Three: Duration and Effects of Penalties (Arts.

27-45)

Section One – Duration of Penalties

 ART. 27 – DURATION OF EACH DIFFERENT PENALTIES

1. Reclusión perpetua – 20 yrs. and 1 day to 40 yrs.

2. Reclusión temporal – 12 yrs. and 1 day to 20 yrs.
3. Prisión mayor and temporary disqualification – 6 yrs. and 1 day to 12 yrs., except when disqualification is an
accessory penalty, in which case its duration is that of the principal penalty.
4. Prisión correccional, suspensión, and destierro – 6 mos. and 1 day to 6 yrs., except when suspensión is an
accessory penalty, in which case its duration is that of the principal penalty.
5. Arresto mayor – 1 mo. And 1 day to 6 mos.
6. Arresto menor – 1 day to 30 days
7. Bond to keep the peace – the period during which the bond shall be effective is discretionary on the court.

Temporary disqualification and suspension, when imposed as accessory penalties, have different durations –
they follow the duration of the principal penalty
 Thus, if penalty is imposed as arresto mayor, duration of the accessory penalty of suspension of the right to
hold office and the right of suffrage shall be that of arresto mayor.
Bond to keep the peace is not specifically provided as a penalty for any felony and therefore cannot be imposed
by the court
 According to Article 21, “No felony shall be punishable by any penalty not prescribed by law prior to
its commission,” and bond to keep the peace is not specifically provided for by the Code for any felony,
that penalty cannot be imposed by the court.

Destierro is a principal, correctional and divisible penalty.

In what cases is destierro imposed?

1. Serious physical injuries or death under exceptional circumstances. (Art. 247)
2. In case of failure to give bond for good behavior. (Art. 284)
3. As a penalty for the concubine in concubinage. (Art. 334)
4. In cases where after reducing the penalty by one or more degrees, destierro is the proper penalty.

 ART. 28 – COMPUTATION OF PENALTIES

Rules for the computation of pemalties

1. When the offender is in prison – the duration of temporary penalties is from the day on which the judgment of
conviction becomes final.
Reason for Rule No. 1: duration of temporary penalties shall be computed only from the day of judgment of
conviction becomes final, and not from the day of his detention, because under Article 24, “The arrest and
temporary detention of accused persons, not considered a penalty.”
2. When the offender is not in prison – the duration of penalties consisting in deprivation of liberty, is from the
day that the offender is placed at the disposal of judicial authorities for the enforcement of the penalty.
3. The duration of other penalties – the duration is from the day on which the offender commences to serve his
sentence.
 If accused (who was in custody) appealed, his service of sentence should commence from the date of the
promulgation of decision of appellate court, not from date of judgment of trial court was promulgated
Accused could not be considered as committed or placed in jail by virtue of decision of CA, although he
was already in jail when that judgment was received. The fact that his custody as a mere appellant pending
appeals continued, and receipt of decision of CA did not change the detention of accused into service of
judgment. Reading of sentence of CA to accused was till necessary step previous to actual commitment of
accused.

Examples of temporary penalties:

1. Temporary absolute disqualification
2. Temporary special disqualification
3. Suspension

Rules in cases of temporary penalties:

Rule 1 – offender is under detention, as when he is undergoing preventive imprisonment

Rule 3 – NOT under detention, because offender has been released on bail

Example of penalties consisting in deprivation of liberty:

1. Imprisonment
2. Destierro

Rules in cases of penalties consisting in deprivation of liberty

Rule 2 – offender is not in prison

Rule 3 – offender is undergoing preventive imprisonment

Note: offender is entitled to a deduction of full time or 4/5 of the time of his detention

Reason for Rule No. 1: duration of temporary penalties shall be computed only from the day of judgment of
conviction becomes final, and not from the day of his detention, because under Article 24, “The arrest and
temporary detention of accused persons, not considered a penalty.”

 ART. 29 – PERIOD OF PREVENTIVE IMPRISONMENT DEDUCTED FROM TERM OF

IMPRISONMENT

Preventive imprisonment – is the period of detention undergone by an accused where the crime with which he is
charged is non-bailable or, even if bailable, he is unable to post the requisite bail.

These rules on preventive imprisonment apply to all sentences regardless of the duration thereof, including the
so-called perpetual penalties as long as they involve deprivation of liberty. It applies to destierro.

When is the detention prisoner entitled to the full credit of his preventive imprisonment?

If the detention prisoner agrees voluntarily in writing to abide by the same disciplinary rules imposed upon
convicted prisoners.
When will he be credited only with four-fifths the time during which he has undergone preventive
imprisonment?

If the detention prisoner does not agree to abide by the same disciplinary rules imposed upon convicted prisoners.

In the case of a youthful offender who has been proceeded against under the Child and Youth Welfare Code, he
shall be credited in the service of his sentence with the full time of his actual detention, whether or not he
agreed to abide by the same disciplinary rules of the institution.

Application of this Article

P. 614

Must preventive imprisonment be considered in perpetual penalties?

