Abuse of superior strength
Abuse of superior strength is considered whenever there is a notorious inequality of forces between the victim and the aggressor, assessing a superiority of strength notoriously advantageous for the aggressor which is selected or taken advantage of in the commission of the crime (People vs. Bongadillo, 234 SCRA 233 [1994]).
Abuse of superior strength considered as aggravating
The aggravating circumstance of abuse of superior strength depends on the age, size, and strength of the parties. It is considered whenever there is a notorious inequality of forces between the victim and the aggressor.
NOTE: For abuse of superior strength, the test is the relative strength of the offender and his victim, and whether or not he took advantage of his greater strength. Superiority in number does not necessarily mean superiority in strength. The accused must have cooperated and intended to use or secure advantage from their superiority in strength (People
v. Basas, G.R. No. L-34251, Jan. 30, 1982).
Determination of the presence of abuse of superiority
Abuse of superiority is determined by the excess of the aggressor’s natural strength over that of the victim, considering the position of both and the employment of means to weaken the defense, although not annulling it. The aggressor must have taken advantage of his natural strength to insure the commission of the crime (People v. Salcedo, G.R. No. 178272, March 14, 2011).
“Means to weaken the defense”
It exists when the offended party’s resisting power is materially weakened.
NOTE: Means to weaken the defense may be absorbed in treachery. E.g. When the accused throws a sand directly into the eyes of his victim, this has the effect of weakening the defense of his victim as well as insuring the execution of his act without risk to himself. In this case, only one aggravating circumstance will be appreciated, namely treachery, and the
circumstance of means to weaken the defense will already be absorbed.
Requisites of means to weaken the defense
1. Means were purposely sought to weaken the defense of the victim to resist the assault
2. The means used must not totally eliminate possible defense of the victim, otherwise, it will fall under treachery.
TREACHERY
Basis
The means and ways employed in the commission of the crime.
Treachery
Treachery (aleviosa) refers to the employment of means, method, or form in the commission of the crime which tend directly and specially to insure its execution without risk to himself arising from the defense which the offended party might make. It means that the offended party was not given the opportunity to defend himself.
Essence
The essence of the qualifying circumstance is the suddenness, surprise and the lack of expectation that the attack will take place, thus, depriving the victim of any real opportunity for self-defense while ensuring the commission of the crime without risk to the aggressor. Likewise, even when the victim was forewarned of the danger to his person, treachery may still be appreciated since what is decisive is that the execution of the attack made it impossible for the victim to defend himself or to retaliate (People v. Villacorta, G.R. No. 186412, September 7, 2011).
Elements of treachery
1. The employment of means of execution that would insure the safety of the accused from retaliatory acts of the intended victim and leaving the latter without an opportunity to defend himself
2. The means employed were deliberately or consciously adopted by the offender (People of the Philippines v. Wenceslao Nelmida, et al, G.R. No. 184500, September 11, 2012).
Test of treachery
The test of treachery is not only the relative position of the parties but more specifically whether or not the victim was forewarned or afforded the opportunity to make a defense or to ward off the attack.
Rules regarding treachery
1. Applicable only to crimes against persons. 2. Means, methods, or forms insure its execution but
need not insure accomplishment of crime. 3. The mode of attack must be thought of by the
offender, and must not spring from the unexpected turns of events
NOTE: Treachery cannot co-exist with passion or obfuscation
(People v. Pansensoy, G.R. No. 140634, Sept. 12, 2002).
Frontal attack does not negate the presence of treachery
Although frontal, if the attack was unexpected, and the unarmed victim was in no position to repel the attack, treachery can still be appreciated (People v. Pelis, G.R. No. 189328, February 21, 2011).
Appreciation of treachery in error in personae and
aberratio ictus
Treachery is appreciated in error in personae and aberratio ictus, provided that the offender consciously employed treacherous means to insure the execution of the crime and to render the victim defenseless.
Appreciation of both evident premeditation and treachery
Evident premeditation and treachery can co-exist because evident premeditation refers to the commission of the crime while treachery refers to the manner employed.
Appreciation of treachery in robbery with homicide
Treachery can be appreciated in Robbery with homicide even though it is a crime against property because one of its components is a crime against person.
Instances that may be absorbed by treachery
1. Abuse of superior strength 2. Aid of armed men
3. By a band
4. Means to weaken the defense 5. Craft
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U N I V E R S I T Y O F S A N T O T O M A S FA C U L T Y O F CI V I L LA WTime when the element of treachery must be present
1. When the aggression is continuous -treachery must be present at the beginning of the assault. 2. When the assault was not continuous- it is
sufficient that treachery was present when the fatal blow was given.
Q: A followed the unsuspecting victim, B when he was going home and thereafter, deliberately stabbed him in the back which resulted in the falling of B to the ground and thereby was further attacked by A. Was there treachery?
A: Yes. B was defenseless and gave him no opportunity
to resist the attack or defend himself. A employed means which insured the killing of B and such means assured him from the risk of B’s defense. Stabbing from behind is a good indication of treachery (People v Yanson, G.R. No. 179195, October 3, 2011).
IGNOMINY
Ignominy
It pertains to the moral order, which adds disgrace to the material injury caused by the crime. Ignominy adds insult to injury or adds shame to the natural effects of the crime. Ignominy shocks the moral conscience of man.
Application
Ignominy is applicable in: a. Crimes against chastity, b. Less serious physical injuries, c. Light or grave coercion, and d. Murder.
No ignominy when a man is killed in the presence of his wife
The circumstance of ignominy was not present because no means employed nor did any circumstance surround the act tending to make the effects of crime more humiliating.
Ignominy when a woman is raped in the presence of his husband
Ignominy can be appreciated. Rape is now a crime against persons (R.A. 8353). Presence of the husband qualifies the crime of rape under Art. 266.
Ignominy v. Cruelty
IGNOMINY CRUELTY
Ignominy refers to the moral effect of a crime and it pertains to the moral order, whether or not the victim is dead or alive.
Refers to the physical suffering of the victim purposely intended by the offender