Crim Law -Peralta

Revised Penal Code - Book 1

Transcript of Justice Peralta Lectures

Session 1: THEORIES IN CRIMINAL LAW TO ELEMENTS OF DOLO AND CULPA What are the Theories in Criminal Law?

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What are the Characteristics of Criminal Law? Generality. Here, you refer to persons who commit the crime. Philippines.

Our penal laws shall apply to all persons who live or sojourn in the

Live? As long as you live here in the Philippines whether permanently or temporarily you are covered. Even if you are a foreigner, our penal laws will apply to you. Sojourn? No intent to live here. These are transients or travelers who come here for a short period of time. For example, a vessel or an airplane who stops here in the Philippines. Passengers urinate. While urinating, they smoked marijuana. They are covered by our penal laws. Territoriality Here, you refer to where the crime was committed. This refers to the situs of the crime. Philippine Archipelago under the Constitution Do we follow the three nautical mile rule or the twelve nautical mile rule? We follow the twelve nautical mile rule. We measure this during low tide. How do we measure? You measure the twelve nautical miles from the outermost islands of our Philippine archipelago. You do that with all the outermost islands and place dots all over. Then, you draw a straight line connecting all the dots. Whatever you cover upon connecting all of the dots, that is the territorial jurisdiction of the Philippines. It is not accurate to say twelve nautical miles from the seashore. Anything above that area, above and beneath, is included in our jurisdiction. Beyond the twelve nautical mile area, our Philippine laws will not anymore apply. What is the two hundred nautical miles? There is a provision in the fisheries law. In fact they are using this on Chinese fishermen being caught in the high seas fishing. The violations take place beyond the twelve nautical mile are. Now, supposing there is a group of fishermen fishing beyond the twelve nautical miles area but within the two hundred nautical mile area and they use dynamite, will you apply our Philippine laws? Yes, because it is provided in the fisheries law where we recognize the two hundred nautical mile economic zone. That two hundred nautical mile area is an agreement between peace-loving nations. It was taken from an international agreement among nations. It was established so that they may exploit everything within their exclusive economic zones. If one violates the law on fisheries (referring to exploitation or preservation of our marine resources) even if it is more than twelve nautical miles, then our Philippine laws will apply. But if the crime committed is not related to the exploitation or preservation of our marine resources (like rape) and such crime is committed beyond the twelve nautical mile rule but within the two hundred nautical mile rule, our courts will not have jurisdiction. Supposing a crime is committed inside a foreign vessel within Philippine territory (like in Manila bay), do we apply our Philippine laws? First, determine the kind of vessel. Is it a foreign merchant vessel or is it a foreign military (or foreign owned) vessel? If it is a foreign vessel, determine first what kind. If it is a foreign owned vessel (like warships and battleships), whatever crime committed inside that, we will have no jurisdiction those ships represent the sovereignty of their country. If it is a foreign merchant vessel, we also have to distinguish. What is the act committed? Even if it is a crime within our laws but if such crime pertains only to the internal management of the vessel, we have no jurisdiction. Example, the captain and the crew member are quarrelling because the crew member is saying that the captain sails like shit. Even if it is considered oral defamation according to our laws, you do not apply Philippine laws. But once they kill each other, Philippine laws will now apply because that do not anymore involve the internal management of the vessel. Vessel in transitu? A vessel in transitu is not only passing through our jurisdiction, it is actually a vessel on voyage but with no intention of stopping here in the Philippines because it is destined for a foreign country. Stops in the Philippines for refueling. Example, a vessel from Japan or China stopped in the Philippines. It is loaded with opium. But that ship is not intended to unload in the Philippines. If that ship stops in the Philippines for refueling, even if it is carrying opium, as a general rule, we cannot apply

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Philippine law. As long as the cargo is not intended to be unloaded here, we have no jurisdiction. But if it is unloaded in the Philippines, we will have jurisdiction. General rule: If a crime is committed inside a vessel which is transitu, we cannot apply our laws even if the act committed is punishable under the RPC. Exception: If the crime involves a crime of public order. What are crimes against public order? Those are crimes under Articles 201 to 202 and 153, 155. These crimes are those that disturb the peace and tranquility of the community. It also includes crimes which endangers the health of the community. Example, guns smuggled from a foreign country. Vessel is in transitu but is not intended to unload here. It is now within the 12 nautical mile area of the Philippines. Do we apply our Philippine laws? We will not apply our Philippine laws because it is not intended to unload here. If, however, one of the crew members started firing one of the guns within our Philippine territory. Will you apply our Philippine law? Yes, because the act now that is punished is a crime against public order which is alarm and scandal. Prospectivity Criminal laws shall apply to the present and the future. No person shall be punished for a crime to which the state provides no penalty. As a general rule, penal laws cannot be applied retroactively. Exceptions to Generality Look at Article 2. By international agreement. Reciprocal agreements which benefit both the Philippines and foreign countries. Diplomatic immunity. Who are those included in diplomatic immunity? Ambassador, plenipotentiaries. Attaches not included. US President commits rape here, not liable Are domestic helpers of diplomats entitled to the exception in generality? Driver of US President? If the driver is driving the vehicle with the President on board, the driver will not be liable. If the President is not inside, driver will be liable. If driver commits rape, driver will be liable because not in connection with the performance of his functions. The first paragraph of Article 2 refers to the exception to generality (except as provided for in the treaties and laws of preferential application). The next paragraphs of Article 2 refer to the exception to territoriality. Should commit an offense while on a Philippine ship or airship. Here, the vessel must be a Philippine registered ship or airship. It should not be merely Philippine owned. Should forge or counterfeit any coin or currency note of the Philippine Islands or obligations and securities issued by the Government of the Philippine Islands. An American counterfeits Philippine peso and introduces it to America. Will our Philippine law apply? Yes. But as to whether or not he can be prosecuted, that is a different story because you have to bring him here for arraignment. Should be liable for acts connected with the introduction into these islands of the obligations and securities mentioned in the preceding number. Suppose you have an American who counterfeited our money and there is a group of persons using that money to buy. Is the use only limited to the Philippines or even abroad? If the act of uttering takes place here in the Philippines, it will not fall within the exception. The general rule will apply because the crime took place here. The exception will apply if the counterfeit Philippine peso is introduced to a foreign country. While being public officers or employees, should commit an offense in the exercise of their functions. Case: Somebody is based in America working in an embassy. Philippine citizen, public official. Commits a crime of rape there. Will Philippine law apply? No. His duty does not include raping! The crime must be committed in the performance or in relation to their office. Should commit any of the crimes against national security and the law of nations, defined in Title One of Book Two of this Code. What are crimes against security? Treason, etc. What are crimes against the law of nations? Crimes against the law of nations are crimes abhorred by all peace-loving people. It is like a crime against mankind or humanity. Like piracy, or air piracy. If any of the elements is committed in any part of the world, Philippines has jurisdiction. Case: Air pirates hi-jacked a plane in the US. The case was brought here. Do we have jurisdiction? Yes, even if the taking took place in America, we can apply Philippine law. Exceptions to Prospectivity When the law is favorable to the accused. Exception to the exception, when habitual delinquent. Probation law. It is favorable to the accused. Will you apply that law retroactively? No. The retroactive application of the law applies only to penal laws. Probation law is a penal law.

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Felix Bernardo vs. Hon. Cecilio. The retroactive application of laws apply only to penal laws favorable to the accused. Because there are some laws which are favorable to the accused but are not penal laws. Penal laws are those that defines crimes and provide for their penalties. People v. Gonzales. Illegal possession of firearms. The Robin Padilla case. The amendment of the law on illegal possession lowered the penalty but added the imposition of a fine which was not included in the earlier law. Prision correctional and a fine of not more then 30,000 pesos. Do we apply the law retroactively? Is it favorable to the accused? Supreme Court when you appeal the case, you are actually abandoning your case. Therefore, the appellate court can now come with a new decision. That is imprisonment and fine! That is still favorable to the accused so apply retroactive effect. Distinguish Mala Prohibita and Mala In Se? In mala prohibita, mere violation of the law makes you liable. Intent is immaterial. In mala in se, intent is material. If policemen catch you in the possession of dangerous drugs, do you become criminally liable? Not yet. You can still defend yourself by proving lack of animus possidendi or intent to possess. Supposing somebody was caught in the act of possessing a gun. That guy ran away. Then the culprit threw the gun. You then picked up the gun. Then the policemen caught me. Will I be liable just because I was holding the unlicensed gun? No. Because there was no intent to possess on my part. That is different from intent to commit a crime. But if you’re smoking marijuana, there is no defense. The fact that you are smoking marijuana means that you are liable. In fact, you are being charged with use. Article 3. When do you become criminally liable under the RPC? Even if you’re sleeping, do you become liable? Omission: When there is something required to be done by law and you fail to commit it. Example: Misprision of Treason. What is punished is the failure to report when you have knowledge of an existing conspiracy. Delay in delivery of persons arrested without a warrant. If police officers fail to deliver, they become liable. Dolo. What are the essential elements of dolo? Intent. The act must be deliberate. It must be with knowledge. Intelligence. Knowing what is right and what is wrong and you know the consequence of your act. If you do this, you know the consequence. If I commit the crime of rape, I know that I will go to jail. When you have complete intelligence, you are criminally liable. Discernment is different from intelligence. Sometimes, even if you act with discernment, you are not criminally liable. Freedom. The act must be voluntary. The moment the act is not voluntary, exempting circumstance. What are the elements of culpa? Imprudence, negligence, lack of foresight, lack of skill. Intelligence. Freedom. How do you determine if the act is dolo or culpa? Dolo is unlawful from the very beginning. Culpa is lawful from the very beginning. But later on becomes unlawful because of the non-performance of the required diligence. Like driving, it is lawful. But if later on due to non-performance of the due diligence of a good father of a family and hit a bystander, it becomes culpa. In this case, Article 4 (1) does not apply. That provision states “criminal liability shall be incurred. . . by any person committing a felony (delito) although the wrongful act done be different from that which he intended.” The word wrongful there means that it can only apply to dolo which is unlawful or wrongful from the very beginning. Article 4 (1) cannot apply to culpa. You come into the classroom, you started firing a gun, then you hit someone. That is dolo. The act of shooting is wrongful from the very beginning. If intent is absent in dolo but the other elements are present, what is the effect? No criminal liability. The act is justified. If intelligence is absent in dolo, what is the effect? There is criminal liability but the person is exempt from criminal liability. If freedom is absent in dolo, what is the effect? There is also a crime committed but is likewise exempt from criminal liability. The act done was not voluntary. If there is intent, freedom, and intelligence in dolo, what is the effect? There is criminal liability. There is intelligence but the intelligence is not complete? No total absence of intelligence? There is still a crime committed. But there is a mitigating circumstance.

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Transcript of Justice Peralta Lectures Session 2: MISTAKE OF FACT TO STAGES OF CRIMES

We will have a recitation and then will have lecture, especially on Article 6 to Article 10. There are some that I think we have to move a little faster because there are a lot of special laws to study. Okay. And then probably I will give you some surprise quizzes. P: So, never mind I will (unintelligible) do not go yet. However, I will just ask you, mistake of law. Have we taken up mistake of the law? I ask you these question: Is the offender liable? Is the actor or the one who commits the act liable in mistake of the law? Is he criminally liable in the mistake of the law or (unintelligible) laws? S: Yes, sir P: Liable? S: Under (unintelligible) laws. P: Liable? Why liable? S: He is liable in the (category) because any (unintelligible) is actually – he has more (culpability) under the law because in the mere act that… P: I told you last time if you know the essential elements of dolo, you will be able to know the answer. In the mistake of the law are there elements of dolo present? Are all the elements present? What are the elements of dolo? Intent. What did I tell you? If there is the absence of intent in dolo, what is the effect? If there is absence, no crime. In mistake of the law, are all the elements of dolo present? Is there intent in mistake of the law? Is there intent? S: There is an intent, sir. P: Is there intelligence in the mistake of the law? S: Yes, (unintelligible). P: Of course, there is. Is the act voluntary or they are also liable? What about the mistake of identity? Is the actor or the one committing the act is criminally liable in the mistake of identity? S: Yes, sir. P: Why? S: Yes, because the act is deliberately done. P: Are all the elements of dolo requirement are present? S: Yes. P: What about in mistake of fact? S: The actor is not liable. P: Why? S: Because in committing the act, the actor has done an act which if he had no - if he had known otherwise, then such act is not deemed unlawful. P: Is there intent on the part of the offender? S: No, sir. P: Is there freedom? That's voluntary, of course. Is there intelligence? Of course. What is no intent in mistake of fact? Why no intent? Why no criminal intent? S: Because the actor did not intend to harm the person and..

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P: No intent to harm the person? Why? If there is lack of intention to harm, you are liable, but your liability will only be mitigated, ano ha. S: Because otherwise, the act would be in violation of the law. P: O baka - probably absence of intent. Not lack of intention, total absence of intent. Why no intent? S: Because it can… criminal intent. P: No, in incriminate himself, creation of facts. What did he do with the act? Why do you say there is absence of intent in the mistake of fact? S: Sir, may I answer as an example, may (unintelligible), sir? P: Never mind the examples, your elements might be wrong. Just tell me, why did he commit the act? Why did you commit the act? S: We did the act upon presumption that you can (unintelligible) law firm. But before the act must be (unintelligible). P: O pag sinabi na kung sinong marunong sa question eh, mali yon. It should not be based on presumption. S: He would not have done it… P: Had he known, had he known. Had he known, then he would not have committed the act. If there is such where the offender could be liable, let's say, he put up a defense of mistake of fact assuming that there is no intent, would he still be liable? In what? S: In case he did not exercise due diligence resulting to negligence. P: In failure to exercise the required diligence. However, if he fails to exercise the required diligence. S: For example, sir, in the case of (unintelligible) for example, if he would not ascertain who was the (unintelligible) can be liable. P: So he can still be liable under culpa? He did not exercise the required diligence in ascertaining in due facts and circumstances. Tayo immediately, initially react. Did you already take up mala in se and mala prohibita? So let’s go now to Paragraph 1 of Article 4. So, mala prohibita, the intent and motive. You know the difference between intent and motive? Is motive an essential element of dolo? What is the difference between intent and motive? What is its significance in Criminal Law? S: Motive, sir is the moving power, which is the (precursor) to do the act. It is not an element in dolo, but (unintelligible) it can be taken into consideration (unintelligible). For example, if the identity of the accused is not… P: So motive is important when the identity of the offender is in question. Next, you determine the motive of the offender. It is never an essential element of the crime of dolo. I’ll take care of the part 1. Ms. Samonte, let's do Paragraph 1 of Article 4. Will you recite Paragraph 1 of Article 4? S: Paragraph 1 of Article 4. Criminal liability shall be incurred by any person committing a felony… P: Committing a felony? S: Felony or delito. P: Then? S: By means of – and then although the act done is (unintelligible). P: Although the act – that is not accurate. It must be wrongful. S: Although the wrongful act done... P: It is not only act because I was telling you last time when you refer to an act that might be culpa because I told you that the difference between dolo and culpa. In dolo, the act is wrongful from the very beginning. In culpa, it is not. The act is lawful from the very beginning. However, it later on became unlawful because of imprudence, negligence, lack of skill, or lack of foresight. A

