Justifying and Exempting Circumstances

Justifying and Exempting Circumstances

Justifying circumstances are those wherein the acts of the actor are in accordance with law and, hence, he incurs no criminal and civil liability. The justifying circumstances by subject are as follows:

1. Self-defense

 

Anyone who acts in defense of his person or rights. (Art. 11, Par. 1) The scope included self-defense not only of life, but also of rights like those of chastity, property and honor.  It has also been applied to the crime of libel. (People v Chua Chiong, 51 OG 1932)

 

Its elements are:

a. Unlawful aggression

Aggression is considered unlawful when it is unprovoked or unjustified.  There must be real danger to life or personal safety.  An imminent danger of aggression, and not merely imaginary, is sufficient.  A slap on the face is actual unlawful aggression. (Dec., Sup.  Ct. of Spain, March 8, 1887)

There is no unlawful aggression exists in a case of an agreed fight.  To constitute an agreement to fight, the challenge must be accepted. (People v. Del Pilar, 44 OG 596)  Unlawful aggression may no longer exist if the aggressor ran away after the attack. (People v. Alconga, 78 Phil. 366)  If the aggression has ceased, the one defending himself has no right to inflict any further injury to his assailant. (Q11, 1993 Bar)

Mere oral threat to kill, unaccompanied by any unequivocal act clearly indicative of the intent to carry out the threat, does not amount to unlawful aggression. (People v. Binondo, 97227, Oct. 20, 1992)  The mere cocking of an M-14 rifle by the victim, without aiming the firearm at any particular person is not sufficient to conclude that the life of the person (Vice-Governor) whom the accused was allegedly protecting, was under actual threat or attack from the victim.  There is no unlawful aggression. (Almeda v. CA, March 13, 1997)

b. Reasonable necessity of the means employed to prevent or repel it.

The rule “stand ground when in the right” applies when a person is unlawfully assaulted and if the aggressor is armed with a weapon. (US v. Domen, 37 Phils. 57)  Whether the means employed is reasonable or not it will depend upon the kind of weapon of the aggressor, his physical condition, character, size and other circumstances as well as those of the person attacked and the time and place of the attack. (People v. Padua, 40 OG 998)  The instinct of self-preservation more often than not is the moving power in man’s action in defending himself. (People v. Artuz, 71 SCRA 116)

c. Lack of sufficient provocation on the part of the person defending himself.

A person may be justified in causing injury to another in defense of his property (fencing off the house of the accused) even if there was no attack against his person.  To hold otherwise would render nugatory the provisions of circumstance No. 1 which recognizes the right of an individual to defend his rights, one of which is to own and enjoy his property. (People v. Narvaez, 121 SCRA 389)  Even assuming that the victim was scaling the wall of the factory compound to commit the crime inside the same, shooting him is never justifiable, even admitting that such act is considered unlawful aggression on the property rights.  In the instant case, the second element is absent considering that the victim was unarmed. There is therefore an incomplete self-defense. (Q6, 1996 Bar; Q4, 1990 Bar)

To be entitled to a complete self-defense of chastity, there must be an attempt to rape. (People v. Jaurigue, 76 Phil. 174)

When a person is libeled, he may hit back with another libel, which, if adequate, will be justified.  Once the aspersion is cast, its sting clings and the one thus defamed may avail himself of all necessary means to shake it off. (People v. Chua Hong, 51 OG 1932)

2. Defense of Relative

 

Any one who acts in defense of the person or rights of his spouses, ascendants, descendants, or legitimate or adopted brothers or sisters, or of his relatives by affinity in the same degrees, and those by consanguinity within the fourth civil  degree, and in case the provocation was given by the person attacked, that the one making the defense had no part therein. (Art. 11, Par. 2)

Even if two persons agreed to fight, and at the moment when one was about to stab the other, the brother of the latter arrived and shot him, defense of relative is present as long as there is an honest belief that the relative being defended was a victim of an unlawful aggression, and the relative defending had no knowledge of the agreement to fight. (US v. Esmedia 17 Phil. 280)

3. Defense of Stranger.

 

