. Galacgac In crimes against persons who do
not die as a result of the assault, the absence of the
intent to kill reduces the felony to mere physical
injuries, but it does not constitute a mitigating
circumstance.
Lack of intent to kill, mitigating when the victim dies.
o People v. Pugay
Facts: Accused set the deceaseds clothes on
fire with the intent of causing physical injuries
at the most.
Ruling: Accused is guilty of the resulting death
but he is entitled to the mitigating

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circumstance of no intention to commit so

grave a wrong as that committed.
Applied in malversation of public funds (Perez v. People).
o Facts: Petitioner misappropriated funds because he
was impelled by the genuine love for his brother and
his family. He used the funds to pay off a debut owed
by his brother, while another portion went to his
medications for his debilitating diabetes.
o Ruling: Petitioner is entitled to mitigating circumstance
as petitioner restituted all by P 8,000 of the funds in
less than one month and a half.

E. When Not Appreciated
Not appreciated in murder qualified by treachery.
Not applicable to felonies by negligence.
o The reason is that in felonies through negligence, the
offender acts without intent. The intent in intentional
felonies is replaced by negligence, imprudence, lack of
foresight, or lack of skill in culpable felonies.
Not applicable to felonies like defamation or slander (People v.
Galang de Bautista). Applicable ONLY to offenses resulting in
physical injuries or material harm.

IV. Is Article 13, Par. 3 Applicable To Felonies Where Intention Of The
Offender Is Immaterial?
People v. Cristobal where the resulting abortion was not
intended by the offender, this mitigating circumstance is not
applicable.
People v. Flameo where the accused pulled the hair of the
complainant with the intention to maltreat her, but thus
caused her to fall on her buttocks resulting into unintentional
abortion, mitigating circumstance was given in favor of the
accused.

PAR. 4: THAT SUFFICIENT PROVOCATION OR THREAT ON THE PART OF

THE OFFENDED PARTY IMMEDIATELY PRECEDED THE ACT.

Based on the diminution of intelligence and intent

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

III. Elements Of Provocation
1. That the provocation must be sufficient
2. That it must originate from the offended party
3. That the provocation must be immediate to the act, i.e., to the
commission of the crime by the person who is provoked.

IV. FIRST ELEMENT: The Provocation Must Be Sufficient.
Sufficient means adequate to excite a person to commit the
wrong and must accordingly be proportionate to its gravity.

A. As To Whether A Provocation Is Sufficient Depends Upon The Act
Constituting The Provocation:
1. The social standing of the person provoked.
2. The place and time when the provocation is made.

V. SECOND ELEMENT: Provocation Must Originate From The Offended
Party.
The reason for the requirement is that the law says that the
provocation is on the part of the offended party.
People v. Reyes Where the provocation did not come from
the deceased but from his mother, the same may not be
appreciated in favor of the accused.

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A. Difference Between Sufficient Provocation As Requisite Of
Incomplete Self-Defense And As A Mitigating Circumstance.

Element of self-defense
Mitigating circumstance
Pertains to its absence on the part Pertains to its presence on the
of the person defending himself
part of the offended part.

VI. THIRD ELEMENT: Provocation Must Be Immediate To The
Commission Of The Crime.
There should not be any interval of time between the
provocation of the offended party and the commission of the
crime of the person provoked.
o When there is an interval of time between the
provocation and the commission of the crime, the
conduct of the offended party could not have excited
the accused to the commission of the crime, he having
time to regain his reason and to exercise self-control
People v. Benito
o Facts: The accused had almost a day to mull over the
alleged provocation before he reacted by shooting the
victim.
o Ruling: Inevitable conclusion is he did not feel
sufficiently provoked at the time the alleged
provocation was made. His shooting the victim the next
day was a deliberate act of vengeance and not the
natural reaction of a human being to immediately
retaliate when provoked.
Threat immediately preceded the act
o The threat should not be offensive and positively
strong, because if it is, the threat to inflict real injury is
an unlawful aggression, which may give rise to selfdefense.
o Example: A was threatened by B with bodily harm and
because of the threat, A immediately attacked and
injured B, there was a mitigating circumstance of threat

immediately preceding the act.
Vague threats are insufficient.
o Vague If you do not agree, beware.
o Clear Follow us if you dare and we will kill you.
PAR.5: THAT THE ACT WAS COMMITTED IN THE IMMEDIATE

VINDICATION OF A GRAVE OFFENSE TO THE ONE COMMITTING THE
FELONY (DELITO), HIS SPOUSE, ASCENDANTS, DESCENDANTS,
LEGITIMATE, NATURAL OR ADOPTED BROTHERS OR SISTERS, OR
RELATIVES BY AFFINITY WITHIN THE SAME DEGREES.

