Mitigating Circumstances

The mitigating circumstances are based on the degree of perversity or on the diminution of any  of  the elements of dolo, for instance, minority. Two different mitigating circumstances, such as passion or obfuscation, cannot arise from the same fact.  However, where there are other facts, although closely connected with the fact which one circumstance is premised, the other circumstances may be taken into consideration based on another fact.

These circumstances may be classified into:

1. Ordinary (generic) mitigating circumstance.

The attendance of a generic mitigating  circumstance, unless  offset  by an aggravating circumstance, will lower the imposable penalty only to its minimum.   It should be borne in  mind  that the presence of 2 or more generic mitigating circumstances, provided there is no aggravating circumstance, will lower  the  imposable penalty by one degree, pursuant to Rule 5 of Art. 64 of the RPC.

2. Privileged mitigating circumstance.

The presence of a privileged mitigating circumstance will lower the imposable penalty by one or 2 degrees. The privileged mitigating circumstance  cannot be offset by the presence of an  aggravating circumstance.

Since a mitigating circumstance is a matter of defense, the accused must prove it with concrete evidence to the satisfaction of the Court. (People v. Malunay, 66 OG 2095)

Specific circumstances:

1. Privileged Mitigating Circumstances of Incomplete Justifying or Exempting Circumstances.

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. (Art. 13, Par. 1)

In self-defense, defense of relative or defense of stranger, it is essential that unlawful aggression be present; otherwise, there can be no such defense, whether complete or incomplete. (People v. Rosal, 5355, Aug. 31, 1953)

2. Offender is under 18 years of age or over 70 years.

That  the offender is under 18 years of age or over 70  years.  In the case of the minor, he shall be proceeded against in accordance with the provisions of Art. 80 (now amended by  PD 603). (Art. 13, Par. 2)

This paragraph cover two circumstances, minority and senility (old age).  Under Art. 292 of the PD 603, minority is always a privileged mitigating circumstance.  As a general rule, senility is a generic or ordinary mitigating circumstance.  However, the circumstance may be considered as a privileged mitigating circumstances as when the offender is over 70 years of age, he cannot  be sentenced  to  death  (Art. 47) and if at  the  time  of  the execution of the death penalty the convict is over 70 years of age, the death penalty cannot be executed.  Automatically the penalty is commuted to reclusion perpetua, with the  accessory penalties of death (Art. 83)

3. Lack of Intention to Commit so Grave a Wrong.

That the offender had no intention to commit so grave a wrong as that committed. (Art. 13, Par.3)  This is the effect of praeter intentionem.

This mitigating circumstance  applies  only  to  offenses resulting in physical or material harm and not to slander. Neither does it apply to cases of imprudence, nor in cases of unintentional abortion.

4. Sufficient Provocation.

That sufficient provocation or threat on the part of the offended party immediately preceded the act. (Art. 13, Par. 4)

To entitle the offender to the benefit of this mitigating circumstance, it requires the following requisites:

a. That  the provocation or threat be sufficient, that is, adequate enough to arouse the offender to commit the act.

b. That such provocation or threat came from or was given by the offended party.

c. That it must have immediately preceded the act complained of.

A lawful act cannot constitute a provocation.  Thus, the threat of filing a law suit against another is not provocation.  Example are ill-treating and abusing the offender by kicking and cursing him (US v. Firmo, 37 Phil. 133) or the infidelity of the wife which made the husband kill her (People v. Marquez, 53 Phil. 260) is sufficient provocation.  “Immediate” means that there is no interval of time between the provocation and the commission of the crime. (People v. Pagal,79 SCRA 570) However, in one case, where the accused went home and returned fully armed and killed the deceased, provocation was considered mitigating. (People v. De Guia, 3731, April 20, 1951)

5. Immediate Vindication of a Grave Offense.

That the act was committed in the immediate vindication of a grave  offense to the one committing the felony, his spouse, ascendants,  descendants,  legitimate,  natural,  or   adopted brothers or sisters, or relatives by affinity within the  same degrees. (Art. 13, Par.5)

The relationship between the offender and the victim of the grave offense sought to be indicted must be legitimate.  The grave offense mentioned in this mitigating circumstance need not be a felony or an act punished by law.  The act of the victim in eloping with the daughter of the accused is a grave offense to her family. (People v. Diokno, supra)  Also, the remarks of the victim in the presence of the guests during a celebration that the accused lived at the expense of his wife, under the circumstances, were highly offensive to the accused or to any other person in his place. (People v. Rosal, 66 Phil. 323)  In determining the gravity of the offense, the age of the accused, his social standing, the time and place when the offense was committed and other attendant circumstances are to be considered.

6. Passion or obfuscation

That of having acted upon an impulse so powerful as naturally to have produced passion or obfuscation. (Art 13, Par. 6)

The causes must spring from lawful or moral sentiments, not induced by spirit of lawlessness, revenge or immoral passions.  However, killing the common-law-wife suprised in flagranti in carnal knowledge with a friend is passion that is mitigating because the offender acted under an impulse cause by the sudden discovery that the woman proved untrue to him. (US v. De la Cruz, 22 Phil. 429)

Further, the act must have been committed immediately or shortly after the act causing such passion or obfuscation and the commission of  the felony.  It is not mitigating if the crime is planned and clearly mediated before execution. (People v. Daos, 60 Phil. 143)

Where the victim hurled invectives and challenged a security guard to a fight because the latter refused to allow him to enter the premises, the unsavory remarks and vexatious conduct of the victim was sufficient to ignite the wrath of the guard who shot him twice for the repeated taunts and verbal remarks he made.  Obfuscation is mitigating. (People v. Valles, Jan. 28, 1997)

There is passion or obfuscation where the accused boxed the victim after he saw the latter boxed his four-year-old-son. The accused did so, momentarily blinded by anger and he lost sight of the fact that his son’s adversary was but a nine-year-old boy. (People v. Castro, 117 SCRA 1014)

7. Voluntary Surrender and Voluntary Plea of Guilty.

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. (Art. 13, Par. 7)

There are 2 mitigating circumstances, distinct and apart from each other, that may be considered in favor of the defendant.  The requisites of voluntary surrender are:

a. The offender has not been actually arrested.

