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 year of age or over seventy years. In the case of the minor, he shall be proceeded against in accordance with the provisions of Art. 80.3. That the offender had no intention to commit so grave a wrong as that committed.4. That sufficient provocation or threat on the part of the offended party immediately preceded the act.5. 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.6. That of having acted upon an impulse so powerful as naturally to have produced passion or obfuscation.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;8. 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.9. 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.10. And, finally, any other circumstances of a similar nature and analogous to those above mentioned.

Keywords: 1. Incomplete Justifying or Exempting Circumstance2. Under Eighteen or Over Seventy Years Old3. No Intention to Commit So Grave a Wrong4. Provocation or Threa5. Vindication of Grave Offense6. Passion or Obfuscation7. Surrender and Confession of Guilt8. Physical Defect9. Illness of the Offender10. Similar and Analogous Circumstances

Definition: Mitigating circumstances are 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: Mitigating circumstances are based on the diminution of either freedom of action, intelligence, or intent, or on the lesser perversity of the offender.

Classes of mitigating circumstances:1. Ordinary mitigating- those mentioned in subsections 1 to 10 of Article 13, if Article 69, for

instance is not applicable.2. Privileged mitigating-

a. Art 68. Penalty to be imposed upon a person under eighteen years of age. (page 262)b. Art 69 Penalty to be imposed when the crime committed is not wholly excusable. (page 262)c. Art 64 Rules for the application of penalties which contain three periods. (page 262)

Privileged mitigating circumstance applicable only to particular crimes.1. Voluntary release of the person illegally detained within 3 days without the offender attaining

his purpose and before the institution of criminal action. The penalty is one degree lower.2. Abandonment without justification of the spouse who committed adultery. The penalty is one

degree lower.

Distinctions.1. Ordinary mitigating is susceptible of being offset by any aggravating circumstance; while

privileged mitigating cannot be offset by aggravating circumstance.2. Ordinary mitigating , if not offset by an aggravating circumstance, produces only the effect of

applying the penalty provided by law for the crime in its minimum period, in case of divisible penalty; whereas, privileged mitigating produces the effect of imposing upon the offender the penalty lower by one or two degrees than that provided by law for the crime.

Mitigating circumstances only reduce the penalty, but do not change the nature of the crime.If there is an ordinary or generic mitigating circumstance, not offset by any aggravating

circumstance, the accused should be found guilty of the same crime of murder, but the penalty to be imposed is reduced to the minimum of the penalty for murder.

If there is a privileged mitigating circumstance, the penalty for murder will be reduced by one or two degrees lower. In every case, the accused should be held guilty of murder.

Par 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.

Those mention in the preceding chapter”- this clause has reference to:1. Justifying circumstances 2. Exempting circumstances

Circumstances of justification or exemption which may give place to mitigation- because not all the necessary requisites to justify the act or to exempt from criminal liability in the respective cases are attendant, are the following:

1. Self-defense2. Defense of relatives3. Defense of stranger4. State of necessity5. Performance of duty6. Obedience to order of superior court7. Minority above 15 but below 18 years of age8. Causing injury by mere accident9. Uncontrollable fear

*Paragraphs 1 and 2 of Article 12 cannot give place to mitigation, because, the mental condition of a person is indivisible; that is, there is no middle ground between sanity and insanity, between presence and absence of intelligence.

*If the offender is suffering from some illness which would diminish the exercise of his will-power, without however depriving him of consciousness of his acts, such circumstance is considered mitigation under paragraph 9 of Article 13.

When all the requisites necessary to justify the act are not attendant.

1. Incomplete self-defense, defense of relatives, and defense of stranger.Note: Unlawful aggression must be present, it being an indispensable requisite. What is absent is either one or both of the last two requisites.

Paragraph 1 of Article 13 is applicable only when unlawful aggression is present but the other two requisites are not present in any of the cases referred to in circumstances Nos. 1, 2 and 3 of Article 11.

*when the two of the three requisites are present, the case must not be considered as one which an ordinary or generic mitigating circumstance is present. Instead, it should be considered a privileged mitigating circumstance.

*Incomplete self-defense on the part of the defendant, may be considered a privileged mitigating circumstance.

Example of incomplete defense: There is, therefore, absence of one circumstance to justify the act- reasonable necessity of killing of the aggressor. The accused was entitled to a privileged mitigating circumstance of incomplete defense.

Example of incomplete self-defense: The necessity of the means used to repel the aggression is not clearly reasonable. The accused is entitled to only incomplete self-defense.