Based on the diminution of the conditions of voluntariness.
o Grave offense must be directed to the accused
o Vindication of a grave offense incompatible with
passion or obfuscation.

II. Elements For Vindication Of Grave Offense:
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 vindication of such grave
offense. A lapse of time is allowed between the vindication and
the doing of the grave offense.

III. Application
Applies to grave offense committed against surviving spouse of
deceased relative.
o If A (surviving husband of B) was killed by C, Bs
brothers would be entitled to the mitigating
circumstance of vindication of grave offense if they

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cause serious physical injuries to C immediately after

learning of As death.
A lapse of time is allowed between the grave offense and the
vindication.
o The Spanish text uses proxima meaning next.
o The fact that the accused was slapped by the deceased
in the presence of many persons a few hours before
the former killed the latter, was considered a mitigating
circumstance that the act was committed in the
immediate vindication of a grave offense (People v.
Parana).
Interval time negating vindication.
o People v. Lumayag 9 months had passed between
the infliction of physical injuries of the deceased on the
accused and the act of the accused of murdering the
deceased.
o People v. Benito At 11:00am, deceased told the
accused in the presence of the latters officemates
hindi ko alam na itong Civil Service pala ay istambayan
ng magnanakaw. Accused killed the deceased at
5:00pm. No mitigating circumstance.
o Mitigating circumstance of immediate vindication of a
grave offense cannot be considered in favor of accused
because he had sufficient time to recover his serenity
(People v. Lopez).

IV. Provocation v. Vindication

Provocation
Vindication
Made directly only to the person The grave offense may be
committing the felony.
committed also against the
offenders relatives.
The cause that brought about the The offended party must have
provocation need not be a grave done a grave offense to the
offense.
Provocation
or
threat
immediately preceded the act i.e.
no interval time in between.
offender or his relatives.

Proximate, which admits an
interval time between the grave
offense time by the offended
party and the commission of the
crime.

Reason for difference This greater leniency in the case of
vindication is due undoubtedly to the fact that it concerns the
honor of a person, an offense which is more worthy of
consideration than mere spite against the one giving the
provocation or threat.

V. Basis To Determine Gravity Of Offense In Vindication
Considerations in determining whether a certain personal
offense was grave:
o Social standing of the person.
o Place where the insult was made.
o Time when the insult was made.
Considered grave offenses:
o Sarcastic remark implying the accused was a petty
tyrant.
o Remark of the injured party before the guests that the
accused lived at the expense of his wife
consideration of place.
o Just after the American forces reoccupied Manila, the
offended party told the accused that the latter was a
Japanese spy consideration of time.
The provocation should be proportionate to the damage
caused by the act and adequate to stir one to its commission.
Grave offense must be directed to the accused.
o The supposed grave offense done by the victim was an
alleged remark made in the presence of the accused
that the Civil Service Commission is a hangout of

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thieves. The remark itself was general and not alluding
to anyone. People in the vicinity would not have known
that the accused was possibly being insulted unless
they were aware that he was facing charges involving
his honesty and integrity (People v. Benito).

PAR. 6: THAT OF HAVING ACTED UPON AN IMPULSE SO POWERFUL AS
NATURALLY TO HAVE PRODUCED PASSION OR OBFUSCATION

Passion or obfuscation is a mitigating circumstance because the
offender who acts with passion or obfuscation suffers a
diminution of his intelligence and intent.

II. Elements For Passion Or Obfuscation:
Paragraph requires that:
o The accused acted upon an impulse.
o The impulse must be so powerful that it naturally
produced passion or obfuscation in him.
Requisites of the mitigating circumstance of passion or
obfuscation:
o That there be an act both unlawful and sufficient to
produce such a condition of mind.
o 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.

