MALA IN SE MALA PROHIBITA

Mala in se, or malum in se, in its singular form is Mala prohibita, or malum prohibitum in its
a Latin phrase which literally translates to singular form, is a Latin phrase which literally
wrong in, and of, itself. translates to, as it is wrong, or because, it is
prohibited.
These are acts or omissions, in contrast with These are acts or  omissions which are not
mala prohibita, which do not need special inherently wrongful or immoral by themselves;
criminal statutes to criminalize those acts or yet, because of certain statutes or laws prohibiting
omission simply by violating such special laws. such acts or omission, they have been considered as
crimes or offenses. Hence, they become punishable
under such laws.
In mala in se, the acts or omissions itself are mala prohibita are acts and omissions which are
inherently wrongful and immoral. These are acts made crimes because special statutes criminalize
which our society, our traditions, and our parents it.
consider as naturally and organically evil.
The perpetrated action itself is per se sinister or mala prohibita, criminal intent is not an essential
evil. The list of these evil crimes are found and element of the offense. It is enough that an act or
codified in our Revised Penal Code, with the omission has violated a special statute prohibiting
corresponding punishment like penalty of such act or omission.
imprisonment and fines, capital, afflictive,
correctional, light, or otherwise.

Mala in se, on the other hand, are acts and mala prohibita, it is enough that a statute or law is
omissions which are inherently wrongful and violated. The intent here is not mens rea [criminal
immoral regardless of regulations governing their intent] but only the desire or intent to perpetrate the
conduct. act.
Mala in se, intent to commit the crime is an
element thereof. The criminal intent must unite
with the unlawful act for it to constitute as
felony.
mala in se, it presupposes that the person doing the
crime has the criminal intent to do it. When a
person murders another, it must be proven that it
was his intention to kill that individual in order for
it to constitute as murder. Intent governs the crime.
 DOLO CULPA
Dolo is a Spanish term which means deceit. Culpa is also a Spanish term which means fault.
There is deceit when an act is performed with There is fault when a wrongful act results from
deliberate intent. negligence, imprudence, lack of skill or foresight.
If a felony is committed by means of deceit it is If it is committed by means of fault, then it is
dolo or otherwise known as intentional felonies culpa or otherwise known as culpable felonies
such as robbery. such as reckless imprudence resulting in damage
to properties.
There is dolo if there exist malice or deliberate There is culpa when the felony results from
intent negligence, imprudence, lack of foresight or lack
of skill
In intentional felonies, there is criminal intent in In culpable felonies, there is no criminal intent in
the mind of the offender the mind of the offender but his acts or
omissions are still punished by law because of
the damages or injury caused to others as a
result of his negligence, imprudence, lack of skill
or lack of foresight.

INTENT MOTIVE
In criminal law, the term intention is explained as the the motive is defined as the implicit cause, which
deliberate cause and known effort, to act in a instigates a person to do or not to do something.
particular manner which is not permitted by law
The intention of a person can be determined by the the motive is the reason, that drives a person to do an
use of particular means and the circumstances, that act or refrain from acting in a specific manner.
resulted in the criminal offence.
While the intention is the expressly defined purpose the motive is hidden or implied purpose
of the crime
When the intention of a person, is the element for On the contrary, the motive is not the primary
affixing criminal liability, it must be proven beyond element for affixing culpability, so it need not be
reasonable doubt proven.
FELONY
Felony is defined under the code as an act or omission punishable by law, committed through culpa or dolo. The
words “punishable by law” means that the act or omission must be defined and punished by the Revised Penal
Code and no other law.
Felonies  can be committed either by means of deceit or by means of fault. If a felony is committed by means of
deceit it is dolo or otherwise known as intentional felonies such as robbery. If it is committed by means of fault, then
it is culpa or otherwise known as culpable felonies such as reckless imprudence resulting in damage to properties.

CRIME
A crime is defined as an act or omission which is made punishable by law. On the other hand, an offense includes
both felony and crime, as it is generally referred to as violations of the law.

How to determine if a felony is intentional?

There is deliberate intent in the commission of a felony if the offender, in doing the act or in omitting to
do an act, has done so with FREEDOM, INTELLIGENCE, and INTENT.