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felony maybe committed although the wrongful act done maybe different from what he actually intended to commit, as I was telling you last time. Is that principle applicable to culpa? S: Sir, no. P: Why not applicable? S: Paragraph 1 is not applicable to the culpa. It’s emphasis … P: Nakalagay dyan wrongful act although different from what it indented. Therefore, it refers on the intentional crimes or dolo not culpa. In mistake of the laws that – what is the principle that is applicable in the mistake of the laws is Paragraph 1 of Article 4? S: Sir, yes, sir. P: In Article 4 that is mistake of the law. S: Yes, sir there is no intent. P: So mistake of the law is simply Paragraph 1 Article 4? What is the effect if you are criminally liable under Paragraph 1 of Article of 4? In the other words, the offender is criminally liable. What is the other legal consequence if you fall under Paragraph 1 Article 4? S: Sir, it will fall under Paragraph 1 of Article 4, if there is still (dialogue)… P: No that's – that's correct. Aside from being criminal liable, because the law is very clear. Let us try to think. What is the other consequence, legal consequence of being criminally liable under Paragraph 1 of Article of 4? S: Sir, your liability maybe mitigated. P: Your liability will be mitigated. Mitigated. You will find that in Paragraph 3 of Article 13. Lack of intention to commit so grave wrong. Now, if that is the other effect of being liable under Paragraph 1 of Article 4, so in the mistake of the law their liability will be mitigated just because there is a mistake of the law? So, in a mistake of the law their liability will be mitigated? According to you, Paragraph 1 of Article 4 is applicable to the mistake of the law, so in the mistake of the law the liability of the offender will be likewise be mitigated because under Paragraph 1 of Article 4, if there is lack of intention to commit so grave a wrong, then you are entitled to a mitigating circumstance. In the other words, these mistakes of the law the same as Paragraph 1 of Article of 4? And, therefore, your liability is limited or mitigated with mistake of the law? S: Sir, I think, Paragraph 1, the crime is still there, but the mistake of the victim… P: That's why Paragraph 1 of Article 4 must be referred to Article 13 Paragraph 3. That's the effect of lack of intention to commit so grave a wrong, wrongful act done should be different from he intended to commit, but you are still liable. S: Yes, sir. So, my question is mistake of the law or mistake of identity or (unintelligible) separately, do they fall under Paragraph 1 of Article 4? Or is not that principle that is applicable. Sir, if it (unintelligible)… You know the mistake of the law there is mitigation of liability. (Unintelligible) there is no mitigation or liability just because you kill or injure another person that will not mitigate your liability. The lack of intention or Paragraph 1 of Article 4 that we are talking about, the act done is different from we intended to commit. How do you determine the intention of the offender, by the way? Uhm… Criminal, di ba? How do you determine the intention of the offender? Sir, may overt act. May overt act because the intent is state of mind then you can only determine the intention of the offender from the acts that he commit, I mean, that he performs. So, manifestation is manifested by the acts that he performs. If somebody is driving his patient and then bumps another person, then there is no intention to kill the person, but the person dies. Will that example fall under Paragraph 1 of Article 4?

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No, sir. No. Why do you say so? The one is driving a vehicle and then he bumped another person, no intention to kill, but the person died. Paragraph 1 is applicable? It may fall under culpa. Culpa. If you defend. If the bumping is intentional then it will fall under Paragraph 1 of Article of 4 because he did not intend to kill the victim, but the victim died. But if the act is culpa, will you apply Paragraph 1 of Article of 4? No, it is not applicable because there is culpa. What is (unintelligible) by the way? Documents that which in the national – goes to the national (unintelligible). Proximate cause A stabbed B. B did not die. Instead B was (wrongful) because of the act, then after 10 days he died because of the stab wounds. There was an intervention of the medical attention or medical assistance. Do you think that that is proximate cause? Sir, it depends if the…. I thought you said not disturbed, but in so far as the (unintelligible) of time? I'm asking you, if the victim was stabbed today or 10 days ago, was brought to the hospital, he was cured by the doctor, but 10 days after the hospital he die in the hospital of stab wound. Is that proximate cause? Because he died of the same stab wounds that he suffered 10 days ago? Yes, sir, it’s a … Does proximate cause allow sufficient interval of time ? Sir, from what I (remember) before, that time actually is not controlling in determining whether it is a (proximate cause). Okay. So we will try to (multiply) the example. So, he was stabbed 10 days ago then he was brought to the hospital. He was allowed by the doctor, “Okay, you may now go.” Then after getting out from the hospital, three days after he was released from the hospital he died, likewise, of a stab wound. Would there be any difference between the two examples? As long as, sir, the cause of the death was because of the … In both cases, the stab wound (was there). I'm just asking you, I'm just giving two examples whether or not in both cases proximate cause – I followed what you were saying – proximate cause is likewise applicable. But according to you, the interval of time is not important in the proximate cause, hindi ba? That's what you said that’s why I gave you another example. Yes, sir, but I think in that example what (unintelligible) infected… In other words, it depends if he was cured or not. Yes, sir. If he die in the hospital by reason of the stab wound, then the medical attention is not sufficient interval of time because he did not get well when he died. So, the victim died, you can immediately conclude that the cause of death is the stab wound. What if he was cured and then later on went home, is that medical treatment – that they gave medical treatment an interval of time, sufficient interval time and, therefore, proximate cause is only applicable? Sir, it may (intend) to be applicable… There is already sufficient interval of time because he was already cured, hindi ba? Sir, I think the interval of time would actually – if there were other factors aside from… He was already cured, di ba sabi mo. Ten days after the hospital, there is no problem if he died in the hospital that would still be proximate cause because if the victim (was treated) in the hospital it is not a sufficient interval of time because he was not cured eh. But supposing he was cured, then 10 days after he went out of the hospital then 3 days after coming out from the hospital, probably he went to a KTV bar, uminom siya. Then three days after the hospital release, namatay siya. Would you still consider that proximate cause?

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Sir, not anymore, if… Okay. Would you now consider the offender, the one who stabbed him, liable for the crime of homicide assuming that the crime is homicide? Sir, he maybe liable if the result of – it is possible that his… Supposing he died after coming out of the hospital. Supposing he died three days after because the doctor made a mistake in releasing him. He should have not been released or being (thought) to release him. Then three days after, he died. Would the offender still be liable? Yes, sir, because it would not – it would still be proximate cause because the intervention… As long as the stab wound is the primary cause of his death, the offender would still be liable. Under what principle? Sir, under the principle that – the Paragraph (unintelligible). But is that proximate cause? What? Is that under the principle of proximate cause? Yes, sir. But supposing he was already cured and then he died. Released, died, released. He was released and then died. He did not follow the instructions of the doctor. Yes, sir. (Unintelligible) of the offender. If the cause of death is independent from the stab wound, then he can no longer be liable. But if the death is due to the stab wound, he could still be liable. Okay. What about the accelerated cause? Have you heard the principle of accelerated cause? Or (unintelligible) cause under Paragraph 1. What is it? Sir, the accelerated cause establishes as inflicted by the - that accelerated the death of the victim. Before, there was that case that was decided by the Supreme Court, a bullet, that case is debatable. Why? Because the husband elbowed the wife was suffering from what? Sir, from… Serious heart ailment. Sabi dito, she has a serious heart ailment and because of that? Sir, she died. Before she died. Siyempre, she was shot, di ba? Yes. Her condition was aggravated by the head wound. So because of the injury, the principle that is applicable is accelerated or aggravated because the husband aggravated or accelerated the death of the wife, di ba? Di ba proximate cause yon? She is already better because of proximate cause because elbowing is wrongful. It is causing injury. That is the meaning of wrongful. You fire a gun inside the room, only to frighten us and because of the time, because of the Bundy clock or the (unintelligible). Not inside the car, (unintelligible) dalawa. In another class, for example, a student is firing outside the room. One of the students was frightened, jumped out of the window, and then fell. And then died. Would that person who fired the gun inside the room be liable for the death of the student? Why? Sir, because by the act of firing the gun caused the other person… By the act, by the wrongful act done. That's why that wrongful act is very important. Because if the act is lawful, you're not liable. That’s the main premise. The act must be wrongful. Is the act such as firing a gun wrongful? Yes?

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Is firing a gun wrongful? It is wrongful. That’s alarm and scandal. That is punishable. When you speak of wrongful act that means that is punishable. Minsan nga that is considered as a felony or an offense. That's wrongful. Now, okay. So, proximate cause. Let’s go to another one. Magagaling naman pala kayo eh. Very good. Impossible crime Robles, Margarita? Margarita? Yes? Chua and Babor, absent?. Di ko nakikita yung dalawang yun. Chua, I think, was present last time. Robles? Okay, let's go to impossible crime. I’m already testing. What is impossible crime as defined in Paragraph 2 of Article 4? An impossible crime is… Louder, louder, because of you miss a word of the definition, your answer will be wrong. So, be careful, start. Impossible crime is a crime in which would be an offense against persons or property, but… Ano, ano, ano? Wag mong bilisan. An impossible crime is a crime which… It should not have been a crime against person. It's not a crime of against persons or property because it should have been the crime. Because if the crime is already crime against person or property, there is no impossible crime. So if you say it is a crime against person or property, then that is not a impossible crime because it is already consummated crime against persons or properties. It should have been a crime against persons or property. Continue. (Unintelligible). Wherein? Wherein? (Unintelligible) suppositions. It should have been a crime against persons or property were it not for its… Inherent the impossibility of accomplishment for… Due to? On account of employment of inadequate or ineffectual means. On account of? Employment of inadequate or ineffectual means. So that's how simple it is, di ba? Is the offender, the one under (principle of) impossible crime, is the person criminally motivated? In other words, does he have intention to commit a crime in Paragraph 2 in impossible crimes? Yes. Yes, of course. Why? Because he is criminally liable. Is he criminally liable even in impossible crimes? Yes, sir. Pewdeng gawin yun. So, what must be explained in the first part of the definition? It should have been a crime against persons or property. What do you understand by that first part of the definition? Uhm… Because, yes, if should having a crime against person or property. How do you explain that first part of the definition. Uhm… In other words, impossible crime is applicable only in those crimes that should have been crimes against person or property, not applicable to… Other crimes.

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Revised Penal Code - Book 1

Transcript of Justice Peralta Lectures

Other crimes like what? Acts of lasciviousness, not applicable because that's a crime against chastity. Falsification, perjury, crimes against security of the state, crimes involving public order. No impossible crime. Limited only to those persons or properties. So you start from Article 245 or 246. You start from the crime of parricide up to the crime of slight physical injuries. And then from Article 293 to Article 320, arson. All of those. Persons are those found from 246 to 266-A. And then you find the crimes against property from 293 to 332. All of these crimes are crimes against property. So, limited only to those crimes. Give an example. What about inherently? What do you mean by when the law, the second phrase of the definition? It should have been a crime against persons or property were it not for its inherent impossibility of its accomplishment. What do you mean by that phrase? That by inherent impossibility to accomplish that, it means that even if you commit all… When is it inherently possible, impossible to accomplish. Because of its inherent impossibility of its accomplishment. What is inherently impossible? Sir… So, person who has no hands. So, it is impossible for him to commit a crime of (murder). Is that inherent impossibility? No, a… So what's the inherent impossibility? Does it refer to the person committing the crime? No, to that crime itself. For example…. Or does it refer to something else? To the act of committing the crime, for example, if you want -you intended to kill a person when (unintelligible). Can you kill a person who is already dead? Can you kill a person who is already dead? You cannot, so what is inherently impossible in that example? If you can not kill a person who is already dead, the law says inherently impossible. So what is inherently impossible in that example? The act of killing the dead? Oh, that's what they call legal impossibility. Legal impossibility. In other words, when one of the essential elements of the crime is inherently impossible to commit, that is the legal impossibility. For example, you can not kill a person who is already dead. And the requirement of killing is that a person who should be killed. Kasi requirement ng murder or homicide, and even in parricide, eh. That's the meaning of legal impossibility. One of the essential requirements of the crime can never be accomplished and impossible to accomplish because you cannot kill a person that is already dead. What is the other? This one, again, is debatable. This case has been many times in the bar exams. There was another decision that came up later on after this case. It was decided in the Supreme Court that, I said it is debatable in the sense that that case now refers to another impossibility. Gusto mo legal impossibility lang? Now, they have included another impossibility. What is it? It refers to factual impossibility. Factual impossibility. For me, that's debatable because there's so no such thing as factual impossibility. (Unintelligible) on the part of the offender. The offender has the intention to rob, then (unintelligible) in part robbing somebody else, hindi ba? If there is no money, then it is a crime committed of the impossible crime, there is no such thing as attempted or frustrated impossible crime. It is always consummated. Walang stage ang impossible crime. So if you want to rob somebody, you want to rob your auntie. Somebody else was waiting along the street in front of Ateneo and then pointed a knife. Never mind the knife, then he said, "Give me your money or else I will kill you." Then the would-be victim put out all the contents of his pocket. Nothing was found inside the pocket. How do you call that? Is that impossible? Is that an impossible crime? Is that factual or legal impossibility? Factual yan eh. That is factual impossibility which is according to the Supreme Court is very hard. You cannot probably commit a crime if he subject matter of the crime is not there. Yan ang factual eh. Like in the case of the one that I asked you to read that case of Intod. What happened in Intod? Di ba they wanted to kill somebody else, then they went to the house. Got only heavy firearms and then fired the gun at the house. The house was peppered with bullets. But was the victim inside the house? No, (unintelligible). What did the Supreme Court say?