This allowance should be made in thecae of perpetual punishment. Article does not make any distinction
between temporal and perpetual penalties
Even if accused is sentenced to life imprisonment, he is entitled to full or 4/5 of the preventive
imprisonment

Credit is given in the service of sentences “consisting of deprivation of liberty”

Thus, if offense for which offender is undergoing preventive imprisonment is punishable by imprisonment
or a fine, and upon conviction court imposed on him only a fine, there is no credit to be given
o A was accused of a violation. Penalty provided for in that Article is prision correccional or a fine
of P200 to P2000, or both. During pendency of the case, A was detained for 10 days. Having been
found guilty, A was sentenced to pay a fine of P500. Can A successfully claim that his fine should
be reduced because of his preventive imprisonment for 10 days? No, because his sentence does
not consist in deprivation of liberty

Destierro constitutes deprivation of liberty

Although destierro does not constitute imprisonment, it is nonetheless a deprivation of liberty. Article 29 is
applicable when penalty is destierro. Accused should be accredited with the time during which he has
undergone preventive imprisonment

Accused shall be released immediately whenever he has undergone preventive imprisonment for a period equal to or
more than the possible maximum imprisonment for the offense charged

A is accused of crime of less serious physical injuries punishable by imprisonment from 1 month and 1 day to 6
months. He has been under detention in jail for 6 months, pending his trial. In this case, A should be released
immediately; but trial of his case will continue

If maximum penalty to which accused may be sentenced is destierro

A is accused of a crime punishable by a penalty from arresto menor to detierro (6 months and 1 day to 6 years).
a has been detained for 30 days since his arrest. In that case, A should be released immediately after 30 days
from his arrest and detention, even if duration of destierro, the maximum penalty to which he may be sentenced,
 is from 6 months and 1 day to 6 years. “The REASON for this is that in destierro the accused sentenced to
penalty does not serve in prison. He is free, only that he cannot enter prohibited area specified in the sentence.

The following offenders are not entitled to be credited with the full time or four-fifths of the time of
preventive imprisonment:
1. Recidivists or those convicted previously twice or more times of any crime.
2. Those who, upon being summoned for the execution of their sentence, failed to surrender voluntarily.

Habitual delinquents are included in No. 1.

No. 2 refers to convicts who failed to voluntarily surrender to serve their penalties under a final judgment, since
this is indicative of a greater defiance of authority. It does not refer to failure or refusal to voluntarily surrender
after the commission of the crime.

Those convicted of robbery, theft, estafa, malversation, falsification, vagrancy or prostitution are not to be
credited in the service of their service with full time or 4/5 of time during which they have undergone
preventive imprisonment

Section Two – Effects of the penalties according to their respective nature.

 A plebiscite is not mentioned or contemplated in Art.30, par. 2 (deprivation of the right to vote), hence, the
offender may vote in that exercise, subject to the provisions of pertinent election laws at the time.

 Perpetual absolute disqualification is effective during the lifetime of the convict and even after the service of the
sentence.

 Temporary absolute disqualification lasts during the term of the sentence, and is removed after the service of the
same, EXCEPT:
1) Deprivation of the public office or employment, and
2) Loss of all rights to retirement pay or other pension for any office formerly held.

 Bond to keep the peace is different from bail bond which is posted for the provisional release of a person
arrested for or accused of a crime.

Outline of effects of penalties under Article 30-35

1. The penalties of perpetual or temporary absolute disqualification for public office shall produce the following
effects:
a. deprivation of the public offices and employments which the offender may have held even if conferred by
popular election
b. deprivation of the right to vote in any election for any popular office or to be elected to such office
c. disqualification for the offices or public employments and for the exercise of any of the rights mentioned
d. loss of all rights to retirement pay or other pension for any office formerly held.

2. The penalties of perpetual or temporal special disqualification for public office, profession or calling shall
produce the following effects:
a. deprivation of the office, employment, profession or calling affected;
b. disqualification for holding similar offices or employments either perpetually or during the term of the
sentence
3. The perpetual or temporary special disqualification for the exercise of the right of suffrage produce the ff
effects
a. The perpetual or temporary special disqualification for the exercise of the right of suffrage of the right to
vote in any popular election for any public office or to be elected to such office
b. offender shall not be permitted to hold any public office during the period of his disqualification
4. penalties of suspension from public office, profession or calling, and the exercise of the right of suffrage
a. Disqualify the offender from holding such office or exercising such profession or calling or right of
suffrage during the term of the sentence.
b. The person suspended from holding public office shall not hold another having similar functions during the
period of his suspension.
5. Civil interdiction shall produce the ff effects:
a. Deprivation of the rights of parental authority, or guardianship, either as to the person or property of any
ward
b. Deprivation of marital authority
c. Deprivation of the right to manage his property and of the right to dispose of such property by any act or
any conveyance inter vivos

Note: But he can dispose of such property by will or donation mortis causa

6. Bonds to keep the peace

a. Offender must present two sufficient sureties who shall undertake that such person will not commit the
offense sought to be prevented, and that in case such offense be committed they will pay the amount
determined by the court
b. Offender must deposit such amount in the office of the clerk of the court to guarantee said undertaking.
c. Should the person sentenced fail to give the bond as required he shall be detained for a period which shall
in no case exceed six months, is he shall have been prosecuted for a grave or less grave felony, and shall
not exceed thirty days, if for a light felony.