1. Freedom – When a person acts without freedom the law looks at him as a mere tool. And as such, his
liability is likened to “the knife that wounds, or of the torch that sets fire, or of the key that opens a door,
or of the ladder that is placed against the wall of a house in committing robbery.”

2. Intelligence – If a person acted without intelligence in committing a felony, then no crime exists. This
requisite is necessary to determine the morality of human acts. Hence, the law exempts certain classes of
persons from criminal liability such as minors (15 below) and insane persons.

3. Intent – “Intent to commit the act with malice, being purely a mental process, is presumed and
the presumption arises from the proof of the commission of an unlawful act.”

How to determine if a felony is committed by means of culpa?

There is culpable felony if the offender, in doing the act or in omitting to do an act, has done so with
FREEDOM, INTELLIGENCE, and IMPRUDENCE, NEGLIGENCE, LACK OF FORESIGHT or LACK
OF SKILL.

1. Imprudence – It usually involves lack of skill. A deficiency of action or failure to take necessary
precaution to avoid injury or damage such as when a driver fails to check and determine the road
worthiness of his vehicle before hitting the road where thereafter he had a brake failure which caused him
to run over a pedestrian. Such may have been avoided if he had prudently checked his vehicle.

2. Negligence – It usually involves lack of foresight. A deficiency of perception or failure to pay proper
attention and to use diligence to a void a foreseeable damage or injury such as when a cop
indiscriminately fires his gun in the air during New Year’s Eve which caused injury to another. had the
cop foreseen that firing his gun in open air might injure someone the incident would not have happened.

References: Revised Penal Code Criminal Law Book I by Justice J.B.L Reyes; The Revised Penal Code
Act No. 3815 As Amended Book One by Dean Abelardo Estrada
Circumstances affecting Criminal Liability
There are circumstances which are attendant in the commission of an offense which have the effect of
increasing the penalty or lowering the penalty imposed. Also, there are acts which are considered to be
wholly excusable if a certain circumstance is attendant in the commission of the felony. The Code
provides for justifying, exempting, mitigating, aggravating and alternative circumstances which alter
the penalty imposed if it is attendant in the commission of the offense. Absolutory causes, which exempt
an offender from criminal liability, may also be found in the Code, although not found in one provision.
a. Justifying and Exempting Circumstances
Justifying Circumstances are those where the act of a person is said to be in accordance with law so that
such person is deemed not to have transgressed the law and is free from criminal and civil liability. The
following circumstances, if present in the commission of a felony, serve to free the offender of any
liability:
“Article 11. Justifying circumstances. – The following do not incur any criminal liability:
1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur;
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending himself.

2. Any one who acts in defense of the person or rights of his spouse, ascendants, descendants, or
legitimate, natural or adopted brothers or sisters, or of his relatives by affinity in the same degrees, and
those by consanguinity within the fourth civil degree, provided that the first and second requisites
prescribed in the next preceding circumstance are present, and the further requisite, in case the
provocation was given by the person attacked, that the one making defense had no part therein.
3. Anyone who acts in defense of the person or rights of a stranger, provided that the first and second
requisites mentioned in the first circumstance of this article are present and that the person defending be
not induced by revenge, resentment, or other evil motive.
4. Any person who, in order to avoid an evil or injury, does an act which causes damage to another,
provided that the following requisites are present;
First. That the evil sought to be avoided actual exists;
Second. That the injury feared be greater than that done to avoid it;
Third. That there be no other practical and less harmful means of preventing it.

5. Any person who acts in the fulfillment of a duty or in the lawful exercise of a right or office.
6. Any person who acts in obedience to an order issued by a superior for some lawful purpose.” [8]
No crime is committed therefore no civil liability attaches. The burdens of proving the existence of a
justifying circumstance lie with the accused. When an accused invokes self defense, it is incumbent upon
him to prove such by clear and convincing evidence.
On the other hand, Exempting Circumstances are those grounds exemption from punishment because
there is wanting in the agent of the crime any of the conditions which make the act voluntary or negligent.
The following are exempting circumstances:
“Article 12. Circumstances which exempt from criminal liability. – The following are exempt from
criminal liability:
1. An imbecile or an insane person, unless the latter has acted during a lucid interval.
 When the imbecile or an insane person has committed an act which the law defines as a felony
(delito), the court shall order his confinement in one of the hospitals or asylums established for
persons thus afflicted, which he shall not be permitted to leave without first obtaining the
permission of the same court.
2. A person under nine years of age.
3. A person over nine years of age and under fifteen, unless he has acted with discernment, in which case,
such minor shall be proceeded against in accordance with the provisions of article 80 of this Code.
 When such minor is adjudged to be criminally irresponsible, the court, in conformity with the
provisions of this and the preceding paragraph, shall commit him to the care and custody of his
family who shall be charged with his surveillance and education; otherwise, he shall be committed
to the care of some institution or person mentioned in said article 80.