Anyone who acts in defense of the person or rights of a stranger and that the person defending be not induced by revenge, resentment, or other evil motive. (Art. 11, Par. 3)

A person who struggled with the husband who was attacking his wife with a bolo for the possession of the bolo and in the course of the struggle, wounded the husband, was held to have acted in defense of a stranger. (People v. Valdez, 58 Phil. 31)

4. State of Necessity

 

Any person who, in order to avoid an evil or injury, does an act which causes damage to another. (Art. 11, Par. 4)

 

Its requisites are:

a. The evil sought to be avoided actually exists.

b. The injury feared be greater than that done to avoid it.

c. There be no other practical and less harmful means of preventing it.

This is the only justifying circumstances wherein civil liability may arise but this is borne by the person benefited by his act.  The “state of necessity” exists when there is a clash between two unequal rights, the lesser right giving way to the greater right.

An accused was acquitted of the crime of slander by deed, when she eloped with another man after all wedding preparations with the offended party were made, since there was a necessity on the part of the accused to avoid a loveless marriage with the offended party. (People v. Hernandez, 55 OG 8465)

In a case when in saving the life of the mother, the doctor sacrificed the life of the unborn child, is the attending physician criminally liable?  No, because his acts are justified under this Article (State of necessity).  However, in mercy killing where the doctor deliberately turned off the life support system costing the life of the patient, the doctor is criminally liable.  Euthanasia is not a justifying circumstance in our jurisdiction. (Q3, 1990 Bar)

5. Fulfillment of duty

 

Any person who acts in the fulfillment of a duty or in the lawful exercise of a right or office. (Art. 11, Par. 5)  The injury caused or the offense committed is the necessary consequence of the due performance of such right or office.

The killing by a policeman of an escaping detention prisoner is presumed to be committed in the performance of his official duties.  But shooting a thief who refused to stop inspite of the order of the accused will make him liable as he exceeded fulfillment of his duty. (People v. Bentres, 49 OG 4919)  Also, under the doctrine of self-help, the law justifies the act of the owner as lawful possessor of a thing in using such force as is reasonably necessary for the protection of his proprietary or possessory right. (Art. 429, Civil Code)

With respect to the wounding of the stranger during the commission of crime of death under exceptional circumstances (Art. 247), the defense of lawful exercise of a right is a justifying circumstance. (Q14, 1991 Bar)

6. Obedience to superior order

 

Any person who acts in obedience to an order issued by a superior for some lawful purpose. (Art. 11, Par. 6)

 

It is required that the order in itself must be lawful; that it is for a lawful purpose; and that the person carrying out the order must also act within the law.  But even if the order is illegal if it is patently legal and the subordinate is not aware of its illegality, the subordinate is not liable. (Nassif v. People, 78 Phil. 67)  This is due to a mistake of fact committed in good faith.  Even if the order is illegal, the subordinate may still invoke the exempting circumstances of compulsion of irresistible force or acting under the impulse of an uncontrollable fear of an equal or greater injury.

Exempting circumstances are those wherein there is an absence in the agent of the crime of all the condition that would make an act voluntary and, hence, although there is no criminal liability, there is civil liability.  In exempting, the crime is committed but there is absent in the person of the offender any element of voluntariness, and so he is not criminally liable but is civilly liable except in the exempting circumstances of accident and lawful or insuperable cause.

1. Imbecility and the insanity.

An imbecile is one who may be advanced in years, but has a mental development comparable only to children between 2 and 7 years of age.  An insane is one who suffers from a mental disorder in such degree as to deprive him of reason.  The insane person may be held criminally liable if he acted during a lucid interval.

