ARTICLE 13

MITIGATING
CIRCUMSTANCES
Mitigating Circumstances

-are those which, if present in the commission

of the crime, do not entirely free the actor
from criminal liability, but serve only to
reduce the penalty
Basis
 Are based on the diminution of either freedom of
action, intelligence, or intent or on the lesser
perversity of the offender
Classes of Mitigating Circumstances

1. Ordinary Mitigating- Those enumerated in

subsections 1 to 10 of Article 13
Those mentioned in subsection 1 of Article 13 are
ordinary mitigating circumstances, if Article 69, for
instance, is not applicable.

2. Privileged Mitigating

 A. Article 68
• Penalty to be imposed upon a person under eighteen years of age
 B. Article 69
• Penalty to be imposed when the crime committed is not wholy excusable.
C. Article 64 Rules for the application of penalties which contain three
periods.
Privileged mitigating circumstances applicable only to
particular crimes

1. voluntary release of the person illegally

detained within 3 days without the offender
attaining his purpose and before the
institution of criminal action
2. Abandonment without justification of the
spouse who committed adultery.
Distinctions

1. Ordinary mitigating – is susceptible of being

offset by any aggravating circumstance; while
privileged mitigating cannot be offser by
aggravating circumstance.
2. Ordinary mitigating, if not offset by an
aggravating circumstance, produces only the
effect of applying the penalty provided by the
law for the crime in its minimum mitigating
produces the effect of imposing upon the
offender the penalty lower by one or two
degrees than that provided by law for clients.
Article 13 Mitigating Circumstances

The following are mitigating circumstances:

1. Those mentioned in the preceding chapter, when all the requisites

necessary to justify the act or to exempt from criminal liability in the
respective cases are not attendant.
2. That the offender is under eighteen years of age or over seventy years.
In the case of the minor, he shall be proceeded against in accordance
with the provisions of Article 80.
3. That the offender had no intention to commit so grave a wrong as that
committed.
4. That sufficient provocation or threat on the part of the offended party
immediately preceded the act.
5. That the act was committed in the immediate vindication of a grave
offence to the one committing the felony (delito), his spouse,
ascendants, descendants, legitimate, natural of adopted brothers or
sisters, or relatives be affinity within the same degrees.
Article 13 Mitigating Circumstances

6. the of having acted upon an impulse so powerful as naturally

to have produced passion of obfuscation.
7. That the offender had voluntarily surrendered himself to a
person in authority or his agents, or that he had voluntarily
confessed his guilt before the court prior to the presentation of
the evidence for the prosecution.
8. That the offender is deaf and dumb, blind or otherwise
suffering some physical defect which restricts his means of
action, defense, or communication with his fellow beings.
9. Such illness of the offender as would diminish the exercise of
the will-power of the offender without however depriving him of
consciousness of his acts.
10. And, finally, any other circumstances of a similar nature and
analogous to those above-mentioned.
Article 13 Mitigating Circumstances

Par. 1. - Those mentioned in the preceding

chapter, when all the requisites necessary to
justify the act or to exempt from criminal
liability in the respective cases are not
attendant.

“Those mentioned in the preceding chapter”

 Refers to Justifying Circumstances and Exempting
Circumstances
Circumstances of justification or exemption
which may give place to mitigation

1. Self Defense (Art.11, par. 1);

2. Defense of relatives (Art.11, par.2);
3. Defense of stranger (Art.11, par.3);
4. State of necessity (Art.11, par.4);
5. Performance of duty (Art.11, par.5);
6. Obedience to order of superior (Art.11, par.6);
7. Minority above 15 but below 18 years of age (R.A.
9344)
8. Causing injury by mere accident (Art. 12, par.4);
and
9. Uncontrollable fear. (Art.12, par.6)
Par. 1 and 2 of Article 12

- cannot give place to mitigation, as stated by

the Supreme Court of Spain, the mental condition
of a person is indivisible; that is, there is no
middle ground between sanity and insanity,
between presence and absence of intelligence.
- but if the offender is suffering from some
illness which would diminish the exercise of his
will-power, without however depriving him of
consciousness of his acts, such circumstance is
considered a mitigation under paragraph 9 of
Article 13.
Article 13 Mitigating Circumstances