III. Reason Why Passion Or Obfuscation Is Mitigating
When there are causes naturally producing in a person
powerful excitement, he loses his reason and self-control,
thereby diminishing the exercise of his will power.
Passion or obfuscation may constitute a mitigating

circumstance only when the same arose from lawful
sentiments.
o For this reason, even if there is actually passion or
obfuscation on the part of the offender, there is no
mitigating circumstance when:
The act is committed in a spirit of lawlessness.
The act is committed in a spirit of revenge.

IV. FIRST ELEMENT: The Act Of The Offended Party Must Be Both
Unlawful And Sufficient To Produce Such A Condition Of Mind.
Unlawful or unjust act of the offended party
o People v. Ancheta, et al. mitigating circumstance
considered in favor of the owner who, upon seeing the
person who stole his carabao, shoots the supposed
thief.
o People v. Samonte Deceased created trouble during
the wake of the departed father of the defendant.
Considering the trouble created by the accused was
both unlawful and sufficient to infuriate accused, his
guilt is mitigated by passion or obfuscation.
Exercise of a right or fulfillment of a duty is not proper source
of passion or obfuscation.
o People v. Noynay, et al. Where the accused killed
the deceased when the latter was going to take his
carabao to the barrio lieutenant after the accused
refused to pay for the sugar cane destroyed by his
carabao. The deceased was within the rights of the
deceased, and thus there is not mitigating
circumstance.
o US v. Taylor Accused was making a disturbance on a
public street when a policeman came to arrest him. The
anger and indignation of the accused resulting from the

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arrest cannot be considered passion and obfuscation

because the policeman was performing a lawful act.
Act must be sufficient to produce such a condition of mind
o If the cause of the loss of self-control was trivial and
slight, obfuscation is not mitigating.
Passion or obfuscation must arise from lawful sentiments and
not from a spirit of lawlessness or revenge or from anger and
resentment.
o US v. De la Cruz Accused was entitled to mitigating
circumstance of passion or obfuscation because the
impulse was caused by the sudden revelation that she
was untrue to him, and his discovery of her in flagrante
in the arms of a common acquaintance.
in contrast
o US v. Hicks No mitigating circumstance when the
cause of passion or obfuscation of the accused was his
vexation, disappointment and anger engendered by the
refusal of the woman to continue living in illicit
relations with him which she had the perfect right to
do.
o Obfuscation arising from jealousy may be invoked if the
relationship is legitimate. But if it is illegitimate, it is not
mitigating (People. V. Olgado).

V. SECOND ELEMENT: 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.
No passion or obfuscation when:
o 24 has elapsed between the alleged insult and the
commission of the felony.
o Several hours passed between the cause of passion or
obfuscation and the commission of the crime.
At least half an hour intervened between the previous

fight and the subsequent killing of the deceased by the
accused.
Period that has lapsed is long enough for pause and reflection.
o

VI. May Passion Or Obfuscation Lawfully Arise From Causes Existing
Only In The Honest Belief Of The Offender? YES
US v. Ferrer belief of the defendant that the deceased had
caused his dismissal from his employment is sufficient to
confuse his reason and impel him to commit the crime.
US v. Macalintal belief entertained in good faith by the
defendants that the deceased cast upon their mother a spell of
withcraft which was the cause of serious illness is sufficient.

VII. Other Notes
Provocation and obfuscation when arising from one and the
same cause should be treated as only one mitigating
circumstance (p.309).
Vindication of grave offense cannot co-exist with passion and
obfuscation.
o Exception: when there are other facts, although closely
connected i.e. where there are other facts, although
closely connected with the fact upon which one
circumstance is premised, the other circumstance may
be appreciated as based on the other fact (People v.
Diokno)
o Example: Two facts which are closely connected
Elopement, which is a grave offense of a family
of old customs vindication as mitigating.
Refusal to deal with him, a stimulus strong
enough to produce in his mind a fit of passion
passion as a mitigating circumstance.
Vindication and obfuscation cannot be considered when the
person attacked is not the one who gave cause therefore.

80

Passion or obfuscation compatible with lack of intention to

commit so grave a wrong.
Passion or obfuscation incompatible with treachery.
o While in passion or obfuscation, the offender loses his
reason and self-control, in the aggravating
circumstance of treachery the mode of attack must be
consciously adopted.
Passion and obfuscation cannot co-exist with evident premeditation.

