insolvency shall not relieve him, from the fine in case his financial circumstances should improve. (As amended by RA 5465, April 21, 1969.)
There is no subsidiary penalty for non-payment of reparation, indemnification and costs in par 1, 2 and 4 of Art 38. It is only for fines.
Art 39 applies only when the convict has no property with which to meet the fine in par 3 of art 38. Thus, a convict who has property enough to meet the fine and not exempted from execution cannot choose to serve the subsidiary penalty instead of the payment of the fine. Subsidiary imprisonment is not an accessory
penalty. It is covered by Art 40-45 of this Code. Accessory penalties are deemed imposed even when not mentioned while subsidiary imprisonment must be expressly imposed.
PENALTY IMPOSED LENGTH OF SUBSIDIARY PENALTY Prision correccional or arresto and fine
Not exceed 1/3 of term of sentence, in no case more than 1 year fraction or part of a day not counted. Fine only Not to exceed 6
months if prosecuted for grave or less grave felony, not to exceed 15 days if prosecuted for light felony Higher than prision correccional No subsidiary imprisonment Not to be executed by confinement but of fixed duration Same deprivations as those of the principal penalty under rules 1, 2 and 3 above
If financial circumstances improve, convict still to pay the fine even if he has suffered subsidiary personal liability.
the penalty imposed must be PC, AM, Am, suspension, destierro and fine only. – other than these (PM, RT, RP) court cannot impose subsidiary penalty.
Even if the penalty imposed is not higher than PC, if the accused is a habitual delinquent who deserves an additional penalty of 12 yrs and 1 day of RT, there is no subsidiary imprisonment.
Art. 40. Death — Its accessory penalties. — The death penalty, when it is not executed by reason of commutation or pardon shall carry with it that of perpetual absolute disqualification and that of civil interdiction during thirty years following the date sentence, unless such accessory penalties have been expressly remitted in the pardon.
Art. 41. Reclusion perpetua and reclusion temporal. — Their accessory penalties. — The
penalties of reclusion perpetua and reclusion temporal shall carry with them that of civil interdiction for life or during the period of the sentence as the case may be, and that of perpetual absolute disqualification which the offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon.
Art. 42. Prision mayor — Its accessory penalties. — The penalty of prision mayor, shall carry with it that of temporary absolute disqualification and that of perpetual special disqualification from the right of suffrage which the offender shall suffer although pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon.
Art. 43. Prision correccional — Its accessory penalties. — The penalty of prision correccional shall carry with it that of suspension from public office, from the right to follow a profession or calling, and that of perpetual special disqualification from the right of suffrage, if the duration of said imprisonment shall exceed eighteen months. The offender shall suffer the disqualification provided in the article although pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon.
Art. 44. Arresto — Its accessory penalties. — The penalty of arresto shall carry with it that of suspension of the right too hold office and the right of suffrage during the term of the sentence.
Outline of accessory penalties inherent in principal penalties
a. death – if not executed because of commutation or pardon
2. civil interdiction during 30 years (if not expressly remitted in the pardon) b. RP and RT
1. civil interdiction for life or during the sentence
2. perpetual absolute disqualification (unless expressly remitted in the pardon)
c. PM
1. temporary absolute disqualification 2. perpetual absolute disqualification
from suffrage (unless expressly remitted in the pardon)
d. PC
1. suspension from public office, profession or calling
2. perpetual special disqualification from suffrage if the duration of the imprisonment exceeds 18 months (unless expressly remitted in the pardon)
The accessory penalties in Art 40-44 must be suffered by the offender, although pardoned as to the principal penalties. To be relieved of these penalties, they must be expressly remitted in the pardon.
No accessory penalty for destierro
Persons who served out the penalty may not have the right to exercise the right of suffrage. For a prisoner who has been sentenced to one year of imprisonment or more for any crime, absolute pardon restores to him his political rights. If the penalty is less than one year, disqualification does not attach except if the crime done was against property.
The nature of the crime is immaterial when the penalty imposed is one year imprisonment or more.
The accessory penalties are understood to be always imposed upon the offender by the mere fact that the law fixes a certain penalty for the crime. Whenever the courts impose a penalty which by provision of law, carries with it other
penalties, it’s understood that the accessory penalties are also imposed.
the accessory penalties do not affect the jurisdiction of the court in which the information is filed because they don’t modify or alter the nature of the penalty provided by law. What determines jurisdiction in criminal cases is the extent of the principal penalty w/c the law imposes of the crime charged.
the MTC has exclusive jurisdiction over offenses punishable with imprisonment of not exceeding 4 years and 2 months or a fine of not more than 4000 or both regardless of other imposable accessory or other penalties.
Art. 45. Confiscation and forfeiture of the proceeds or instruments of the crime. — Every penalty imposed for the commission of a felony shall carry with it the forfeiture of the proceeds of the crime and the instruments or tools with which it was committed.
Such proceeds and instruments or tools shall be confiscated and forfeited in favor of the Government, unless they be property of a third person not liable for the offense, but those articles which are not subject of lawful commerce shall be destroyed.
every penalty imposed carries with it the forfeiture of the proceeds of the crime and the instruments or tools used in the commission of the crime
proceeds and instruments/tools of the crime are confiscated in favor of the government
3rd persons’ (not liable for the offense) property is not subject to confiscation and forfeiture property not subject of lawful commerce
(whether it belongs to accused or 3rd person) shall be destroyed.
can’t confiscate/forfeit unless there’s a criminal case filed and tried, and accused is acquitted. must indict 3rd person to order confiscation of
instruments of the crime belonging to innocent 3rd person may be recovered
confiscation can be ordered only if the property is submitted in evidence or placed at the disposal of the court
articles which are forfeited - when the order of forfeiture is already final, can’t be returned even in case of an acquittal
confiscation and acquittal are additional penalties. Where the penalty imposed did not include the confiscation of the goods involved, the confiscation & forfeiture of said goods would be an additional penalty and would amount to an increase of the penalty already imposed, thereby placing the accused in double jeopardy.
when the accused has appealed, confiscation and forfeiture not ordered by the trial court may be imposed by the appellate court
the government can’t appeal the modification of a sentence if the defendant did not appeal. But if the defendant appeals, it removes all bars to the review and correction of the penalty imposed by the court below, even if an increase thereof should be the result.
Art. 46. Penalty to be imposed upon principals in general. — The penalty prescribed by law for the commission of a felony shall be imposed upon the principals in the commission of such felony.
Whenever the law prescribes a penalty for a felony is general terms, it shall be understood as applicable to the consummated felony.
The penalty prescribed by law in general terms shall be imposed:
a upon the principals b for consummated felony
Exception: when the law fixes a penalty for the frustrated or attempted felony. Whenever it is believed that the penalty lower by one or two degrees corresponding to said acts of execution is not proportionate to the wrong done, the law fixes a distinct penalty for the principal in the frustrated or attempted felony.
The graduation of penalties refers to:
a stages of execution (consummated, frustrated, attempted)
b degree of the criminal participation of the offender (principal, accomplice, accessory) the division of a divisible penalty (min, med,
max) refers to the proper period of the penalty which should be imposed when aggravating or mitigating circumstances attend the commission of the crime.
Art. 47. In what cases the death penalty shall not be imposed. — The death penalty shall be imposed in all cases in which it must be imposed under existing laws, except in the following cases:
1. When the guilty person be more than