In further outlining the distinction between the words “intent” and “discernment,” it is worthy to note the basic reason behind the enactment of the exempting circumstances embodied in Article 12 of the RPC; the complete absence of intelligence freedom of action, or intent, or on the absence of negligence on the part of the accused...

It is for this reason, therefore, that minors nine years of age and below are not capable of performing a criminal act. On the other hand, minors above nine years of age but below 15 are not absolutely exempt.

However, they are presumed to be without criminal capacity, but which presumption may be rebutted if it could be proven that they were “capable of appreciating the nature and criminality of the act, that is, that (they) acted with discernment.”

The preceding discussion shows that “intelligence” as an element of dolo actually embraces the concept of discernment as used in Article 12 of the RPC and as defined in the aforecited case of People vs. Doqueña, supra. It could not therefore be argued that discernment is equivalent or connotes “intent” for they refer to two different concepts. Intelligence, which includes discernment, is a distinct element of dolo as a means of committing an offense.

In evaluating felonies committed by means of culpa, three elements are indispensable, namely, intelligence, freedom of action and negligence. Obviously, intent is wanting in such felonies. However, intelligence remains as an essential element, hence, it is necessary that a minor above nine but below 15 years of age be possessed with intelligence in committing a negligent act which results in a quasi-offense.

For him to be criminally liable, he must discern the rightness or wrongness of the effects of his negligent act.

In Remiendo v. People, the Court reiterated Doqueña and Guevarra emphasizing that the prosecution is burdened to prove that the accused acted with discernment and that the surrounding circumstances must demonstrate that the minor knew what he was doing and that it was wrong. Such circumstance includes the gruesome nature of the crime and the minor’s cunning and shrewdness.

The Court in Dorado v. People (Dorado) further elucidated that when a minor above 15 but below 18 years old is charged with a crime, it cannot be presumed that he or she acted with discernment. During the trial, the prosecution must specifically prove as a separate circumstance that the child in conflict with the law committed the alleged crime with discernment. Notably, Dorado also specified circumstances which would exhibit discernment, viz.:

“The discernment that constitutes an exception to the exemption from criminal liability of a minor [. . .] who commits an act prohibited by law, is his mental capacity to understand the difference between right and wrong, and such capacity may be known and should be determined by taking in to consideration all the facts and circumstances accorded by the records in each case, the very appearance, the very attitude, the very comportment and behavior of said minor, not only before and during the commission of the act, but also after and even during the trial.”

“The basic reason behind the exempting circumstance is the complete absence of intelligence, freedom of action of the offender which is an essential element of a felony either by dolus or by culpa. Intelligence is the power necessary to determine the morality of human acts to distinguish a licit from an illicit act.”

“On the other hand, discernment is the mental capacity to understand the difference between right and wrong.”

As earlier stated, the “prosecution is burdened to prove that the accused acted with discernment by evidence of physical appearance, attitude, or deportment not only before and during the commission of the act, but also after and during the trial.”

“The surrounding circumstances must demonstrate that the minor knew what he was doing and that it was wrong. Such circumstance includes the gruesome nature of the crime and the minor’s cunning and shrewdness.”

In an earlier case, it was written:

For a minor at such an age to be criminally liable, the prosecution is burdened to prove beyond a reasonable doubt, by direct or circumstantial evidence, that he acted with discernment, meaning that he knew what he was doing and that it was wrong.

Such circumstantial evidence may include the utterances of the minor; his overt acts before, during and after the commission of the crime relative thereto; the nature of the weapon used in the commission of the crime; his attempt to silence a witness; his disposal of evidence or his hiding the corpus delicti. (Emphasis supplied)

The pronouncements in Dorado were recapitulated in CICL XXX v. People, where the Court stressed that the prosecution must specifically prove as a separate circumstance that the alleged crime was committed with discernment, and for a minor at such an age to be criminally liable, the prosecution is burdened to prove beyond reasonable doubt, by direct or circumstantial evidence, that the minor acted with discernment.

(To be continued)