PAR. 7: THAT THE OFFENDER HAD VOLUNTARILY SURRENDERED
HIMSELF TO A PERSON IN AUTHORITY OR HIS AGENTS, OR THAT HE
HAD VOLUNTARILY CONFESSED HIS GUILT BEFORE THE COURT PRIOR
TO THE PRESENTATION OF THE EVIDENCE FOR THE PROSECUTION

Lesser perversity of the offender.

II. Two Mitigating Circumstances In Paragraph:
1. Voluntary surrender to a person in authority or his agents.
2. Voluntary confession of guilt before the court prior to the
presentation of the evidence for the prosecution.
Under Article 13, when both are present, they should have the
effect of mitigating as two independent circumstances.
When they mitigate the penalty, when both are present, they
should produce this effect to a greater extent.

III. Elements For Voluntary Surrender
Requisites for paragraph 7:
o Offender had not been actually arrested
o Offender surrendered himself to a person in authority
of to the latters agent
o Surrender is voluntary
Requisites of voluntariness:
o
o
Same must be spontaneous in such a manner that it

shows the interest of the accused to surrender
unconditionally to the authorities either because he
acknowledges his guilt or that he wants to save the
authorities the trouble and expenses of locating and
capturing him.
Accused must actually surrender in his own person to
the authorities, admitting complicity to the crime
Must indicate a desire on his part to own the
responsibilities for the crime

IV. FIRST ELEMENT: Offender Had Not Been Actually Arrested And
Surrendered Himself.
Cases of voluntary surrender
o People v. Tenorio Upon seeing a policeman, the
accused surrendered and admitted he did the crime.
There was intent and desire on his part to surrender.
o People v. Dayrit Accused hid in the hotel not
because of the police but because of the relatives of
the deceased. Upon seeing policemen, he readily
admitted ownership of the weapon and went with the
policemen.
o People v. Benito Instead of escaping, the accused
called the police, voluntarily approached them when
they came though not revealing his identity, and said
that he will help the police find the suspect. Later on,
he admitted that he was voluntarily surrendering
himself.
o People v. Magpalay Accused made several attempts
to surrender but somehow it got delayed because of
various reasons and so he only got to surrender after a
week. No defiance of law was present.

81

People v. Torres The accused had no opportunity to
surrender since the police already came but they
already yielded their weapons at that time.
o People v. Radomes There was no resistance on the
part of the accused and even voluntarily gave his
weapon and gave himself up to the authorities before
his arrest.
o People v. Jereza Accused brought his weapon to the
police but it is unsure if he is also surrendering his
person. He is given the benefit of the doubt of
voluntary surrender.
o People v. Braa Nothing on records to show that a
warrant of arrest was issued and accused surrendered
himself.
Cases not constituting voluntary surrender
o El Pueblo contra Conwi Warrant of arrest showed
that accused was in fact arrested.
o People v. Roldan Accused surrendered only after the
warrant of arrest was served upon him.
o People v.Velez Even if the police used the word
surrender, if the accused surrendered because of his
warrant of arrest.
o People v. Mationg Accused went into hiding and
only surrendered when they realized that the police are
closing in on them.
o People v. Salvilla Accused could no longer refuse to
surrender given the circumstances that they are in and
there was no chance of escaping. Their surrender is
motivated by their intent of insuring their safety.
o People v. Dela Cruz Search for the accused lasted for
4 years, which belies the spontaneity of the surrender.
o People v. Garcia No other evidence was presented
to establish indubitably that he deliberately
surrendered to the police.
o
People v. Trigo Accused only went to the police

station to report wife was stabbed and to protect
himself out of fear.
o People v. Rogales Only went to the headquarters
merely to report the incident which does not evince
any desire to own the responsibility for the killing of
the deceased
o People v. Canoy It does not appear that it was the
idea of the accused to send for the police for the
purpose of giving himself up.
o People v. Canoy Authorities were not looking for
him, and would not have looked for him if he had not
been present at the investigation by the Chief of Police.
o People v. Rubinal Upon being caught, accused
pretended to say that he was on his way to surrender
himself to the authorities.
Voluntarily surrendered himself prior to being arrested
People v. Jose de Ramos
o Facts: After the incident, accused reported it to the
councilor, even stayed in the councilors home for an
hour and submitting the bolo used but not his person
to the authorities.
o Held: The law requires that the offender must have
voluntarily surrendered himself to a person in
authority or his agents.
Surrender of weapons cannot be equated with voluntary
surrender.
Surrender not mitigating when the defendant is arrested.
o People v. Conwi No voluntary surrender when the
warrant of arrest showed that the defendant was in
fact arrested.
o Possible exemption:
People v. Parana When the accused after
committing the offense and having the chance
o

