c. Mitigating Circumstances

Mitigating circumstances in Adultery

• Adultery is mitigated if the adulterous wife was abandoned without justification by her spouse.
• Both the wife and her paramour are entitled to this mitigating circumstance. (People v. Avelino, C.A., 40 O.G., Supp. 11, 194)
• Sheer necessity, as when a woman was left helpless by her husband (although justifiably, for it was in response to a duty) and in such a great need that she found herself in the predicament of committing adultery for the sake of her children, mitigates her liability. (People v. Alberto, et al., C.A., 47 O.G. 2438)

Elements:

• That the offender is a Private person;
• That he kidnaps or Detains another or in any other manner deprives the victim of liberty or he furnishes the place for the perpetuation of the detention;
• That the act of detention or kidnapping must be Illegal; and
• That the crime is committed Without the attendance of any of the circumstances enumerated in Art. 267

Privileged Mitigating Circumstance (Voluntary Release): If the offender:

• voluntarily releases the person so kidnapped or detained within 3 days from the commencement of the detention;
• without having attained the purpose intended; and
• before the institution of criminal proceedings against him

Notes on voluntary release:

• The three requisites must concur
• Must be shown by the offender that he was in a position to prolong the detention for more than 3 days and yet he released the person detained within that time
• . Voluntary release not considered privileged mitigating if the victim is a woman (considered serious illegal detention)

Art. 269. Unlawful Arrest

Any person who, in any case other than those authorized by law, or without reasonable ground therefor, shall arrest or detain another for the purpose of delivering him to the proper authorities

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Justification for Art. 247: Burst of Passion

The killing must be the proximate result of the outrage overwhelming the accused and not influenced by external factors.

Notes:

• The article does not define a crime, but when death/serious physical injuries are inflicted, it grants a “singular mitigating circumstance” and provides for the “penalty” of destierro (as a form of protection for the accused) instead of the severe penalty prescribed for parricide, homicide, or physical injuries.
• If the physical injuries caused are less serious or slight, the circumstances present an absolutory cause; thus no criminal liability is ascribed.
• Both wives and husbands are entitled to the benefits of this article.
• Sexual intercourse does not include preparatory acts.
• It is immaterial whether the offending daughter is legitimate or illegitimate, provided she is under eighteen years of age and is living with her parent.

The following provisions do not apply to acts penalized under Art. 365:

• Art. 64; Art. 64 relative to mitigating and aggravating circumstances is not applicable to crimes committed through negligence. [People vs. Medroso, Jr., G.R. No. L-37633, (1975)]
• Art. 48; Art. 48 is a procedural device allowing single prosecution of multiple felonies meanwhile Art. 365 is a substantive rule penalizing not an act defined as a felony but "the mental attitude behind the act, the dangerous recklessness, lack of care or foresight”. There is a single mental attitude regardless of the resulting consequences. Thus, Art. 365 was crafted as one quasi-crime resulting in one or more consequences.

Note: The victim’s negligence does not, by itself, excuse or mitigate the accused’s criminal liability for reckless imprudence; assess whether the accused’s negligence was a proximate cause of the injury.

The defense of contributory negligence does not apply in criminal cases through reckless imprudence, since one cannot allege the negligence of another to evade the effects of his own negligence. [Genobiagon v. Court of Appeals, G.R. No. 40452 (1989)]

Elements:

• That there is a pregnant woman who has suffered an abortion;
• That the abortion is intended; and
• that the abortion is caused by –
• the pregnant woman herself;
• any other person, with her consent; or
• particularly by any of her parents, with her consent, for the purpose of concealing her dishonor

Notes:

• Unlike in Infanticide, the mitigating circumstance of commission of the act for the purpose of concealing dishonor is only applicable to the pregnant woman and not to her parents.
• If the purpose of the woman’s parents was not to conceal dishonor, they will be liable for intentional abortion under Art. 256.

Art. 259. Abortion Practiced by a Physician or Midwife and Dispensing of Abortives

Ordinary vs. Privileged Mitigating Circumstances

1. INCOMPLETE JUSTIFYING OR EXEMPTING CIRCUMSTANCES (PAR. 1)

This mitigating circumstance applies when not all the requisites are present. If majority of the requisites are present, it is a privileged mitigating circumstance.