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Transcript of Justice Peralta Lectures

The court said that accused had the intention of killing the occupant of the house and that it turned out that the… Belliones was out of the house, di ba? So, what happened? What was the liability of those who fired the gun at the house, trying to kill the would-be victim, and the victim was not there? Ano ang sabi ng Supreme Court? What crime did they commit? Attempted murder? Alarm and scandal? Sabi ng Supreme Court impossible crime because there was intention to kill and were in it was impossible to kill somebody else who was not inside the house. But the principle of impossible crime is that you will not apply the principle of impossible crime if the offenders are guilty of another crime. There was already another crime committed when they fired their guns. It’s either alarm and scandal or attempted. They have already commenced directly by overt act, di ba? The Supreme Court said that is an impossible crime. It is like going to the bank. The one who robbed the bank. You are inside the bank. You disarm all the guards and then open the vault. Nothing was found. Is that impossible crime? The intention is already very clear. To rob. Anyway, that’s the doctrine. So, do not change the doctrine. Baka mamaya lahat yan (unintelligible). That was one of the problems asked in the bar exams where (unintelligible) committee in UP to answer the bar questions. Nagbibigay kami ng alternative answer. Somebody said that’s alarm and scandal. Okay. That’s attempted murder. Okay. That’s impossible crime. Okay. Alternative eh. Kasi you can just imagine you have all (ordinance) what’s the penalty of impossible crime. Do you know what’s the penalty of impossible crime? Not more than 6 months. With Intod and company were found guilty of attempted murder, then they would have been penalized – the penalty of which would have been prision mayor. That is the penalty of attempted murder, two degrees lower from the crime of murder. So, that’s prision mayor. Six years and 1 day. But they were liable only for the crime of impossible crime. They fired their guns with all the intention of killing somebody else. The penalty is only six months. Impossible crime, di ba? Unfair yon. Supposing that victim was actually in the house, but he was hiding, like Robin Padilla. Tinadtad na ng bala yung bahay, buhay pa rin si Robin. Andun sa ano, what do you call this – he dug a hole. He dug a hole, they fired all their guns. Then all of a sudden, Robin Padilla appeared well and alive. What’s the crime? Is that still impossible crime? That’s not anymore an impossible crime. Why? Why not impossible crime if the would-be victim was there, but he was able to hide? Bakit hindi impossible crime yun? It might fall under legal impossibility… What? It might fall under legal impossibility or factual impossibility... There is no factual impossibility. Why factual impossibility? He can be killed because he was there. It's not a matter of survival or surviving the incident just because he was able to hide. Yung ang diperensya nun. Pag andun sa loob, attempted murder yun. Pag wala sa loob, impossible crime yun. Anyway, that’s the decision. So let's now go to the last part of the definition. Impossibility of its accomplishment on account of? Employment of inadequate or ineffectual means. Okay. Supposing somebody is courting you and you do not like the boy. Somebody is courting you. You do not like the boy, but he is very persistent. Your suitor is very persistent. You gave him Coke laced with salt thinking that the salt is fertilizer. You wanted to kill your suitor, in other words, because he is persistent. So, you ask him to drink the Coke. You thought then that it was laced with – what do you call the cow fertilizer? Only that it was salt that was put inside his soft drink. (Unintelligible). Then he even asked for more. Is that impossible crime? Yes, sir, because I'm not capable… O sige. Yes, but? I employed… You wanted to kill your suitor. You laced your soft drinks with poison, fertilizer. But instead of poison that you placed inside, it was actually salt. You did not know that it was salt because your intention really is to kill. Your victim did not die. It was salt, eh. Humingi pa nga eh. Is that impossible crime? Yes, sir.

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Transcript of Justice Peralta Lectures

O, but you laced it with something that could not kill him because you wanted to kill him, but instead of fertilizer you put salt eh. Salt cannot kill. Yes, sir, but then I thought hypothetically… Is that what you mean by the last phrase of the definition? What was the last phrase in the definition? Employment of ineffectual means… Due to the? Inadequate or ineffectual means. Kasi that's the problem in your answer. Kanina kasi you did not use inadequate eh. You used the word ineffectual. So, that also may be truth, inadequate. So, the thing that was phrased there is inadequate. That means it not sufficient to kill. But supposing he placed a poison, so that maybe covered by impossible crime because you used the word inadequate because I asked that problem. I gave that problem. Supposing, you place a poison in the soft drink laced with poison, then he drank it, and then he asked for more. Your answer is could be the same? That it is an impossible crime? I think.. Why impossible crime? Employment of ineffectual means. Supposing he vomited and then he was brought to the hospital. For two days he stayed in the hospital. Is that impossible crime? No more. There is no impossible crime if another crime is already committed. There is no impossible crime. That’s why I was telling you about that Intod eh. That could not have been an impossible crime because firing a gun is already alarm and scandal eh. The Supreme Court said no more. Once a crime is already - once an act is already defined as a crime, no more impossible crime. You will be liable there for frustrated or attempted murder with the use of poison. Now, A is already dead. A is already dead and then somebody saw that one who is (unintelligible) fired his gun, but that person is already dead. What is the liability of the man who fired the gun? Is he liable at all? So, if the man is already dead, Mr. A. That man hits A, then fired his gun, but that man is already dead. Is the one who - will be call the person who fired criminally liable? No, sir. No? No? That is impossible to commit. Can you kill the person who is already dead? He is already dead. And then his enemy was passing. And then, he saw the man who is already dead, fired the gun at the person who is already dead. Is that not impossible crime? Yes, sir… It will depend? Why do you have to qualify your answer? The man fired the gun should not know that he's already dead because if the man knows or knew that he was already dead, there is an impossible crime. He should know that he is ano… Is there's such a crime of impossible crime in the crime of rape? Yes, sir. When the act is… When they're dead siguro. Under the new law… But the man will be crazy. He will be liable for stupidity. Why? He is raping a woman who is already dead. It's stupid! Now, the problem there is because in impossible crime the offender should not know that the victim is dead because that is the essence of impossible crime. ] Let's say one – there is, you know – it’s part of a joke. Part of a joke but can be the principle of impossible crime is applicable. If you kill a dog, what's the crime? You do not know? That's my (unintelligible). As long as the dog is domesticated under Article 327. If a dog is domesticated, then it becomes a personal property under the Civil Code, eh. No, tama, a pet is domesticated. Animals, personal property yan eh on the Civil Code. You can destroy personal property.

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Transcript of Justice Peralta Lectures

So the maid of a law student was bitten by a dog owned by the neighbor. The maid was bitten by a dog by the neighbor. Now, the law student loves the maid very much, she was bitten by the dog, so the law student killed the dog. That’s a crime of malicious mischief. But supposing the dog did not die. He was able to run and survive. What's the crime committed? Binaril niya o initak niya but the dog ano – nasa example yan eh. He burned a dog, eh. He burned the dog, diba? If you want eat the dog, you have to burn it. That is how to eat it. That’s what they do in Baguio. So, if you burn something that is assault. Burning of a personal property is an assault. So, he burned the dog and then the dog died - baka arson yan. But if the dog did not die, what's the crime? So, sabi ano yan – that’s malicious mischief, I mean that is impossible crime because you cannot commit attempted or frustrated malicious mischief. That is always consummated. But if somebody ate the dog after it was killed, what's the crime? (Meron ba?) So, the dog was killed, malicious mischief. If the dog did not die or almost died, that is an impossible crime. It should have been a crime against property, but because of this inherent impossibility. Why? Due to ineffectual means employed. So, that (part of the) impossible crime. If the dog died, then you eat the dog, you are not an accessory. What’s the crime? That’s theft, simple theft under Paragraph B of Article 308. We will study that when you take up accessory. You make use of the damaged property by reason of malicious mischief that is simple theft; Paragraph B of Article 308 on simple theft. Well, anyway, that will be impossible crime. So, therefore, is there such a crime as impossible crime in the crime is rape? Yes, sir. After the (unintelligible). After the law under rape made it a crime against person, there could now be a crime of impossible crime in the crime of rape. But, supposing a man wanted to insert his private organ into the private organ of the (victim). Then instead he went through the other orifice of the woman, is that impossible crime? That was a question asked in the bar exams four years ago when this law became effective. Some said - some gave the answer mistake of the blow. Some said impossible crime, but the answer is sexual assault as a form of rape under Republic Act 8353. That’s a crime of sexual assault. It’s a form of rape or rape through sexual assault under Article 266-B or Republic Act 8353 as included now in the crime of rape and crimes against person. Maraming interesting ngayon sa Book Two because ang daming special laws, di ba? So, let's take a break. 'Wag na tayong mag break para I can dismiss you early. Sir, question? Yes? Sir, the inadequacy or the ineffectual means, is it a material factor that the offender being that the means employed where inadequate? Because this maybe this was intentionally done, but it is ineffectual, then, yes, you did not intend to kill or injure the victim (unintelligible). He must not know it is… He does not know it, of course. That’s why if my cellphone (unintelligible), you did not know it. Now, okay, let's go to last – madali na nga eh, I will take care of the rest in crimes against persons. We’ll just take up the definitions of attempted, frustrated, and consummated. And then I will take up the examples because we’re not yet in Book Two, okay. Article 6 Attempted felony For Article 5, you just read. When does criminal liability commence? When do you say one is criminally liable in mala in se because mala prohibita, it’s mere violation, di ba? As a rule, there are no stages of crime in mala prohibita, but they have included some attempted in special law. Meron attempted human trafficking, meron attempted conspiracy to maintain (unintelligible). Marami na actually ito in conspiracy in special laws. We should study the topic in Book Two, pwede na natin maretake. We will study some of these in Article 8. (Unintelligible). When does criminal responsibility or liability start? When Sir, the moment the offender commences the form of an overt act... Are you sure your answer is correct? Or you missed something? I think you missed a word in the law that makes the difference. Commences by overt act? Overt acts are physical acts. So, anything that you commence as along as it is an overt act…

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Transcript of Justice Peralta Lectures

I'm sorry. Commences the commission of crime (of theft) is directly liable… You use the word “directly.” Because I will give you an example. I want to kill somebody else. I want to kill somebody else with the use of a gun. So, I put bullets in the gun, that is an overt act, is it not? Placing bullets in the gun is an overt act and I want to kill somebody else, will I know be criminally responsible for attempted felony? But, I already commenced, eh, by overt act eh. The commencement refers to the loading my gun with bullets. Can I now be liable for attempted killing because I have already a gun? The gun is already loaded with bullets. Not yet, sir. Not yet. So, you have to include the word “directly.” What do you understand by the word “directly”? You commence directly by overt act. Directly means in performing the act is the… Directly, importante yan eh. Okay, we'll go – I don’t know. I'll go further with my examples. So, I loaded the gun with bullets, overt act yan. I want to kill somebody else. Is that an attempted felony although I have already commenced that overt act? Not yet. Not yet, sir. If I see my would-be victim and then I drew my gun, I shoot the victim. Nang makita ko yung victim, I drew my gun. Am I already liable for attempted felony or an attempt to kill somebody else? Am I already liable if I drew the gun in front of my would-be victim? That is another overt act. Will I be liable for attempted felony? Sir, not yet. Why? How do you determine the intention of the offender? The reason why the law says commencement directly by overt act – that simply means that that is the time when they can determine what is the intention of the offender because intention is a state of mind. It is manifested by the overt acts of the would-be offender. So, even if I drew my gun in front of my would-be victim, you cannot yet tell if I have the intention to kill. If I draw my gun like that, I draw my gun, and then did like that. I drew my gun. Does it show already my intention to kill? Uhm… Not yet. For all you know, I might be even give the gun to my would-be victim. How would you know that I have intention? Because you cannot read my mind. But I pointed the gun at him, and then I say, “I will kill you now.” I pointed the gun. Is there already an intention to kill if I pointed the gun? Yes. Because the meaning of directly commencing by overt acts. In other words, the overt acts now must show a clear intention of the offender. It is not merely the commencement of overt acts. Directly by overt acts. There must now be a connection between the – you can now already conclude from the acts of the would-be offender his intention to kill. Okay, continue with the definition. Commencement directly by overt act. Continue with the definition. But, it is the definition, sir of attempted… Yun ah, attempted felony. ituloy, ituloy that’s the first part eh. When the offender commences the commission of an offense directly by overt act, but does not perform… All the acts of execution. So, I will ask you again. What do you understand if the offender has not yet performed all acts of execution? It is (unintelligible) refers to voluntary? Huh? Nawala. Pag sinabi mong has not yet performed all the acts of execution, it does refer anymore to the intention of the offender. The intention of the offender na-establish mo na eh. Ung commencement directly by overt acts. That second phrase is now different from the intention. The intention is already very clear because already commenced directly by overt acts, but the

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definition says, but she has not yet performed all the acts of execution. Why do you have to determine if he has performed all the executable acts? To determine what is the stage… To determine what stage of the felony? So, what do you say then? He not yet performed all the acts of execution. When there are other acts to be performed to accomplish the intent. Yes, to perform other acts. I fired my gun, you were not here. I have the intention to kill Have I performed all the acts of execution? I fired my gun. I have the intention to kill. Example lang, you are standing there (unintelligible) standing there. So, I want to kill you. I fire my gun. You were not here. Have I performed all the acts of execution? Yes, sir. Yes? You were not here? I thought you said you still have acts to perform. No, sir. No, not yet. So, what should I do in order to kill you? (Unintelligible) I have to hit you. So, if I did not hit you, I have not yet performed all the execution because I have to perform other acts. In other words, when you say you have performed all the acts of execution, there is nothing more to be done except to wait for the result. Wala ka ng gagawin eh. Tingnan mo na lang kung tapos na o hindi. Ngunit kung meron ka pa gagawin, attempted yon. You have not yet performed all the acts of execution, due to what? What is the reason why you have not yet performed? You continue. You go to the last phrase on – other crime being? By process of… Or process of? Other than the? The voluntary… Hindi, hindi voluntary yan eh. Hindi voluntary surrender yan. The law does not yet (unintelligible) overt act. Other than… Spontaneous desistance. What do you understand by spontaneous desistance? Continuously performs means that the (finally) decided to desist. Okay. I'll give you an example. I fired my gun. The victim was not here. You listen ha? Kasi I will quote another example later on. So, I fired my gun, the victim was not here. Then, I realized that killing is wrong, so I run away. Do you follow? Is there an attempted felony? I fired my gun, you were not here, and then I realized that killing is wrong, then I run away from the place. Is there attempted felony? Or second example. I fired my gun, you were not here, and I ran away because I saw of my law students around. That’s my second example. I fired my gun, he was hit on the shoulder, and then I realized that killing is wrong, I ran away. So, you will now answer the question, Ms. (Unintelligible). The number one example, I run away, you are not hit. I realized that killing is wrong… There was no attempted felony. There is no attempted felony. Number two. Attempted case, there was an attempted felony. Number three. Sir, (unintelligible). What are you supposed to respond. You were hit on the shoulder and I realized later. The example that I am giving you is about the desistance, what is the effect of desistance. So, in the first example, there is no attempted felony. Why attempted felony.

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Transcript of Justice Peralta Lectures

Because the (unintelligible). During the attempted stage. If there was a spontaneous desistance. Why spontaneous desistance? (Unintelligible). What about in the second example? I fired my gun, you look at me, and I ran away because I saw the presence of my law students. The desistance was caused by other reasons than (unintelligible). So, the desistance is not spontaneous, therefore, liable. Yes. Number three. He was hit on the shoulder and then I realized killing is wrong, then I ran away. You cannot anymore desist because he was already injured. He can no longer desist because he was already injured. That is spontaneous desistance presupposed that the victim has not yet been hit. Because if he is already hit, you will already become criminally – no more desistance. You cannot turn back. So, let's go further. So that is spontaneous desistance. But, you can be liable assuming that you spontaneously desisted and, therefore, you are not liable for an attempted felony or attempted killing. Will that be liable? Sorry sir… Will you not be liable for - di ba if you spontaneously desisted on the attempted stage… Yes, you won't be liable. The principle, may kadugtong 'yong principle na yan. You will not be liable for attempted felony, but it should be penalized for the acts that you already performed. It's not that you're not criminally liable. Sir, you're criminally liable. You are not liable for the crime that you intended to commit because there was a spontaneous desistance in the attempted felony. But you will have to be penalized for the act that you have already performed if it is punishable. You will not be liable for attempted felony, but you will become liable for the crime of grave threat. In other words, that principle is applicable, but you may be liable for another crime if your act is already punishable as a consummated crime under the Republic Act (unintelligible). You can still be liable for grave threat. So, let's go now to frustrated felony. Article 6 Frustrated felony The frustrated felony is when the offender performs all acts that are necessary to accomplish the felony… 'Yan ang pinakamadali. You want to kill, then if he'll survive, probably that's frustrated. 'Yan ang isasagot mo eh. Perform all the acts of execution. Continue… The felony was not committed. Was not consummated, was not accomplished. Was not accomplished for someone other than the independent will of the perpetrator. It is not other that. Causes other than the? Independent will of the perpetrator. Causes the will, like for example, the victim survives due to medical assistance, independent will. So, okay. Article 6 Consummated felony Let’s go to – of course, you know what is consummated? What is consummated?

