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its commissions.

Kinds of aggravating Circumstances: 1. Generic

2. Specific 3. Inherent 4. Qualifying

1. Generic Aggravating Circumstance

- are those that applies generally to all crimes Example:

1. Nightime- it can be applied to crimes against persons, crimes against property, crimes against chastity and applied to all other crimes.

2. Recidivism

2. Specific Aggravating Circumstance

- are those that apply only to certain or particular crimes. Example: Treachery (Par.16 Art. 14)

- can only be considered or appreciated in crimes against persons

3. Inherent Aggravating Circumstance

- which of necessity follow the commission of the crime because they are considered as elements in the commission of the crime, therefore they are considered inherent in the commission of the crime.

- if they are present in the commission of the crime they are no longer considered so as to increase the penalty because they are considered as elements

4. Qualifying Aggravating Circumstance

- are those which either change the nature of the crime to bring about a more serious for a higher penalty or even without changing the nature of the crime it would impose a higher penalty.

Example: 1. Art. 248

- the circumstances therein present would qualify the killing of a person from homicide to murder

- presence of treachery, evident premeditation, cruelty in killing would make a crime not of homicide but would be qualified to murder

• Unlike justifying, exempting and mitigating circumstances, which are not stated or alleged in the information, aggravating circumstances must be alleged in the information. Even if they are proven in trial but they are not alleged in the information, they cannot be considered against the person. They must be both alleged and likewise proven during trial, so as not to deprive the accused of right to know the nature of the accusation against him.

• In case of qualifying aggravating circumstance, for example, A killed B there was treachery, it was done in consideration of a price, reward or promise, there was also cruelty, so there are three qualifying aggravating circumstances present. Only one of them will qualify the killing to murder. So if treachery is already proven, the crime committed is already murder. Cruelty and the other circumstance of in consideration of a price, reward or promise shall only be considered as generic aggravating circumstances.

Par. 1. That advantage be taken by the offender of his public position.

- this aggravating circumstance can be applied only if the offender is a public officer.

- the offender use the prestige, influence or ascendency of his office in the commission of the crime or to facilitate the commission of the crime.

Example:

1. Police officer A was having a drinking spree with his friends outside his house. In the course thereof, they were discussing about the alleged shoot out in Quezon. According to the police officer, since he was a police officer, it was a shoot out. But according to his friend it was a rob out. They were arguing, exchanging views until the police officer got mad. At that time, he had with him his pistol. He used his service pistol and shot his friend who thereafter died. Is

the said act of killing done by taking advantage of his public position?

- this aggravating circumstance is not present. It is not present because the said offender, public officer, did not use or misuse his public office. He did not use the influence, the ascendency or the prestige of his office in order to commit the crime. Even not being a public officer he could have killed his friend in the same situation . He could even have used another weapon, not necessarily his service pistol.

* Under Art. 14, taking advantage of his public position is a generic aggravating circumstance. However, under Art. 62 (as amended by RA 7659), the fact the crime was committed by taking advantage of

his public position is a special aggravating circumstance because the maximum penalty prescribed by law shall be the one imposed.

Par. 2. That the crime be committed in contempt of or with insult to the public authorities.

1. That the public officer or public authority is engaged in the exercise of his function;

2. That the public authority is not the person against whom the crime is committed;

3. That the offender knows him to be a public authority; 4. That the presence of the public authority did not prevent

the offender from the commission of the crime.

1. That the public officer or public authority is engaged in the exercise of his function.

• Who is a public authority?

- Public authority or a person in authority is any person directly vested with jurisdiction whether an individual or some members of court or governmental commissioner. It is necessary that he has the duty to govern and execute the laws. Example: Mayors, barangay chairman

- police officer is merely an agent of a person in authority 2. That the public authority is not the person against whom the crime is committed.

- if he is the person against whom the crime is committed, such fact that the crime was committed in contempt of the public authority is an element because the crime committed would be direct assault. In direct assault, in contempt of or with insult to public authority is an element, no longer an aggravating circumstance.

3. That the offender knows him to be a public authority.

- there must be knowledge on the part of the offender that the said person is a public authority. Otherwise, it cannot be said that he disrespected the said person as a public authority if he has no knowledge that he is a public authority.

4. That the presence of the public authority did not prevent the offender from the commission of the crime.

• What if the barangay chairman was in a restaurant having dinner with his wife because it was there wedding anniversary. Suddenly here comes A, B and C who are constituents of the barangay chairman. Upon seeing the chairman, they greeted him and even congratulated him and his wife upon learning that they were celebrating their wedding anniversary. They seated next to the table of the chairman and ordered food. In the giving of the food, there was an argument between A and the waiter. The argument immediately became a heated one. A took the table knife and stab the waiter. The waiter suffered serious physical injuries. Prosecuted for frustrated homicide. In

the prosecution for said crime, is the aggravating circumstance of in contempt of or with insult to public authority present?

