Criminal Law 1 U.E. College of Law Notes by Ryan A. Suaverdez Text: Reyes, 2008

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Article 5. Duty of the court in connection with acts which should be

repressed but which are not covered by the law, and in cases of

excessive penalties. Whenever a court has knowledge of any act

which it may deem proper to repress and which is not punishable by

law, it shall render the proper decision and shall report to the Chief

Executive, through the Department of Justice, the reasons which

induce the court to believe that the said act should be made the

subject of penal legislation.

In the same way the court shall submit to the Chief

Executive, through the Department of Justice, such statement as may

be deemed proper, without suspending the execution of the sentence,

when a strict enforcement of the provisions of the Code would result in

the imposition of a clearly excessive penalty, taking into consideration

the degree of malice and the injury caused by the offense.

A 5. D o t c i c w a w s b r b w a n c b t l, a i c o e p. W a c h k o a

a w i m d p t r a w i n p b l, i s r t p d a s r t t C E, t t D o J, t r w i t c

t b t t s a s b m t s o p l.

I t s w t c s s t t C E, t t D o J, s s a m b d p, w s t e o t s,

w a s e o t p o t C w r i t i o a c e p, t i c t d o m a t i c b t o.

In connection with acts which should be repressed but which are

not covered by the law

Requisites of the 1st paragraph of Art. 5

1. The act committed by the accused appears not punishable

by any law;

2. But the court deems it proper to repress such act;

3. In that case, the court must render the proper decision by

dismissing the case and acquitting the accused;

4. The judge must then make a report to the Chief Executive,

through the Secretary of Justice, stating the reasons which

induce him to believe that the said act should be made the

subject of penal legislation.

Basis of par.1, Art. 5.

nullum crimen, nulla poena sine lege

There is no crime if there is no law that punishes the act.

In cases of excessive penalties.

Requisites of par. 2, Art. 5.

1. The court after trial finds the accused guilty;

2. The penalty provided by law and which the court imposes for

the crime committed appears to be clearly excessive

because

a. The accused acted with lesser degree of malice,

and/or;

b. There is no injury of the injury caused is of lesser

gravity.

3. The court should not suspend the execution of the sentence.

4. The judge should submit a statement to the Chief Executive

through the Secretary of Justice, recommending executive

clemency.

People vs. Monleon

L-38262

Held: The SC applied Art. 5 considering that the accused had no intent to kill his

wife and that her death migh have been hastened by lack of appropriate medical

attendance or her weak constitution when she was maltreated in the inebriated

state of her husband. She was preventing her husband from whipping their

negligent son. The maltreatment was the proximate cause of her death.

People vs. Espino

No. 14029-R, Feb. 20, 1956.

Held: The CA applied Art. 5 when a father and son was convicted of qualified

theft for stealing ten coconut fruits from two coconut trees for their familys

consumption. They were sentenced to an indeterminate penalty of from 4

months and 1 day of arresto mayor to 3 years, 6 months and 21 days of prision

correctional according to Art. 310 of the RPC. The CA reasoned, In light of the

circumstances surrounding the case, we are of the belief that the degree of

malice behind the appellants felonious act does not warrant the imposition of so

stiff a penalty as we are now constrained to mete out under the law. We

recommend that they be pardoned after serving 4 months

People vs. Cabagsan and Montano

57 Phil. 598

Example of total lack of injury

The defendant chief of police altered and falsified the municipal police blotter and

the book of records of arrests and the return of the warrant of a rrest and the bail

bond of a person charged with qualified seduction so as to make them show that

the said person was arrested and gave bond on the 13th day of Sept., 1930,

whereas in truth and in fact, as said records showed before said falsification, that

person was arrested and released on bond on the 6th day of Sept., 1930. The

falsifications were committed to make it appear that there was no delay in the

preliminary investigation

People vs. Canja

86 Phil. 518, 522-523

Recommendation of executive clemency radical commutation or reduction of her

life sentence

Her deceased husband not content with squandering away the family substance,

and not satisfied with keeping a mistress, got into the habit of drinking. On the

very day that she killed her husband, according to her own confession on which

her conviction was based, he came home drunk, laid hands on her, striking her

stomach until she fainted. And when she recovered consciousness and asked for

the reason for the unprovoked attack, he threatened her with violence. He threw

away the meal set for him then left the house. Upon his return, he resumed the

beating. These circumstances induced her to kill her husband.

