Affidavit Of Desistance: Its Effect On Pursuing A Criminal Case

The common misconception about the affidavit of desistance is that it can bar someone from pursuing a criminal case. In theory, it serves as a waiver of one's right to pursue civil indemnity. If the complaint is made after the institution of a criminal action, the affidavit cannot justify the complaint's dismissal. 

Two Kinds of Desistance Under Article 6 of the Revised Penal Code

1. Factual Desistance-this type of desistance refers to the actual desistance of the actor, made after the crime's attempted stage. In this case, the actor is still considered criminally liable for the attempt. 

2. Legal Desistance-The desistance, in law, obviates criminal liability unless preparatory or over act has already been committed in themselves constitute a felony other than what the actor intended. 

II. Application of Article 6: 

Only to intentional felonies by positive acts but not to: (i). Felonies by omission (ii) Culpable felonies and (iii) Violations of special laws, unless the special law provides for an attempted or frustrated stage. Examples of the exception are The Dangerous Drugs Law which penalizes an attempt to violate some of its provisions, and The Human Security Act of 2007

III. The attempted stage:

"the accused commences the commission of a felonious act directly by overt acts but does not perform all the acts of execution due to some cause or accident other than his own spontaneous desistance”

 A).(1). The attempt which the Penal Code punishes is that which has a connection to a particular, concrete offense, that which is the beginning of the execution of the offense by overt acts of the perpetrator, leading directly to the its realization and commission (2) The act must not be equivocal but indicates a clear intention to commit a particular and specific felony. Thus the act of a notorious criminal in following a woman can not be the attempted stage of any felony.  

B). Overt or external act is some physical deed or activity, indicating the intention to commit a particular crime, more than a mere planning or preparation, which if carried out to is complete termination following its natural course, without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete offense

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C). Examples:

1.  The accused pressed a chemically -soaked cloth on the mouth of the woman to induce her to sleep, while he lay on top of her and pressed his body to her. The act is not the overt act that will logically and necessarily ripen into rape.  They constitute unjust vexation. ( Note: it would be attempted rape if he tried to undress the victim or touch her private parts) ( Balleros vs. People, Feb, 22, 2006)

2. One found inside a house but no article was found on him, is liable for trespass and not for attempted theft or robbery even if he is a notorious robber

3. One found removing the glass window panes or making a hole in the wall is not liable for attempted robbery but for attempted trespass

D) The accused has not yet passed the subjective phase or that phase encompassed from the time an act is executed which begins the commission of the crime until the time of the performance of the last act necessary to produce the crime, but where the accused has still control over his actions and their results. 

E).The accused was not able to continue performing the acts to produce the crime. He was prevented by external forces and not because he himself chose not to continue. Such as when his weap0n was snatched, or his intended victim managed to escape, or he was overpowered or arrested.

F). If the accused voluntarily desisted i.e he himself decided not to continue with his criminal purpose, then he is not liable.

1. Reason: This is an absolutory cause by way of reward to those who, having set one foot on the verge of crimes, heed the call of their conscience and return to the path of righteousness.  .

2. The reason for the desistance is immaterial

3. Exceptions: when the accused is liable despite his desistance

a). when the act performed prior to the desistance already constituted the attempted stage of the intended felony. For example: the accused, with intent to kill, shot at the victim but missed after which he “desisted”, his acts already constituted attempted homicide

b). When the acts performed already gave rise to the intended felony. The decision not to continue is not a legal but factual desistance. As in the case of a thief who returned what he stole.

c). When the acts performed constitute a separate offense. Pointing a gun at another and threatening to kill, and then desisting gives rise to grave threats.

Pinoy Attorney

Written by : Pinoy Attorney