Example of incomplete defense of relative: If the accused is motivated by revenge, resentment, or evil motive, he is only entitled to the privileged mitigating circumstance of incomplete defense of relative.

2. Incomplete justifying circumstance of avoidance of greater evil or injury.*Avoidance of greater evil or injury is a justifying circumstance if all the three requisites mentioned in in Paragraph 4 of Article 11 are present. But if any of the last two requisites is absent, there is only a mitigating circumstance.

3. Incomplete justifying circumstance of performance of duty.*there are two requisites that must be present in order that the circumstance in Article 11, No. 5, may be taken as a justifying one, namely:a. That the accused acted in the performance of a duty or in the lawful exercise of a right or office; andb. That the injury caused or offense committed be the necessary consequence of the due performance of such duty or the lawful exercise of such right or office.

Note: (People v. Oanis) where only one of the requisites of circumstance No. 5 of Article 11 was present, Article 69 was applied. In the instant case, only the first requisite is present- appellants have acted in the performance of a duty. The second requisite is wanting for the crime committed by them is NOT necessary consequence of a due performance of their duty. Art. 69 of the RPC, the penalty lower by one or two degrees than that prescribed by law shall, in such case, be imposed. Since the Supreme Court considered one of the two requisites as constituting the majority, it seems that there is no ordinary mitigating circumstance under Art 13, par 1, when the justifying or exempting circumstance has two requisites only. (Page 270)

4. Incomplete justifying circumstance of obedience to an order.

*if it may have aroused a feeling of resentment that may have impelled him to readily and without questioning and follow the order.

When all the requisites necessary to exempt from criminal liability are not attendant.1. Incomplete exempting circumstance of minority over 15 and under 18 years of age.

To be exempt from criminal liability under R.A No 9344 (The Juvenile Justice and Welfare Act of 2006), two conditions MUST be present:

a. That the offender is over 15 and 18 years old; andb. That he does NOT act with discernment.Note: if the minor over 15 and under 18 years of age acted with discernment, he is entitled only to a mitigating circumstance, because not all the requisites necessary to exempt from criminal liability are present.

2. Incomplete exempting circumstance of accident.Under par 4 of Art 12, there are four requisites that must be present in order to exempt one from criminal liability, namely:

a. A person is performing a lawful act;b. With due care;c. He causes an injury to another by mere accident; andd. Without fault or intention of causing it

*if the second requisite and the first part of the fourth requisite are absen t , it punishes a felony by negligence or imprudence. In effect, there is a mitigating circumstance, because the penalty is lower than that provided for intentional felony.

*if the first requisite and the 2 nd part of the fourth requisite are absent , because the person committed an unlawful act and had the intention of causing the injury, it will be an intentional felony. The 2nd and 3rd requisites will not be present either. In this case, there is not even a mitigating circumstance.

3. Incomplete exempting circumstance of uncontrollable fear.The following requisites must be present:

a. That the threat which caused the fear was of an evil greater than or at least equal to, that which he was required to commit.

b. That it promised an evil of such gravity and imminence that an ordinary person would have succumbed to it (uncontrollable).

Note: if ONLY one of these requisites is present, there is ONLY a mitigating circumstance.

Paragraph 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 Art. 80.

Basis of paragraph 2: based on the diminution of intelligence, a condition of voluntariness.

Paragraph 2, Article 13 of the RPC impliedly repealed by Republic Act No. 9344.An offender fifteen (15) or over but under eighteen (18) years of age is entitled only to the

benefits provided under Art 68 of the RPC, under RA No. 9344 or the “juvenile Justice Welfare Act of 2006,”, such offender may be exempt from criminal liability if he/she acted without discernment. If such offender acted with discernment, such child conflict with the law shall undergo diversion programs.

Meaning of Diversion and Diversion Program under Republic Act. No. 9344“Diversion”: refers to an 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 resulting to formal court proceedings.

System of Diversion: children in conflict with the law shall undergo diversion programs without undergoing court proceedings subject to the following conditions. (Page 275)

a. Where the imposable penalty for the crime committed is not more than six (6) years imprisonment…

b. In victimless crimes where the imposable penalty is not more than six (6) years of imprisonment…

c. Where the imposable penalty for the crime committed exceeds (6) years imprisonment…

Conferencing, Mediation and 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 . A contract of diversion may be entered into during such conferencing, mediation or conciliation proceedings.

