Situación actual de los instrumentos sociales ante los COP

the latter has not given provocation.

 Dwelling – must be a building or structure exclusively used for rest and comfort (combination house and store not included)

a. may be temporary as in the case of guests in a house or bedspacers b. basis for this is the sanctity of

privacy the law accords to human abode

 dwelling includes dependencies, the foot of the staircase and the enclosure under the house

 Elements of the aggravating circumstance of dwelling

a. Crime occurred in the dwelling of the victim

b. No provocation on the part of the victim

 Requisites for Provocation: ALL MUST CONCUR

a. given by the owner of the dwelling b. sufficient

c. immediate to the commission of the crime

* Dwelling will only be aggravating if it is the dwelling of the offended party. It should also not be the dwelling of the offender. If the dwelling is both that of the offended party and the offender, dwelling is not aggravating.

* Dwelling need not be owned by the offended party. It is enough that he used the place for his peace of mind, rest, comfort and privacy. The rule that dwelling, in order to be aggravating must be owned by the offended party is no longer absolute. Dwelling can be aggravating even if it is not owned by the offended party, provided that the offended party is considered a member of the family who owns the dwelling and equally enjoys peace of mind, privacy and comfort.

* Dwelling should not be understood in the concept of a domicile. A person has more than one dwelling.

* Dwelling is not limited to the house proper. All the appurtenances necessary for the peace and comfort, rest and peace of mind in the abode of the offended party is considered a dwelling.

When dwelling may and may not be considered

By Rene Callanta Page 50 When it may be considered When it may not be considered  although the offender

fired the shot from outside the house, as long as his victim was inside

 even if the killing took place outside the dwelling, so long as the commission began inside the dwelling

 when adultery is committed in the dwelling of the husband, even if it is also the dwelling of the wife, it is still aggravating because

she and her

paramour committed a grave offense to the head of the house

 In robbery with violence against persons, robbery with homicide, abduction, or illegal detention  If the offended party has given provocation  If both the offender and the offended party are occupants of the same dwelling  In robbery with force upon things, it is inherent

* The victim should be the owner, occupant or lessee of the house. However, in People

vs. Balansi, 187 SCRA 566, it was held that

the victim need not be the owner or occupant of the dwelling where he was shot, since, “the stranger, as an invited guest, is sheltered by the same roof and protected by the same intimacy of life it affords. It may not be his house, but it is, even for a brief moment, home to him.”

* While this aggravating circumstance cannot be considered in Trespass to Dwelling or Robbery in an Inhabited House as it is included necessarily in these crimes (Art. 62), it can be considered in Robbery with Homicide because this kind of Robbery can be committed without the necessity of transgressing the sanctity of the house. (Pp

vs. Pareja, 265 SCRA 429)

* One-half of the house is used as a store and the other half is used for dwelling but there is only one entrance. If the dwelling portion is attacked, dwelling is not aggravating because whenever a store is open for business, it is a public place and as such is not capable of being

the subject of trespass. If the dwelling portion is attacked where even if the store is open, there is another separate entrance to the portion used for dwelling, the circumstance is aggravating. However, in case the store is closed, dwelling is aggravating since here, the store is not a public place as in the first case.

4. That the act be committed with (1)

ABUSE OF CONFIDENCE or (2)

OBVIOUS UNGRATEFULNESS

must be something

which the offender

should owe the victim a debt of gratitude for Note: robbery or theft

committed by a visitor in the house of the offended party is aggravated by obvious ungratefulness

 Example: A jealous lover, already determined to kill his sweetheart, invited her for a ride and during that ride, he stabbed her

 Abuse of confidence is inherent in: a. malversation

b. qualified theft

c. estafa by conversion d. misappropriation e. qualified seduction

* Do not confuse this with mere betrayal of trust. This is aggravating only when the very offended party is the one who reposed the confidence. If the confidence is reposed by another, the offended party is different from the fellow who reposed the confidence and abuse of confidence in this case is not aggravating.

5. That the crime be committed in the

PALACE OF THE CHIEF EXECUTIVE,

or in his presence, or when PUBLIC

AUTHORITIES ARE ENGAGED IN

THE DISCHARGE OF THEIR DUTIES,

By Rene Callanta Page 51

or in a PLACE DEDICATED TO