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to escape, voluntarily waited for the authorities
and surrendered himself.
People v. Babiera When the accused helped
in carrying his victim to the hospital where he
was disarmed and arrested. It is tantamount to
voluntary surrender.
When the warrant of arrest had not been served or not
returned unserved because the accused cannot be located the
surrender is mitigating.
o The law does not require that the surrender be prior to
the order of arrest the mere filing of an information
and/or the issuances of a warrant of arrest will not
automatically make the surrender involuntary.

V. SECOND ELEMENT: Offender Surrendered Himself To A Person In
Authority Of To The Latters Agent.
The surrender must be made to a person in authority or his
agent.
o Person in Authority one directly vested with
jurisdiction, that is a public officer who has the power
to govern and execute the laws whether as an
individual or as a member of some court or
governmental corporation, board or commission.
(Article 152 Revised Penal Code as amended by PD no.
299)
o Agent of a Person in Authority person, 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.

VI. THIRD ELEMENT: Surrender Is Voluntary
A. When Is Surrender Voluntary?
Must be spontaneous, showing the intent of the accused to

submit himself unconditionally to the authorities, either:
1. Because of acknowledgement of guilt or
2. Because he wished to save the trouble and expenses
necessarily incurred in his search and capture.
None of these 2 reasons and motivated by other intentions: not
voluntary!
The Surrender Must Be Spontaneous
Spontaneous idea of an inner impulse, acting without
external stimulus.
Conduct of the accused after the commission of the offense
determines the spontaneity of the surrender.
Intentions to surrender without actually surrendering, is not
mitigating.
o The law requires that the accused must surrender
himself.
There is spontaneity even if the surrender is induced by fear of
retaliation by the victims relatives
o Does not gainsay the spontaneity of the surrender, nor
alter the fact that by giving himself up, this accused
saved the State the time and trouble of searching for
him until arrested. (People v. Clemente)
When the offender imposed a condition or acted with external
stimulus, his surrender is not voluntary.
A surrender is not voluntary when forced by circumstances.
o Examples: belief that escape is impossible, impossibility
of living in hostility.

B. Voluntary Surrender Does Not Simply Mean Non-Flight
What the law considers as mitigating is the voluntary
surrender of an accused before his arrest, showing either
acknowledgement of his guilt or an intention to save the
authorities from the trouble and expense that his search and
capture.

83

Even if accused did not go into hiding and even
accompanied the police to the scene of the crime, such
act is not voluntary surrender if he did not submit
himself or admit complicity to the crime.
Time and place of surrender.
o Revised Penal Code does not make any distinction
among the various moments when the surrender may
occur.
o The law does not require the surrender to be prior to
the order of the arrest.
The surrender must be by reason of the commission of the
crime for which defendant is prosecuted
o Thus, if the defendant surrendered as a Huk to take
advantage of the amnesty, but the crime for which he
was prosecuted was distinct and separate from
rebellion, his surrender is not mitigating (People v
Semaada).
Surrender through an intermediary
o Surrender of an accused through his father who acted
as mediator was appreciated to be mitigating (People v.
De la Cruz).
o