Par. 1. - Those mentioned in the preceding chapter,

when all the requisites necessary to justify the act or
to exempt from criminal liability in the respective
cases are not attendant
“When all the requisites necessary to justify the act
are not attendant”
 1. Incomplete self defense, defense of relatives, and defense
of stranger
 2. Incomplete justifying circumstance of avoidance of greater
evil or injury
 3. Incomplete justifying circumstance of performance of duty.
 4. Incomplete justifying circumstance of obedience to an order
“When all the requisites necessary to justify the act
are not attendant”

 1. Incomplete self defense, defense of relatives, and

defense of stranger
 Unlawful aggression must be present
• Indispensable requisite
 If two requisites are present, it should be considered a
privileged mitigating circumstance referred to
Article 69 of RPC
Privileged Mitigating Circumstances

 If in self defense there was unlawful aggression on the part of the

deceased, the means employed to prevent or repel it was reasonable,
the one making a defense gave sufficient provocation, he is entitled
to a privileged mitigating circumstance, because the majority of the
conditions required to justify the act is present
 If n the defense of a relative there was unlawful aggression on the
part of the deceased, but the one defending the relative used un
reasonable means to prevent or repel it, he is entitled to a
priveleged mitigating circumstance.
 When there is unlawful aggression on the part of the deceased
without sufficient provocation by the defendant, but the latter uses
means not reasonably necessary.
Privileged Mitigating
Circumstances

U.S. v Rivera, 41 Phil.472, 473-474 (Incomplete defense)

 There is no reasonable necessity of killing the aggressor,
however the accused is entitled to a privileged mitigating
circumstance of incomplete defense. The accused acted in
defense of her person, her home, and her children.
People v. De Jesus (incomplete self-defense)
 The deceased was in state of drunkenness, so he was not
dangerous as he would if had been sober xxx The necessity
of means used to repel the aggression is not clearly
reasonable
People v. Toring (incomplete defense of relative)
o The accused was motivated by revenge, resentment or evil
motive and was not impelled by pure compassion or
beneficence of lawful desire to avenge the immediate wrong
inflicted on his cousin.
“When all the requisites necessary to justify the act
are not attendant”

2. Incomplete justifying circumstance of avoidance of

greater evil of injury.

Avoidance of greater evil or injury is a justifying circumstance if all the

three requisites mentioned in paragraph 4 of Article 11 are present. But
if any of the last two requisites is absent, there is only a mitigating
circumstance.
Article 11, Par. 4 Any person who, in order to avoid an evil or injury,
does an act which causes damage to another, provided that the
following requisites are present:
First. That the evil sought to be avoided actually exists;
Second. That the injury feared be greated that that done to avoid it.
Third. That there be no other practical and less harmful means of
preventing it.
“When all the requisites necessary to justify the act
are not attendant”

3. Incomplete justifying circumstance of

performance of duty.
Article 11, Par. 5 requisites in justifying the act
a. That the accused acted in the performance of a duty or
in lawful exercise of a right or office; and
b. That the injury caused or offense committed be the
necessary consequence of the due performance of such
duty or lawful exercise of such right or office.

People v Oanis
“In the instant case only the first requisite is present-
appellants have acted in the performance of duty”.
“When all the requisites necessary to justify the act
are not attendant”

4. Incomplete justifying circumstance of

obedience to an order.

People v Bernal, et al., 91 Phil. 619

“When all the requisites necessary to justify the act
are not attendant”

1. Incomplete exempting circumstance of

minority over 15 and under 18 years of age.