- it is not present because the first element is absent. The first element, that the public officer or public authority is engaged in the exercise of his function. At the time of the commission of the crime, yes he was there but he was in a private act. He was not engaged in the exercise of his function, hence it cannot be said that the said offender insulted the said public authority.

• What if the public authority was the city mayor who was inside his office. Suddenly he heard commotion on the ground floor. He looked out his window, he saw his two supporters having an argument. A and B were having an argument over a parking

space. The mayor went down the building and talked to both A and B. He told them to shake hands and forget everything. Then he told A to just allow B to park his car anyway there was another parking space available. This angered A because he thought that the mayor was siding with B. A took out his balisong and stabbed the mayor. Is the aggravating

circumstance of in contempt of or with insult to public authority present?

- it is present but it is not an aggravating circumstance but an element of the crime because the crime committed is direct assault. It is direct assault because the public authority at the time of the attack was engaged in the performance of his functions. Since the crime committed was against the public authority himself, the fact that it was committed in contempt of or with insult to the said public authority is an ingredient of the crime.

• What if in the same problem instead of stabbing the said mayor, A felt insulted with the mayor’s words that he is giving the parking space to B so this angered A. A stabbed B. B died. Is

the aggravating circumstance of in contempt of or with insult to public authority present?

- this time, it is present. The mayor’s act of pacifying A and B was engaged in his official functions. He was not the person against whom the crime was committed. A was a supporter, therefore he knew mayor was a person in authority. Yet, the presence of the mayor did not prevent A from committing the crime against B. Hence, the second aggravating circumstance is present.

Par.3. That the act be committed with insult or in disregard of the respect due to the offended party on account of his rank, age or sex, or it be committed in the dwelling of the offended party, if the latter has not given provocation.

• There are four aggravating circumstances under this paragraph: 1. Disregard of rank

2. Disregard of age 3. Disregard of sex

4. Crimes committed in dwelling of the offended party • These four aggravating circumstances can be appreciated singly

or collectively if present in the commission of the crime. • Disregard of rank, disregard of age and disregard of sex can

only be considered in crimes against persons and crimes against chastity. You do not consider these in crimes against property; you do not consider these in crimes against public interest. They can only be considered in crimes against persons and crimes against chastity.

• Disregard of rank

- Rank refers to a high social standing, a high position in the society. For this to be considered as an aggravating circumstance, it is necessary that the offender be of lower rank than that of the offended party.

Example:

1. A student attacking a professor. There was a disregard of rank of the said professor.

2. An employee attacking his employer. There was a disregard of rank of the said employer.

• Disregard of age

- Age here refers to both minority and senority. Example:

1. The offended party is 95 years old. A killed him by hitting his head for 25 times with a lead pipe. Obviously, there was disregard of his age. Considering his age, whereas even one hit of the lead pipe could have already killed the said old man but he was hit 25 times showing disregard of the age of the old man. 2. What if a child is 4 years old. He was stabbed 25

times, thereafter his body was placed inside a dram filled with water and then the dram was covered. There was disregard of age. The victim was a minor and therefore any attack, just 1 stab, could have killed the minor. But he was stabbed 25 times; not only that, he was also submerged and the drum was covered, which shows disrespect of age.

*** If there was disrespect of age and there was also treachery, the aggravating circumstance to be considered is treachery because it absorbs disrepect of age.

• Disrespect of sex

- Disrespect of sex refers to the female sex. This is inherent in the crime of rape and in certain crimes involving chastity.

• Crimes committed in dwelling of the offended party

- Dwelling is considered as aggravating circumstance if the crime is committed inside the dwelling of the offended party, that is, the offended party was inside his dwelling at the time of the commission of the crime and he has not given any provocation.

- If the crime is committed inside the dwelling of the offended party, it is as an aggravating circumstance because it shows the greater perversity of the offender than when the crime is committed in any other place. It is because the constitution itself provides that a man’s abode must be respected and therefore when a crime is committed inside the house dwelling it shows the greater criminality on the part of the offender.

- Even however, if a crime is committed:

1. inside a house dwelling, still dwelling cannot be considered as aggravating if the offended has given provocation

2. if the offender and the offended party are living in the same dwelling

3. dwelling is inherent in the commission of the crime.

So in these three instances, even if the crime is committed inside the dwelling of the offended party, dwelling is not considered as an aggravating circumstance.

• Dwelling includes the dependencies, the staircase and the enclosures therein. It need not be owned by the offended party, it suffices that the offended party uses it for rest and comfort. E.g., a room being rented by the lessee or a tenant; room where a person is living as a bedspacer.