VII. Confession Of Guilt Before A Court Prior To The Presentation Of
Evidence By The Prosecution
A. Plea Of Guilty
Three requisites
a. Offender spontaneously confessed his guilt.
b. Confession made in open court that is, before the
competent court.
c. Confession of guilt made prior to the presentation of
evidence for the prosecution.
When it must be made:
o The plea must be made before trial begins.
o Plea of guilty on appeal, not mitigating when:
Plea of guilty must be made at the first

opportunity.
Municipal Court to Court of First Instance does
not restore the case to its original state: The
law requires a trial de novo, because a trial de
novo necessarily implies the existence of a
previous trial where evidence was presented by
the prosecution.
Philosophy behind the rule:
o Spontaneous willingness of the accused to admit the
commission of the offense charged must be present.
Reason why plea of guilty is mitigating:
o Act of repentance and respect of the law
o Indicates a moral disposition favorable to the accuseds
reform
The confession of guilt must be made in open court.
The extrajudicial confession is not the voluntary confession the
Court contemplates. Such confession was made outside of
courts.
The confession of guilt must be made prior to the presentation
of the evidence for the prosecution
o Third requisite is lacking when plea of guilty is made
after the fiscal had presented evidence.
o Benefit of plea of guilty undeserving by accused who
submits to the law only after the presentation of some
evidence for the prosecution.
o It is not necessary that all the evidence of the
prosecution have been presented.
Plea of guilty should be made prior to presentation of evidence
Plea of not guilty at the preliminary investigation is no plea at
all.
o Plea made in the court of competent jurisdiction is the
one recognized.

84

Withdrawal of plea of not guilty and pleading guilty before

presentation of evidence by prosecution is still mitigating.
o All that the law requires is voluntary plea of guilty prior
to the presentation of the evidence by the prosecution.
o The change of plea should be made at the first
opportunity.
o A conditional plea of guilty is not a mitigating
circumstance.
Plea of guilty to amended information
o An entirely new information arises and no evidence
was presented in connection with the charges made
therein before the accused entered his plea of guilty.
The accused is entitled to the mitigating circumstance
of plea of guilty.
Plea of guilty to lesser offense than that charged, not mitigating
o To be voluntary, the plea of guilty must be to the
offense charged.
o If voluntary confession is conditional or qualified, it is
not mitigating.
Plea of guilty to the offense charged in the amended
information, which is lesser than that charged in the original
information, is mitigating.
o People v. Intal
Facts: The accused was charged with double
murder and he pleaded not guilty to it. He then
moved the Court to withdraw his former plea
of not guilty to guilty to the lesser crime of
double homicide. Prosecution also changed its
charge to double homicide.
Held: plea of guilty to the lesser offense
charged in the amended information is
mitigating
When the accused is charged with a grave offense, the

court should take his testimony in spite of his plea of
guilty
Because there is no law prohibiting the taking
of testimony after a plea of guilty, where a
grave offence is charged, the Court has deemed
such taking of testimony the prudent and
proper course to follow for the purpose of
establishing the guilt and the precise degree of
culpability of the defendant.
Death penalty changed to life imprisonment because of plea of
guilty, even if done during the presentation of evidence
o Such an admission of guilt indicates his submission to
the law and a moral disposition on his part to reform,
hence the change in penalty.
Mandatory presentation of evidence in plea of guilty to capital
offense
o Revised Rules of Criminal Procedure (Rule 116, Sec. 3)
Where the accused pleads guilty to a capital
offense, that courts shall conduct a searching
inquiry into the voluntariness and full
comprehension of the consequences of his plea
and shall require the prosecution to prove his
guilt and the precise degree of culpability.
Searching Inquiry
Guidelines:
o Ascertain from the accused himself (a) how he was
brought into the custody of the law; (b) whether he had
the assistance of a competent counsel during the
custodial and preliminary investigations and (c) under
what conditions he was detained and interrogated
during the investigations
o Ask defense counsel a series of questions as to whether
he had conferred with and completely explained to the
o

85

accused the meaning and consequences of a plea of
guilty
o Elicit information about the personality profile of the
accused
o Inform the accused of the exact length of
imprisonment or nature of penalty under the law and
the certainty that he will serve such sentence.
o Inquire if the accused knows the crime with which he is
charged and to fully explain to him the elements of the
crime which is the basis of his indictment
o Use language that is known and understood by the
accused
o Trial judge must satisfy himself that the accused in
pleading guilty, is truly guilty.
Plea of guilty is not mitigating in culpable felonies and in crimes
punished by special laws
o Article 365, paragraph 5 of Revised Penal Code: in the
imposition of these penalties, the courts shall exercise
their sound discretion, without regard to the rules
prescribed in Article 64.
o When there is a mitigating circumstance without any
aggravating circumstance, the penalty to be imposed is
the minimum period of the divisible penalty.
o When the crime is punished by a special law, the court
shall also exercise its sound discretion
o Article 64 is applicable only when the penalty has 3
periods.