 To be exempt from criminal liabiltiy under R.A. 9344,

tow conditions must be present:
a. That the offender is over 15 and under 18 years old;
and
b. that he does not act with discernment.
“When all the requisites necessary to justify the act
are not attendant”

2. Incomplete exempting circumstance of accident

Under paragraph 4 of Article 12, there are four requisites that must be present in
order to exempt one from criminal liability, namely:
a. a person is performing a lawful act;
b. with due care;
c. He causes an injury to another by mere accident; and
d. without fault or intention of causing it.
if the second requisite and the 1st part of the fourth requisite are absent, the case
will fall under Article 365 which punishes a felony by negligence or imprudence.
In effect, there is a mitigating circumstance, because the penalty is lower than
that pro vided for intentional felony.
if the first requisite and the 2nd part of the fourth requisite are absent, because
the person committed an unlawful act and had the intention of causing the
injury, it will be an intentional felony. The 2nd and 3d requisites will not be present
either.
in this case, there is not even a mitigating circumstance
Article 13 Mitigating Circumstances

Par. 2 – that the offender is under eighteen

years of age or over seventy years. In the
case of the minor, he shall be proceeded
against in accordance the the provisions of
Article 80.
Article 13 Mitigating Circumstances

Paragraph 2, Article 13 of the RPC impliedly

repealed by Republic Act No 9334

 (Sec 6, R.A. 9344) Declaring a child above fifteen (15)

years but below eighteen (18) of age shall be exempt
from criminal liability unless he/she acted with
discernment
 If such offender acted with discernment, such child in
conflict with the law undergo diversion programs
provided under Chapter 2 of R. A. 9344
Article 13 Mitigating Circumstances

Meaning of Diversion and Diversion Program

under Republic Act No. 9344

 Diversion- refers to an alternative, child appropriate

process of determining the responsibility and treatment of
a child in conflict with the law on the basis of his/her social,
cultural, economic, psychological, or educational without
resulting to formal court proceedings. (Sec 4) (j) R.A. 9344)
 Diversion Program- refers to the program that the child in
conflict with the law is required to undergo after he/she is
found responsible for an offence without resorting to formal
court proceedings (Sec 4 (j), R.A. 9344)
System of Diversion

Children in conflict with the law shall undergo diversion programs

without undergoing court proceedings subject to the following
conditions:

A. where the imposable penalty for the crime committed is not

more that six (6) years imprisonment, the law enforcement office of
Punong Barangay with the assistance of the local social welfare and
development officer of the other members of the Local Councils for
the Protection of Children (LCPC) established in all levels of local
government pursuant to R.A. 9344, shall conduct mediation, family
conferencing and conciliation and, where appropriate, adopt
indigenous modes of conflict resolution in accordance with the best
interest of the child with a view to accomplishing the objectives of
restorative justice and the formulation of a diversion program. The
child and his/her family shall be present in these activities.
System of Diversion

B. In victimless crimes where the imposable

penalty is not more then six (6) years of
imprisonment, the local social welfare and
development officer shall meet with the child
and his/her parents or guardians for the
development of the appropriate diversion and
rehabilitation program, in coordination with
the Barangay Council for the Protection of
Children (BCPC) created pursuant to R. A, No.
9344
System of Diversion

C. where the imposable penalty for the crime

committed exceeds six(6) years
imprisonment, diversion measures may be
resorted to only by the court (Section 23, R.A.
No. 9344)
Conferencing, Mediation and Concilliation

A child in conflict with law may undergo

conferencing, mediation, or conciliation
outside the criminal justice system]
A CONTARCT OF DIVERSION may enter during
such conferencing, mediation, or concilliation
proceedings (R.A. 9344)
Contract of Diversion

During the conferencing, mediation or conciliation, the child

voluntarily admits the commission of the act, a diversion program
shall be developed when appropriate and desirable determined
under Section 30.
Such admission shall not be used against the child in any
subsequent judicial, quasi-judicial or administrative proceedings
Binding to all parties if accepted.
Acceptance shall be in writing and signed by the parties and
appropriate authorities
The local social welfare and development officer shall supervise the
implementation of the program.
Shall be completed within 45 days
The period of prescription of the offence shall be suspended until
the completion of diversion proceedings but not to exceed 45 days.
Where diversion may conducted?

