Nocturnity and desolation, otherwise legally termed as nighttime and uninhabited place, are examples of conditions, which if purposely sought in the commission of the offense for successful execution thereof are aggravating circumstances that may result in the imposition of higher penalty. Likewise, en quadrilla or by a band, under the same situation, increases the penalty of certain crimes.
Aggravating circumstances increase the penalty of the offender if alleged in the information and proved during trial. They cannot be appreciated against the accused if it is alleged in the information but not established during trial neither if it is proven during trial but was not alleged in the information. Both criteria must concur.
Nocturnity and Desolation or En Quadrilla
That the crime be committed in the night time, or in an uninhabited place, or by a band, whenever such circumstances may facilitate the commission of the offense.1
Article 14, par. 6 of the Revised Penal Code provides the following as an aggravating circumstance if they facilitated the commission of the offense:
- night time (Nocturnity), or
- uninhabited place, or
- by a band
When do these circumstances aggravate criminal liability?
- When it facilitated the commission of the crime; or2
- When especially sought by the offender to ensure the commission of the crime; or3
- When the offender took advantage thereof for the purpose of impunity.4
It must be noted that the above-mentioned aggravating circumstances must have been committed to facilitate or ensure commission of the crime or for the purpose of impunity in order to appreciate them as aggravating circumstances. Mere presence of these circumstances without the aforementioned elements will not render the circumstances appreciated by the court as shown on the following cases.
Nocturnity or Nighttime
In People vs. Apduhan,5 the affidavit “of the accused Apduhan shows that he and his co-malefactors took advantage of the nighttime in the perpetration of the offense as they waited until it was dark before they came out of their hiding place to consummate their criminal designs.” Night time was especially sought by the offender to ensure the commission of the crime. Hence, it was appreciated as an aggravating circumstance.
When the crime began at daytime. Thus:
In the case of People vs. Luchico,6 “the crime … was the result of a succession of acts which took place within the period of two hours, commencing at 5 o’clock in the afternoon and ending at 7 o’clock in the evening, without a moment’s interruption in which it can be said that nighttime, being the most favorable occasion for committing the crime, occurred to the accused… it is necessary that the same be sought and that it be taken advantage of, which does not appear to be clearly proven in the present case.” Hence, nocturnity was not appreciated on this case.
The commission of the crime must begin and be accomplished in the nighttime. Hence:
In the case of U.S. vs. Dowdell, 7 although the safe was disposed at night, the taking of the money which constituted the offense, was done during the daytime.8 Hence the crime was not attended by the aggravating circumstance of nighttime.
In People vs. Matbagon,9 “none of the foregoing reasons exists for appreciating nocturnity as an aggravating circumstance. The attack made by the defendant upon the deceased was but a sequel to the fight at the cockpit, which had taken place half an hour before. If the defendant had killed the deceased in the fight at the cockpit…It would be purely accidental…”10 Hence, nocturnity was not appreciated as an aggravating circumstance.
When the place of the crime is illuminated by light, nighttime is not aggravating.
In the case of People vs. Joson, C.A., 62 O.G. 4604, the scene of the incident was illuminated by the light on the street as well as that inside the vehicle of which the victim was a passenger, negating the notion that accused had especially sought or had taken advantage of nighttime in order to facilitate the commission of the crime of theft or for purposes of impunity.
In People vs. Baluyot,11 the aggravating circumstance of an uninhabited place was appreciated considering that the nearest house to the scene of the crime was more or less one (1) kilometer away.
An uninhabited place is one where there are no houses at all, a place at a considerable distance from the town, or where the houses are scattered at a great distance from each other.12
In People vs. Fausto Damaso,13 it was held that it is not the distance of the nearest house to the scene of the crime that determines whether it is uninhabited place but rather the reasonable possibility of the victim receiving some help. The scene of the crime is in a sugarcane plantation about a hundred meters from the nearest house where the sugarcane in the field was tall enough to obstruct the view of neighbors and passersby. Hence the aggravating circumstance of committing the crime in an uninhabited place was appreciated.
In People vs. Luneta14 the court held that the offense is not aggravated by the circumstance that it was committed in an uninhabited place because it was not proven that the accused purposely chose said place as an aid either to an easy and uninterrupted accomplishment of their criminal designs or to a surer concealment of the offense. It is not improbable that the offended parties were casually encountered, there being no evidence that the accused had previously sought the former for any purpose whatsoever. Hence the aggravating circumstance of committing the crime in an uninhabited place was not appreciated.