CIVIL INTERDICTION IN ART. 34 IS IMPOSED WHEN THE PENALTY IS:

1. Death which is not carried out,
2. Reclusión perpetua,or
3. Reclusión temporal

Disqualification is withholding of privilege, not a denial of right

 Manifest purpose of restriction upon right of suffrage or to hold office – preserve purity of elections
 Presumption – One rendered infamous by conviction of felony, or other base offenses indicative of moral
turpitude, is unfit to exercise privilege of suffrage or to hold office
o Disqualification is imposed for protection and no for punishment

Perpetually or during the term of the sentence, according to the nature of said penalty

 “Perpetually” and “during the term of the sentence”

o Applied distributively to their respective antecedents
o Duration between the two is necessarily different because the provision, instead of merging their
durations into one period, states that such duration is according to the nature of said penalty – which
means according to whether the penalty is perpetual or temporary special disqualification
 Perpetually
o Refers to perpetual kind of special disqualification
 During the term of the sentence
o Refers to the temporary special disqualification.

What suspension from exercise of profession covers

 Covers such calling of trade as for instance that of broker, master plumber, etc.

Bond to keep the peace is not bail bond

 Bond to keep the peace is imposed as penalty in threats

o Different from bail bond to secure the provisional release of an accused person after his arrest or
during trial but before final judgment of conviction

 ART. 36 – PARDON; ITS EFFECTS

EFFECTS OF PARDON BY THE PRESIDENT

1. A pardon shall not restore the right to hold public office or the right of suffrage.
EXCEPTION: When any or both such rights is/are expressly restored by the terms of the pardon.

2. It shall not exempt the culprit from the payment of the civil liability. Pardon cannot make an exemption to this
rule.

LIMITATIONS UPON THE EXERCISE OF THE PARDONING POWER:

1. That the power can be exercised only after conviction “by final judgment”;
 Any application, if one is made during the pendency of his appeal from his conviction by trial court,
should not be acted upon nor the process toward its grant be commenced unless the appeal is
withdrawn
 Agencies or instrumentalities of Government concerned must require proof that he has not appealed
from his conviction or that he has withdrawn his appeal
o Proof may be in the form of certificate issued by trial court or the appellate court as an
abandonment or waiver of the appeal, and the release of an accused by virtue of a pardon,
commutation of sentence, or parole before the withdrawal of an appeal shall render those
responsible therefor administratively liable
2. That such power does not extend to cases of impeachment.

GENERAL RULE: When the principal penalty is remitted by pardon, only the effect of that principal penalty is
extinguished, but not the accessory penalties attached to it.
EXCEPTION: When an absolute pardon is granted after the term of imprisonment has expired, it removes what is
left of the consequences of conviction.
 The exception is where the facts and circumstances of the case already show that the purpose of the Chief
Executive is precisely to restore those rights (Read case of Cristobal vs. Labrador on page 624)
Pardon after serving 30 years does not remove perpetual absolute disqualification
 Suppose pardon is granted upon a convict undergoing life imprisonment after serving 30 years. is convict
likewise pardoned from penalty of perpetual absolute disqualification and which is an accessory to life
imprisonment? NO, because Article 30 is silent as to the maximum duration of perpetual disqualification

PARDON BY THE PARDON BY

 CHIEF OFFENDED
EXECUTIVE PARTY (ART. 23)
(ART. 36)
As to the crime covered

Can extend to any Applies only to

crime, unless crimes against
otherwise provided chastity under the
by or subject to RPC.
conditions in the
Constitution or the
laws.

As to extinguishment of criminal liability

Extinguishes Does not extinguish
criminal liability. criminal liability
although it may
constitute a bar to
the prosecution of
the offender.

As to the effect on civil liability

Cannot affect the The offended party
civil liability ex can waive the civil
delicto of the liability.
offender.
When granted
Can be extended Can be validly
only after conviction granted only before
by final judgment of the institution of the
the accused. criminal action.
To whom granted
To any or all of the In adultery and
accused concubinage, must
include both
offenders.
As to whether it can be conditional
May be absolute or Cannot validly be
conditional made subject to a
condition.

 ART. 37 – COSTS

Costs or costs of suit – are the expenses of litigation allowed and regulated by the Rules of Court to be assessed
against or to be recovered by a party in litigation.

THE FOLLOWING ARE INCLUDED IN COSTS:

1. Fees, and
2. Indemnities, in the course of judicial proceedings.
 Are chargeable to the accused only in cases of conviction. In case of acquittal, the costs are de oficio, meaning
each party bearing his own expenses.

 The payment of costs is a matter that rests entirely upon the discretion of courts.

Note: No costs against the republic, unless the law provides the contrary

Payment of costs is discretionary

 A matter that rests entirely upon the discretion of courts

 Appeal will hardly lie to interfere with the discretion
 Government may request the court to assess costs against the accused, but not as a right.
 No attorney’s fees shall be taxed as cost against the adverse party

 ART. 38 - PECUNIARY LIABILITIES

What are the pecuniary liabilities of persons criminally liable?

They are, in the following order:
1. The reparation of the damage caused
2. Indemnification of the consequential damages
3. Fine
4. Costs of proceedings.

When is Art.38 applicable?

In case the property of the offender should not be sufficient for the payment of all his pecuniary liabilities. Order is
provided.

Order of payment of pecuniary liabilities in Article 38 must be observed

 Read the example on page 627

There is reparation in the crime of rape when the dress of the woman was torn
 Ordering the defendant to pay the value of the woman’s torn garment is reparation for the damage caused to her
property and is distinct from indemnity

Liability of conjugal partnership assets

 Fines and indemnities imposed upon either spouse may be enforced against the partnership assets after the
responsibilities enumerated in Article 161 of the Civil Code have been covered, if spouse is bound should have
no exclusive property or if it should be insufficient, which presupposes that the conjugal partnership is still
existing

 ART. 39 – SUBSIDIARY PENALTY

Subsidiary penalty – it is a subsidiary personal liability to be suffered by the convict who has no property with
which to meet the fine, at the rate of one day for each eight pesos (P8.00), subject to the rules provided for in Art.
39.