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. The diversion program shall be effective and binding if accepted by the parties concerned. The local social welfare and development officer shall supervise the implementation of the diversion program. The diversion program shall be completed within forty-five (45) days and the period of prescription shall be suspended until the completion of the diversion proceedings but not to exceed forty-fived (45) days. The child shall present himself/herself to the competent authorities imposed the diversion program at least once a month for reporting and evaluation of the effectiveness of the program. Failure to comply with the terms and conditions of the contract of diversion, as certified by the local social welfare and development officer, shall give the offended party the option to institute the appropriate legal action.

Q: Where the diversion may be conducted?A: diversion maybe conducted at the Katarungang Pambarangay, the police investigation of the inquest or preliminary investigation stage and at all levels and phases of the proceedings including judicial level.

Duty of the Punong Barangay or the Law Enforcement officer when there is no diversion.*The Punong Barangay handling the case shall, within three (3) days from determination of the absence of jurisdiction over the case of termination of the diversion proceeding as the case may be, forward the records of the case to the law enforcement officer, prosecutor of the appropriate court, as the case may be,

*In case a Law Enforcement Officer is the one handling the case, within same period, the Law Enforcement Officer shall forward the case to the prosecutor or judge concerned for the conduct of inquest an/or preliminary investigation. Te document transmitting said records shall display the word “CHILD” in bold letters.

That the offender is over 70 years of age is only a generic mitigating circumstance.The penalty of death will have to be lowered to life imprisonment (reclusion perpetua).

Paragraph 3- That the offender had no intention to commit so grave a wrong as that committed.Basis of Paragraph 3: Intent, an element of voluntariness in intentional felony, is diminished.

Rule for the application of this paragraph: 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. Illustrations (Page 278)

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.The weapon used, the part of the body injured, the injury inflicted, and the manner it is inflicted may show that the accused intended wrong committed. (page 280)

Article 13, paragraph 3, is NOT applicable when the offender employed brute force.The brute force employed by the appellant, completely contradicts the claim that he had no

intention to kill the victim.It is the intention of the offender at the moment when he is committing the crime which is

considered.It addressed the intention of the offender at the particular moment when he executed or

commits the criminal act; not to his intention during the planning stage.The plea of lack of intention to commit so grave a wrong cannot be appreciated as a mitigating

circumstance.

Lack of intention to commit so grave a wrong, mitigating in robbery with homicide. : mitigating circumstance of lack of intent to commit so grave a wrong may be appreciated favorably in robbery with homicide.

Appreciated in murder qualified by circumstances based on manner of commission, not on state of mind of accused.

Murder results from the presence of qualifying circumstances (in this case with premeditation and treachery) based upon the manner in which the crime was committed and not upon the state of mind of the accused.

NOT appreciated in murder qualified by treachery: lack of intention to commit so grave a wrong is not appreciated where the offense committed is characterized by treachery. The mitigating circumstance of lack of intention cannot be appreciated in their favor.

Lack of intent to kill, not mitigating in physical injuries: the absence of intent to kill reduces the felony to mere physical injuries, but it does not constitute a mitigating circumstance.

Ex: Mitigating when the victim dies (page 284)

NOT applicable to felonies by negligence. 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. Hence, in felonies through negligence, there is no intent on the part of the offender which may be considered as diminished.

Is Article 13, paragraph 3, applicable to felonies where the intention of the offender is immaterial?In unintentional abortion, the mitigating circumstance that the offender had no intention to

commit so grave a wrong as that committed is NOT applicable. Unintentional abortion is committed by any person who, by violence, shall cause the killing of the foetus in the uterus or the violent expulsion of the foetus from the maternal womb, causing its death, but unintentionally.

Applicable only to offenses resulting in physical injuries or material harm: NOT appreciated in cases of defamation or slander.

Applied in Malversation of Public Funds: petitioner misappropriated the missing funds under his custody and control because he was impelled by the genuine love for his brother and his family. There was no intention to commit so grave a wrong and is entitled to the mitigating circumstance.Paragraph 4- That sufficient provocation or threat on the part of the offended party immediately preceded the act.Basis of Paragraph 4- based on diminution of intelligence and intent.

What is provocation? - it is understood as any unjust or improper conduct or act of the offended party, capable of exciting, inciting, or irritating anyone. Requisites:

1. That the provocation must be sufficient;2. That it must originate from the offended party; and3. That the provocation must be immediate to the act, i.e., to the commission of the crime by the

person who is provoked.

The provocation must be sufficient: the word “sufficient” means adequate to excite a person to commit the wrong and must accordingly be proportionate to its gravity. As to whether a provocation is sufficient depends upon the act constituting the provocation, the social standing of the person provoked, the place and the time when the provocation is made.