3. NO INTENTION TO COMMIT SO GRAVE WRONG (PAR. 3)

This circumstance can be taken into account only when the facts proven show that there is a notable and evident disproportion between the means employed to execute the criminal act and its consequences. (U.S. v. Reyes, 36 Phil. 904, 907)

Not applicable to felonies where intention is immaterial

In unintentional abortion, where the abortion that resulted is not intended by the offender, the mitigating circumstance that the offender had no intention to commit so grave a wrong as that committed is not applicable. (People v. Cristobal, C.A., G.R. No. 8739)

Lack of intent to kill not mitigating in physical injuries.

In crimes against persons who do not die as a result of the assault, the absence of the intent to kill reduces the felony to mere physical injuries, but it does not constitute a mitigating circumstance under Art. 13, par. 3. (People v. Galacgac, C.A., 54 O.G.1207)

Applicable only to offenses resulting in physical injuries or material harm

Thus, the mitigating circumstance that the offender did not intend to commit so grave a wrong as that committed was not appreciated in cases of defamation or slander. (People v. Galang de Bautista, C.A., 40 O.G. 4473)

PROVOCATION

Any unjust or improper conduct or act of the offended party, capable of exciting, inciting or irritating anyone.

REQUISITES:

• Provocation must be sufficient;
• Sufficient means adequate to excite a person to commit the wrong and must accordingly be proportionate to its gravity;
• Depends on:
• The act constituting the provocation;
• Social standing of the person provoked; and
• Place and the time when the provocation is made;
• It must originate from the offended party; and

Where the alleged provocation did not come from the deceased but from the latter's mother, the same may not be appreciated in favor of the accused. (People vs. Reyes, G.R. No. L-33154)

• It must be immediate to the commission of the crime by the person who is provoked.

The threat should not be offensive and positively strong. Otherwise, it would be an unlawful aggression, which may give rise to self-defense and thus no longer a mitigating circumstance. (U.S. v. Guysayco, 13 Phil. 292)

As a requisite of Incomplete Self-Defense vs. As a Mitigating Circumstance

Vindication incompatible with passion or obfuscation

Vindication of a grave offense and passion or obfuscation cannot be counted separately and independently. (People vs. Dagatan, 106 Phil. 88, 98)

Provocation must be sufficient

The provocation must be sufficient, which means that it should be proportionate to the act of aggression and adequate to stir the aggressor to its commission. (People vs. Alconga, 78 Phil. 366)

6. PASSION OR OBFUSCATION (PAR. 6)

REQUISITES:

• The accused acted upon an impulse; and
• The impulse must be so powerful that it naturally produced passion or obfuscation in him.

Passion or obfuscation may constitute a mitigating circumstance only when the same arose from lawful sentiments.

• There be an act, both unlawful and sufficient to produce such a condition of mind; and
• Said act which produced the obfuscation was not far removed from the commission of the crime by a considerable length of time, during which the perpetrator might recover his normal equanimity.

Act must be sufficient to produce such a condition of mind

If the cause of the loss of self-control was trivial and slight, as when the victim failed to work on the hacienda of which the accused was the overseer, or where the accused saw the injured party picking fruits from the tree claimed by the former, the obfuscation is not mitigating. (Reyes, Book I citing U.S. vs. Diaz, 15 Phil. 123)

Cause producing passion or obfuscation must come from the offended party

Where passion or obfuscation of the accused is not caused by the offended party but by the latter's relatives who mauled the wife of the accused, the same may not be considered as a mitigating circumstance in his favor. (People vs. Lao, C.A., 64 O.G. 7873)

Does not arise if the act is actuated by a spirit of lawlessness, jealousy, and revenge

Passion or obfuscation must originate from lawful sentiments, not from the fact that, for example, the girl's sweetheart killed the girl's father and brother because the girl's parents objected to their getting married and the girl consequently broke off their relationship. Such an act is actuated more by a spirit of lawlessness and revenge rather than any sudden and legitimate impulse of natural and uncontrollable fury. (People vs. Gravino, G.R. Nos. L-31327-29)

Passion or obfuscation must arise from lawful sentiments and not from a spirit of lawlessness or revenge or from anger and resentment. (People vs. Bates, G.R. No. 139907)

Passion/Obfuscation vs. Provocation

Passion/Obfuscation vs. Irresistible Force

Applicability of RPC on Penalties

In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court.

2 Mitigating Circumstances:

• Voluntary surrender to a person in authority or his agents; and
• Voluntary confession of guilt before the court prior to the presentation of evidence for the prosecution.