Judgment of conviction must impose subsidiary imprisonment

 Accused cannot be made to undergo subsidiary imprisonment in case of insolvency to pay the fine imposed
upon him when subsidiary imprisonment is not imposed in the judgment of conviction

No subsidiary penalty for nonpayment of other pecuniary liabilities

1. Reparation of damage caused
2. Indemnification of the consequent damages
3. Costs of proceedings

If accused has no property with which to meet the fine

The Word Principal should be omitted

 It should be “controlling”

If accused has no property with which to meet the fine

 Subsidiary penalty shall be proper only if the accused has no property with which to pay the fine, and not as a
matter of choice on his part by opting to go to jail instead of paying.

 Subsidiary penalty is not an accessory penalty, hence it must be specifically imposed by the court in its
judgment, otherwise the accused cannot be made to serve the corresponding subsidiary imprisonment.

RULES AS TO SUBSIDIARY PENALTY

1. If the penalty imposed is prisión correccional or arresto and fine – subsidiary imprisonment is not to exceed 1/3
of the term of the sentence, and in no case to continue for more than one year. Fraction or part of a day, not
counted.
2. When the penalty imposed is fine only – subsidiary imprisonment
a) not to exceed 6 months – if the culprit is prosecuted for grave or less grave felony, and
b) not to exceed 15 days – if prosecuted for light felony.
3. When the penalty imposed is higher than prisión correccional – no subsidiary imprisonment.
4. If the penalty imposed is not to be executed by confinement, but of fixed duration – subsidiary penalty shall
consist in the same deprivations as those of the principal penalty, under the same rules as nos. 1, 2 and 3 above.
5. In case the financial circumstances of the convict should improve, he shall pay the fine, notwithstanding the fact
that the convict suffered subsidiary personal liability therefor.

 When the penalty prescribed for the offense is imprisonment, it is the penalty actually imposed by the Court, not
the penalty provided for by the Code, which should be considered in determining whether or not subsidiary
penalty should be imposed.

Application of the rules:

 Rule 1 – applicable only when penalty imposed is imprisonment not exceeding 6 years
 Computation (page 632)
 Subsidiary imprisonment not to exceed 1/3 of the penalty imposed and to exceed one year
o when the quotient, after dividing the amount of the fine by P8, is one year or less and
such quotient does not exceed 1/3 of the penalty imposed, the whole period of
imprisonment represented by the quotient must be served by the convict as subsidiary
penalty (Illustration on page 632)
 no subsidiary imprisonment if indemnity is less than P8
 Rule 2 – applicable when penalty imposed is fine only
 Illustrations on page 633
  When penalty prescribed by the Code for the crime is fine only, duration of the subsidiary penalty
is based on the classification of felony
 When fine provided by the code, as the penalty for the offense, is exactly P200, apply Article in
determining the classification of the felony, because that article, in defining light felony, states that
the fine is “not exceeding P200.” When the amount of the fine fixed by the code as the penalty for
the offense is more than P200, apply Article 26 to determine the classification of the felony
 Rule 4 – A is sentenced to 4 years, 9 months and 10 days of destierro and to pay a fine of P4000. If A has
no money with which to pay the fine, he shall suffer an additional period of destierro at the same rate of
one day for every P8. The same rule is to be applied when the principal penalty is suspension and fine.

Penalty imposed must be:

 Prision correctional
 Arresto mayor
 Arresto menor
 Suspension
 Destierro
 Or fine only

6 years and 1 day

 Prision mayor. Hence, no subsidiary imprisonment imposed

Additional penalty for habitual delinquency should be included in determining whether or not subsidiary penalty
should be imposed
 Even if penalty imposed is not higher than prision correccional, if accused is a habitual delinquent who deserves
an additional penalty of 12 years and 1 day of reclusion temporal, there is no subsidiary imprisonment

If the principal penalty is imposed

 It is the penalty actually imposed by the court, not the penalty provided for by the code, which should be
considered in determining whether or not subsidiary penalty should be imposed
 Thus, even if the penalty provided for by the code for the crime is prision mayor but there are 2 mitigating
circumstances without any aggravating circumstance, and court imposes 2 years, 11 months and 11 days of
prision correccional, subsidiary imprisonment may be imposed for nonpayment of fine

Penalty not to be executed by confinement, but has fixed duration

 Under Article 236, penalty of suspension and fine from P200 to P500 shall be imposed upon any person who
shall assume the performance of the duties and powers of any public office without first being sworn or having
given bond required by law. Such suspension shall last until he shall have complied with the formalities. If he
cannot pay the fine, although he already complied with the formalities required by Article 236, his suspension
shall continue until the amount of the fine is covered at the rate of one day suspension for every P8