Examples of sufficient provocation (page 286-288)

Provocation held not sufficient. (page 288-289)

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” (page 289)

Difference between sufficient provocation as requisite of incomplete self-defense and as a mitigating circumstance. As an element of self-defense, it pertains to its absence on the part of the person defending himself; while as a mitigating circumstance, it pertains to its presence on the part of the offended party.

The provocation by the deceased in the first stage of the fight is not a mitigating circumstance when the accused killed him after he had fled.

Provocation must be immediate to the commission of the crime.There should not be any interval of time.

The reason for the requirement is that the law states that the provocation” immediately preceded the act.” 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 had time to regain his reason and to exercise self-control.

Provocation given by an adversary at the commencement and during the first stage of a fight CANNOT be considered as mitigating.

Threat immediately preceded the act: there was a mitigating circumstance of the threat immediately preceded the act. 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 self-defense.

Vague threats not sufficient.

Paragraph 5- 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.Basis of Paragraph 5: based on the diminution of the conditions of voluntariness.

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 vindication of such grave offense. A lapse of time is allowed between the vindication and the doing of the grave offense.Illustration: (page 292)

Applies to grave offense committed against surviving spouse of deceased relative.- the relationship by affinity created between the surviving spouse and the blood relatives of the deceased spouse survives the death of either party to the marriage which created the affinity.

A lapse of time is allowed between the grave offense and the vindication. (Page 293)

Interval of time negating vindication. (page 294)

Distinguish provocation from vindication.1. In the case of provocation, it is made directly only to the person committing the felony; in

vindication, the grave offense may be committed also against the offender’s relatives mentioned by the law.

2. In vindication, the offended party must have done a grave offense to the offender or his relatives mentioned by the law; in provocation, the cause that brought about the provocation need not be a grave offense.

3. In provocation, it is necessary that the provocation or threat immediately preceded the act. In vindication, the vindication of the grave offense may be proximate, which admits of an interval of time between the grave offense done by the offended party and the commission of the crime by the accused.

Reason for the difference: 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.

Killing a relative is a grave offense.

Basis to determine the gravity of offense in vindication: it must be decided by the court, having in mind the social standing of the person, the place and the time when the insult was made.

Considered grave offense (page 296)

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. When the remark itself was general in nature and not specifically directed to the accused. The remark cannot be considered a grave offense against the accused.

Vindication of a grave offense incompatible with passion or obfuscation- cannot be counted separately and independently.

Paragraph 6- That of having acted upon an impulse so powerful as naturally to have produced passion or obfuscation.Basis of Paragraph 6- passion or obfuscation is a mitigating circumstance because the offender who acts with passion or obfuscation suffers a diminution of his intelligence and intent.

Requisites:1. The accused acted upon an impulse. 2. the impulse must be so powerful that it naturally produced passion or obfuscation

in him.

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 exercises of his will power.

Rule for the application of this paragraph- passion or obfuscation may constitute a mitigating circumstance ONLY when the same arose from lawful sentiments.

Even if there is actually passion or obfuscation on the part of the offender, there is no mitigating circumstance, when:

1. the act is committed in a spirit of lawlessness; or2. the act is committed in a spirit of revenge.

Requisites of the mitigating circumstance of passion or obfuscation:1. that there be an act, both unlawful and sufficient to produce such a condition of mind; and2. 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.

The act of the offended party must be unlawful or unjust. (Page 299)

Exercise of a right or fulfillment of duty is not proper source of passion or obfuscation. (Page 300)

The act must be sufficient to produce such condition of mind- if the cause of the loss of self-control was trivial and slight, the obfuscation is NOT mitigating. (Page 300)

No passion or obfuscation after 24 hours, or several hours of half an hour. (Page 301)The reason for these rulings is that the act producing the obfuscation must not be far removed

from the commission of the crime by a considerable length of time, during which the accused might have recovered his normal equanimity.

The defense must prove that the act which produced passion or obfuscation took place at a time not far from the commission of the crime.

The crime committed must be the result of a sudden impulse of natural and uncontrollable fury.

Passion or obfuscation must arise from lawful sentiments. (page 302-305)

In spirit of lawlessness- NOT entitled to the mitigating circumstance of “having acted upon an impulse so powerful as naturally to have produced passion”

In a spirit of revenge- a person cannot be credited with such mitigating circumstance if he/she was actuated more by spirit of lawlessness and revenge than by any sudden impulse of natural and uncontrollable fear.