When the imbecile or an insane person has committed an act which the law defines as a felony, the court shall order his confinement in one of the hospitals or asylums established for persons thus afflicted, which he shall not be permitted to leave without first obtaining the permission of the same court. (Art. 12, Par. 1)

The test of imbecility or insanity is complete deprivation of intelligence in the commission of the act, that is, that the accused acted without the least discernment. (People v. Aldemeta, 55033, Nov. 13, 1986)  The evidence regarding insanity must refer to the very moment of its execution and must be proven by clear and positive evidence. (People v. Basco, 44 Phil. 204)

Even if the offender is not an imbecile nor insane, if he is completely deprived of the consciousness of his acts when he commits the crime, he is entitled to exemption for a cause analogous to imbecility or insanity.  So, one committing a crime while dreaming during his sleep (People v. Taneo, 58 Phil. 255) or in a state of somnambulism or sleep walking (People v. Gimena, 55 Phil. 604) is not criminally liable as the acts are embraced within the plea of insanity.

2. Minority

A person under nine (9) years of age. (Art. 12, Par. 2)  In this case, the minor is completely devoid of discernment and are irresponsible.

A persons over nine (9) years of age but under fifteen (15), unless he has acted with discernment, in which case, such minor shall be proceeded against in accordance with the provisions of Art. 80 [Repealed by PD 603]. (Art. 12, Par. 3)

 

Discernment is the mental capacity to determine not merely the difference between right or wrong, but is also involves the capacity to comprehend the nature of the act and its consequences.

The age of the minor is computed up to the time of the commission of the crime charged, not up to the date of trial.(People v. Navarro, 51 OG 409)  If the minor is exempt from criminal liability, he shall be committed to the care of his or her father or mother or nearest relative or family friend in the discretion of the court and subject to its supervision. (Art. 189, PD 603, as amended)

Minority is always a privileged mitigating circumstance under the RPC and lowers the prescribe penalty by one or two degrees in accordance with Article 68 of the Code.  But like any modifying circumstance, it is not availing to those accused of crimes mala prohibita. (People v. Mangusan, 189 SCRA 624)  However, this privileged mitigating circumstance may be appreciated in violations of the Dangerous Drugs Act (RA 6425), the penalty to be imposed should not be lower than prision correccional. (People v. Simon, 93128, July 29, 1994)

3. Accident

Any person who, while performing a lawful act with due care, causes injury by mere accident without fault or intention of causing it. (Art. 12, Par. 4)

Its requisites are:

a. The offender must be performing a lawful act.

b. With due care.

c. Causes injury to another by mere accident.

d. Without fault or intent of causing it.

An accident is any happening beyond the control of a person the consequences of which are not foreseeable.  If foreseeable, there is fault or culpa.  An accidental shooting due to legitimate self-defense is exempting. (People v. Trinidad, 49 OG 4889)  In performing a lawful act with due care by snatching away the “balisong” in defense of stranger, the “balisong” flew with force that it hit another person who was seriously injured, Tommy is exempted from criminal liability because of mere accident. (Q2, 1992 Bar)

Under this exempting circumstance, there is no civil liability.

4. Compulsion of irresistible force.

 

Any person who acts under the compulsion of irresistible force. (Art. 12, Par. 5)

 

The force referred to here must be a physical force, irresistible and compelling and must come from a third person.  It cannot spring primarily from the offender himself.  (People v. Fernando, 33 SCRA 149)  Thus, if a person was struck with the butts of the guns of those who killed another to compel him to bury their victim, he is not liable as an accessory because he acted under the compulsion of an irresistible force. (US v. Caballeros, 4 Phil. 850)

The force must be irresistible to reduce him to a mere instrument who acts not only without will, but against his will.  The duress, force, fear or intimidation must be present, imminent and impending and of such a nature as to induce a well grounded apprehension of death or serious bodily harm if the act is not done.  A threat of future injury is not enough.  The compulsion must be one of such a character as to leave no opportunity to the accused for escape or self-defense in equal combat. (People v. Nalipanat, 145 SCRA 483)

5. Impulse of uncontrollable fear

 

Any person who acts under the impulse of an uncontrollable fear of an equal or greater injury. (Art. 12, Par. 6)

 

Uncontrollable fear is an impulse coming from within the person of the actor himself.  The actor acts not against his will but because he is engendered by the fear.  The threat producing the insuperable fear must be grave, actual, serious and such kind that the majority of men would have succumbed to such moral compulsion. (Feria and Gregorio, Revised Penal Code, Vol. 1, 224)  Thus, if one is compelled under fear of death to join the rebels, he is not liable for rebellion because he acted under the impulse of uncontrollable fear of an equal or greater injury. (US v. Exaltacion, 3 Phil. 339)