Penalty not to be executed by confinement and has no fixed duration

 Example:
 Penalty is fine not exceeding P200 and censure. If accused cannot pay the fine, there is no subsidiary
liability, because the penalty of censure has no fixed duration and is not to be executed by confinement.
Rule no. 1 specifically mentions the penalty of prision correccional or arresto and fine; rule no. 1 speaks of
fine only; and rule no. 4 mentions penalty of fixed duration.” Hence, when fine goes with a penalty not to
be executed by imprisonment or destierro and which has no fixed duration, there is no subsidiary penalty
for nonpayment of the fine.
  Where the accused was charged with the crime of slight physical injuries and was sentenced by the trial
court to pay a fine of P530 and public censure, with subsidiary imprisonment in case of insolvency, CA
held that trial court is not authorized to impose subsidiary penalty in case of insolvency

Subsidiary penalty is the same deprivations as those of which the principal penalty consists
 If penalty is imprisonment, subsidiary penalty is imprisonment also
 Penalty is destierro, subsidiary penalty is destierro also
 Reason: Article 39 states that convict shall continue to suffer the same deprivation as those of which the
principal penalty consists

Convict who served subsidiary penalty may still be required to pay the fine
 Convict who suffered subsidiary penalty for nonpayment of the fine is not relieved from paying the fine should
his financial circumstances improve

Subsidiary imprisonment is not imprisonment for debt

 SI is an enforcement of penal statutes that provide the payment of money as penalty for the commission of the
crime
 Civil liability arising from libel is not a debt within the purview of the constitutional provision against
imprisonment for nonpayment of debt
 Debt – an obligation to pay a sum of money of the penalty arising from contract, express or implies.
 Civil liability in libel arises from a tort or crime; hence from law
 As a consequence, subsidiary imprisonment for nonpayment of said liability does not violate the constitutional
injunction

Subsidiary imprisonment under special law (rules)

 Act. No, 1732 of the Philippine commission
1. When court merely imposes fine, subsidiary liability shall not exceed 6 months, at the rate of one day of
imprisonment for every P2.50
2. In case both fine and imprisonment are imposed, subsidiary liability shall not exceed 1/3 of the term of
imprisonment, and in no case shall it exceed 1 year
3. If imprisonment is for more than 6 years in additional to a fine, there shall be no subsidiary imprisonment
4. When fine is imposed for violation of any municipal ordinance or ordinances of the city of Manila, the rate
is one day for every P1, until fine is satisfied, provided that the total subsidiary imprisonment does not
exceed months, if penalty imposed is fine alone; and not more than 1/3 of the principal penalty, if it is
imposed together with imprisonment
 Applicable to offenses made punishable by acts of the Philippine legislature
 Not applicable to offenses made punishable by the Act of US congress

Since tax code does not provide for the imposition of a subsidiary penalty in case of insolvency, no subsidiary
imprisonment can be imposed
 Subsidiary penalty provided in the code refers only to non-payment of the fine and not of the taxes dues
 Internal Revenue Code fails to provide for the collection of the income tax in criminal proceedings, conviction
for failure or neglect to pay such tax does not include payment of indemnity to the state in the amount of the tax
not paid, nor can subsidiary imprisonment be imposed in case of insolvency

Subsidiary imprisonment under special laws

 Persons convicted of violation of special laws are liable to subsidiary imprisonment in case of insolvency n the
payment of indemnity except where the indemnity consists in unpaid internal revenue tax
Subsidiary imprisonment, like accessory penalties, not essential in determining jurisdiction
 What determines the jurisdiction of the court in criminal cases is the extent of the penalty which the law
imposes for the crime charged in the information or complaint

Decision need not state that there should not be any subsidiary imprisonment when the law forbids it
 Article 39 No. 3 provides that when the principal penalty is higher than prision correccional, no subsidiary
imprisonment in case of insolvency shall be imposed.

NO SUBSIDIARY PENALTY SHALL BE IMPOSED WHERE:

1. The penalty imposed is higher than prisión correccional or 6 years,
 Additional penalty for habitual delinquency should be included in determining whether or not subsidiary
penalty should be imposed.

2. For non-payment of reparation or indemnification of the consequential damages,

3. For non-payment of costs of the proceedings, and

4. Where the penalty imposed is a fine and another penalty without fixed duration, like censure.

 The rules on subsidiary penalty in Art. 39 are applicable to crimes punishable by special laws by force of Art.
10 of the Code.

Section Three – Penalties in which other accessory penalties are inherent

OUTLINE OF ACCESSORY PENALTIES INHERENT IN PRINCIPAL PENALTIES

1. Death, when not executed by reason of commutation or pardon
i. Perpetual absolute disqualification, and
ii. Civil interdiction during 30 years, if not expressly remitted in the pardon.
2. Reclusión perpetua and reclusión temporal
i. Civil interdiction for life or during the sentence, and
ii. Perpetual absolute disqualification, unless expressly remitted in the pardon of the principal penalty.
3. Prisión mayor
i. Temporary absolute disqualification, and
ii. Perpetual special disqualification from suffrage, unless expressly remitted in the pardon of the principal
penalty.
4. Prisión correccional
i. Suspension from public office, profession or calling, and
ii. Perpetual special disqualification from suffrage, if the duration of imprisonment exceeds 18 months, unless
expressly remitted in the pardon of the principal penalty.
 There is perpetual special disqualification from suffrage, only when the duration of the imprisonment
exceeds 18 months.
5. Arresto – suspension of the right to hold office and the right of suffrage during the term of the sentence.

