Justifying and Exempting

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Justifying and

Exempting Circumstancesattyrcd / January 28, 2010Justifying and Exempting Circumstances

Justif ying ci rcumstances are those wherein the acts of the actor are in accordancewith law and, hence, he incurs no criminal and civil liability. The justifyingcircumstances by subject are as follows:1. Self-defense

Anyone who acts in defense of his person or rights. (Art. 11, Par. 1) The scopeincluded 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 ChuaChiong, 51 OG 1932)

Its elements are:

a. Unlawf ul aggression Aggression is considered unlawful when it is unprovoked or unjustified. Theremust 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 unlawfulaggression. (Dec., Sup. Ct. of Spain, March 8, 1887)

There is no unlawful aggression exists in a case of an agreed fight. To constitutean agreement to fight, the challenge must be accepted. (People v. Del Pilar, 44 OG596) Unlawful aggression may no longer exist if the aggressor ran away after theattack. (People v. Alconga, 78 Phil. 366) If the aggression has ceased, the onedefending 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 indicativeof the intent to carry out the threat, does not amount to unlawful aggression.
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(People v. Binondo, 97227, Oct. 20, 1992) The mere cocking of an M-14 rifle bythe victim, without aiming the firearm at any particular person is not sufficient toconclude that the life of the person (Vice-Governor) whom the accused wasallegedly protecting, was under actual threat or attack from the victim. There is nounlawful aggression. (Almeda v. CA, March 13, 1997)

b. Reasonabl e necessity of the means employed to prevent or repel it.The rule stand ground when in the right applies when a person is unlawfullyassaulted 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 kindof weapon of the aggressor, his physical condition, character, size and othercircumstances as well as those of the person attacked and the time and place of theattack. (People v. Padua, 40 OG 998) The instinct of self-preservation more oftenthan not is the moving power in mans action in defending himself. (People v.Artuz, 71 SCRA 116)

c. L ack of suf f icient 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 whichis to own and enjoy his property. (People v. Narvaez, 121 SCRA 389) Evenassuming 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 thatsuch act is considered unlawful aggression on the property rights. In the instantcase, the second element is absent considering that the victim was unarmed. Thereis 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 torape. (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 thusdefamed may avail himself of all necessary means to shake it off. (People v. ChuaHong, 51 OG 1932)

2. Defense of Relative


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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 byaffinity in the same degrees, and those by consanguinity within the fourthcivil degree, and in case the provocation was given by the person attacked, that theone 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 stabthe 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 avictim of an unlawful aggression, and the relative defending had no knowledge ofthe 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 bolofor the possession of the bolo and in the course of the struggle, wounded thehusband, was held to have acted in defense of a stranger. (People v. Valdez, 58Phil. 31)

4. State of Necessity

Any person who, in order to avoid an evil or injury, does an act which causesdamage 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


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there is a clash between two unequal rights, the lesser right giving way to thegreater 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 marriagewith 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 theunborn child, is the attending physician criminally liable? No, because his acts are

justified under this Article (State of necessity). However, in mercy killing wherethe doctor deliberately turned off the life support system costing the life of the

patient, the doctor is criminally liable. Euthanasia is not a justifying circumstancein 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 rightor office. (Art. 11, Par. 5) The injury caused or the offense committed is thenecessary consequence of the due performance of such right or office.

The killing by a policeman of an escaping detention prisoner is presumed to becommitted in the performance of his official duties. But shooting a thief whorefused to stop inspite of the order of the accused will make him liable as heexceeded fulfillment of his duty. (People v. Bentres, 49 OG 4919) Also, underthe doctri ne of self -help , the law justifies the act of the owner as lawful possessorof 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 ofdeath under exceptional circumstances (Art. 247), the defense of lawful exercise ofa 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)


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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 itsillegality, the subordinate is not liable. (Nassif v. People, 78 Phil. 67) This is dueto a mistake of fact committed in good faith. Even if the order is illegal, thesubordinate may still invoke the exempting circumstances of compulsion ofirresistible force or acting under the impulse of an uncontrollable fear of an equalor greater injury.

Ex empting cir cumstances are those wherein there is an absence in the agent of thecrime of all the condition that would make an act voluntary and, hence, althoughthere is no criminal liability, there is civil liability. In exempting, the crime iscommitted but there is absent in the person of the offender any element ofvoluntariness, and so he is not criminally liable but is civilly liable except in theexempting 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 developmentcomparable only to children between 2 and 7 years of age. An insane is one whosuffers from a mental disorder in such degree as to deprive him of reason. Theinsane 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 asylumsestablished for persons thus afflicted, which he shall not be permitted to leavewithout first obtaining the permission of the same court. (Art. 12, Par. 1)