By a band
A band is where there are more than three armed malefactors acting together in the commission of an offense.
In People vs. Sawajan,15 the Court held that it was committed by a band because the three defendants and their companion, Julio delos Santos, all armed with bolos and one of them also with a revolver, took part in the perpetration of the crime.
Even if there are more than 10 persons but only 3 are either armed or acting together in the commission of the crime, it is not considered to have been committed by a band.
In People vs. Lungbos16 the court held that “the crime was not committed by a band because the prosecution failed to establish that all four of the malefactors were armed. Only Narido and the two John Does were armed.” There was no evidence that Lungbos was also armed. Only 3 of the accused were proven armed in this case.17 Hence its commission by a band was not appreciated. Armed men must be at least four to be considered a crime to be committed by a band.
Principal by inducement alone is not acting together in the commission of the crime.
In the case of Gamara vs. Valero,18 the information did not show that all of them were armed. Furthermore, the supposed participation of petitioner Gamara was that of principal by inducement which undoubtedly connotes that he has no direct participation in the perpetration thereof.19 Hence the aggravating circumstance that it was committed by a band was not appreciated.
If not alleged, they may still be considered in the award of damages
In People vs. Evina,20 the aggravating circumstances were not appreciated for the purpose of increasing the penalty because they were not alleged, but they were considered as bases for the award of exemplary damages.21
While in People vs. Evina the aggravating circumstances that were not alleged were the use of weapon22 and dwelling, still, by analogy, such principle may be applied to other aggravating circumstances which may not have been alleged yet proven during trial. Hence:
“Although the special aggravating circumstance of the use of a weapon and the aggravating circumstance of dwelling were proven, these aggravating circumstances cannot be considered in fixing the penalty because they were not alleged in the information as mandated by Rule 110, Sections 8 and 9 of the Revised Rules of Criminal Procedure. Although the crimes charged were committed before the effectivity of the said rule, nevertheless, the same should be applied retroactively being favorable to the appellant.23
“Although the aggravating circumstances in question cannot be appreciated for the purpose of fixing a heavier penalty in this case, they should, however, be considered as bases for the award of exemplary damages, conformably to current jurisprudence.24
“x x x x . . . .”
To appreciate the aggravating circumstances of committing the crime at night time, or in an uninhabited place or by a band, the offender must have used or taken advantage of these circumstances to facilitate the commission of the crime or to ensure its commission or for the purpose of impunity.
Mere presence of these circumstances is not enough. Furthermore, these circumstances must be alleged in the information and proven during trial for the court to appreciate them as aggravating circumstances. If these are not alleged in the information and established25 during trial, they may not be appreciated as such to increase the penalty. However, they may be considered as bases for the award of exemplary damages.
The law examines not only the conditions in their natural state but also how the offender took use of those circumstances in order to commit the crime. It is not necessary that the penalty will immediately become more severe just because they are present.
Therefore, in order to increase the punishment for a crime, these circumstances need to be both alleged in the information and proven during the trial itself, let alone the fact the they are purposely sought to guarantee the success and consummation of the criminal act.
- Article 14, Paragraph 6, Revised Penal Code[↩]
- Reyes, Revised Penal Code, Book I, p. 364[↩]
- G.R. No. L-19491, August 30, 1968[↩]
- G.R. No. L-26170, December 6, 1926 [49 Phil. 689, 697][↩]
- G.R. No. L-4191, July 18, 1908, [11 Phil. 4, 7][↩]
- G.R. No. L-42165, November 12, 1934[↩]
- G.R. No. L-37255, October 23, 1982[↩]
- Reyes, Revised Penal Code, 1974, Book I, p. 318[↩]
- 75 O.G. 4979, No. 25, June 18, 1979[↩]
- G.R. No. L-840, January 12, 1948, [79 Phil. 815, 818][↩]
- G.R. No. L-28243, December 27, 1929, [53 Phil., 689-693][↩]
- G.R. No. L-57293, June 21, 1988, [162 SCRA 383, 388][↩]
- G.R. No. L-36210, June 25, 1973, [51 SCRA 322, 326][↩]
- G.R. Nos. 124830-31, June 27, 2003[↩]
- Special Aggravating according to the Court[↩]
- beyond reasonable doubt[↩]