 The Code does not provide for any accessory penalty for destierro.
 No accessory penalty attached to death penalty
o Only when death penalty is not executed by reason of commutation or pardon that the accessory
penalty provided for in Article 40 shall be suffered by the convict
Unless expressly remitted in the pardon
 To be relived of the accessory penalties, the same must be expressly remitted in the pardon

Persons who served out the penalty may not have the right to exercise the right of suffrage
 Absolute pardon for any crime for which one year imprisonment or more was meted out restores the prisoner to
his political rights
 Penalty is less than 1 year, disqualification does not attach, except when crime committed is one against
property
 Nature of crime is immaterial when penalty imposed is one year imprisonment or more.
 Illustration on page 642

Accessory penalty need not be expressly imposed; they are deemed imposed
 Understood to be always imposed upon the offender by the mere fact that law fixes a certain penalty for a given
crime
 Thus, when law provides that those guilty of homicide shall be punished by reclusion temporal, it is understood
that it includes civil interdiction during the period of sentence and perpetual absolute disqualification

Accessory penalty does not determine jurisdiction

 Illustration on page 643
 MTC has exclusive original jurisdiction over offenses punishable with imprisonment not exceeding 6 years
irrespective of the amount of the fine, and regardless of other imposable accessory or other penalties, including
the civil liability arising from such offenses or predicated thereon, irrespective of kind, nature, value or amount
thereof

RECLUSION LIFE
PERPETUA IMPRISONMENT
Has a specific Has no definite term
duration of 20 years or accessory
and 1 day to 40 years penalties.
and accessory
penalties.

Imposable on Imposable on crimes

felonies punished by punishable by special
the RPC. laws.

 ART. 45 – CONFISCATION AND FORFEITURE OF THE PROCEEDS OF THE CRIME

OUTLINE OF THE PROVISION OF THIS ARTICLE

1. Every penalty imposed carries with it the forfeiture of the proceeds of the crime and the instruments or tools
used in the commission of the crime.
2. The proceeds and instruments or tools of the crime are confiscated and forfeited in favor of the Government.
3. Property of a third person not liable for the offense, is not subject to confiscation and forfeiture.
4. Property not subject of lawful commerce (whether it belongs to the accused or to third person) shall be
destroyed.

 The confiscation and forfeiture of the proceeds and instruments of a crime is an accessory penalty.
 No forfeiture where there is no criminal case
o Illustration on page 644
o Every penalty imposed. A penalty cannot be imposed unless there is a criminal case filed, the case is
tried, and the accused is convicted
o Forfeiture cannot be ordered if the accused is acquitted, because no penalty is imposed
The provisions of Art. 45 cannot apply when
1. The instruments belong to innocent third parties who is not indicated,
 Although there is sufficient ground to hold him guilty of the acts for which the accused has been
convicted
2. Such properties have not been placed under the jurisdiction of the court, and
3. When it is legally or physically impossible.

 This accessory penalty presupposes a judgment of conviction. However, even if the accused is acquitted on
reasonable doubt, but the instruments or proceeds are contraband, the judgment of acquittal shall order their
forfeiture for appropriate disposition.
o Confiscation can be ordered only if the property is submitted in evidence or placed at the disposal of
the court
o Illustration on page 646
 Articles which are forfeited, when the order of forfeiture is already final, cannot be returned even in case of an
acquittal
 Confiscation and forfeiture are additional penalties
 When accused has appealed, confiscation and forfeiture not ordered by the trial court, may be imposed by the
appellate court
o Forfeiture and confiscation of instruments and proceeds of the offense are accessory penalties

Chapter Four: Application of Penalties (Arts. 46-72)

Section One – Rules for application of penalties to the persons criminally liable and for the graduation of the
same.

 ART. 46. PENALTY TO BE IMPOSED UPON PRINCIPALS IN GENERAL

GENERAL RULE: The penalty prescribed by law in general terms shall be imposed upon the
1. principals
2. for a consummated felony.
EXCEPT: When the penalty to be imposed upon the principal in frustrated or attempted felony is fixed by law.

GRADUATION OF PENALTIES
1. BY DEGREES – refers to
a) the stages of execution (consummated, frustrated, or attempted); and
b) the degree of the criminal participation of the offender (whether as principal, accomplice or accessory).
2. BY PERIODS – refers to the proper period of the penalty which should be imposed when aggravating or
mitigating circumstances attend the commission of the crime.

 Whenever it is believed that the penalty is lower by one or two degrees corresponding to said acts of execution
is not in proportion to the wrong done, law fixes a distinct penalty for the principal in frustrated or attempted
felony
 o Example: penalty prescribed by the code for robbery with homicide is reclusion perpetua to death; but
penalty to be imposed upon the offender in case the homicide was consummated but the robbery was
attempted or frustrated is not 2 degrees or one degree lower than said penalty, but reclusion temporal in
its maximum period to reclusion perpetua as prescribed in Article 297

 ART. 47 CASES WHEREIN THE DEATH PENALTY SHALL NOT BE IMPOSED

1. UNDER AGE. When the offender is below 18 years of age at the time of the commission of the crime.
2. OVER AGE. When the guilty person is more than seventy (70) years of age.
3. NO COURT MAJORITY. When upon appeal or automatic review of the case by the Supreme Court, the vote of
eight members is not obtained for the imposition of the death penalty.

