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Circumstances affecting criminal liability There are five circumstances affecting criminal liability: (1) Justifying circumstances; (2) Exempting circumstances; (3) Mitigating circumstances; (4) Aggravating circumstances; and (5) Alternative circumstances. There are two others which are found elsewhere in the provisions of the Revised Penal Code: (1) Absolutory cause; and (2) Extenuating circumstances. In justifying and exempting circumstances, there is no criminal liability. When an accused inv
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  Circumstances affecting criminal liabilityThere are five circumstances affecting criminal liability:(1) Justifying circumstances;(2) Exempting circumstances;(3) Mitigating circumstances;(4) Aggravating circumstances; and(5) Alternative circumstances.There are two others which are found elsewhere in the provisions of theRevised Penal Code:(1) Absolutory cause; and(2) Extenuating circumstances.In justifying and exempting circumstances, there is no criminal liability. Whenan accused invokes them, he in effect admits the commission of a crime buttries to avoid the liability thereof. The burden is upon him to establish beyond reasonabledoubt the required conditions to justify or exempt his acts from criminal liability. What isshifted is only the burden of evidence, not the burden of proof.Justifying circumstances contemplate intentional acts and, hence, are incompatible withdolo. Exempting circumstances may be invoked in culpable felonies.Absolutory causeThe effect of this is to absolve the offender from criminal liability, although not from civilliability. It has the same effect as an exempting circumstance, but you do not call it as suchin order not to confuse it with the circumstances under Article 12.Article 20 provides that the penalties prescribed for accessories shall not be imposed uponthose who are such with respect to their spouses, ascendants, descendants, legitimate,natural and adopted brothers and sisters, or relatives by affinity within the same degreeswith the exception of accessories who profited themselves or assisting the offender to profit by the effects of the crime.Then, Article 89 provides how criminal liability is extinguished:Death of the convict as to the personal penalties, and as to pecuniary penalties,liability therefor is extinguished if death occurs before final judgment;Service of the sentence;Amnesty;Absolute pardon;Prescription of the crime;  Prescription of the penalty; andMarriage of the offended woman as provided in Article 344.Under Article 247, a legally married person who kills or inflicts physical injuries upon hisor her spouse whom he surprised having sexual intercourse with his or her paramour or mistress in not criminally liable.Under Article 219, discovering secrets through seizure of correspondence of theward by their guardian is not penalized.Under Article 332, in the case of theft, swindling and malicious mischief, thereis no criminal liability but only civil liability, when the offender and the offended party are related as spouse, ascendant, descendant, brother and sister-in-law living together or where in case the widowed spouse and the property involved is that of the deceasedspouse, before such property had passed on to the possession of third parties.Under Article 344, in cases of seduction, abduction, acts of lasciviousness, andrape, the marriage of the offended party shall extinguish the criminal action.Absolutory cause has the effect of an exempting circumstance and they are predicated onlack of voluntariness like instigation. Instigation is associated with criminal intent. Do notconsider culpa in connection with instigation. If the crime is culpable, do not talk of instigation. In instigation, the crime is committed with dolo. It is confused with entrapment.Entrapment is not an absolutory cause. Entrapment does not exempt the offender or mitigate his criminal liability. But instigation absolves the offender from criminal liability because in instigation, the offender simply acts as a tool of the law enforcers and, therefore,he is acting without criminal intent because without the instigation, he would not have donethe criminal act which he did upon instigation of the law enforcers.Difference between instigation and entrapmentIn instigation, the criminal plan or design exists in the mind of the law enforcer with whomthe person instigated cooperated so it is said that the person instigated is acting only as amere instrument or tool of the law enforcer in the performance of his duties.On the other hand, in entrapment, a criminal design is already in the mind of the personentrapped. It did not emanate from the mind of the law enforcer entrapping him.Entrapment involves only ways and means which are laid down or resorted to facilitate theapprehension of the culprit.Illustrations:  An agent of the narcotics command had been tipped off that a certain house is being usedas an opium den by prominent members of the society. The law enforcers cannotthemselves penetrate the house because they do not belong to that circle so what they didwas to convince a prominent member of society to visit such house to find out what isreally happening inside and that so many cars were congregating there. The law enforcerstold the undercover man that if he is offered a cigarette, then he should try it to find outwhether it is loaded with dangerous drugs or not. This fellow went to the place and mingledthere. The time came when he was offered a stick of cigarette and he tried it to see