PAR. 8: THAT THE OFFENDER IS DEAF AND DUMB, BLIND OR
OTHERWISE SUFFERING SOME PHYSICAL DEFECT WHICH THUS
RESTRICTS HIS MEANS OF ACTION, DEFENSE OR COMMUNICATION
WITH HIS FELLOW BEINGS.

I. Basis Of Paragraph 8:
Considers the fact that one suffering from physical defect does
not have complete freedom of action, and therefore there is a
diminution of that element of voluntariness.

II. Physical defect must restrict means of actions, defense, or
communication with fellow beings
Physical defect in this paragraph: armless, cripple, or a
stutterer, whereby his means to act, defend himself or
communicate with his fellow beings are limited.
Paragraph does not distinguish between educated and
uneducated deaf-mute or blind persons. The Code considers
them as being on equal footing.

PAR. 9: SUCH ILLNESS OF THE OFFENDER AS WOULD DIMINISH HIS
EXERCISING OF THE WILL-POWER OF THE OFFENDER WITHOUT
HOWEVER DEPRIVING HIM OF CONSCIOUSNESS OF HIS ACTS.

The circumstance in paragraph 9 of Article 13 is mitigating
because there is a diminution of intelligence and intent.

II. Elements Of Illness That Diminishes Will-Power:
1. That the illness of the offender must diminish the exercise of
his will-power.
2. That such illness should not deprive the offender of
consciousness of his acts.

III. Complete Loss Of Will-Power May Be An Exempting Circumstance.
A person with dementia praecox or manic depressive psychosis
has no control over his acts during periods of excitement.
This may be an exempting circumstance if the accused is
demented at the time he perpetrated the crime.

IV. Illness Of The Mind Is Included

86

The foregoing legal provision refers only to diseases of

pathological state that trouble the conscience or will.
People v. Francisco
o It was held that paragraph 9 applies to defendant who
committed the crime while suffering from illness of the
body, the mind, the nerves or the moral faculty.
Illness of the mind may give place to mitigation of punishment.

V. Examples Where Illness Of The Offender Considered Mitigating
People v. Balneg
o The mistaken belief of the accused that the killing of a
witch was for the public good may be considered a
mitigating circumstance for the reason that those who
have obsession (that witches are to be killed) does not
have real control over his will.
People v. Amit
o Although being mentally sane, the appellant is suffering
from a mild behavior disorder, which the court
regarded as a mitigating circumstance.
People v. Carpenter
o One suffering from acute neurosis, which diminished
exercise of will power, is entitled to this mitigating
circumstance.
People v. Formigones
o One who is feebleminded warrants the finding in his
favor of the mitigating circumstance.
People v. Antonio
o One suffering from schizo-affective disorder or
psychosis, which diminishes the exercise of his willpower but does not deprive him of the consciousness
of his acts, may be credited with this mitigating
circumstance.

PAR. 10: AND FINALLY, ANY OTHER CIRCUMSTANCE OF A SIMILAR

NATURE AND ANALOGOUS TO THOSE ABOVE-MENTIONED.

I. Circumstances which are similar in nature and analogous to those
mentioned in paragraphs 1-9 of Article 13:
This paragraph authorizes the court to consider in favor of the
accused any other circumstance of a similar nature and
analogous to those mentioned in par. 1 9.

Similar/Analogous
Article Content
Par.
Extreme poverty
Similar
to
incomplete Par. 1

justification based on state
Ex: People v. Macbul The of necessity
accused, on account of
extreme poverty pilfered 2
sacks of paper valued at 10
pesos and sold it for 2.50.
Such was considered a
mitigating circumstance
Extreme poverty may mitigate a crime against property, such
as theft, but not a crime of violence such as murder.
Over 60 years old with failing Similar to 70 years old of age Par. 2
sight
Outraged feeling of owner of Analogous to vindication of a Par. 5
animal taken for ransom
grave offense

Ex: B took a carabao of the A
and held it for ransom, and
thereafter B failed to fulfill his
promise to give the carabao
back. When A kills B, A is
entitled
to
mitigating
circumstance analogous to
vindication of grave offense.