Katarungang Pambarangay
The police investigation or the inquest or
preliminary investigation stage and at all
levels and phases of the proceedings
including judicial level (Sec 24, R.A. 9344)
Duty of the Punong Barangay of the Law Enforcement
Officer where there is no diversion

If the offense does not fall under the following category:
 Imposable Penalty not more than 6 years imprisonment

 In case of victimless crimes where penalty is not more than 6 years

 The child, his/her parents does not consent to diversion

The Punong Barangay handling the case shall:

 Within 3 days from determination of the absence of jurisdiction may
forward the records of case to the law enforcement officer, prosecutor, or
the appropriate courts, as the case may be (Sec 27, R.A. 9344

In the case of Law Enforcement Officer

 shall forward the records of the case to the prosecutor or judge
concerned for the conduct of inquest and/or preliminary investigation.
The document transmitting said records shall display the word “CHILD”
\in bold letter (Sec 28. R.A. 9344)
Offender is over 70 years of age is only
generic mitigating circumstance

Article 68 does not include the case of

offender over 70 years old
Basis of Parangrah 2 of Article 13

Par. 2 – that the offender is under eighteen

years of age or over seventy years. In the
case of the minor, he shall be proceeded
against in accordance the the provisions of
Article 80.

 THE MITIGATING CIRCUMSTANCES IN PAR 2 ARE BASED

ON DIMINUTION OF INTELLIGENCE, a condition of
voluntariness
Article 13 Mitigating Circumstances

Par. 3. – That the offender had no intention to

commit so grave a wrong as that committed.

Rule for the application of this paragraph

 There is notable and disproportion between the means

employed to execute the criminal act and its
consequences
Par. 3. – That the offender had no intention to
commit so grave a wrong as that committed.
Illustrations:
 1. The husband who was quarreling with his wife punched her in the
abdomen, causing the rupture of her hypertrophied spleen, from which
she died ( People v Rabao)]
 2. The accused confined himself to giving a single blow with a bolo on the
right arm of the victim and did not repeat the blow. The death of the
victim was due to the neglect and the lack of medical treatment, his death
having resulted from hemorrhage which those who attended to him did
not know hot to stop or control in crime (U.S. v Bertucio)
 3. The accused, a policeman, boxed the deceased, a detention prisoner,
inside the jail. As a consequence of the fistic blows, the deceased
collapsed on the floor. The accused stepped on the prostrate body and
left. After a while, he returned with a bottle, poured its content on the
recumbent body of the deceased, ignited it with a match and left the cell
again. As a consequence, the victim later on died.
 Held: The accused is entitled to the mitigating circumstance of “no intention to
commit so grave a wrong as that committed” (People v Ural)
Par. 3. – That the offender had no intention to
commit so grave a wrong as that committed.

The intention ,as an act internal act is judge

not only by the proportion of the means by
him to the veil produced by his act, but also
by the fact that the blow was or was not
aimed at a vital part of his body

People V Ural
U.S v Fitzgerald
People v Amit
U.S Mendac
The weapon used, the part of the body injured, the
injury, inflicted, and the manner it is inflicted may
show that the accused intended the wrong committed

1. People v Flores, 50 Phil. 548, 551

2. People v Reyes, 61 Phil 341,343; People v
Datu Baguinda, 44 O.G. 2887
3. People v Banlos, G.R. No L-3412 December
29, 1950
4. People v Reyes, No. L-335145, February 27,
1976, 69 SCRA 474, 482
5. People v Bautista Nos L-23303-04, May 20
1969
Article 13 Mitigating Circumstances, Par. 3

Article 13, Paragraph 3 is not applicable when the offender

employed brute force
 People v Yu
 People v Boyles, People v Garachico
Lack of intention to commit so grave a wrong, robbery with
homicide
 People v Abueg
Appreciated in murder qualified by circumstances based on
manner of commission, not on state of mind of accused
 People v Enriquez

Not appreciated in murder qualified by treachery

• People v Pajenado
Lack of intent to kill, not mitigating in physical injuries
 People v Galagcac