4. Any person who, while performing a lawful act with due care, causes an injury by mere accident
without fault or intention of causing it.
5. Any person who acts under the compulsion of irresistible force.
6. Any person who acts under the impulse of an uncontrollable fear of an equal or greater injury.
7. Any person who fails to perform an act required by law, when prevented by some lawful insuperable
cause.” 
According to Guevara one who acts because of an exempting circumstance commits a crime, but because
of the absence of voluntariness there is no criminal liability, only civil liability. The burden of proving,
with clear and convincing evidence, that the accused acted with the existence of an exempting
circumstance lies with the accused.
b. Mitigating Circumstances
Mitigating Circumstances are those which, if present in the commission of the crime, do not entirely free
the actor from criminal liability, but serve only to reduce the penalty.  Diminution of the freedom or
intelligence is the basis for the mitigation. The Code provides the following circumstance which mitigate
criminal liability:

“Article 13. Mitigating circumstances. – The following are mitigating circumstances:

1. Those mentioned in the preceding chapter, when all the requisites necessary to justify the act or to
exempt from criminal liability in the respective cases are not attendant.
2. That the offender is under eighteen years of age or over seventy years. In the case of the minor, he shall
be proceeded against in accordance with the provisions of article 80.
3. That the offender had no intention to commit so grave a wrong as that committed.
4. That sufficient provocation or threat on the part of the offended party immediately preceded the act.
5. That the act was committed in the immediate vindication of a grave offense to the one committing the
felony (delito) his spouse, ascendants, descendants, legitimate, natural or adopted brothers or sisters or
relatives by affinity within the same degrees.
6. That of having acted upon an impulse so powerful as naturally to have produced passion or
obfuscation.
7. That the offender had voluntarily surrendered himself to a person in authority or his agents, or that he
had voluntarily confessed his guilt before the court prior to the presentation of the evidence for the
prosecution.
8. That the offender is deaf and dumb, blind or otherwise suffering some physical defect which thus
restricts his means of action, defense, or communication with his fellow beings.
9. Such illness of the offender as would diminish the exercise of the will-power of the offender without
however depriving him of consciousness of his acts.
10. And, finally, any other circumstance of a similar nature and analogous to those above mentioned.” 
Mitigating Circumstances are classified into two groups: Ordinary and Privileged.
 Ordinary Mitigating circumstances are those enumerated in Article 13, save minority, which is
the effect of the lowering of the age responsibility. An ordinary mitigating circumstance has the
effect of reducing the penalty a period lower.
 Privileged mitigating circumstance are those which are enumerated by law as such, and has the
effect of reducing the penalty a degree or two lower. The existence of two ordinary circumstances
has the effect of a privileged, lowering the penalty by a degree or two. A privileged mitigating
circumstance cannot be offset by an aggravating circumstance, whereas the ordinary one may.