People vs Manlapaz

No. L-41819, Feb. 28, 1979

Recommendation of executive clemency because of the severity of the penalty

for rape.

Simple rape was committed. Before art. 355 of the RPC was amended, simple

rape was penalized by reclusion temporal or twelve years and one day to twenty

years. R.A. no. 4111 raised the penalty for simple rape to reclusion perpetua and

made qualified rape a capital offence. This is due to the rampancy of such

assault during the war to deter rapists. It is believed in this case, after the

accused shall have served a term of imprisonment consistent with retributive

justice, executive clemency may be extended

People vs Estoista

No. L-41819, Feb. 28, 1979

Penalty not excessive when intended to enforce a public policy

The rampant lawlessness against property, person, and even the very security of

the Government, directly traceable in large measure to promiscuous carrying and

use of powerful weapons, justify imprisonment which in normal circumstances

might appear excessive.

People vs Tiu Ua

96 Phil. 738,741

Penalty not excessive when intended to enforce a public policy

With regard to the fine of 5,000.00php imposed by the court for selling a can of

powedered Klim milk for 2.20php when the selling price for it was 1.80php, it

should be considered that Congress though it necessary to repress profiteering

Criminal Law 1 U.E. College of Law Notes by Ryan A. Suaverdez Text: Reyes, 2008

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with a heavy fine so that dealers would not take advantage of the critical

condition to make unusual profits.

People vs Olaes

105 Phil. 502

Duty of the courts to apply the penalty provided by law

A trial judge sentenced the accused to life imprisonment, although the

commission of the crime of robbery with homicide was attended by the

aggravating circumstances of nocturnity and in band, in view of the attitude of

the Chief Executive on death penalty. The SC ruled that the courts should

interpret and apply the laws as they find them on the statue books, regardless of

the manner their judgements are executed and implemented by the executive

department.

Article 6. Consummated, frustrated, and attempted felonies.

Consummated felonies, as well as those which are frustrated and

attempted, are punishable.

A felony is consummated when all the elements necessary

for its execution and accomplishment are present; and it is frustrated

when the offender performs all the acts of execution which would

produce the felony as a consequence but which, nevertheless, do not

produce it by reason of caused independent of the will of the

perpetrator.

There is an attempt when the offender commences the

commission of a felony directly by overt acts, and does not perform all

the acts of execution which should produce the felony by reason of

some cause or accident other than his own spontaneous desistance.

A 6. C, f, a a f. C f, a w a t w a f a a, a p.

A f i c w a t e n f i e a a a p; a i i f w t o p a t a o e w w p t f

a a c b w, n, d n p i b r o c i o t w o t p.

T i a a w t o c t c o a f d b o a, a d n p a t a o e w s p t f b r

o s c o a o t h o s d.

FELONY DEFINED

A felony is consummated when all the elements necessary for its

execution and accomplishment are present.

FRUSTRATED FELONY DEFINED

It is frustrated when the offender performs all the acts of execution

which would produce the felony as a consequence but which

nevertheless, do not produce it by reason of causes independent of the

will of the perpetrator.

ATTEMTPED FELONY DEFINED

There is an attempt when the offender commences the commission of

a felony directly by overt acts, and does no perform all the acts of

execution which should produce the felony by reason of some cause or

accident other than his own spontaneous desistance.

Development of crime

Stages:

1) Internal Acts, such as mere ideas in the mind of a person

are not punishable even if, had they been carried out, they

would constitute a crime. (Intention and Effect must concur)

2) External Acts, cover preparatory acts and acts of execution

and acts of execution.

a. Preparatory acts ordinarily are not punishable. But

preparatory acts which are considered in

themselves, by law, as independent crimes are

punishable. (possession of picklocks)

b. Acts of execution are punishable under the RPC.

They cover attempted, frustrated and

consummated felonies.

ATTEMPTED FELONY

There is an attempt when the offender begins the commission of a

felony directly by overt acts.

Elements:

1. The offender commences the commission of the felony

directly by overt acts;

2. He does not perform all the acts of execution which should

produce the felony;

3. The offenders act is not stopped by his own spontaneous

desistance;

4. The non-performance of all acts of execution was due to

cause or accident other than his spontaneous desistance.