When both are present, they should have the effect of mitigating as two independent circumstances. (People v. Fontabla G. R. No. L-43126)

Not mitigating if defendant was in fact arrested

Where a person, after committing the offense and having opportunity to escape, voluntarily waited for the agents of the authorities and voluntarily gave himself up, he is entitled to the benefit of this circumstance, even if he was placed under arrest by a policeman then and there. (People vs. Parana, G.R. No. 45373)

Updated: Voluntary surrender must be assessed under the totality of the circumstances, not from any single factor alone (Loza v. People, G.R. No. 258592, 12 August 2025).

When warrant of arrest had not been served or not returned unserved because the accused cannot be located, the surrender is mitigating

While it is true that the warrant for the arrest of the accused was dated Mar. 7, 1967, and the police authorities were able to take custody of the accused only on Mar. 31, 1967, there is nothing in the record to show that the warrant had actually been served on him, or that it had been returned unserved for failure of the server to locate said accused. Upon the other hand, there is direct evidence that the accused voluntarily presented himself to the police. The fact that it was effected sometime after the warrant of arrest had been issued does not detract from the voluntary character of the surrender in the absence of proof to the contrary. (People vs. Brana, G.R No. L-29210)

Law does not require that the surrender be prior to the order of arrest

When after the commission of the crime and the issuance of the warrant of arrest, the accused presented himself in the municipal building to post the bond for his temporary release, voluntary surrender is mitigating. The fact that the order of arrest had already been issued is no bar to the consideration of the circumstance because the law does not require that the surrender be prior to the order of arrest. (Rivera vs. CA, G.R. No. 125867)

Updated: Posting bond after issuance of an arrest warrant may support voluntary surrender, but the court must assess spontaneity under the totality of circumstances (Loza v. People, G.R. No. 258592, 12 August 2025).

Surrender of weapons cannot be equated with voluntary surrender

Where the accused merely surrendered the gun used in the killing, without surrendering his own person to the authorities, such act of the accused does not constitute voluntary surrender. (People vs. Palo, G.R Nos. L-9593-94)

Voluntary surrender does not simply mean non-flight

As a matter of law, it does not matter if the accused never avoided arrest and never hid or fled. What the law considers as mitigating is the voluntary surrender of an accused before his arrest, showing either acknowledgment of his guilt or an intention to save the authorities from the trouble and expense that his search and capture would require. (Reyes, Book I)

The fact that the accused did not escape or go into hiding after the commission of the murder and in fact he accompanied the chief of police to the scene of the crime without however surrendering to him and admitting complicity in the killing did not amount to voluntary surrender to the authorities and this circumstance would not be extenuating in that case. (People vs. Rubinal, G.R. No. L-12275)

Updated: Whether surrender was voluntary depends on the totality of the circumstances, with evasion of arrest being one factor rather than the sole criterion (Loza v. People, G.R. No. 258592, 12 August 2025).

Intention to surrender, without actually surrendering, is not mitigating

The mitigating circumstance of voluntary surrender cannot be appreciated in favor of the accused who claims to have intended to surrender but did not, despite several opportunities to do so, and was in fact arrested. (People vs. Dimdiman, G.R. No. L12622)

There is spontaneity even if the surrender is induced by fear of retaliation by the victim’s relatives. (People vs. Clemente, G.R. No. L-23463)

When the offender imposed a condition or acted with external stimulus, surrender is not voluntary

A surrender is not voluntary when forced by circumstances, as when the culprits considered it impossible to live in hostility and resistance to the constituted authorities and their agents in view of the fact that the said authorities had neither given them rest nor left them in peace for a moment. (People vs. Sakam, G.R No. 41566)

Plea must be made before trial begins, not during a trial de novo or when on appeal

A plea of guilty made after arraignment and after the prosecution has begun presenting its evidence does not entitle the accused to have such plea considered as a mitigating circumstance. (People vs. Lungbos, G.R. No. L-57293)

It cannot be properly stated that the appeal taken by the accused from the Municipal Court to the Court of First Instance again restored the case to its original state for the reason that the law requires a trial de novo, because a trial de novo necessarily implies the existence of a previous trial where evidence was presented by the prosecution. (Reyes, Book I)

Withdrawal of plea of not guilty and pleading guilty before presentation of evidence by prosecution is still mitigating

All that the law requires is voluntary plea of guilty prior to the presentation of the evidence by the prosecution. Thus, even if during the arraignment, the accused pleaded not guilty, he is entitled to this mitigating circumstance as long as he withdraws his plea of not guilty and thereafter pleads guilty to the charge before the fiscal could present his evidence. (Reyes, Book I)

The change of plea should be made at the first opportunity. (Reyes, Book I)

Conditional plea of guilty is not a mitigating circumstance.