c. Aggravating Circumstances
Aggravating Circumstances are those which, if present in the commission of a crime, serve to increase the
penalty without, however, exceeding the maximum penalty, allowed by law for the offense. The Code
enumerates twenty-one circumstances which aggravate criminal liability, they are the following:
“Article 14. Aggravating circumstances. – The following are aggravating circumstances:
1. That advantage be taken by the offender of his public position.
2. That the crime be committed in contempt of or with insult to the public authorities.
3. That the act be committed with insult or in disregard of the respect due to the offended party on
account of his rank, age, or sex, or that it be committed in the dwelling of the offended party, if the latter
has not given provocation.
4. That the act be committed with abuse of confidence or obvious ungratefulness.
5. That the crime be committed in the palace of the Chief Executive, or in his presence, or where public
authorities are engaged in the discharge of their duties, or in a place dedicated to religious worship.
6. That the crime be committed in the nighttime, or in an uninhabited place, or by a band, whenever such
circumstances may facilitate the commission of the offense.
Whenever more than three armed malefactors shall have acted together in the commission of an offense,
it shall be deemed to have been committed by a band.
7. That the crime be committed on the occasion of a conflagration, shipwreck, earthquake, epidemic, or
other calamity or misfortune.
8. That the crime be committed with the aid of armed men or persons who insure or afford impunity.
9. That the accused is a recidivist.
A recidivist is one who, at the time of his trial for one crime, shall have been previously convicted by
final judgment of another crime embraced in the same title of this Code.
10. That the offender has been previously punished for an offense to which the law attaches an equal or
greater penalty or for two or more crimes to which it attaches a lighter penalty.
11. That the crime be committed in consideration of a price, reward, or promise.
12. That the crime be committed by means of inundation, fire, poison, explosion, stranding of a vessel or
intentional damage thereto, derailment of a locomotive, or by the use of any other artifice involving great
waste and ruin.
13. That the act be committed with evident premeditation.
14. That craft, fraud, or disguise be employed.
15. That advantage be taken of superior strength, or means be employed to weaken the defense.
16. That the act be committed with treachery (alevosia).
There is treachery when the offender commits any of the crimes against the person, employing means,
methods, or forms in the execution thereof which tend directly and specially to insure its execution,
without risk to himself arising from the defense which the offended party might make.
17. That means be employed or circumstances brought about which add ignominy to the natural effects of
the act.
18. That the crime be committed after an unlawful entry.
There is an unlawful entry when an entrance is effected by a way not intended for the purpose.
19. That as a means to the commission of a crime a wall, roof, floor, door, or window be broken.
20. That the crime be committed with the aid of persons under fifteen years of age or by means of motor
vehicles, motorized watercraft, airships, or other similar means. (As amended by Rep. Act No. 5438,
approved Sept. 9, 1968.)
21. That the wrong done in the commission of the crime be deliberately augmented by causing other
wrong not necessary for its commission.”
There are four kinds of aggravating circumstance, namely: generic, specific, qualifying and
inherent.
 Generic circumstances are those which generally apply to all crimes such as dwelling and
recidivism.
 Those which apply only to particular crimes are Specific circumstances.
 Those that change the nature of the offense are called Qualifying circumstance.
 And that which necessarily accompanies the commission of the crime is called Inherent
circumstance.
Qualifying circumstances must be alleged and prove to have the necessary effect. The appreciation of
a qualifying circumstance, even if it is not alleged, constitutes a violation of the constitutional right to
be informed of the nature and cause of the accusation against him. A qualifying circumstance changes
the nature of the offense committed, therefore, an integral part of the offense. If such is not alleged, it
may be proved during the course of the trial, but will only be considered as a generic circumstance.

d. Alternative Circumstances
Alternative Circumstances are those which must be taken into consideration as aggravating or mitigating
according to the nature and effects of the crime and other conditions attending its commission. There are
three alternative circumstances: Relationship, Intoxication and Degree of Instruction or education
of the offender. The provision of law which enumerates the alternative circumstance does not say when
exactly, save for intoxication, such shall be considered as aggravating or mitigating.

“Mistake of fact” and “mistake of law” are both legal defenses that a defendant may invoke to

challenge certain criminal charges. These defenses are based on the theory that the accused acted
based on an honest mistake, and thus lacked the mental state or “mens rea” that the crime, by
defintion, requires.
In a mistake of fact defense, an accused asserts that he/she did not have the intent to commit a crime
because he or she misunderstood a particular fact. For example, defendants can use the defense to
challenge theft charges by showing that they made a mistake and reasonably believed that they had a right
to the property they took. The defense is only valid, however, if the mistake is honest and reasonable.
Under a mistake of law defense, a defendant shows that he/she did not have the mental state to commit a
crime because of a misunderstanding of the law. An example is a defendant saying that he did
not conspire to commit a crime because he/she believed a law provided the legal right to do the conspired
act. This misunderstanding, though, has to be made in good faith for the defense to work.

Note that these two defenses do not apply to strict liability cases. This is because a defendant’s intent is
irrelevant here. A prosecutor only has to prove that a defendant performed some illegal act (such as
having sex with a minor who is below the age of consent).

A defendant can raise either defense in a criminal case. Further, an accused can use them to challenge
both misdemeanor and felony charges.