Criminal Law 1

Text: Reyes, 2008

U.E. College of Law

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

2.
3.
4.

The act committed by the accused appears not punishable

by any law;
But the court deems it proper to repress such act;
In that case, the court must render the proper decision by
dismissing the case and acquitting the accused;
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.

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.

3.
4.

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 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

Basis of par.1, Art. 5.

1.
2.

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. 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.

Requisites of the 1st paragraph of Art. 5

1.

Notes by Ryan A. Suaverdez

The court after trial finds the accused guilty;

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.
The court should not suspend the execution of the sentence.
The judge should submit a statement to the Chief Executive
through the Secretary of Justice, recommending executive
clemency.

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

People vs. Monleon

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Criminal Law 1
Text: Reyes, 2008

U.E. College of Law

with a heavy fine so that dealers would not take advantage of the critical
condition to make unusual profits.

1)

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.

2)

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.

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)
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.
2.

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.

3.
4.

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

1.
2.
3.
4.

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.

Notes by Ryan A. Suaverdez

The offender commences the commission of the felony

directly by overt acts;
He does not perform all the acts of execution which should
produce the felony;
The offenders act is not stopped by his own spontaneous
desistance;
The non-performance of all acts of execution was due to
cause or accident other than his spontaneous desistance.
T o c t c o t f d b o a;
H d n p a t a o e w s p t f;
T os a i n s b h o s d;
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

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.
2.

That there be external acts;

Such external acts have direct connection with the crime
intended to be committed.

1.
2.

T t b e a;
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

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Criminal Law 1
Text: Reyes, 2008

U.E. College of Law

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.

Notes by Ryan A. Suaverdez

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.)

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.

Other than his own spontaneous desistance.

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.

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.

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.
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