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Transcript of Justice Peralta Lectures

When a felony was… Was accomplished. Those, however, those stages of the felony may not be applicable in certain crimes. So, if you're reading this book, supposing you are asked: The victim survives in a crime against person, what's the stage of the felony? If the victim survived in a crime against persons, survived ha, what is the stage of the felony? Anong magagawa niya? That will depend on the intention of the offender. If the intention of the offender is to kill, then you can be sure that the crime is either attempted or frustrated, the victim does not die. Now, if there's absence of intent to kill, that cannot be attempted or frustrated, but will either be serious physical injuries, less serious or slight physical injuries or even intentional mutilation. So, if the victim survived, therefore, in a crime against person like – crimes against persons, your answer should be, what is the intention of the offender? Wag mo agad sasagutin 'yon. Supposing the question is: A victim survived his injuries, but stayed in the hospital for three months, and he almost died? Isasagot mo dun, frustrated because he almost died. You have to determine what is the intention of the offender. Determining the intention of offender in crimes against persons will depend on the manner of committing the crime, the weapon used, and likewise the utterances, if there are any, before the commission of the crime. Like for example, supposing somebody here was hit with a knife. Can you then conclude that there is intent to kill? No, you have to determine the intent, the manner of committing in using the knife. It cannot be determined by the weapon alone. Of course, the weapon used should be a lethal weapon that means capable of killing. The weapon used could be capable of killing. They have to determine the utterances made, if there are any. Like for example, “Papatayin kita,” with the knife…”Papatayin kita.” Yon ang intent to kill, and then the manner of using the knife. So, you have to consider these three factors. But there will be instances where the weapon used may not be lethal weapon, but still there is an intent to kill because of the manner of committing it. Yung handkerchief. The handkerchief is not intended to kill. But, if you use the handkerchief to strangulate the victim or to choke him, because of the manner of committing the crime, may (attend) the intention to kill. (Unintelligible). If you have already determined that there is an intent to kill, then the next thing that you will have to remember is what is the extent of the wounds of the victim. Assuming that there is intent to kill. You have already applied the test in determining if there is an intention to kill, then the next test is, I mean, to determine if it is attempted or frustrated is what is the extent of the wound of the victim. So, therefore, it will depend on the gravity or severity of the wounds. If the wounds of the victims are mortal wounds or fatal wounds and, therefore the victim - ang definition ng mortal or fatal is that the victim should have died if there is no immediate medical assistance. The victim should have survived if there is medical assistance, no, that's not accurate. The victim should have died if there was no immediate medical assistance. Then, the wounds are mortal or fatal. But, if the victim would have survived even if there is no immediate medical assistance, the stage of the felony is attempted. Question: But supposing the victim died, but there was no intent to kill? Supposing the victim died, but there is no intent to kill from the very beginning? Baka itanong nyo sa akin, sir, mayroon ba 'yon? Baka akala nyo when somebody died there's already intent to kill. No, that's not correct. Because the intention of the offender comes first before the result eh, di ba? So, therefore, the situation there is the victim died even if there is no intent to kill. So, what is your answer? That is a crime of homicide. If there is no intention to kill from the very beginning regardless of the manner of committing the crime, that is a crime of homicide. There's one case decided by the Supreme Court where the wounds sustained by the victim were not fatal or mortal from the very beginning. But, that case is susceptible in character. The victim was hacked… “Papatayin kita, then he was hacked. But the wounds were not mortal or fatal. The problem is that there was a distance between the place where he was hacked and the hospital. I think it would take several hours to reach the hospital where the victim could be brought. So, there was a delay in bringing the victim to the hospital. Then when the doctor treated him, the wound already contracted infections, and then the wound became mortal because the victim almost died. Nagkaroon ng infection 'yong wounds. From a non-mortal wound, the wound became mortal because there was a delay in transporting the victim because of the distance between the hospital and the place of the hacking. Sabi ng Supreme Court that will be frustrated. That can be frustrated felony because that's not the fault of the victim. Non-fatal wound becomes fatal later on not attributable to the victim, then it becomes a frustrated felony. Of course, as I said, if there is no intent to kill, then physical injuries regardless of the days of incapacity or the period of medical treatment. I wanted to ask you to read the case of People versus Inocencio Gonzalez that illustrates that. You remind me because that case should also be read together with Article 48 on complex crimes. That is a very interesting case illustrating the effect of lack of intent to kill from the very beginning and one of the victims died and one survived. But anyway, we will study that.

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Have you heard about that case in 2001 where there was a traffic altercation in Loyola Heights? Have you heard about that problem? That case? 'Yong si Mr. Gonzalez quarreled with Mr. Andres over a parking lot and then Mr. Andres was with his wife. The wife was murdered at the back of his Toyota Revo. So, Mr. Gonzalez was driving his own vehicle with his father, and then Mr. Andres was driving the Toyota Revo, quarreled with Mr. Gonzalez over that parking area. But the quarrel (unintelligible). Then later on when the vehicle of Mr. Andres was already running away from scene, from the place, parking lot, Mr. Gonzalez got his gun and then fired the vehicle, just to frighten him according to the evidence, just to frighten him because he if he had the intention to kill, he could have directed or aimed the gun at the driver. But what he did was, when the vehicle was already moving out…kasi pinagmumura niya eh…gago ka rin…pinahabol nya ng putok… Bang! The back of the vehicle was hit, but the pregnant wife was boarded at the back of the vehicle. Heavily tinted, you may not see from the outside if there were passengers at the back of the vehicle. And then the bullet hit the back portion, and then the bullet ricocheted, and then hit the tummy of the wife who was pregnant. And then the bullet, single bullet take off of the tummy of the wife, and then hit the child, the young boy. But the wife gave birth. The problem would have been complicated. But the wife gave birth to a healthy baby, but later on, the wife died, loss of blood. They have to save the baby, but they could not anymore save the mother. So, anyway, so the bullet exited from the left part, left or right, 'no? Anyway, left or right and hit the son, but the son survived, but he was hit by the bullet, by the same bullet. So, the problem there is, so what's the crime of the offender? And that's what the Supreme Court said there is no intent to kill from the very beginning. So, if there's the intent to kill from the very beginning, there is no problem. He was liable for the crime of homicide in so far as the mother is concerned. But what about the other victim with the same bullet? Is he liable for frustrated or attempted homicide? No. He is only liable for slight physical injuries. Kahit na isang bullet, that is clear. It's a very interesting case. The reason there is that, if there is no intent to kill from the very beginning regardless of the manner committing the crime, then the victim died, the crime is homicide. But, if there is one who survived, that cannot be attempted or frustrated homicide. That will only be physical injuries. That's why I'm saying when the victim survived in a crime against person, then you will have to determine first the intent to kill. If there is no intent to kill, and I told you already how to determine the presence of intent to kill, it's not only the weapon, it is also the manner of committing. The Supreme Court said the manner that he committed the crime of firing the gun, he had no intention to kill. Therefore, crime of homicide, but because it is the same bullet that hit the victim even if the victim survived, the crime could not be attempted or frustrated. That will be slight physical injury. But the other problem there that the Supreme Court said there were two crimes committed. There were two crimes, although there was only one bullet hitting two victims. Di ba complex crime 'yan, hindi ba? No, that's not a complex crime. There are two crimes because the - yan ang twist dun eh. If you consider the other victim as attempted homicide, if assuming that the crime is homicide and attempted homicide that is a complex crime. Homicide complex with attempted homicide. But because it is only slight physical injury because there is no intent to kill, there are two crimes because slight physical injury cannot be complex with homicide. Slight physical injury is a light felony. You can only complex grave or less grave felony. When you take the bar exams, and then there will be at least twist on the facts, be careful. Ganun lang ang sagot dun. No question has yet been asked on that (submitted) en banc decision on that case. It's a very difficult case. That will illustrate to you what I have been saying, that if the victim survived, do not answer it immediately as frustrated murder or frustrated homicide. Determine the intention of the offender and then apply the three tests. Apply the tests that I gave you, weapon used, is lethal weapon used, 'yong utterances, the circumstances or the manner of committing the act. The other problem area about these three stages of the penalty is the crime of theft or robbery. When is theft or robbery consummated? There are many ways of committing a crime of theft or robbery. Of course you know what is theft. Mas madali idetermine 'yong theft, because theft is not attended by force or intimidation or violence or force (unintelligible). It's simply the unlawful taking of a personal property belonging to another. Mas madali lang, i-check ninyo kung consummated 'yan or frustrated or attempted theft. But if the crime is robbery, mas mahirap i-determine yan because you are now to apply the test. When is robbery is consummated? When the offender is already in full control of the thing robbed, whether physical possession or control to dispose of the thing, subject matter of the asportation. So, it's not determined by the point in the time the offender is arrested. Kasi minsan ang wrong notion nila eh pag naaresto na consummated, kung hindi pa naaresto, attempted. No, that's not the point in determining if one has already committed the crime of (felony). For example, give me your money or else I will kill you. Example I always use. I am pointing the gun at him. I have an intention to rob because that's what I said. Give me your money or else I will kill you. And then you give me your wallet and I'm holding your wallet with my left hand and then the gun is pointed at you and then a policeman saw me. You (unintelligible). Prrt! Magnanakaw. What is the stage of the felony? Probably, you will say oh, that's not consummated because he was arrested before he could run away, but that's consummated crime of robbery. That’s consummated crime of robbery you apply – you apply the test. Number one, are you in full control of the

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thing stolen? Of course, yes. You are in physical possession. So, are you – when we speak of, are you in physical possession of the thing stolen? Yes. Are you in full control of the thing stolen in that example? Yes. Why? Okay. You go further to the example. The policeman said prrrt! You are in physical possession of this thing stolen. Definitely. Nasa iyo. But are you in control of the thing stolen? So, iba yung physical possession, iba yung control eh. When you speak of control, then you have the freedom to do anything you want to do with that thing stolen. Kapag sinabi ng iba, "Give me - hoy, huli ka.” “O, sir, hati tayo." So, meron kang freedom to do. “O sir, hindi bale po.” Kung hindi minsan yung mga ibang robbers (unintelligible) pa. Yung mga rich, mga (unintelligible) yan pag nahuhuli sila. Yung iba nga diyan – kung hindi, they run away. That's the meaning of a consummated crime of robbery. If there is none, the point in time that you are arrested or apprehended, but rather is are you in physical possession of the thing stolen? And number two, are you now in control of the thing stolen? Therefore you can deliver to a freedom to do what you want to do with the thing stolen or robbed. If the answer is yes, that is consummated crime. But that test will not apply in some specific examples. I'll give you specific example like, okay here comes - in the university. Let's say you have had been receiving the (unintelligible). Somebody brought out the chairs. Somebody stole the chairs inside the building. Then the thief brings out the things stolen inside the building without passing through the guards. Can you bring out the things inside the university or the building without passing through the guards? No. You tried to bring them out and then you were accosted by the guards. Then it came out that you did not have any authority to bring them out. In other words, you were actually stealing the properties of the school, but you were caught by the guard. What stage of the felony is that? Frustrated yun. That is a frustrated crime of theft. It was asked the bar exams two years ago about the subject theft, but the same principle that we have to apply. If there is a – if you bring out something that is stolen from a building or a department store, for that matter. Even if you are already in possession of the thing stolen, but you are caught by the guard then that is frustrated. Why? Because you have no yet full control of the thing stolen because you cannot yet dispose of them in the manner you would like to. So, you are a shopper there. You took something from the shelves. You are supposed to pay them with the cash register, di ba? Pagdating mo dun sa – supposing this is now the gate in the department store, you are caught by the guard near the door. What is stage of the felony? You are in possession of the thing stolen, but you are not yet in control of every thing stolen because you have to bring it out before you can dispose of them in the manner you would like to. That is frustrated. But one step after the main door, the moment that you are out from the main door and one step ka lang away from the door – outside of the door where there is no more guard, that becomes consummated. Kahit isa sa mga mall, kahit alam nila na nagnakaw ka, papalabasin ka muna bago ka hulihin. Oo, pinapalabas yan, one step, two steps away. Papalabasin ka because when you are caught inside the mall, you can put up a defense eh. I'm sorry, I forgot to pay. Kahit na bente singko pa un eh, magbabayad ka pa ng damages, eh. Sasabihin mo, "Kilala mo ba ang asawa ko na actor. Napapanood din ito sa TV, actress ako." You are charging me as shoplifter. She might file damages eh. Merong ganyan eh, di ba? Have you heard about it? A famous actress married to a famous actor. She was caught shoplifting daw. Eh, yun mali ng pulis eh. Bakit? Dapat huhulihin mo sa labas, because you cannot say that you forgot to pay when you are already outside. That’s what they do now. That's why when you are out of the premises of the building, then that is a consummated crime. The other crime is – Sir, sinong aktres yun? Never mind the name. What I know is that the husband – the husband is handsome. Yeah, yun na yon. Sino yun? They put up the defense that are – kinasuhan niyan something like that. Maraming mayayaman ang kinasuhan niyan, whether or not that's a defense in the crime of theft, we will study that when we take up Article 12. Defense (unintelligible). That's not a sickness of the mind, but it's sickness of desire, di ba? You have to always desire to take something not belonging to you. Eh, kung you argue – use a defense in the crime of theft, eh, kung i-charge ng rape. Sabi niya, I'm sick of sexual act and, therefore I have the desire to lie down with the woman. If kleptomaniac can escape criminal liability because that is a (unintelligible) put up being a sex maniac. Why? Paano ko kayo matutulungan yun, they know what they are doing din, hindi ba? Anyway, so let's go to the crime of rape. Of course, everybody knows walang frustrated crime of rape. Kung bakit –do not take the bar exams if you do not know. You will not pass my subject if you claim that there is frustrated rape. It's either consummated