o Automatic review is available only in cases where death penalty is imposed (R.A. 7659).
 SC assumes direct appellate review over all criminal crimes in which the penalty imposed is death,
reclusion perpetua, or life imprisonment (or lower but involving offenses committed on the same
occasion or arising out of the same occurrence that gave rise to the more serious offense for which the
penalty of death, reclusion perpetua, or life imprisonment is imposed
 CA has aptly been given direct mandate to review factual issues
- A prior determination of the court of appeals on, the factual issues would minimize the possibility
of an error of judgment
- If CA should affirm the penalty of death, reclusion perpetua, or life imprisonment, it could then
render judgment imposing the corresponding penalty as the circumstances so warrant, refrain from
entering judgment and elevate the entire records of the case to the SC for its final disposition

1987 constitution merely suspended the imposition of death penalty

Justification for death penalty

 Social defense and exemplarity justify the penalty of death

Death penalty not cruel and unusual

 Not within the meaning of constitution of the words excessive, unjust and cruel
 Cruel when they involve torture or lingering death
 Cruel punishment implies something inhuman and barbarous, something more than the mere extinguishment of
life

Rep. Act No. 296 can be given retroactive effect

 Providing 8 justices must concur in the imposition of death penalty
 It is procedural and not substantive, and that it is applicable to cases pending in the courts at the time of the
approval of said ACT and to crimes committed before its approval

Death penalty shall be imposed in all cases in which it must be imposed under existing law
 Illustration on page 654

Trial court must require the prosecution to present evidence, despite plea of guilty when the crime charged is
punished with death
 Essence of judicial review in capital offense is that while society allows violent retribution for heinous crimes
committed against it, it always must make certain that the blood of the innocent is not spilled, or that the guilty
are not made to suffer more than their just measure of punishment and retribution
 A sentence of death is valid only if it is susceptible of a fair and reasonable examination by this court. This is
impossible if no evidence of guilt was taken after a plea of guilty

Death penalty is not imposed in view of certain circumstances

 Illustration on page 655

Where penalty of reclusion perpetua is imposed, in lieu of the death penalty, there is a need to perfect an appeal
 Since death penalty’s imposition is now prohibited, there is a need to prefect an appeal, if appeal is desired,
from a judgment of conviction for an offense where the penalty imposed is reclusion perpetua in lieu of the
death penalty

Records of all cases imposing the penalty of death, reclusion perpetua or life imprisonment shall be forwarded by
the CA to the SC for review

CRIMES PUNISHABLE BY DEATH UNDER THE DEATH PENALTY LAW (RA 7659)
1. Treason
2. Qualified Piracy
3. Qualified Bribery
4. Parricide
5. Murder
6. Infanticide
7. Kidnapping and Serious Illegal Detention
8. Robbery – with Homicide, Rape, Intentional Mutilation, or Arson
9. Rape – with the use of a deadly weapon, or by two or more persons
- Where the victim became insane
- With Homicide
10. Qualified Rape
11. Destructive Arson
12. Plunder
13. Violation of certain provisions of the Dangerous Drugs Act
14. Carnapping

 ART. 48 COMPLEX CRIMES

CONCEPT:
1. In complex crime, although 2 or more crimes are actually committed, they constitute only one crime in the eyes
of the law as well as in the conscience of the offender.
2. The offender has only one criminal intent, hence there is only one penalty imposed for the commission of a
complex crime.

TWO KINDS OF COMPLEX CRIMES:

1. COMPOUND CRIME (delito compuesto) – a single act constitutes 2 or more grave or less grave felonies.
REQUISITES:
1. That only a single act is performed by the offender;
2. That the single act produces: (1) two or more grave felonies, or (2) one or more grave and one or more
less grave felonies.
 o Offenses involved should be either both grave or both less grave, or one of them a grave felony
and the other less grave
 Murder is committed when a person is killed by means of explosion
o Illustration on page 657
 Several shots from Thompson sub-machine gun causing several deaths, although caused by a single act of
pressing the trigger, are considered several acts
o Not the act of pressing the trigger which should be considered as producing the several felonies but the
number of bullets which actually produced them
2. COMPLEX CRIME PROPER (delito complejo) – an offense is a necessary means for committing the other.
REQUISITES:
1. That at least two offenses are committed;
o Illustration on page 667
o Abduction as a necessary means for committing rape
2. That one or some of the offenses must be necessary to commit the other;
3. That both or all of the offenses must be punished under the same statute.

Phrase “necessary means” does not mean “indispensable means”

 If it did, then the offense as a necessary means to commit another would be an indispensable element of the
latter and would be an ingredient thereof
 Necessary means – merely facilitate and insure his committing of the crime

In complex crimes, when offender executes various acts, he must have a single purpose
 Illustration on page 668
 When in the definition of a felony one offense is a means to committing the others
o In murder where killing of a person is qualified by the circumstance that it was committed by means of
fire or by means of explosion which in themselves are felonies involving destruction, respectively,
there is no complex crime. Crime is murder, plain and simple

Subsequent acts of intercourse, after forcible abduction with rape, are separate acts of rape
 Reason: when the first act of rape was committed in the truck, crime of forcible abduction was already
consummated so that each of the succeeding rapes committed in the house cannot legally be considered as still
connected with the abduction
o Even while the first act of rape was being performed, the crime of abduction was already
consummated, so that each of the 3 succeeding rapes cannot be complexed with forcible abduction

No complex crime when trespass to dwelling is direct means to commit a grave offense
 Committed when a private person shall enter a dwelling of another against the latter’s will

When the offender had in his possession the funds which he misappropriated, the falsification of a public or official
document involving said funds is a separate offense
 Page 671
 But when offender had to falsify a public or official document to obtain possession of the funds which he
misappropriated, falsification is a necessary means to commit the malversation
o Page 671