An accused may not enter a conditional plea of guilty in the sense that he admits his guilt provided that a certain penalty be imposed upon him. The appellant in this case must be considered as having entered a plea of not guilty. (People vs. Moro Sabilul, G.R No. L-3765)

Plea to a lesser charge is not a mitigating circumstance

This is because to be voluntary, the plea of guilty must be to the offense charged. (People vs. Noble, G.R No. L-288)

Plea of guilty to amend the information

in view of the willingness of the accused to plead guilty for a lesser offense, the prosecution, with leave of court, amended said information to make it one for homicide and frustrated homicide, and the accused pleaded guilty thereto. That was an entirely new information and no evidence was presented in connection with the charges made therein before the accused entered his plea of guilty. The accused is entitled to the mitigating circumstance of plea of guilty. (People vs. Ortiz, G.R. No. L-19585)

Plea of guilty is not mitigating in culpable felonies and in crimes punishable by special laws

Art. 365, par. 5, RPC, which prescribes the penalties for culpable felonies, provides that "in the imposition of these penalties, the courts shall exercise their sound discretion, without regard to the rules prescribed in Art. 64." (People v. Agito, G.R. No. L12120)

When the crime is punished by a special law, the court shall also exercise its sound discretion, as Art. 64 is not applicable. The penalty prescribed by special laws is usually not divisible into 3 periods. Art. 64 is applicable only when the penalty has 3 periods. (Reyes, Book I)

Examples:

• Outraged feeling of owner of animal taken for ransom analogous to vindication of a grave offense;
• Impulse of jealous feeling, similar to passion and obfuscation;
• Manifestations of Battered Wife Syndrome, analogous to an illness that diminishes the exercise of will power;
• Esprit de corps, similar to passion and obfuscation;
• Voluntary restitution of stolen property, similar to voluntary surrender;
• Extreme poverty and necessity, similar to incomplete justification based on state of necessity; and
• Testifying for the prosecution, analogous to plea of guilty.

NOTE: Mitigating circumstances which arise (1) from the moral attributes of the offender, or (2) from his private relations with the offended party, or (3) from any other personal cause, shall only serve to mitigate the liability of the principals, accomplices, and accessories as to whom such circumstances are attendant. (Art. 62, par. 3, RPC)

Offender must take advantage of the calamity or misfortune

This will not apply if the offender was provoked by the offended party during the calamity or misfortune. (Reyes, Book I)

When relationship Is MITIGATING:

• Crimes against property, by analogy, to the provisions of Art. 332:
• Robbery, usurpation, fraudulent insolvency, and arson; and
• Relationship is exempting in theft, estafa, and malicious mischief.
• Crimes against persons
• When the offense committed is less serious physical injuries or slight physical injuries and the offended party is a relative of a lower degree.

When relationship is an element of the offense

When the qualification given to the crime is derived from the relationship between the offender and the offended party, it is neither mitigating nor aggravating, because it is inseparable from and inherent in the offense. (Reyes, Book I)

Drunkenness must affect mental faculties

Before drunkenness may be considered as a mitigating circumstance, it must first be established that the liquor taken by the accused was of such quantity as to have blurred his reason and deprived him of self-control. It should be such an intoxication that would diminish the agent's capacity to know the injustice of his acts, and his will to act accordingly. (People vs. Ruiz, Nos. L-33604-05)

When intoxication is MITIGATING:

• If intoxication is not habitual; or
• If intoxication is not subsequent to the plan to commit a felony

For an accused to be entitled to the mitigating circumstance of intoxication, it must be shown that (a) at the time of the commission of the criminal act, he has taken such quantity of alcoholic drinks as to blur his reason and deprive him of a certain degree of control, and (b) that such intoxication is not habitual, or subsequent to the plan to commit the felony. (People vs. Boduso, Nos. L-30450-51)

3. DEGREE OF INSTRUCTION AND EDUCATION OF THE OFFENDER

When degree of instruction is MITIGATING:

Low degree of instruction and education or lack of it may be mitigating when established by evidence and relevant to the commission of the offense.

General Rule: Lack of sufficient education is not mitigating as a matter of course; its relevance depends on the circumstances of the offense under Article 15 of the Revised Penal Code.