1. T o c t c o t f d b o a;

2. H d n p a t a o e w s p t f;

3. T os a i n s b h o s d;

4. T n-p o a a o e w d t c o a o t h s d.

Commences the commission of a felony directly by overt acts.

Requisites

1. That there be external acts;

2. Such external acts have direct connection with the crime

intended to be committed.

1. T t b e a;

2. S e a h d c w t c i t b c.

OVERT ACTS DEFINED

An overt act is some physical activity or deed, indicating the intention

to commit a particular crime, more than a mere planning or

preparation, which if carried to its complete termination following its

natural course, without being frustrated by external obstacles nor by

the voluntary desistance of the perpetrator, will logically and

necessarily ripen into a concrete offense.

A o a i s p a o d, i t i t c a p c, m t a m p o p, w i c t i c t f i n c, w b f b e

o n b t v d o t p, w l a n r i a c o.

People vs. Tabago, et al.

C.A. O.G. 3419

Drawing or trying to draw a pistol is not an overt act of homicide

Facts: While Tabago was talking with the Chief of Police, he made a motion to

draw his pistol, but the latter embraced him and prevented him from drawing his

pistol. Tabago then told his companions to fire at the Chief of Police, but they

Criminal Law 1 U.E. College of Law Notes by Ryan A. Suaverdez Text: Reyes, 2008

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could not do so, because the Chief of Police was embracing Tabago. One of his

companions, Avelino Valle, fired a shot but the same was not aimed at anybody.

Held: The accused cannot be convicted of the crime of attempted homicide. The

action of the accused in placing his hand on his revolver, which was then on his

waist, is indeed very equivocal and susceptible to different interpretations.

People vs. Simeon

3 Phil 688

Raising a bolo as if to strike is not an overt act of homicide

Held: It was held that the crime committed was only that of threatening another

with a weapon, because all that the accused did was to raise his bolo The

latter shouted for help and ran away. No blow was struck; nor was there proof of

threats to kill or to do bodily harm.

U.S. vs. Gloria

4 Phil. 341

Overt act may not be by physical activity

Held: There are felonies where, because of their nature of the manner of

committing them, the overt acts are not performed with bodily movement or by

physical activity. Thus, a proposal consisting in making an offer of money to a

public officer for the purpose of corrupting him is the overt act in the crime of

corruption of public officer.

People vs. Lamahang

61 Phil. 703

External acts must have a direct connection the crime intended to be committed

Held: The crime committed was attempted trespass to dwelling, because the

intention of the acused was obviously disclosed by his act of making an opening

through the wall, and that was to enter the store against the will of its owner who

was then living there. It is only an attempt, because A was not able to perform all

the acts of execution which should produce the felony of trespass to dwelling.

Had A commenced entering the dwelling through the opening, he would have

performed all the acts of execution.

INDETERMINATE OFFENSE DEFINED

It is one where the purpose of the offender in performing an act is not

certain. Its nature in relation to its objective is ambiguous.

The intention of the accused must be viewed from the nature of

the acts executed by him, and not from his admission.

The intention of the accused must be ascertained from the facts, and,

therefore, it is necessary that the mind be able to directly infer from

them the intention of the perpetrator to cause particular injury.

Acts susceptible of double interpretation, that is, in favour, as well as

against the accused, and which show an innocent as well as a

punishable act, must not and cannot furnish grounds by themselves for

attempted crime.

Direcly by overt acts

The law requires that the offender commences the commission of the

felony directly by overt acts.

Does not perform all the acts of execution.

If the offender has performed all the acts of execution nothing more

is left to be done the stage of execution is that of a frustrated felony,

if the felony is not produced; or consummated, if the felony is

produced.

By reason of some cause or accident.

In an attempted felony, the offender fails to perform all the acts of

execution which should produce the felony because of some cause or

accident. (Accident: Guns trigger jammed Cause: Grabbing of hand of

a pick pocket.)

Other than his own spontaneous desistance.

If the actor does not perform all the acts of execution by reason of his

own spontaneous desistance, there is no attempted felony. He will not

be punished by the law. (Having a conscience is rewarded.)

People vs. Villacorte

No. L-21860 Feb. 28, 1974

Held: One who takes part in planning a criminal act but desists in its actual

commission is exempt from criminal liability. For after taking part in the planning,

he could have desisted form taking part in the actual commission of the crime by

listening to the call of his conscience.