6. Insuperable or lawful cause.

 

Any person who fails to perform an act required by law, when prevented by some lawful insuperable cause. (Art. 12, Par. 7)

 

This is a felony by omission. The failure of a policeman to deliver the prisoner lawfully arrested to the judicial authorities within the prescribed period because it was not possible to do so with practicable dispatch as the prisoner was arrested in a distant place would constitute a non-performance of duty to an insuperable cause. (US v. Vicentillo, 19 Phil. 118)

7. Absolutory causes.

 

These are instances which actually constitute a crime but by reason of public policy and sentiment, it is considered to be without liability and no penalty is imposed, like:

a. Spontaneous desistance at the attempted stage of a felony. (Art. 6, Par. 3)

b. Accessories exempt from criminal liability. (Art. 20)

c. Death or physical injuries inflicted under exceptional circumstances.`(Art. 247)

d. Enter a dwelling for the purpose of preventing serious harm or service to humanity. (Art. 280)

e. Exempt from theft, swindling or malicious mischief by relationships. (Art. 332)

f. Marriage of the offended party in seduction, abduction, acts of lasciviousness and rape. (Art. 244)

g. Instigation takes place when a peace officer induces a person to commit a crime.  Without the inducement, the crime would not be committed.  Hence, it is exempting by reason of public policy.  The person instigating must not be a private person as he will be liable as a principal by inducement. (Art. 17, Par. 2)  In this case, the criminal intent (mens rea) originates in the mind of the instigator and the accused is lured into the commission of the offense charged in order to prosecute him.  However, entrapment is the employment of such ways and means devised by a peace officer for the purpose of trapping or capturing a lawbreaker.   With or without the entrapment, the crime has been committed already.  Hence, entrapment is neither exempting or mitigating.  The idea to commit the crime originated from the accused, thus the actor is criminally liable.

The difference between entrapment and instigation lies in the origin of the criminal intent.  In entrapment mens rea originates from the mind of the criminal.  The idea and resolve to commit the crime comes from him.  In instigation, the law officer conceives the commission of the crime and suggests it to the accused, who adopts the idea and carries it into execution. (Araneta v. CA, 46638, July 9, 1986)

A “buy-bust” operation is a form of entrapment employed by peace officer to trap and catch a malefactor in flagrante delicto, commonly involving dangerous drugs. (People v. Del Pilar, 188 SCRA 37)  Where a person had a ready supply of dangerous drugs for sale to anyone willing to pay the price asked for, although he might not have the drug with him at the time of the initial transaction, the situation supports an entrapment, not an instigation.  The fact that the accused returned with the drugs shortly after the transaction was entered into, shows that he had ready contacts with the supplier from whom he could readily get the drug.  If the accused were merely instigated to look for the drug, it would have taken him a considerable length of time to look for a source. (People v. Estevan, 196 SCRA 34) (Q8, 1992 Bar)

An example of instigation is given in Q9, 1995 Bar as follows:  Suspecting that Juan was a drug pusher, SPO2 Mercado gave Juan a P 100-bill and asked him to buy some marijuana cigarettes.  Desirous of pleasing SPO2 Mercado, Juan went inside the shopping mall while the officer waited at the corner of the mall.  After 15 minutes, Juan returned with ten sticks of marijuana cigarettes which gave to SPO2 Mercado who thereupon placed Juan under arrest and charged him with violation of the Dangerous Drugs Law by selling marijuana.  Is Juan guilty of any offense?  Juan cannot be charged of any offense punishable under the Dangerous Drugs Act.  Although Juan is a suspected drug pusher, he cannot be charged on the basis of a mere suspicion.  By providing the money with which to buy marijuana cigarettes, SPO2 Mercado practically induced and prodded Juan to commit the offense of illegal possession of marijuana.  Set against the facts, instigation is a valid defense available to Juan.

 

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