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or attempted rape. Kaso, the law was (unintelligible) a consummated crime of rape with slightest penetration. What is slightest penetration? The mere touching of the private organ of the female on the labia majora or labia minora. The mere touching, that means the upper lip or inner lip of private organ a female. So, if that private organ touches that area then it becomes consummated crime of rape. If that area does not touch, what’s the crime? If the private organ of the male does not touch the labia majora or labia minora, what is the crime? Ha? It will depend. It may be attempted rape or acts of lasciviousness. It was held in one of the cases decided by the Supreme Court for Justice Kapunan. People versus Campuhan. That's the case People versus Campuhan. Of course, there are already many cases about attempted rape. You know, there is the wrong notion of some law students that if the private organ of the male does not touch the labia majora or labia minora, although the private organ touches – the face, ganyan, you think it can be answered as attempted rape. No. But maybe be acts of lasciviousness. It will depend on the manner of placing the private organ of the male because attempted rape carried with it the element of intent to lie down with a woman. Attempted rape carries the element of intent to lie down with a woman. But if the private organ of the male merely touched the face, you cannot conclude that the man intended to lie down with a woman. Kasi magiging bastos na rin kasi pag ano eh – to the face eh. But if – kasi yung case na yan. But, anyway, matatanda na tayo lalo sa akin matanda na ko. What the man did was to masturbate and then place his private organ onto the face. There was no intent to lie down with a woman. Sabi ng Supreme Court that is only acts of lasciviousness. The man masturbated and then dinikit lang niya. Sabi ng Supreme Court if his intention was to lie down with the woman, then he (it is) attempted rape, but wala eh. So, acts of lasciviousness lang. It's not correct to say that if the private organ of the male did not touch the labia majora or labia minora is attempted rape. You will have to determine the intention. Ang problema eh, how do you determine the intention of the private organ? It cannot be manifested by direct commencement by direct overt act. Anyway, those are the cases that you have, consummated crime of rape, if there is no slightest penetration it's either attempted rape or acts of lasciviousness. Huwag kayong magkakamali diyan. But if it is the private organ that is inserted into the anal orifice, walang slightest penetration diyan eh. It must be actually inserted eh because the law uses the word insertion. Sexual assault as a form of rape hindi slightest penetration ang nandun. Ang nakalagay dun, the insertion of an instrument or the insertion of the private organ of the male into the mouth or to the anal orifice of any person or any instrument or object, yun ang sexual assault as a form of rape. Okay. And then, in a crime of arson, arson is always consummated regardless of the extent of the fire. Slightest parang slightest penetration – slightest burning in a destructive arson ha, not simple arson, that principle is only applicable in destructive arson. Slightest burning in a destructive arson is a consummated crime of arson. You have to burn this building. You started burning the door. Even if only one half or one fourth of the door is burned as long as your intention is to burn this building that is a consummated crime of arson. It becomes only an attempted arson when you started burning it but no fire. It becomes frustrated arson when you started burning it, but no part of the building has yet been burned. That is frustrated arson. But of course you cannot burn a building by just using a lighter. Hindi naman pwede yun eh. You start with flammable materials, hindi ba? Because destructive arson involves the burning of buildings, whether public or private, that is the meaning of destructive arson, warehouses, building, and so on and so on. If you try to burn this building, you have to use some flammable materials in order to start the burning. So, if you burn the building, and then part of the building is burned, consummated. But if you burn already the flammable material, but no part of the building has yet been burned, frustrated. But if you have an attempt to start igniting the highly flammable material, but you can only show, you can already determine the intention of the offender, then that is attempted arson. Hindi mo pa sinindihan. Ngayon kung sa estafa naman, estafa may become attempted or frustrated as long as deceit was already present. So, if deceit is already – there are two essential elements of estafa, deceit and damage. Deceit and damage, the intent to cause damage or damage. You cannot commit the crime or consider the crime of estafa if there is no damage. Because, essentially, estafa is a crime of panloloko eh in order to profit eh. Yun ang diperensiya ng theft tsaka estafa. Yung theft to take the property of another without his consent. Unlawful taking ang theft, eh. Ang estafa, you receive pero nanloloko ka, yun. So, estafa is consummated the moment that the two essential elements are consummated. But it is either frustrated or attempted if damage has not yet been caused and so the law and the rule and the decisions say that it become consummated, I mean, it becomes a frustrated estafa if the damage is about to be consummated. Let's say, bago mo ibigay yung kwarta nahuli ka. That is frustrated estafa. Ngunit kung ibigay mo at natanggap na, consummated yun. Ngunit kung hindi ka pa nakapagbibigay, may deceit na, attempted estafa. It is determined by when is that damage as an element of estafa. The damage is already totally caused or caused, consummated. If the damage is about to the caused, frustrated. If deceit is already there, but that is not yet damage, attempted estafa.

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Question: Are there stages of mala in se? Stages of felony in mala in se? Meron yan eh, meron. There are some cases where there are attempted felonies in mala prohibita. Meron, ang dami. Human trafficking, Dangerous Drugs Law, attempted conspiracy. Anyway, we will take those up, okay. So, our next assignment is the crime of rape, tamang-tama. So, next assignment is Paragraph 7, I mean, Article 7, 8, 9 and 10. I advice you when you read Article 8, I told you already to read expressed and implied conspiracy. Importante yung expressed at saka implied conspiracy ha. The conspiracy, as I mentioned, committing a crime and conspiracy to commit a crime. Until Paragraph 7 that you can – that is an (suppletory) clause, but a little knowledge of Article 7 on the - di ba? Light felonies are not – there are no what? No attempted felony in light felony except in crimes against persons and property. In Paragraph 9, we will use Article 9 or you use only Article 9 together with Article 26. That's you know, the conflict between Article 26 and Article 9. May conflict yung Article 9 at saka Article 26 eh. Yung sa light felony how it is defined. Meron yung isa 200 or less, yung isa naman more 200 eh. Meron din eksaktong 200. But we have already a decision of (unintelligible) after I explain the discrepancy between the definition of a light felonies, so far is defined as (unintelligible) because yung isa kasi exactly 200. So pag sinabing 200, light felony. Yung isa naman less than 200. Eh, paano kung 200 eksakto? That will be explained when you read Article 9. In Article 10, I hope you will understand the case of – did I assign? I will ask you to read two cases on Article 10. I already told you about the case of People versus Martin Simon. The other one is Gov. Romualdez versus Atty. Simeon Marcelo. May 2005 ba yan? Is that 2005? Ang hina na ng memory ko. Now, when you read that case of Gov. Romualdez, you try to read the second part of Article 91, so that you will understand. The second portion of Article 91. What is the effect on an offender going to a foreign country. And the try also to read a portion of Republic Act 7326 that is also very important to you. Republic Act 7326 is the law that governs the description of crimes defined under special laws. Like the prescriptive period for crimes are those that are found in the Revised penal Code for crimes committed defined in the Revised Penal Code so that we can understand. Basahin mo yun. But do not make any comment (unintelligible) first decision in the Romualdez is that they sustained the position of the Sonny Marcelo, the Ombudsman, then in a motion for reconsideration, bumaliktad sila. Yung una, sabi di pa nagprescribe, from MR sabi nagprescribe, bumaliktad for the reasons we do not know. And then Article 11, di pa tayo tapos. Assignment pa. Article 11, then memorize Article 11 that defines circumstances, okay? And then when you read Paragraph 1 of Article 11, that classifies circumstances. You read this together with the Battered Woman Syndrome under Republic Act 9262. You read this together – I just want you to read what is the Battered Woman Syndrome under Republic Act 9262, the Law Of The Domestic Violence Against Women And Children. And then in that case, we also read the case of People versus Minerva Genosa. I think that is January 13, 2004. So, that was decided by the Supreme Court of December 13, 2004. We will read that Battered Woman Syndrome not only that portion on the (unintelligible). Marami sa Battered Woman Syndrome na very small time. In the meantime, for purposes of justifying circumstances, we will only read that portion in relation to selfdefense and also insanity. In relation to self-defense under Paragraph 1 of Article 11 and insanity under Paragraph 1 of Article 12. Memorize Article 11. A-anim lang yan. Dapat magrecite na kayo. Baka mamaya, later on. Memorize Article 14.

Session 3: LIGHT FELONIES TO DEFENSE OF STRANGERS If it is two hundred pesos, but less than six thousand, that is less grave. But if the fine is more than six thousand, then that is grave felony. But (unintelligible) about less grave or grave felonies to complete a light felony because under Article 26… Student: Sir, it is considered light felony only when it is less than… Two hundred. If it is exactly two hundred, is that light felony? How do you resolve the conflicting provisions of light felonies under Article 9 and 26? Student: Sir, according to (unintelligible) … (Unintelligible)? They got it from an old book. That is a decided case. I think it’s People versus (Caisano). This is an old case there. Student: Sir, Article 9 is applicable only when determined the prescription of the crime. On the other hand, Article 26 clearly states that it is applicable when you determine the prescription of the penalties being made. Because there are 2 kinds of prescriptions. When you speak of a prescription of a crime, the definition of light felony as far as Article 19 applies. But when you speak of prescription of the penalty, then the law that will be applicable is Article 26

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because Article 26 is found in the chapter on penalties. So let us now go to Article 10, as you have read. Okay, there are 2 beautiful cases about Article 10 that is why I asked you to read these 2 cases. But before we go to those cases, let’s go to Article 10. I will ask you a question, are you suppose to apply the provisions of the Revised Penal Code to mallum prohobitum? As a general rule, are you going to apply the provisions of the Revised Penal Code to a special la, as a general rule? Student: Sir, as a general rule, no because according to Article 10, offenses which are (unintelligible) in nature is deemed punishable by special laws are not under the Revised Penal Code. Therefore, when we say the Revised Penal Code is not applicable to special law, and therefore, when the law says not applicable, what do you mean by that? Student: Sir, you do not apply the provision specified. In other words, there could be no modifying circumstances. There are no mitigating, there are no aggravating, justifying or even mitigating circumstances. That’s the effect if the Revised Penal Code is not applicable, then all those provisions in the Revised Penal Code shall only apply to those crimes punishable under the Revised Penal Code, but not the special laws. So even if the accused pleads guilty in a special law, you are not entitled to a mitigating circumstance. That’s what the law means when the Revised Penal Code is not applicable. The exception? Student: Sir, the exception is when there is a – the Revised Penal Code can be suppletorily applied in the application on special penal laws. Or if the special laws? Student: Sir, if the special law provides. So if the legislation allows it or when the Revised Penal Code - what -will be used as a suppletory law or supplementary law. So if it is a suppletory law or supplementary law, whatever it is, whether suppletory, some books say supplementary, some say suppletory. Ano ba diperensya nun? Ang turing pa rin ganun pa rin., supplementary, meron pa ring – ry. When the law says that it is supplementary or suppletory, what do you mean by that? Student: Sir, in cases wherein there are terms in that special penal law which uses the terms in the Revised Penal Code then the Revised Penal Code will be applied. Terms? Anong terms? Student: Sir, for example, penalty. The nomenclature is… But that is not – that is another instance. Pag sinabi mong suppletory, there may be a deficiency in the special law. There are. If you want to cure the deficiency in the special law, then you can use the Revised Penal Code as a suppletory law to cure that deficiency. But if the special is complete in itself, you do not apply the Revised Penal Code as a supplementary or suppletory law because the special law is complete in itself. You see mallum prohibitum has its own characteristics. Mallum prohibitum has its own characteristics and, therefore, we do not apply the Revised Penal Code. Inconsistent yan eh. The Revised Penal Code is (unintelligible) with intent. Mallum prohibitum, there is no intent. So the principles do not apply. But there are cases, the case of People versus Martin Simon, for the first time he clarified the questions about whether or not the Revised Penal Code is applicable to a special law like Dangerous Drugs Law. What did the Supreme Court say? Student: Sir, in that case, the Supreme Court said that when the special penal law, in that case the Dangerous Drugs Act, it sets the nomenclature provided in the Revised Penal Code. What nomenclature? Nomenclature of? Student: Of penalties as provided in the Revised Penal Code, then in the computation of penalties to be imposed in the provisions of the Revised Penal Code. Is that only it, the computation? Sabi ng Supreme Court, if the special law adopts the nomenclature of penalties in the Revised Penal Code, then the Revised Penal Code shall apply as a rule that even the supplementary law, the provisions of the Revised Penal Code shall apply as a rule. In what sense, then, if the Supreme Court said that in the case of Dangerous Drugs Law, what did it mean by it? It will apply as a general rule, what would be then the effects of that statement? Student: Sir, then the provisions of the RPC will be in the… (Even) computation?

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Student: Sir, yes. In other words – what is my given? Anyway, we will take that computation when we take up 63 and 64 and I will explain. You cannot understand Indeterminate Sentence Law without knowing how to compute. Now, when you determine the penalty of a crime, whatever offense for that matter, then you know we have to determine the different circumstances of the same. We look at the crime of homicide, before you arrive at a computation of penalties of homicide, the proper penalties, then you have to determine if there are mitigating circumstances, mitigating to lower penalties or aggravating because the penalty we will be imposing is the maximum period, but in no case shall exceed the maximum. So these are the things that we will have to apply if it is a crime punishable by the Revised Penal Code. Now, therefore, if the accused pleads guilty in a crime of homicide, they appreciate the mitigating circumstance of a plea of guilty in order to reduce the penalty. Now, when you speak of special law, let’s say a mallum prohibitum, as a rule, even if he pleads guilty, even if it proves voluntary surrender, even if he is a minor, we cannot appreciate. Why? Because it has its own characteristics. It is a law in itself, therefore, we do not apply the Revised Penal Code as a general rule. However, in the case of (People versus Maginoo), if the law adopts the nomenclature of penalties under the Revised Penal Code, then the provisions of the Revised Penal Code will apply as a general rule. Therefore, if he pleads guilty or proves voluntary surrender, then he would not be entitled to those mitigating circumstances because the general rule is you apply the law. So you just (unintelligible) adopt the nomenclature of penalties for illegal possession of firearms, we also adopt it. So that is the rule. That is one of the examples. But what did they apply? Principle under Article 10? It’s not applying the law or supplementary law or suppletory law. Basta suppletory law, in People versus Martin Simon that is now the principle that is applicable in that case. Is there also the principle in the special law, there is a provision in the special law expressly providing that the Revised Penal Code shall apply to the special law? There is no such thing, no such provision in Dangerous Drugs Law. That is enough of an indication. But why computation? You do not find that, but you have to confirm, but they said that if there are penalties in a special law, are the nomenclature of penalties in the Revised Penal Code then the provision of the Revised Penal Code shall apply as a general rule, not as a supplementary law, as a general rule. That’s what they said. In other words, they added something that is not found in Article 10. But that is like ano - I’ll give you an example. Have you heard about the penalty can be divided into three periods. If you have a homicide, and that is penalized by reclusion temporal, then there is what they call minimum, medium, and maximum periods. You can divide those into three. So that is the penalty under the Revised Penal Code. But if a special is penalized by let’s say 12 years and 1 day to 20 years, then the penalty, therefore, is 12 years and 1 day to 20 years, under the special law there is no such thing as minimum, medium or maximum periods, if that is the penalty because 12 years in 1 day to 20 years is not a penalty under the Revised Penal Code. Only the penalties in the Revised Penal Code which as divisible in character have minimum, medium, and maximum periods. Let’s say you plead guilty and the penalty is reclusion temporal, then the penalty will be in its minimum period, therefore, reclusion temporal, minimum. But if it is a special law, let’s say, 12 years and 1 day to 20 years, if he’s guilty, what’s the penalty? You cannot say minimum of 12 years and 1 day to 20 years because there is no such thing as 12 years and 1 day to 20 years as a penalty under the Revised Penal Code. But if that special law adopts the penalty in the Revised Penal Code and he pleads guilty, then you can apply the rule and, therefore, they say you can apply then the rule - the provisions of the Revised Penal Code as a general rule. This afternoon we will take that up again 63 and 64. We will take up 63 and 64 in relation to the first paragraph of the Indeterminate Sentence Law. Okay, so that is one. What is the other case where the Supreme Court likewise did not adopt the provisions of the Revised Penal Code, this time as a supplementary law? Did you read the case of Romualdez? This was a question in the last bar exam. (Unintelligible) because the chairman of the Bar Examination’s Committee, Justice Azcuna, did not participate to this proceeding. In that participation in the proceedings, so he knows about this case. Justice Adolfo Azcuna, it was his division that rendered the decision in the case of Romualdez versus Honorable Simeon Marcelo. But Justice Azcuna inhibited himself due to the (faction) of the Romualdez family. So he knows this case. If you are chairman of the Bar Examination’s Committee, yung chairman ang nagko-control ng questions nyan eh. (Unintelligible) bar exams about prescription and applicability of the Revised Penal Code. Okay, what was the charge against Romualdez? Student: Sir, he was charged for violation of the anti-graft and corruption. Republic Act 3019. So you go slow. No need for you to state the facts. I’ll just ask you a question. Anyway, I can determine if you know the facts based on the questions that I ask. So, you will start with violation of Republic Act 3019, the AntiGraft and Corrupt Practices Act. A crime punishable under the Revised Penal Code or the special law? Student: Sir, special law. The special law. Specifically, what were the charges, because there were several charges against Mr. Romualdez? Student: Sir, he failed to file his Statement of Assets and Liabilities.