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

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


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

A persons over nine (9) years of age but under fifteen (15), unless he has actedwith discernment, in which case, such minor shall be proceeded against inaccordance 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 betweenright or wrong, but is also involves the capacity to comprehend the nature of theact and its consequences.The age of the minor is computed up to the time of the commission of the crimecharged, not up to the date of trial.(People v. Navarro, 51 OG 409) If the minor isexempt from criminal liability, he shall be committed to the care of his or herfather or mother or nearest relative or family friend in the discretion of the courtand subject to its supervision. (Art. 189, PD 603, as amended)

Minority is always a privileged mitigating circumstance under the RPC and lowersthe prescribe penalty by one or two degrees in accordance with Article 68 of theCode. But like any modifying circumstance, it is not availing to those accused ofcrimes mala prohibita. (People v. Mangusan, 189 SCRA 624) However, this

privileged mitigating circumstance may be appreciated in violations of theDangerous Drugs Act (RA 6425), the penalty to be imposed should not be lowerthan prision correccional. (People v. Simon, 93128, July 29, 1994)

3. AccidentAny person who, while performing a l awful act with due care, causes injury bymere 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.


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An accident is any happening beyond the control of a person the consequences ofwhich are not foreseeable. If foreseeable, there is fault or culpa. An accidentalshooting due to legitimate self-defense is exempting. (People v. Trinidad, 49 OG4889) In performing a lawful act with due care by snatching away t he balisongin defense of stranger, the balisong flew with force that it hit another person whowas seriously injured, Tommy is exempted from criminal liability because of mereaccident. (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 andmust come from a third person. It cannot spring primarily from the offenderhimself. (People v. Fernando, 33 SCRA 149) Thus, if a person was struck withthe butts of the guns of those who killed another to compel him to bury theirvictim, he is not liable as an accessory because he acted under the compulsion ofan irresistible force. (US v. Caballeros, 4 Phil. 850)

The force must be irresistible to reduce him to a mere instrument who acts not onlywithout 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 wellgrounded apprehension of death or serious bodily harm if the act is not done. Athreat of future injury is not enough. The compulsion must be one of such acharacter as to leave no opportunity to the accused for escape or self-defense inequal 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 orgreater injury. (Art. 12, Par. 6)


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Uncontrollable fear is an impulse coming from within the person of the actorhimself. The actor acts not against his will but because he is engendered by thefear. The threat producing the insuperable fear must be grave, actual, serious andsuch kind that the majority of men would have succumbed to such moralcompulsion. (Feria and Gregorio, Revised Penal Code, Vol. 1, 224) Thus, if one iscompelled 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 greaterinjury. (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 somelawful insuperable cause. (Art. 12, Par. 7)

This is a felony by omission. The failure of a policeman to deliver the prisonerlawfully arrested to the judicial authorities within the prescribed period because itwas not possible to do so with practicable dispatch as the prisoner was arrested in adistant 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 isimposed, 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 tohumanity . (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 lasciviousnessand rape . (Art. 244)


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g. Instigation takes place when a peace officer induces a person to commit acrime. Without the inducement, the crime would not be committed. Hence, it isexempting 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 thiscase, the criminal intent ( mens rea ) originates in the mind of the instigator and theaccused is lured into the commission of the offense charged in order to prosecutehim. However, entrapment is the employment of such ways and means devised bya peace officer for the purpose of trapping or capturing a lawbreaker. With orwithout the entrapment, the crime has been committed already. Hence, entrapmentis neither exempting or mitigating. The idea to commit the crime originated fromthe accused, thus the actor is criminally liable.The difference between entrapment and instigation lies in the origin of the criminalintent. In entrapment mens rea originates from the mind of the criminal. The ideaand 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 adoptsthe idea and carries it into execution. (Araneta v. CA, 46638, July 9, 1986)

A buy - bust operatio n is a form of entrapment employed by peace officer to trapand catch a malefactor in flagrante delicto, commonly involving dangerous drugs.(People v. Del Pilar, 188 SCRA 37) Where a person had a ready supply ofdangerous drugs for sale to anyone willing to pay the price asked for, although hemight not have the drug with him at the time of the initial transaction, the situationsupports 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 readycontacts with the supplier from whom he could readily get the drug. If the accusedwere merely instigated to look for the drug, it would have taken him a considerablelength of time to look for a source. (People v. Estevan, 196 SCRA 34) (Q8, 1992Bar)

An example of instigation is given in Q9, 1995 Bar as follows: Suspecting thatJuan 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 wentinside the shopping mall while the officer waited at the corner of the mall. After15 minutes, Juan returned with ten sticks of marijuana cigarettes which gave toSPO2 Mercado who thereupon placed Juan under arrest and charged him withviolation of the Dangerous Drugs Law by selling marijuana. Is Juan guilty of anyoffense? Juan cannot be charged of any offense punishable under the DangerousDrugs 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 marijuanacigarettes, SPO2 Mercado practically induced and prodded Juan to commit the


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offense of illegal possession of marijuana. Set against the facts, instigation is avalid defense available to Juan.

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Justifying and Exempting