• What if A who lives in a nipa hut was sitting at the staircase when B came and forcibly drag her to another house, 1 kilometer away from A’s house, where she was raped by B. Is

the aggravating circumstance of dwelling present?

- The aggravating circumstance is present even if the crime was committed in another place far from the dwelling, the aggression started in the dwelling of the offended party. The aggression that started in the dwelling of the offended party when she was dragged from the said staircase, that aggression cannot be divided from the commission of said crim. So even if it grounds were consummated in another place for as long as aggression started in the dwelling, still dwelling is an aggravating circumstance.

• What if husband and wife were already about to sleep, then they heard someone calling the name of the husband outside the house. The husband rose from the bed and looked out the window to see who was calling him. Upon looking at the window suddenly there were gun fires. The husband fell lifeless. The wife, also went to the window and looked out to see who killed her husband. She was also fired at. Is the

aggravating circumstance of dwelling present?

- Yes, dwelling is an aggravating circumstance. It is not necessary for dwelling to be aggaravating that the perpetrator of the crmed was able to get in. It suffices that the offended party or the victim is inside his house. The assailant may device ways and means to commit the crime from the outside. • What if there was this woman. She is 95 years old; a woman of

high standing in the society. She was a former department secretary. She is living alone in her house. One time here comes X. X wanted to rob the valuables inside the house of the said old woman. X entered the said house and he was able to get the valuables from the vault of the house. He was about to leave the house when accidentally pushed the chair. By reason thereof, the woman was awaken. The woman upon seeing X begun screaming. X then fired at the woman 50 times. The woman died. Are the aggravating circumstances of disregard of

rank, disregard of age, disregard of sex and dwelling present?

- The first three circumstances are not present because the crime committed is robbery with homicide, under article 10 which is a crime against property. Disregard of rank, age and sex are not applicable to any other crimes but only to crimes against person and crimes against chastity. Since the crime committed is a crime against property, therefore, disregard of rank, age and sex cannot be considered against the accused.

- Dwelling can be considered against the accused because the crime committed robbery with homicide is a form of robbery with violence against or intimidation of persons. Dwelling is only inherent in robbery with use of force upon things but dwelling is not inherent in case of robbery with violence against or intimidation of persons just like robbery with homicide. So in this case, only dwelling should be considered as an aggravating circumstance.

Par. 4. That the act be committed with abuse of confidence or obvious ungratefulness.

There are two aggravating circumstances: 1. Abuse of confidence

2. Obvious ungratefulness • Abuse of confidence

Elements:

1. That the offended party had trusted the offender; 2. That the offender abuse such trust by committing a crime

against the offended party;

3. That the abuse of confidence facilitated the commission of the crime

Example:

A and B have been living here in Manila for 4 years. Suddenly here comes X. X was there former neighbor in Batangas. He told A and B “I am looking for work here in Manila, can I live in your house while I am looking for work?” Since he was a good neighbor back then A and B trusted X and allowed X to live inside their house. X now sleeps in the house of A and B while he was looking for work here in manila. One time A and B were out of the house in their respective works. The only person left in the house was X and their daughter who was only 9 years old. While the couple were out, X molested and raped the said daughter. Is the aggravating circumstance abuse of confidence

present in this case?

- Yes, it is present. X was there because A and B trusted him, yet he abused such trust and confidence and instead facilitated the commission of the crime. Therefore this aggravating circumstance is present.

• Obvious Ungratefulness:

- ungratefulness means the offender has no gratitude, does not even know how to say thank you.

Elements:

1. That the offended party had trusted the offender; 2. That the offender abuse such trust by committing a crime

against the offended party;

3. That the act be committed with obvious ungratefulness Example:

A was selling kettles and other kitchenwares on the street under the heat of the sun. A goes from one house to another under the heat of the sun. He was so thirsty already so he knocked on the gate of the house of X. X opened the gate and A told X that he was so thirsty. X being a good person, allowed A to go inside their house and asked him to take a sit while he get him a glass of water. When he came back, he was not only holding a glass of water but also brought some biscuits. However A suddenly, brought out his knife and stabbed X and thereafter robbed him. Is the aggravating circumstance obvious

ungratefulness present?

- Yes. Instead of showing gratitude for having been allowed to enter the house and given a glass of water with biscuits, he instead took advantage of the goodness of the man and committed the crime of killing and robbery. There was obvious ungratefulness on the part of the offender.

Par. 5. That the crime be committed in the palace of the Chief Executive, or in his presence, or where public authorities are engaged in the discharge of their duties or in a place dedicated to religious worship.

• There are four aggravating circumstances. If the crime is committed in any of these places it is considered as an