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So he failed to file a sworn Assets and Liabilities and New Worth. We call SALN, S-A-L-N. Is that punishable under 3019? Student: Sir, yes. Yes. Do you know what is the penalty? Student: No. Mataas ang penalty. Six years and 1 month to 15 years. So what is the prescriptive period under the law 3019? Student: Sir, under 3019, the prescription is 15 years. Okay. If the prescriptive period is provided for in that special law, do we apply the provisions in the Revised Penal Code on prescription of crime? Student: Sir, no. No, because there is already clear from the law that there is not a prescriptive period. When did he commit the crime or the offenses (some time)? Student: Sir, according to Romualdez, the crime has already been… Never mind, as charged by the Romualdez’s, based on the case, corresponding to what years? The first few years since 1982, in the 80s, the earliest in the 80s. But they filed this case when? When did they file the cases against Mr. Romualdez? Student: Sir in 1990? In 1990? No, towards the end of the 90s. More than 15 years after the failure to file the SALN. So when they came here the charges were filed against. What was the defense of Mr. Romualdez? Student: Sir, he said that the time has already prescribed. On the grounds that? Student: On the ground that 15 years have lapsed since the filing of the case. What was the argument of the Ombudsman as to that claim of Mr. Romualdez? Student: Sir, according to the Ombudsman, Mr. Romualdez’s contention does not hold water because… Why doesn’t it hold water? Student: Sir, (laughter). You know, I should have also a requirement to read the rules on Criminal Procedure about Suspension. Anyway, we’ll take that up. What is the effect of that decision in so far as the provisions on the rules of Criminal Procedure? Anyway, I’ll explain it later on. Pagkatapos? What happened? Student: Sir, because according to the Ombudsman, another special law provides for the manner in determining when the prescription of the offense should start to run. That is Republic Act? Student: Republic Act number… Number 3326. That’s the law that governs prescription of crime punishable under the special law. Now the argument of Mr. Marcelo is that the crimes are not yet prescribed because there is a provision in the second sentence of Article 91. Nakalagay dun sa Article 91. Assuming that 15 years have already lapsed, but under the second paragraph of Article 91, the law provides that when a would-be offender or an offender goes to a foreign country, then the running of the prescriptive period is interrupted. Nakalagay sa Article 91, on the second part. In other words, when you run to a foreign country, let’s say you are facing charges here. The rule, as what you have read, is like this. When you leave the country, even if there are cases filed against you, the rule is, because 15 years is stalled, it will stop to run. If you come back, to the minute, it is then the period will

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start to run again. So if the contention of Mr. Marcelo is correct, then the case has not yet been prescribed because the period wherein he stayed in America or in any other place outside of the Philippines interrupted the running of the prescriptive period applying the second sentence of Article 91. So ang sabi, “Hindi pa prescribed yan. Umalis ka eh.” Di ba? What did the Supreme Court say? Student: Sir, the Supreme Court said that… Yung first decision muna because there were 2 decisions. The first decision was penned by Justice Carpio. What was the decision of Justice Carpio in the first decision? Student: Sir, in the first decision he said that Article 91 can be applied in the case of Romualdez. As a? What was the basis of saying that the second sentence of Article 91 is applicable to this case, also this is a special law, because? Student: Because of Article 10. Article 10 of the Revised Penal Code as a suppletory law. He applied the Article 10 in the preposition as a suppletory law because there is no similar provision in Republic Act 3326 that when a person is charged with a crime, his going abroad interrupts the running of the prescriptive period. There is no such provision in 3326. Justice Carpio said that because there is no such provision, then we will apply Article 10, which is now Article 10 as a suppletory law. That was the contention of Justice Carpio. But then a motion for reconsideration, what happened? Student: It was reversed, the decision. But Justice Carpio did not reverse it himself. His decision became the dissenting opinion. What then is the majority opinion? Student: Sir, Article 91 cannot be applied. Suppletorily. Student: Yes. Why? Student: Sir, because Republic Act 3326 specifically provides for the determination of when the prescriptive period should start to run and it starts to run upon the commission of the offense or when… In other words, what does the second decision say? Did the second decision say that okay, Article 10 is actually not applicable as a suppletory law. Unlike in the first decision, the Supreme Court said, “Oh, Article 10 can be applied suppletorily.” But in the second decision, no it should not be applied suppletorily. Student: In the second decision, there was contention whether Article 10 can be applied or not. But… What was then the reason of the reversal? They had to reverse that first decision that it can be applied suppletorily. You can read between the lines. Ano ang sinabi? Ang sabi ng 3326, the Revised Penal Code cannot apply suppletorily to 3326 or RA 3326 because Republic Act 3326 is not a special penal law. The application of the Revised Penal Code as a supplementary or a suppletory law is applicable only to special penal laws. That’s what they meant. Yun ang pinatakan nila ng reversal. So if the Revised Penal Code cannot be applied suppletorily, it cannot be applied suppletorily because 3326 is a law on prescription of rights. It is not a penal law. The supplementary or suppletory application of Article 10 provides that Article 10 applies only to special penal laws. It is a law that defines acts with corresponding punishment. Now, whether that is correct or not, walang debate. But the problem there is if you are charged with a special law, tell your clients to leave the country and then come back after the lapse of the prescription of the crime. What is the effect? The (unintelligible). Now we are only talking here on the side of criminal law because you will find in your laws on criminal procedure, pero ako ang sisisihin nyo. That case assume, that you assume were in fact there was no real case files before the court because if Mr. Romualdez was already charged before the fiscal’s office or the Ombudsman, that leads to debate. The crime is not yet prescribed because when a case is already filed before the court or before the fiscal’s office for preliminary investigation, then the prescriptive period will be suspended. In that case, wala pa kasing nai-file sa husgado, wala pang nai-file sa piskalya. But If the case has already been filed, it would be before the Ombudsman. Now definitely the crimes are not yet prescribed because once the case is filed, under the rules on Criminal Procedure before the court or before the fiscal’s office, then the prescriptive period, the run of the prescriptive period is

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stalled. Ito kasi walang na-file. Na-file lang nung dumating. There was a mistake. It was a mistake, the problem here was oversight. Okay, Ms. Malabanan, good. We’ll take a break na lang muna then you read (unintelligible) Article 11. …exception that we invoke or will be both exempt from paragraph 4. That is not a civil liability arising from culpa criminal or (perfect) crime, that is a civil liability arising from (rule in equity) paragraph 4. It is not difficult, but sometimes it is confusing. But the rule is for civil liability except in paragraph 4, the civil liability arising from the conduct of – we will go to that later. I will explain to you why civil liability is awarded under paragraph 4 not because of a crime, but by reason of equity. Enumerate the different justifying circumstances. Anim lang naman. Student: If he should perform an act in defense of his person or rights provided that… Defense of himself? Student: Of himself, his person or his rights. Okay. (Unintelligible) Student: Provided the first… And the following? Student: First, unlawful aggression. Number 2? Student: Second, insufficient rights to rule out or repel it. What did you say about paragraph 2? Student: (Unintelligible) Reasonable necessity. Student: Of the means employed to prevent or repel it. Number 3? Student: Number 3, lack of sufficient provocation in accordance with the defense of himself. Number 2? Student: Number 2, a person shall not be considered liable if he should perform an act in defense of the person or right of his spouse, ascendants, descendants or natural, legitimate, or adopted brothers and sisters, or (U) consanguinity or affinity in the same degree. (Laughter) We have been reciting for the possibilities, sinabi ko sa inyo, eh. I want that students ko recite very fast, well at least kasi pag ninerbiyos ka o ninenerbiyos ka… Student: Sir, tensed kasi ako. Wag kang nerbiyosin, eh di wag kang nerbiyosin baka makalimutan mo. Nenerbiyosin ka pag hindi nag aral and that you can not really say something, ano, anything good. But if you will read and then you feel nervous, very happy yan. Eh, di pa pumapasa sa Bar yan pero magagaling yan, ninenerbiyus hindi pumapasa. Eh kung ninerbiyos ka tingnan mo, actually ninenerbiyus ka ngayon. Student: Opo sir, kasi pag-stressed… Ah okay. Eh, hindi nerbiyos yon, naistress ka palagi. (Laughter) O sige, number 2.

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Student: Any one who acts in defense of the person or right of his spouse, ascendants, descendants, or legitimate, natural or adopted brothers or sisters, or his relatives by affinity in the same degrees and those consanguinity within the fourth civil degree provided… Within the… Student: Fourth civil degree. According to the fourth civil degree of consanguinity. Therefore, with your enumerations of relatives because he may be related to the person you are defending. But if the relation is not mentioned in paragraph 2 you cannot go up number 2. You will only be able to put up number 3 that will become defense of a stranger. If it is outside of number 2, then the defense that he can put up is the defense of a stranger under paragraph 3. Baka bigyan kayo ng problem na ganun. Merong mga tuso kung minsan na bar examiners. In the problem they will give you “a mother is the special babysitter of the so-what.” Hindi naman diretsong sasabihin if they are first cousin, hindi ganun. You will have to determine the relationship of the person defending and the person being defended in the problem. Paghahaluin yang civil law. Mahirap yun. Sige. Student: (Unintelligible) and should the person… Property. Student: And should the person… Tama. Student: And should the person who is attacked (unintelligible) provided that the person should not have taken part… Taken part - remember that word, those words. Taken part in the provocation. May magandang case dyan. . Number 3. Student: Number 3, any person who shall perform an act in defense of the rights of a stranger provided that the first and second requisites of the first paragraph on unlawful aggression and (unintelligible) means employed to defend are present and provided that the person defending is not motivated by any revenge, resentment, or other evil motive. (Unintelligible), number 4 Student: Any person who has performed an act in order to avoid an evil or injury provided the first is an actual injury or evil delivery sought to be avoided actually exists. Number 2. Student: That the act done in order to prevent an injury of a lesser degree (U) could have done to prevent it. Number 3. There is no other means… Student: Less harmful means. Less harmful means of avoiding it. Number 5. Student: Number 5. Any person who shall perform an act to the exercise of a right or office of a duty. Fulfillment. Student: Or fulfillment of a duty. Number 6. Student: Any person who shall perform an act under the direction of an officer. Direction lang? Baka kung sino yan. Student: Head of the (unintellgible) (Laughter)

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Student: A lawful act under the direction or a spot order of a superior officer. Talagang ime-memorize natin ito. (unintelligible) coded yan eh. (U) Sison, ang problema kung nakalimutan mo yung code. (Laughter) Same question, (Sarah). The same as Ms. Sison. Student: Justifying circumstances, the following do not incur criminal liability: Number 1, any person who performs an act in defense of his person and/or rights provided the following circumstances concurs: First, unlawful aggression. Second, reasonable necessity of the means to prevent or repel it. The means employed to prevent or repel it. Student: The means employed to prevent or repel it. Number 3, absence of unlawful – absence of provocation on the part of the… You missed the important word there that changed the meaning. Student: There is no sufficient – lack. Lack of sufficient provocation. You missed the word sufficient, magiiba ang meaning nun. Lack of provocation, iba sa lack of sufficient provocation. In other words, even if you provoke, if it is not sufficient for the offender to kill does not retract the one that is meant by paragraph 3. Lack of sufficient provocation. Number 2? Student: Number 2, any person who commits an act in defense of the person or rights of his spouse, ascendants, descendants, sisters or brothers whether natural, adopted, or legitimate, relatives by affinity in the same degree and relatives by consanguinity within the fourth degree provided that the circumstances provided in the preceding chapter which is… How do you determine relatives by consanguinity? How do you determine the extent of relationship? Student: Fourth degree. How do you determine nga? If there is a common line, mother and father, for every line, that’s what they mean. Go ahead. Student: Provided that the circumstances in the abovementioned numbers are present. Except number 3. Student: Further, the person defending should not have taken part if the person attacks… If the person who is directly being defended… Student: Gave sufficient provocation, the person defending that person will not take any part therein. Number 3, any person who shall commit an act in defense of the right or person of a stranger shall not incur criminal liability provided that the circumstances one and two in the first article are present. First paragraph. Student: n the first paragraph are present with the further requisite that the person was not induced by revenge or any other motive. Revenge… Ano pa? Galit. Ano yung galit? Number 5? Student: Number 5, any person who in order to avoid an injury or evil shall commit an act that causes damage to another provided that the following requisites are present: That the evil sought to be avoided actually exists; second, that the injury is greater than the act done to avoid it; number three, that there are no less harmful and practical means to avoid such injury. Number 4, any person who commits an act… Number 5.