87

Outraged feeling of creditor
Impulse of jealous feeling
Esprit de corps

Ex: People v. Villamora
many of the soldiers who took
part in the killing of the
deceased responded to the
call and appeal of their
lieutenant who urged them to
avenge
the
outrage
committed by the deceased.
Voluntary restitution of stolen
property

Ex: People v. Navasca The
act of testifying for the
prosecution, by one of the
accused, should be considered
in his favor as a mitigating
circumstance analogous to a
plea of guilty.
Testifying for the prosecution
Manifestations of Battered
Wife Syndrome (BWS)
Similar to passion
obfuscation
Similar to passion
obfuscation
Similar to passion
obfuscation
Similar
to
surrender
and Par. 6
and
and
voluntary Par. 7
Analogous to guilty plea

Analogous to an illness that Par. 9
diminished the exercise of
will power

Restitution in malversation case is only a mitigating circumstance
Payment or reimbursement is not a defense for exoneration in
malversation; it may only be considered as a mitigating
circumstance because damage is not an element of
malversation.
Killing the wrong man is not mitigating

II. Not Analogous Mitigating Circumstance
In parricide, the fact that the victim was unworthy, bad or
quarrelsome is not analogous to any of those mentioned in Art
13 a mitigating circumstance.
People v. Dy
o The accused who was charged with falsification,
pleaded guilty and invoked as mitigating circumstance
the lack of irreparable material damage. The court
ruled that this is not recognized as a mitigating
circumstance
Not resisting arrest is not analogous to voluntary surrender.
The condition of running amuck is not mitigating
o People v. Salazar- The defense contended that running
amuck is a cult among the Moros that is age-old and
deeply rooted. Court ruled that the mitigating
circumstances must be applied to all regardless of
religion.

III. Mitigating Circumstances Which Are Personal To The Offenders
The following circumstances shall only serve to mitigate the
liability of the principals, accomplices, and accessories as to
whom such circumstances are attendant:
1. Mitigating circumstances which arise from the moral
attributes of the offender.
2. Mitigating circumstances which arise from the private
relations of the offender with the offended party.
3. Mitigating circumstances which arise from any personal
cause.

IV. Circumstances Which Are Neither Exempting Or Mitigating:
1. Mistake in the blow.
2. Mistake in the identity of the victim.

88

3. Entrapment of the accused.
4. The accused is over 18 years of age.
5. Performance of righteous action (i.e. although the accused
saved the lives of a thousand, if he kills a single human being,
he is criminally liable People v. Victoria).

89

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CRIMINAL

CHAPTER 3: CIRCUMSTANCES WHICH MITIGATE CRIMINAL

Susceptible of being offset by any Cannot be offset by aggravating

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against in accordance with the provisions of Article 80.

Circumstances of justification or exemption which may give

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Ruling: Appellants are declared guilty of

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Diversion Program refers to the program that the

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IV. That The Offender Is 70 Years Of Age Is Only A Generic Mitigating

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Lack of intention to commit so grave a wrong, mitigating in

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circumstance of no intention to commit so

PAR. 4: THAT SUFFICIENT PROVOCATION OR THREAT ON THE PART OF

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injured B, there was a mitigating circumstance of threat

PAR.5: THAT THE ACT WAS COMMITTED IN THE IMMEDIATE

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cause serious physical injuries to C immediately after

offender or his relatives.

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Passion or obfuscation may constitute a mitigating

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arrest cannot be considered passion and obfuscation

At least half an hour intervened between the previous

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Passion or obfuscation compatible with lack of intention to

Same must be spontaneous in such a manner that it

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People v. Trigo Accused only went to the police

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Must be spontaneous, showing the intent of the accused to

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Plea of guilty must be made at the first

CRIMINAL LAW 1 REVIEWER

Withdrawal of plea of not guilty and pleading guilty before

When the accused is charged with a grave offense, the

CRIMINAL LAW 1 REVIEWER

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The foregoing legal provision refers only to diseases of

PAR. 10: AND FINALLY, ANY OTHER CIRCUMSTANCE OF A SIMILAR

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Analogous to guilty plea

Killing the wrong man is not mitigating

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