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NOCTURNITY |
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elements of nocturnity as an aggravating circumstance are: (a) when it
facilitated the commission of the crime; or (b) when especially sought
by the offender to insure the commission of the crime or for the purpose
of impunity, or (c) when the offender took advantage thereof also for
purposes of impunity.33
[People vs. Narciso, 262
SCRA 1(1996), p. 11.]
There are two tests for nocturnity as an aggravating circumstance: the
objective test, under which nocturnity is aggravating because it
facilitates the commission of the offense; and the subjective test,
under which nocturnity is aggravating because it was purposely sought by
the offender.34
[People vs. Parazo, 272 SCRA
512 (1997), p. 525 citing People vs. Garcia, 94 SCRA 14 (1979) and
People vs. Palon, 127 SCRA 529 (1984)]
These two tests should be applied in the alternative.35
[Ibid.] In this case, the subjective test is not passed because there is
no showing that SALVADOR purposely sought the cover of nighttime. The
mere fact that the rape was committed at nighttime with nothing more
does not make nocturnity in this particular case an aggravating
circumstance.
Justice Gonzaga-Reyes, Third Division, PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SALVADOR LOMERIO, defendant-appellant. [G.R. No. 129074. February 28, 2000]
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