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Student: Number 5, any person who commits an in the fulfillment of his duty or in the lawful exercise of his right or office. Lastly, any person who commits an act in obedience to a lawful order, in obedience to a lawful order of a superior with lawful means. Now, before I forget because I cannot anymore assign that case in BP22 in so far as paragraph 5 is concerned, you read the case of (People versus Francisco. Sycip), I think it’s 199- 2001. January 2001, I think. This is about BP 22 but they applied doctrine, I mean, the provisions of paragraph 5. Inapply nila sa mallum prohibitum, nahirapan ang estudaynte. (Laughter) Provisions ng Revised Penal Code, inapply mo sa special law. Okay, sige. Para mabilis ang recitation. Cruz, (Unintelligible). What is the element, when you speak of defense of one’s self or defense of one’s self. The law likewise includes the defense of one’s right, di ba? The defense of one’s self or right, what is that right? What right do you defend? Student: (Unintelligible) defense of one’s life, but also the right to… Right to what? Anong right yon? Anything? What do you mean ‘one’s right’? Student: (Unintelligible) right to self (preservation). Like what? Student: Like for example (unintelligible) and… There are actually 2 cases. One is defense of one’s property. He should come before the defense of one’s self. The requisites involved there is right of ownership, the other one is to protect your honor. You have the right to protect your honor, libel, oral defamation, rape, and so on. It is something that has to do with protecting your honor, it is also included. So selfdefense is not only included in crimes against persons. It can include the defense of one’s honor. T he defense of one’s right at his defense of the property. So what is the unlawful aggression that requires in defense on one’s self? What is required in the defense of one’s self to defend one’s right? What do you understand by unlawful aggression? Student: The defense on one’s right, unlawful aggression… No, no. Generally, what is unlawful aggression? Student: Unlawful aggression may either be actual unlawful aggression. It could be imminent aggression, which would entitle you to (unintelligible). Imminent? You mean emminent? There must be actual, physical assault? Student: By actual unlawful aggression in the sense that there must be a positive act. So it must be positive. Anything that is actual, positive that is unlawful aggression? Student: That would impel one or motivate one to act in self-defense. Motivate one to act in self-defense. Madaling mag-put up ng self-defense. When the person say, “Ah, I was only making to defend myself because I was in danger.” Would that be sufficient under unlawful aggression, on the basis of unlawful aggression? Is it necessary that one should be actually attacked or the victim, the one who is defending himself, must be injured or actually attacked? Student: No. In other words, should he sustain injuries before he could defend himself? Student: No, sir. What is then unlawful aggression? Student: It is (unintelligible) present in the mind of the person making an attempt that this irate person or his right would be… Impaired? Would impair it? So this life or limb, even in rights against property, as a rule, risk their limb or life to be in danger. They should be in danger, di ba? They should be in imminent danger. Therefore, there must real and actual aggression, not necessarily the person defending himself should be injured before he could defend. Otherwise, if that is the requirement, e patay na yun. If you wait for the time that the victim in the course of defending himself would be injured before he could defend, e baka by that time, patay na yun, mahina na yun. His life or limb must be in imminent danger. Okay, but the unlawful aggression that we are taking about is unlawful. When do you say that the aggression becomes unlawful?

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Student: Unlawful aggression is deemed unlawful if the right to (unintelligible) is not justified. Is not justified? In other words, unlawful aggression is not justified. Unlawful e, it is not justified. Okay, his life or limb must be in – now, before we go to the (case) that I required you, dib a in justifying circumstance there is no intent as an element of dolo. But under paragraph 1, there may be a situation that the person defending himself might kill or injure the attacker. You attack somebody else. But in the process of attacking somebody else, the one who is behind that might be the one who is injured or probably might even be killed. So what do we say then that there was no intent in a justifying circumstance of selfdefense, but there was no intent? Student: Sir, his intent to cause the act of the person… Is that the reason why? So whenever there is an unlawful aggression, then you can defend yourself by killing or injuring your would-be attacker? Student: (Unintelligible) determine that unlawful aggression when in fact his attacker be entitled to any kind of protection, (unintelligible) the second element of (unintelligible)… That is why I am asking you, hiya, before we go to essential element because in a justifying circumstance of selfdefense, there is no intent on the part of the person defending himself. According to you, when there is an unlawful aggression, you have every right to defend yourself, even to the extent of killing or injuring your attacker. Ganun ba yun? Student: Sir, as long as there is no criminal intent on the... There is no criminal intent, but the law says. The law allows the person defending himself even to the extent of killing or injuring the attacker, di ba? But the law in self-defense, there is no intent. Why do we say that there is no intent, but according to you, the person defending himself can use any means to defend himself even to the extent of killing or injuring the attacker, hindi ba? In self-defense, the person defending himself has no intention to kill or injure the attacker. If there is intent to kill or injure the unlawful aggressor, you are liable. The essence of self-defense only is that is to defend yourself, is to prevent or repel the attack, that is all. So if someone is an unlawful aggressor, the only purpose of self-defense or defending himself is to prevent or repel the attack period. Not to kill or injure the attacker because if you kill or injure the attacker, you are liable. Kasi ang self-defense is like self-preservation. It is even not yet self-preservation. Let’s say, somebody runs after you with a bolo. Not you ha, baka sabihin mo, “Sir, ako pa ang ginawang example, babae ako.” Okay, somebody runs after a person with a bolo and they are shouting, “I will kill you.” What should the person do, the one who is being attacked? Student: Sir, the one who will be attacked should not use… The first thing that he will do is to avoid him. He will avoid the attack. Because if you can avoid the attack, and then you did not avoid the attack and then face your attacker, that might show an intent to kill or injure the attacker. Hindi ganun ang self-defense. If you can avoid the attack, but did not avoid the attack and then faced your attacker and then killed your attacker, that might show intent to kill or injure your attacker. That is not self-defense. The first thing that you have to do is to avoid. If you cannot avoid, what is the next thing that we will do if you want to invoke self-defense? Student: If you cannot avoid, then you can make your defense… I do not want you using the word ‘defense’ kasi ano yan eh, broad, broad yung defense. We will use the elements of the self-defense to answer the problem, di ba? So if you cannot anymore avoid the attack… Student: You can prevent or repel the attack… In self-defense, your only purpose is to repel the attack. That’s all. You prevent or repel the attack, but in so repelling or preventing the attack, you kill or you injure your attacker, yun pwedeng self-defense yun. That is only the time. But if you cannot show from the facts that your only purpose was to prevent or repel the attack, and you killed the attacker, liable ka nyan. Example, supposing somebody ran after you with a knife. You prevented the attack. You grapple for the possession of the knife. You got hold of the knife, this time the one who was being attacked is now in possession of the knife, and then stabbed the victim. Can you put up defense? No. Why? Student: Because there was an intention to kill. In that example, we were not just to prevent or repel the attack because you have already prevented, you have already repelled the attack, therefore, unlawful aggression had already ceased. Unless you kill or injure your attacker, that is yours, but you have intention to kill or injure the attacker, you are not entitled to self-defense. In other words, the killing or injuring is the necessary consequence, the natural consequence of you defending yourself. But when you defend yourself and in the process you kill or you injure your attacker, be sure that lawful aggression is still there, still existing, because once you have repelled the attack, tapos na yun eh. Hindi mo na pwedeng – for example you grapple for the possession of the knife. The knife fell on the

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ground. You are now defending yourself. You pick up the knife and stabbed the victim. Are you entitled self-defense? No. That shows intention, at least. That is intentional on the part of the person defending himself. He himself had intention to kill or injure. That is the meaning of the second element. You have to associate the number 2 element. Yung number 3 element that is only conditional. It just shows the situation where there may have been provocation on the part of the person defending himself. The most important elements are number 1 and 2. Interrelated yan eh. Because of there is unlawful aggression, there is no more act of repel. Anything you do after the aggression has ceased, no more. In fact, I always use as an example supposing somebody runs after you with a bolo. You avoid the attack. You went inside your house. The attacker did not persist entering your house. He just stayed outside your house. The later on you came out from the house and then faced the attacker. O sige, laban tayo. You are not armed, but you are a karatista. Then you faced your attacker. Tae kwon do. Can you put the defense of one’s self? The aggression came from the victim. Why are you not entitled to defense of one’s self in that example? Student: Upon leaving the house, he challenged the… When you were already inside the house, the aggression had already ceased because it did not persist in entering the house. There was no more aggression to speak of. So anything you did after the aggression exists no longer. The presence of unlawful aggression – there was no more unlawful aggression to speak of and, therefore, based on the set of facts, you are motivated in kill or injuring the attacker. Ganun ang unlawful aggression. But you know, unlawful aggression is such a situation where your life or limb is in danger. For example, pinitik ka sa tenga, pinitik ka, pak, sinaksak mo. (Laughter). Hindi ba? There is a physical act. But is that unlawful aggression? Pwede mo bang patayin yun? That is why the law says under paragraph 3. What does paragraph 3 provide? Paragraph 3, element of unlawful aggression, ano ang nakalagay sa paragraph 3? Lack of sufficient provocation on the part of the person defending himself. So that paragraph 3 assumes a situation where the person defending himself was the one who provoked kasi if you were the one who provoked as the unlawful aggressor, you are not entitled. But even if you were the one who provoked, if it is not sufficient provocation, you can still put up self-defense in the example. Pinitik mo yung tenga, kumuha ng itak. That is not sufficient. That is provocation, but not sufficient for the attacker to use a bolo. Ang tapang nun ano? Assuming that that is correct, I’ll give you a problem. Just one-liner problem. A victim died with several wounds. Then the accused says, “Oh, I killed that person in self-defense.” Decide. Student: Sir, the number of wounds… The victim dies with several wounds. Then the accused says, “I acted in self-defense.” Decide. Yan ang masama dyan eh. Tuso din yung examiner. Kawawa ang mga taga-probinsya pag ganyan yung tanong. Ano sagot mo? Student: The decision on the statement of claiming that it was self-defense will not be decided other than… Why won’t you put up self-defense based on the wounds of the victim? Student: Because the number of wounds inflicted on the victim maybe indicative of the force (unintelligible). Tignan mo, it depends yan eh. Usually when you put up self-defense, the hold of the victim should be from the top because if you visualize. Try to imagine what happened and then probably put up a self-defense act. When you were facing each other, the attacker used a knife. And everyone grappled for the possession of the knife. In the process, accidentally, the attacker was hit with the knife and, therefore, died. If the wounds were at the back, how can you defend a person in self-defense when the wounds of the victim are at the back? If the wounds were at the back, the killing might even be treacherous. When wounds are inflicted at the back of the victim, what conclusion can you draw? That the victim was hit when the back of the victim was facing the attacker. That is even treacherous. Kasi ganun ang self-defense, factual kasi ang self-defense. So if that is the problem, then you try to image how the wounds were sustained. So the problem is, “The victim suffered several wounds then died. The accused put up self-defense. Based on the number of wounds sustained by the victim, can he put up selfdefense?” Yan ang tanong dyan ha. It will depend on the number, location, and the extent of or the gravity of the wounds. If there are several wounds, 10 subwounds on the hands, but only one hit the chest, and that caused the death. Can you put up self-defense? Pwede mong i-stoyahan yun eh. The hands were injured in the process of grappling in the possession if the knife. And then all of a sudden, the knife hit the chest and died. But if the location of the wound would indicate, yung at the back, in the heart, sa paa na makikita mong with intent to kill because they would determine first the number of wounds, the location of the wounds, then the nature of the wounds. If the victim suffered more than 1 fatal wound, by your self-defense, why? If the victim suffered 3 stab wounds, all fatal wounds, why couldn’t you put up self-defense? Bakit mahirap magselfdefense kung tatlo ang fatal wounds? Student: Because (unintelligible) Why? Because the purpose only of the person defending himself is to repel the attack. If it is to repel the attack, one wound is sufficient to immobilize. him, why do you have to inflict 3 stab wounds? Another 2, I mean 3 fatal wounds. The purpose there is – the reason only is only to immobilize because of the attack. No, but there are some cases that where the victim died in the process. Yun ang papalo pa. Pero kung tatlong beses mong binaril. There was one case which I prosecuted, People versus Villanueva. He had a gun with 6 bullets, but the victim suffered 7 gunshot wounds. So his theory was with only 6

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bullets, he presented – he was a policeman – Capt. Rey Jaylo that he was the one who gifted him with the bullet. They call it the (sabog) bullet, when you hit the area the bullet splits into 2. Nag-iisplit yan e. (Unintelligible) then the bullet spilt into 2 and then if you (unintelligible) there will be 2 gunshot wounds, entry wounds. That was his defense. Maganda yung depensa nya, because there were expert witnesses of that kind of bullet. But the problem, he forgot that the 7 gunshot wounds, there were 5 gunshot wounds, all of them fatal wounds. One in the head, one in the (laughter) that is belying self-defense, of course. In that case, he himself could be – the victim was a Marines – sabi nya Marines yan e, naka-granada, you cannot immobilize him. One bullet that hit him is already sufficient to immobilize him. It is already sufficient. We do not need to fire your gun five times. That is what I was saying. It should depend on the location and the nature of the wound and the means of use. So do not assert immediately, yan ang pinakamasama. The victim suffered several wounds and then died and then put up self-defense. Mas maganda pa kung may storya kung ganun na problem, one-liner, mahirap. Mahirap to qualify. Anyway, you have the case of (Genosa)? Student: (Unintelligible) Di pa? Hindi raw nya nabasa then continue na lang tayo. Okay lang naman. I also reviewed this case back. ((Crosstalk)) In the case of (Genosa), that was a very interesting case. Wala pangtanong sa Bar na ganyan eh. So when you take the Bar exams… …during the case of Minurtang on the definition of a battered woman syndrome because Chief Justice Panganiban mismo defined what is battered woman syndrome. But in that… Go on the 9262 what concept and effect? Kasi yung daw kay (Genosa) was decided January 13, 2004 eh. Did you know that 9262 took effect March 27 2004 eh. So the only decision now in law, but if you read the definition of battered woman, in that case of (Genosa), can you compare that with the definition of battered woman with the 9262? Tingnan nyo ang diperensiya? Mali yung batas eh. Mali. Tingnan nyo doon. In number 2, sabi nila doon eh battered woman, as a rule is a valid defense, independent. An independent of self-defense under paragraph one of Article 11. Ang tanong dyan eh kung natutulog yung mister mo, puwede mo na patayin? Kasi independent of self-defense eh! Kawawa ka. Kapag natatalo ka. Di ba? In paragraph 1, since this is an old case, you can see that case in the book of Congressman Apostol. You read the case of People versus Mamerto Narvaez. Mamerto Narvaez under paragraph… Defense of one’s property. If you are reading the book of Reyes, (Tuazon) or else you could use, may mali dun eh on defense of one’s properties. Wag nyong gagatungan pag kulang. Ayos lang!