*to be considered as a mitigating circumstance, passion or obfuscation must arise from lawful sentiments and not from a spirit of lawlessness or revenge or from anger and resentment.

The offender must act under the impulse of special motives. (Page 306)

Illustration of impulse of special motives. (Page 306)

Obfuscation arising from jealousy- cannot be invoked in favor of the accused whose relationship with the woman (his common-law wife) was illegitimate.

The killing of the deceased by the accused arose out of rivalry for the hand of a woman, passion or obfuscation is mitigating.

Loss of reason and self-control due to jealousy between rival lovers was not mitigating.

Obfuscation – when relationship is illegitimate- not mitigating.

The cause producing passion or obfuscation must come from the offended party, (Page 307)

Q: May passion or obfuscation lawfully arise from causes existing only in the honest belief of the offender?A: Yes. (page 308)

Provocation and obfuscation arising from one and the same cause should be treated as only one mitigating circumstance.

Vindicating of grave offense cannot co-exist with passion and obfuscation.

Exception- when there are other facts, although closely connected.

Passion or obfuscation compatible with lack of intention to commit so grave a wrong.

Passion or obfuscation incompatible with treachery.Vindication or obfuscation cannot be considered when the person attacked is not the one who

gave cause therefor.

Passion and obfuscation cannot co-exist with evident premeditation.

Passion or obfuscation distinguished from irresistible force.

Passion or obfuscation-mitigating circumstance-cannot give rise to irresistible force-is in the offender himself-arise from lawful sentiments

Irresistible force-exempting circumstance-requires physical force-must come from a third person-unlawful

Passion or obfuscation distinguished from provocation.

Passion or obfuscation-produced by an impulse which may be caused by provocation-must immediately precede the commission of the crime

Provocation-comes from the injured party-the office which engenders perturbation of mind need not be immediate

Paragraph 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.

Basis of Paragraph 7- the basis of the mitigating circumstances if voluntary surrender and plea of guilty is the lesser perversity of the offender.

Two mitigating circumstances are provided in this paragraph.1. Voluntary surrender to a person in authority or his agents2. Voluntary confession before the court prior to the presentation of evidence for the prosecution.

Requisites of voluntary surrender.

1. Offender had not been actually arrested.2. Offender surrendered himself to a person in authority or to latter’s agent.3. Surrender was voluntary.

Requisites of voluntariness.1. Must spontaneous (acting without stimulus)2. The accused surrendered unconditionally to the authorities or their agents because

a. he acknowledges his guilt; orb. he wishes to save the authorities and their agents the trouble and expenses necessarily

incurred in the search and capture.

Cases of voluntary surrender. (Page 313)

Cases not constituting voluntary surrender. (Page 315)

Not mitigating when defendant was in fact arrested. (page 317)The accused who ran to the municipal building after the commission of the crime had the

intention or desire to surrender.The accused who fled and hid himself to avoid reprisals from the companions of the deceased,

but upon meeting a policeman voluntarily went with him to the jail, is entitled to the benefit of the mitigating circumstance of voluntary surrender.

When the accused surrendered only after the warrant of arrest had been served upon him, it is not mitigating.

When the warrant of arrest had not been served or not returned unserved because the accused cannot be located, the surrender is mitigating.

The law does not require that the surrender be prior to the order of arrest.

“Voluntarily surrendered himself”.Surrender of weapons cannot be equated with voluntary surrender.

The surrender must be made to a person in authority or his agents.A “person in authority” is one directly with jurisdiction, that is, a public officer who has the power to govern and execute the laws.

An “agent of a person in authority” is a 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.

Voluntary surrender does not simply mean non-flight- as a matter of law, it does not matter if the accused never avoided arrest and never hid or fled. What the law considered 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 would require.

Time and place of surrender. (page 321)

The surrender must be by reason of the commission of the crime for which defendant is prosecuted. (Page 322)

Surrender through an intermediary. (page 322)

When is surrender voluntary? It must be spontaneous, showing the intent of the accused to submit himself unconditionally to the authorities, either:

a. he acknowledges his guilt; or

b. he wishes to save the authorities and their agents the trouble and expenses necessarily incurred in the search and capture.

The surrender must be spontaneous.- the word “spontaneous” emphasizes the idea of an inner impulse, acting without external stimulus. The conduct of the accused, not his intention alone, after the commission of the offense, determines the spontaneity of the surrender.