It may be present if made after the issuance of a warrant of arrest but before actual arrest is made. (People v. Yecla, 68 Phil. 740)  The offender must surrender himself and not the weapon which he used in committing the crime, and the surrender must be for the crime of which he is charged. (People v. Semanada, 103 Phil. 790)  If the accused gave himself up to the police when he was served the warrant for his arrest, such surrender is not mitigating. (People v. Agag, 130 SCRA 274)

b. The surrender must be made to a person in authority or his agent.

c. It must be voluntarily made.

For the mitigating circumstance of voluntary surrender to be appreciated, the same must be spontaneous in such a manner that it shows the interests of  the  accused  to  surrender unconditionally to  the  authorities,  either   because   he acknowledges his guilt or because he wishes to save them the trouble and expenses necessarily incurred in his search and capture. (People v. Sakam, 61 Phil. 27) (Q3, !996 Bar; Q5 1992) Two years is too long a time to consider the surrender as spontaneous. (People v. Ablao, 183 SCRA 658) (Q5, 1997 Bar)

Where the offender went to the municipal building because he was a suspect in the killing but not to own responsibility for the killing, such fact is not tantamount to voluntary surrender as a mitigating circumstance.  Although he admitted his participation in the killing, he tried to avoid responsibility by claiming self-defense which however he was not able to prove. (People v. Mindac, 83030, Dec. 14, 1992)

Voluntary surrender is mitigating where the offender, accompanied by his uncle, went to the police station and spontaneously and unconditionally place himself at the disposal of the authorities although he remained silent (since it is his constitutional right to remain silent). (People v. Gracia, Nov. 14, 1996)

A plea of guilty is not only an admission  of  all  the material  facts  alleged in the complaint or  information  but also  that he is guilty of the offense defined by  the  facts.  Its requisites are:

a. The plea to be spontaneous.

b. Made in open court.

The plea of guilty must be made at the earliest opportunity, that is , before the competent court that is to try the person making the confession. (People v. De la Pena, 66 Phil. 451)  An extra-judicial confession is not mitigating. (People v. Undong, 66 SCRA 386)

c. Made before trial begins, that is, prior to the presentation of the evidence by the prosecution. (Q5, 1997 Bar)

Mere offer to plead guilty to homicide under a charge of murder is not sufficient.  However, it is believed that if the offer to plead guilty to homicide is predicated on the allegation that the killing was not attended by any qualifying circumstance and the trial court so found, thus convicting the accused only of homicide, there is no valid reason why the accused should not be given the benefit of the circumstance. (People v. Limosnero, 147 SCRA 232)

In capital offense, voluntary plea of guilty does not mean admission of the material allegations in the information, including the circumstances of the crime.  The precise purpose of the automatic review in capital offenses is to open the entire record for scrutiny so that a human life will not be lost through a miscarriage of justice by a misappreciation of the evidence. (People v. Abre, 112 SCRA 83)

8. The offender is Deaf and Dumb or Blind.

That the offender is deaf and dumb, blind, or otherwise suffering  some physical defect which thus restricts his means of action, defense, or communication with his fellow beings. (Art. 13, Par. 8)

It is essential that his physical defect have some relation to the crime committed by him.  Thus, if a person is  charged with acts of lasciviousness, the fact that he has only one arm will not entitle him to the benefit of the circumstances. (Q18, 1993 Bar)

9. Illness that Diminishes the Exercise of Will Power.

Such illness of the offender as would diminish the exercise of the will-power of the offender without however depriving  him of the consciousness of his acts. (Art. 13, Par. 9)

The offender actually knows that his act is unlawful, that it can cause harm to another, but because of the illness he is suffering, he cannot control himself.  Thus, a person who has kleptomania – the urge to take anything – may commit  theft, knowing it to be a crime, but cannot control himself.  Other examples are (a) a mother who killed her child after delivery as she was suffering under the influence of a puerperal fever (Dec., Sup. Ct. of Spain, Sept. 28, 1897); (b) acute neurosis that made the offender ill-tempered and easily angered (People v. Carpenter, 4168, April 12, 1944) and (c) feeblemindedness. (People v. Formigenes, 87 Phil. 658)

10. Analogous Mitigating Circumstances.

And, finally, any other circumstance of a similar nature and analogous to those above mentioned. (Art. 13, Par. 10)


a. Over 60 years old and with failing eyesight analogous to one over 70 years. (People v. Reantillo, 301, May 27, 1938)

b. Jealousy – similar to passion or obfuscation. (People v. Ubengen, 36 OG 763)

c. Voluntary restitution of property – similar to voluntary surrender. (People v. Amante, 65 OG 5618)

d. Extreme poverty – similar to incomplete justifying circumstance of state of necessity.(People v. Macbul, 74 Phil. 436)


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