NO COMPLEX CRIME IN THE FOLLOWING CASES

1. In case of continuing crimes
2. When one offense is committed to conceal the other.
3. When the other crime is an indispensable part or an element of the other offenses.
4. Where one of the offenses is penalized by a special law.
 To be complex, crimes should be punished under the same statutes

Illegal possession of firearms is not a necessary means to commit homicide

 2 different acts
 Homicide and illegal possession of firearm are punished under different statutes

Illegal possession of firearm, when considered a special aggravating circumstance

 Use of unlicensed firearm in murder or homicide
 Not as a separate crime but merely a special aggravating circumstance

Illegal possession of firearm absorbed in rebellion

 673

When 2 or more crimes are committed but

(1) not by a single act, or;
(2) one is not a necessary means for committing the other
- one or 2 is present, not a complex crime
- page 674

There is no complex crime of rebellion with murder, arson, robbery, or other common crimes
 mere ingredients of the crime of rebellion as a means necessary for the perpetration of the offense
 inherent and common in the crime of rebellion

When 2 crimes produced by a single act are respectively within the exclusive jurisdiction of 2 courts of different
jurisdiction, court of higher jurisdiction shall try the complex crime
 674
 Accuses should not be harassed with various prosecution based on the same act by splitting the same into
various charges
 675

CFI (now RTC) of Manila retained jurisdiction in a charge of abduction with rape, although abduction, which was
commenced in Manila, was not proven, and the rape which was committed in Cavite, was the only matter proved

Article 48 is intended to favor the culprit

 When two or more crimes are a result of a single act, offender is deemed less perverse than when he commits
said crimes through separate and distinct acts
 If a person fired a shot and killed two persons with the same shot, were it not for Art 48, he would be sentenced
to reclusion temporal for each homicide. But under Art 48, he shall be sentenced to the maximum period of one
reclusion temporal only.

The penalty for complex crime is the penalty for the most serious crime, the same to be applied in its maximum
period
 Crime is direct assault with homicide, penalty for homicide being more serious crime, shall be imposed and the
penalty is to be applied in its maximum period

Light felonies produced by the same act should be treated and punished as separate offenses or may be absorbed by
the grave felony
 1. Several light felonies resulting from one single act – not complex
2. When the crime is committed by force or violence, slight physical injuries
are absorbed

When in obedience to an order several accused simultaneously shot many persons, without evidence how many each
killed, there is only a single offense, there being a single criminal impulse
 Illustration on page 663-664
 Ruling in the lawas case applies only when there is no evidence at all to show the number of persons killed by
each of several defendants
 “Single-criminal-impulse,” “same motive” or the “single-purpose” theory has no legal basis, for Article 48
speaks of a “single act.” However, theory is acceptable when it is not certain who among the accused killed or
injured each of the several victims

When it is within the scope of possibility that the two victims were killed by one and the same missile
 Complex crime
 Illustration on page 664

There is no complex crime of arson with homicide under article 48

Theft of firearm and illegal possession of same firearm do not form a complex crime –they are two distinct crimes
 It requires something more: there must be not only intention to own but also intent to use which is not
necessarily the case in every theft of firearm

Examples of compound crime

 Page 660 – 661

 Art. 48 does not apply when the law provides one single penalty for special complex crime. These include –
Robbery with Homicide
Robbery with Rape
Rape with Homicide
Kidnapping with Serious Physical Injuries
Kidnapping with Homicide or Murder

 The penalty for complex crime is the penalty for the most serious crime, the same to be applied in its maximum
period.

 If different crimes resulting from one single act are punished with the same penalty, the penalty for any one of
them shall be imposed, the same to be applied in the maximum period.

o Art. 48 applies to crimes through negligence. E.g.: offender found guilty of a complex crime of homicide with
less serious physical injuries through reckless imprudence.
o Reason: defitnion of felonies in Article 3 of the Code

 When 2 felonies constituting a complex crime are punishable by imprisonment and fine, respectively, only the
penalty of imprisonment should be imposed. REASON: fine is not included in the list of penalties in the order
of severity, and it is the last in the graduated scales in Art. 71 of the RPC.
Plurality of Crimes- consists in the successive execution, by the same individual, of different criminal acts, upon
any of which no conviction has yet been declared.

KINDS:
1. FORMAL OR IDEAL PLURALITY- only ONE CRIMINAL LIABILITY.
THREE GROUPS UNDER THE FORMAL TYPE:
a) When the offender commits any of the complex crimes in ART 48.
b) When the law specifically fixes a single penalty for two or more offenses committed.
c) When the offender commits continuing crimes.
2. REAL OR MATERIAL PLURALITY - DIFFERENT CRIMES in law, as well as in the conscience of the
offender; the offender shall be PUNISHED FOR EACH and every offense that he committed.
CONTINUING CRIME – is a single crime, consisting of a series of acts, but all arising from ONE CRIMINAL
RESOLUTION; length of time in the commission is immaterial. A continued crime is not a complex crime

REAL OR CONTINUED
MATERIAL CRIME
PLURALITY
1. There is a series 1. There is a series
of acts performed by of acts performed by
the offender the offender
2. Each act 2. The different acts
performed by the constitute only one
offender constitutes crime, all of the acts
a separate crime, performed arise
each act is generated from one criminal
by a criminal resolution
impulse