Intention to surrender, without actually surrendering, is NOT mitigating.Note: the law requires that the accused must surrender himself.There is spontaneity even if the surrender is induced by fear of retaliation by the victim’s

relatives.When the offender imposed a condition or acted with external stimulus, his surrender is not voluntary.

Requisites of plea of guilty.1. That the offender spontaneously confessed his guilt;2. That the confession of guilt was made in open court, that is, before the competent court that is

to try the case; and3. That the confession of guilt was made prior to the presentation of evidence for the prosecution.

The plea must be made before the trial.Plea of guilty on appeal, not mitigating.Philosophy behind the rule.- for the spontaneous willingness of the accused to admit the commission of the offense charged, which is rewarded by the mitigating circumstance, is absent.

Plea of not guilty at the preliminary investigation is no plea at all.

The confession of guilt must be made in open court.The confession of guilt must be made prior to the presentation of the evidence for the

prosecution.

Withdrawal of plea of not guilty and pleading guilty before presentation of evidence by prosecution is still mitigating.

The change of plea should be made at the first opportunity.A conditional plea of guilty is not a mitigating circumstance.

Death penalty changed to life imprisonment because of the plea of guilty, even if done during the presentation of evidence.

Plea of guilty to amended information- the accused is entitled to the mitigating circumstance of plea of guilty.

Plea of guilty to lesser than that charged, NOT mitigating.

Please of guilty to the offense charged in the amended information, lesser than that charged in the original information, is mitigating.

When the accused is charged with a grave offense, the court should take his testimony in spite of his plea guilty.

Mandatory presentation of evidence in plea of guilty to capital offense.

Searching inquiry. (page 331)

Plea of guilty is not mitigating in culpable felonies and in crimes punished by special laws.

Paragraph 8- 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.Basis of Paragraph 8- considers the fact that one suffering from physical defect, which restricts one’s means of action, defense, or communication with one’s fellow beings, does not have complete freedom of action and, therefore, there is diminution of that element of voluntariness.

Deaf and dumb.- he is entitled to the mitigating circumstance for being deaf and dumb.

Physical defect must restrict means of action, defense, or communication with fellow beings.- referred to persons as being armless, cripple, or a stutterer, whereby his means to act, defend himself or communicate with his fellow beings are limited.

*does NOT distinguish between educated and uneducated deaf-mute or blind persons.

Paragraph 9- 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.Basis of Paragraph 9: it is mitigating because there is a diminution of intelligence and intent.

Requisites: 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.

When the offender completely lost the exercise of his will-power, it may be an exempting circumstance.

Does this circumstance include illness of the mind?Q: Does this paragraph refer to the mental condition more or less disturbed?A: it is said that the foregoing legal provision refers only to diseases of pathological state that

trouble the conscience or will.

Illness of the offender considered mitigating. (Page 344)

Paragraph 10-And, finally, any other circumstances of a similar nature and analogous to those above mentioned.

Must be of similar nature and analogous to those mentioned in paragraphs 1 to 9 of Articles 13.

Over 60 years old with failing sight, similar to over 70 years of age mentioned in Paragraph 2.

Outraged feeling of owner of animal taken for ransom analogous to vindication of a grave offense.- entitled to mitigating circumstance.

Outraged feeling of creditor, similar to passion and obfuscation mentioned in Paragraph 6.- entitled to mitigating circumstance

Impulse of jealous feeling, similar o passion and obfuscation.- entitled to mitigating circumstance.

Manifestations of Battered Wife Syndrome, analogous to an illness that diminishes the exercise of will power.

Esprit de corps, similar to passion and obfuscation.

Extreme poverty and necessity, similar to incomplete justification based on state of necessity.Extreme poverty may mitigate a crime against property, such as theft, but not a crime of

violence such as murder.

Testifying for the prosecution, analogous to plea of guilty.

Restitution in malversation case is only a mitigating circumstance.

Killing the wrong man is NOT mitigating.

NOT analogous mitigating circumstance. (page 339)

NOT resisting arrest, NOT analogous to voluntary surrender.

The condition of running amuck is NOT mitigating.

Mitigating circumstances which are personal to the offenders.Mitigating circumstances which arise from the moral attributes of the offender.Mitigating circumstances which arise from the private relations of the offender with the

offended party.Mitigating circumstances which arise from any other personal causes.

Circumstances which are neither exempting nor mitigating:1. Mistake in the blow (aberratio ictus)2. Mistake in the identity of the victim3. Entrapment of the accused4. Accused is over 18 years of age5. Performance of a righteous action