if thecigarette would affect him. Unfortunately, the raid was conducted and he was among those prosecuted for violation of the Dangerous Drugs Act. Is he criminally liable? No. He wasonly there upon instigation of the law enforcers. On his own, he would not be there. Thereason he is there is because he cooperated with the law enforcers. There is absence of criminal intentIf the law enforcer were able to enter the house and mingle there, nobody would offer hima cigarette because he is unknown. When he saw somebody, he pleaded to spare him asmoke so this fellow handed to him the cigarette he was smoking and found out that it wasloaded with a dangerous drug. He arrested the fellow. Defense was that he would not give acigarette if he was not asked. Is he criminally liable? Yes. This is a case of entrapment andnot instigation. Even if the law enforcer did not ask for a cigarette, the offender was alreadycommitting a crime. The law enforcer ascertained if it is a violation of the DangerousDrugs Act. The means employed by the law enforcer did not make the accused commit acrime. Entrapment is not an absolutory cause because in entrapment, the offender is alreadycommitting a crime.In another instance, a law enforcer pretended to be a buyer of marijuana. He approached a person suspected to be a pusher and prevailed upon this person to sell him two kilos of dried marijuana leaves and this fellow gave him and delivered them. He apprehended thefellow. Defense is instigation, because he would not have come out for the marijuanaleaves if the law enforcer had not instigated him. It is a case of entrapment because thefellow is already committing the crime from the mere fact that he is possessing marijuana.Even without selling, there is a crime committed by him: illegal possession of dangerousdrugs. How can one sell marijuana if he is not in possession thereof. The law enforcer isonly ascertaining if this fellow is selling marijuana leaves, so this is entrapment, notinstigation. Selling is not necessary to commit the crime, mere possession is already acrime.A fellow wants to make money. He was approached by a law enforcer and was asked if hewanted to deliver a package to a certain person. When that fellow was delivering the package, he was apprehended. Is he criminally liable? This is a case of instigation; he is notcommitting a crime.A policeman suspected a fellow selling marijuana. The law enforcer asked him, “Are youselling that? How much? Could you bring that to the other fellow there?”  When he brought it there, the person, who happens to be a law enforcer, towhom the package was brought to found it to be marijuana. Even without bringing, he isalready possessing the marijuana. The fact that he was appointed to another person to findout its contents, is to discover whether the crime is committed. This is entrapment.The element which makes instigation an absolutory cause is the lack of criminalintent as an element of voluntariness.If the instigator is a law enforcer, the person instigated cannot be criminally liable, becauseit is the law enforcer who planted that criminal mind in him to commit the crime, withoutwhich he would not have been a criminal. If the instigator is not a law enforcer, both will be criminally liable, you cannot have a case of instigation. In instigation, the private citizenonly cooperates with the law enforcer to a point when the private citizen upon instigationof the law enforcer incriminates himself. It would be contrary to public policy to prosecutea citizen who only cooperated with the law enforcer. The private citizen believes that he isa law enforcer and that is why when the law enforcer tells him, he believes that it is a civilduty to cooperate.If the person instigated does not know that the person is instigating him is a law enforcer or he knows him to be not a law enforcer, this is not a case of instigation. This is a case of inducement, both will be criminally liable.In entrapment, the person entrapped should not know that the person trying to entrap himwas a law enforcer. The idea is incompatible with each other because in entrapment, the person entrapped is actually committing a crime. The officer who entrapped him only laysdown ways and means to have evidence of the commission of the crime, but even withoutthose ways and means, the person entrapped is actually engaged in a violation of the law.Instigation absolves the person instigated from criminal liability. This is based on the rulethat a person cannot be a criminal if his mind is not criminal. On the other hand,entrapment is not an absolutory cause. It is not even mitigating.In case of somnambulism or one who acts while sleeping, the person involved is definitelyacting without freedom and without sufficient intelligence, because he is asleep. He ismoving like a robot, unaware of what he is doing. So the element of voluntariness which isnecessary in dolo and culpa is not present. Somnambulism is an absolutory cause. If element of voluntariness is absent, there is no criminal liability, although there is civilliability, and if the circumstance is not among those enumerated in Article 12, refer to thecircumstance as an absolutory cause.Mistake of fact is not absolutory cause. The offender is acting without criminal intent. Soin mistake of fact, it is necessary that had the facts been true as the accused believed themto be, this act is justified. If not, there is criminal liability, because there is no mistake of fact anymore. The offender must believe he is performing a lawful act.
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