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minor shall be proceeded against in accordance with the provisions of article 80 of this Code.

When such minor is adjudged to be criminally irresponsible, the court, in conformity with the provisions of this and the preceding paragraph, shall commit him to the care and custody of his family who shall be charged with his surveillance and education; otherwise, he shall

be committed to the care of some institution or person mentioned in said article 80.

 QUALIFIED MINORITY: Basis: complete absence of intelligence

 Such minor over 9 years and under 15 years of age must have acted without discernment to be exempted from criminal liability. If with discernment, he is criminally liable.

 Presumption is always that such minor has acted without discernment.

The prosecution is burdened to prove if otherwise.

 Discernment means the mental capacity of a minor between 9 and 15 years of age to fully appreciate the consequences of his unlawful act and the mental capacity to understand the difference between right and wrong. Such is shown by: (1) manner the crime was committed (i.e. commission of the crime during nighttime to avoid detection; taking the loot to another town to avoid discovery), or (2) the conduct of the offender after

its commission (i.e. elation of satisfaction upon the commission of his

criminal act as shown by the accused cursing at the victim).

An accused who knows the morality of his acts, or can appreciate the consequences of his action has acted with discernment.

 If such minor is adjudged to be criminally liable, he is charged to the

custody of his family, otherwise, to the care of some institution or person mentioned in article 80. This is because of the court’s presupposition that the minor committed the crime without discernment.

A youthful offender can only be confined in a reformatory upon order of the court. Under the amendment to Presidential Decree No. 603, Presidential

Decree No. 1179 requires that before a youthful offender may be given the benefit if a suspension of sentence, there must be an application filed with the court which should pronounce sentence. Note that the commitment of the

offender in a reformatory is just a consequence of the suspension of the sentence. If the sentence is not suspended, there is no commitment in a

reformatory. The commitment is in a penitentiary, since suspension of

sentence requires certain conditions:

(1) The crime committed should not be punishable by reclusion perpetua or death penalty;

(2) The offender should not have been given the benefit of a suspended sentence before. This means he is a first timer;

(3) He must be below 18 years old because a youthful offender is one who is below 18.

How does the minority of the offender affect his criminal liability?

(1) If the offender is within the bracket of nine years old exactly or less, he is exempt from criminal liability but not from civil liability. This type of offenders are absolutely exempt. Even if the offender nine years or below acted with discernment, this should not be taken against him because in this age bracket, the exemption is absolute.

(2) If over nine but below 15, a distinction has to be made whether the offender acted with or without discernment. The burden is upon the

prosecution to prove that the offender acted with discernment. It is not

for the minor to prove that he acted without discernment. All that the minor has to show is that he is within the age bracket. If the prosecution would want to pin criminal liability on him, it has to prove that the crime was committed with discernment. Here, if the offender was exempt from criminal liability because the prosecution was not able to prove that the offender acted with discernment, he is only civilly liable but he will be committed to the surveillance of his parents who will be required to report to the court periodically on the progress or development of the offender.

If the offender is proven to have acted with discernment, this is where

the court may give him the benefit of a suspended sentence. He may be given the benefit of a suspended sentence under the conditions mentioned earlier and only if he would file an application therefor.

Suspension of sentence is not automatic. If the youthful offender has filed an application therefor.

(3) If at the time the judgment is to be promulgated he is already above 18, he cannot avail of a suspended sentence. The reason is because if the sentence were to be suspended, he would be committed in a reformatory. Since he cannot be committed to a reformatory anymore because he is not less than 18 years old, he would have to be committed to a penitentiary. That means promulgation of the sentence shall not be suspended. If the sentence should not be suspended, although the minor may be qualified, the court will promulgate the sentence but the minor shall be entitled to the reduction of the penalty by at least two degrees.

When the offender is over nine but below 15, the penalty to be imposed

is discretionary on the court, but lowered by at least two degrees. It may be lowered by three or four degrees, depending upon whether the court deems best for the interest of the offender. The limitation that it should be lowered by at least two degrees is just a limitation on the power of the court to reduce the penalty. It cannot be less than two degrees.

(4) If the offender is 15 years old and above but below 18, there is no exemption anymore but he is also given the benefit of a suspended sentence under the conditions stated earlier and if at the time the

sentence is promulgated, he is not 18 years old or over yet. If the sentence is promulgated, the court will impose a penalty one degree lower.

 Allegation of “with intent to kill” in the information is sufficient allegation of discernment as such conveys the idea that he knew what would be the consequences of his unlawful act. Thus is the case wherein the information alleges that the accused, with intent to kill, willfully, criminally and feloniously pushed a child of 8 1/2 years of age into a deep place. It was held that the requirement that there should be an allegation that she acted with discernment should be deemed amply met.

4. Any person who, while performing a lawful act with due care,