Maraming klase ng battered woman. May bata may matanda my phobia na. Somebody defined that battered woman syndrome there are 2 cycles. Saan sya ?Ilang year to ano? Student: 20. Two cycles. On the third, that will be the time that you will be invoked. You only invoke battered woman syndrome as a defense after 2 cycles. So that means on third cycle. But if you look at the definition of Section 26 that I am imposing to walang sinasabing cycle dun. Ang sinasabi dun, when there is already accumulation of physical violence ang nakaagay dun, accumulation yan. There is a proper scientific battered. Pag i-compare nyo yan at saka yung definition - when you are invoking battered woman syndrome. Kelan yun accumulation nyan? The law does not say up to what is that accumulation other than scientifical batterey. Where is that accumulation takes place wherein there is already battered woman syndrome? Wala sa (law books) nyo yan. Wala yan. Baka by the time the wife is entitled to a battered woman syndrome, she cannot even carry a knife. Kasi accumulation eh. Binubugbog mo araw-araw. Eh pano nya mapapatay ang asawa nya, baka pagsunod hindi na nya kaya buhatin eh, di ba? Kasi accumulation eh. Unlike in 9262 Justice Panganiban said it. The wife can kill the husband on the third cycle, but not in number 2 cycle. Kaya nga mahirap din dun eh. Yung sinasabi cycle don, hindi naman pwede sa Pilipinas yun. That is at the first phase. So, what cycle - involves 3 phases, hindi ba? Ung first phase na sinasabi niya eh yung ano, yung verbal abuses. I mean yung if your wife is binabastos mo. Maglaba ka hoy, ang pangit mo! You just cannot – during the father’s day or the day before the father’s day, I received several text messages. Di ba 2 weeks ago ang father’s day? Probably I received a lot of text messages. Hoy! Naglaba ka na ba? Bukas bakasyon natin araw natin. Maglaba-laba na kayo. Totoo yun eh. Di ba? First phase is verbal abuses. The husband has not yet committed violence against the wife. Wait until you graduate to the valid phase. Binubugbog na at lahat, then afterwards if you will go in the third phase. When wife ,despite of all the verbal abuses, forgives the husband. Sinasabi niya oo - Lagi ko to sinasample eh. Sa case when the wife tells the husband despite of what you have been doing to me, I almost died, but I still love you. Pwede ba sa Pilipinas yan? Baka lasunin ka na nga misis mo eh!

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Do you get your example on the first cycle? Under on the first cycle, wala bang iba, ewan ko kung bakit puro (unintelligible) uulitin, ganun eh, kesa at least pumasok lang ng diretcho. Ang problema dito is the law of the battered woman syndrome is patterned from the United States of America, even that decision of Justice Panganiban. It was picked out from the decisions of the United States of America. Ang sabi ko sa America pwede yan eh. Kasi you hit your wife, then you stab the wife, the wife will call 911 and the husband will be arrested. Dito, binugbog mo yung misis mo, sasabihin ba sa lahat nitong misis mo, “Hoy, you stop beating me or I will call the policeman.” Ano sasabihin ng husband? “Ah! Magsusumbong ka ha! O sige, bubugbugin kita.” Dapat kasi there is a decision there. Halimbawa, when you also put up the defense of insanity. I think there is that defense of insanity on that the case. Session 4: DEFENSE OF PROPERTY TO FULFILLMENT OF DUTY We’ll just walk through the cases. I assigned you 2 cases. There are actually 2 cases on self-defense, but you read the cases more on absence or presence of unlawful aversions. They are all the same. In so far as reasonable necessity is concerned, we’ll pick up the case that is (unintelligible). Did you read the case of Narvaez? Nevermind. Is there such a thing as defense of one’s property? Yes, sir. What are the requirements? Sir, there must be no progression, not to the person, but to the property. The issuances given depend on the aggression and lack of appropriation. Nevermind that case in the meantime. The case that was advised. But the defense of one’s property should not that the life of the person in possession of the property be in danger? Sir, it is not necessary that life… Nevermind, nevermind that case. Disregard that case so that we will understand that case. The rule is, I completely discussed the exceptionality. That case of (unintelligible) is exceptional. Let’s go back to the case of (unintelligible) in the meantime. When we speak of defense of one’s property, is it not that the life given in defense on one’s self, life or limb, of the person determines himself to nature in defense of one’s self? Sir, I think that it is important that there must be imminent danger to one’s self. In other words, if you defend your property, you defend your property from forces forcing to take the property from you, so if you life is in danger or somebody is forcing you to give your property to the robber, should not that your life likewise is in danger in defense of one’s property? Yes, sir. So, if you are sleeping in the house, no body attacks you except that somebody was bringing out your TV, and your right is not in danger because you are sleeping, do you still put up defense of one’s property if it is (unintelligible)? Sir, no since there is no unlawful aggression. On the person? Therefore, the rule is that your life must be in danger because otherwise there is no unlawful aggression as an evidence. But you cannot kill somebody else if your life is not in danger. If you kill somebody else when your life is not in danger, and then say that you acted in self-defense or in defense of one’s property, no. That’s the rule. If you are here now and somebody stole and is stealing your car, then you go and then fire your gun and then kill the carnapper without your life being in danger? It should be the life of the person owning the property was likewise in danger. That is the meaning of unlawful aggression. Your life or limb must be in danger. But in the case of Narvaes, what did the Supreme Court say? Sir, according to that case, it is not necessary that there be a danger in the life or limb of the person as long as… In other words, Narvaez was able to put up defense on one’s self? Or defense of one’s property because according to the Supreme Court aggression in defense of one’s property is sufficient even if there is no aggression on the life of the person owning the property as long as there is an aggression on the property?

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Sir, according to (unintelligible) the court did not revise the defense of defense of one’s property was not accepted since the means used to repel the aggression was not (unintelligible). So in other words, he was still liable. That’s why I said that case is simple because we would not probably put up a complete defense of one’s property. Your life is not in danger. What was the attack? What was the aggression in that case? Sir, they were – the supposedly owned (unintelligible)… The aggression was from the property, they were trying to fence the property, which was the reconfiscated property. But his life was not in danger. They did nit even try to cuff him. But the Supreme Court said that the unlawful aggression on the property is already sufficient. But if the aggression is only on the property, there could be no complete defense of one’s property. Why could there no complete defense of one’s property if your life is not in danger? Why is that when there is no complete defense of one’s property if your life is not in danger or aggression on the property is sufficient? It could not be. There is such thing as complete defense of one’s property when your life is not in danger. That’s why when that case came out, the issue there is whether or not there is complete defense of one’s property, but whether or not aggression on the property is sufficient. There is no complete defense. Supposing somebody takes your property, and pointed a gun at you, give me your money or else I will kill you. Then you grappled for the possession of the gun. And then as a result, you killed the robber. Can you put up complete defense of one’s property there? Yes, sir. Why? It is unlawful aggression. Why can you put up complete defense of one’s property? Sir, because there is unlawful aggression. There is unlawful aggression on your life. So if there is an unlawful aggression on your life and you’re owning a property, then you can put up a complete defense of one’s property because the means employed to prevent or repel the attack will now be reasonable. But if somebody enters your house while you were sleeping, and then somebody brings out your television set, then your were awakened. You fired a shotgun. Is there unlawful aggression? No. There is unlawful aggression on the property, but there is no unlawful aggression on yourself, therefore, you life in not in danger. Can you put up complete defense of one’s property in that example? No, sir. No, because the use of the gun or shotgun is no longer reasonable to prevent or repel the aggression on your property. So if you want to put up a complete defense of one’s property, your life should be in danger. If you life is not in danger because unlawful aggression is only on the property, then what will be present? Is that the only thing you conclude? Justifying circumstance under paragraph 1 of Article 13 because you would not probably prove reasonable necessity of preventing or repelling the attack because there was no attack made against you, but there is on your property. It does not change the rule. Only that in that case unlawful aggression was sufficient on the property, but there would be no complete defense of one’s property (unintelligible) that is what I was trying to say. Have you heard about battered woman syndrome? Yes, sir. What is it? Are you married Mr. (Tapales)? Very good. Because I thought you were you a battered husband (laughter). The battered woman syndrome is infliction of either physical or psychological harm to your spouse or to a woman. It has to undergo… You heard the case of (unintelligible)? Yes, sir. Is it true for the husband? Sir, according to her she stabbed her husband…

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Not according to her, according to evidence. According to the evidence, she hit the husband with the pipe, metal pipe. (unintelligible) Where is the location of the wound? Sir, at the back. At the back. Here. How many wounds did the husband suffer? Sir only one. But as a result, the husband died. Yes, sir. What was the defense of the wife? In the lower court. Nevermind the decision of the Supreme Court. In the lower court, she said that her husband was trying… She put up a defense of? Self-defense. She said that she killed her husband in self-defense. Yes, sir. Why did she kill her husband in self-defense? Because prior to that, she said that her husband was trying to kill her by getting a blade from his wallet while trying to open the drawer with a gun. Do you agree with the defense, that she acted in self-defense based on the evidence? Based on the evidence… In your opinion, do you think that she could put up a defense of self-defense, in your opinion? No, sir. Why? Based from the evidence, she was able to enter a room and lock the door, so by that time… But there were no witnesses (unintelligible) as to the manner of killing? None, sir. In the manner of killing I think there was no unlawful aggression since there was… Was there an eyewitness to the killing? None. To the manner of the attack? None. There is none. But why is it that she is (unintelligible) she could not put up a valid self-defense under those circumstances? Because reports say that there was no unlawful aggression. Kaya nag, bakit nga? Because the husband was asleep. Pero the burden of proof when you put up a justifying circumstance is seated on the accused because the (unintelligible) then (unintelligible) accused she killed her husband in self-defense. You put up self-defense, then it is now on the part of the accused

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to prove with convincing evidence that all the essential elements of self-defense are present. So what else that they could not put up self-defense aside from the (unintelligible)? Did the court categorically state that the husband was sleeping? No, sir. She wasn’t able to prove that there was unlawful aggression. Is there proof to know that the husband was sleeping? (unintelligible) When she admitted that she killed her husband… There was none. There was none. In your own opinion, can she put up self-defense let alone the courts ruling, in your opinion? It is very hard because of the location of wound. The wound is at the back. If you put up self-defense, even if there is a single wound, the location of the wound is at the back, there is no need for any explanation on the part of the accused that she killed her husband in self-defense. It cannot be believable because the wound is at the back, then that means that the assailant was facing the back of the victim and therefore the victim could not have anticipated the attack. That is the meaning of that – that’s what the court meant when it said that it could not even be said that the (unintelligible) qualifying aggravating circumstance of treachery because of the possibility that the assailant was facing the back of the victim, and therefore, the victim could not have seen the attack that was forthcoming on order to prevent or repel it. (unintelligible) location of the wound? Sir, no. The husband might have been sleeping, but (unintelligible). What is the other defense that she put up? Aside from the fact that she acted in self-defense? Yun yung tinatawag na unlawful aggression. It is very hard to put up unlawful aggression because of that location of the wound, unless the eyes of the victim were at the back where he could see the attack from the back. Probably, you can imagine a situation where the victim was facing unlawful aggression in self-defense. What else? What was the alternative defense that she put up? She put up an alternative defense of insanity, is it not? Although I said at that time (unintelligible) under paragraph 1 of Article 12. But in that case, was there really insanity under exempting circumstance? Sir, I think none based from the fact. We’ll take the issue on insanity when we take up paragraph 1 of Article 12. Insanity likewise is a very hard defense to prove even if you are (unintelligible). Kahit na na-ospital ka na sa mental hospital, hindi ka pa rin lusot for purposes of insanity as (unintelligible). We will take it up when we take up when we take up (unintelligible). But during a recent case in the Supreme Court, there was a novel issue that was brought up by the Supreme Court involving (Penalosa). What happened? The novel issue was with regard to the battered woman syndrome. Because it appeared from the evidence that (Mrs. Equivel Penalosa) was a battered wife. What did the Supreme Court say? The Supreme Court said that she… There was no yet battered woman syndrome as a valid defense at that time. There was no yet law recognizing battered woman syndrome because that case, that decision of the Supreme Court was I think dated January 13, 2004. There was no yet law allowing battered woman syndrome as a valid defense. Now, that case happened after the affectivity of 9262, the Act of Battered Woman Syndrome? Yes, sir. Is it necessary that the husband in a battered woman syndrome be likewise the unlawful aggressor in self-defense? unlawful aggression is not necessary as long as… But here in the provision of 1962, what does the law provide in definition of battered woman syndrome? Ano ang nakalagay dyan as a valid defense in a crime of parricide? Even the essential elements of self-defense are not present there, therefore, it is an independent defense in a crime of parricide. It states that even if the husband is asleep, the wife can kill the husband as long as it falls under the battered woman syndrome. The only thing that you have to do is the woman is a battered woman suffering from battered woman syndrome. (unintelligible) because the law states ii very clear. Even if the essential elements of selfdefense are not present, di ba? So, there will be now certain defenses available in Article 11 no longer exist. They have included battered woman syndrome because there is an intention of crime. If it is an intentional crime, then you allow battered woman syndrome, then it would seem that the battered woman syndrome will act in accordance with law because you are not criminally liable and therefore that may be included already in Article 11 with all the acts there, even if you committed a crime, act in accordance with the law. What is battered woman syndrome? Sir, it involves physical and psychological abuse to a woman…

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(unintelligible) Pati babae rin nambubugbog ng asawa. Sir, violent reaction. Okay, go ahead. As referred to (unintelligible), under the battered woman syndrome it must undergo at least 2 cycles. That was the comment that I was saying as (unintelligible). According to the definition of 9262, there seems to be accumulation. There is a pattern that is being established by the husband in inflicting violence. This law covers all kinds of violence, not only limited to physical violence. Ano itong mga violence na it according to 9262? Apat yan. Sexual violence, physical violence, economic violence, psychological violence. Apat. Andyan yung mga lusot ng husband, if you do not remit your money to your wife (unintelligible) economic violence, to control the management of their own property. Hindi mo binibigyan ng kwarta, at may hanap-buhay siya. (unintelligible), bigyan mo nalang ng kwarta mo. Sobra na. There was (unintelligible) who was interviewing a probably battered wife. After they have been (unintelligible) this reporter was interviewing the woman. “Are you aware there is now a law, battered woman syndrome that you will not go to prison anymore?” (unintelligible) The wife answered, “Mamayang gabi, papatayin ko na yung asawa ko.” (laughter) But it is not easy. After the law became effective in 2004, I have yet to see a husband killed by the wife and the wife was able to put up the defense of battered woman syndrome. You see it is easier to put up self-defense as a valid defense. Mas madali pala ang (unintelligible) alam mo doon masakit sa harap. Kung matutulog yung husband mo, saksakin mo sa harap. (Laughter) Because there are many stories out of that location of that wound that the husband was the unlawful aggressor therefore the husband (unintelligible) anticipated the attack because he was killed frontally. Ang problema kasi ay pinalo nya sa likod. Pag pinalo mo sa likod, it’s very hard to prove unlawful aggression at the part of the victim. That’s what happens. Mas mabuti pa. But this battered woman syndrome ay mahirap. You cannot apply the definition of battered woman syndrome in America because they have a different culture. Sa mga babae, pwede ba yun, yung dalawang (unintelligible) pero pag verbal abuse, then violence, you go and kill the husband? The first cycle when the husband will go back to his old ways, verbal abuses, then violence (unintelligible) husband, then after that cycle, then you go kill your husband. That is the time you can put up battered woman syndrome. Sabi ko nga, by the time that the 2 cycles have passed, the wife cannot be anymore able to carry the knife. Bugbog sarado na yan. Mahirap talaga. ((Crosstalk)) Nakarining na ba kayo ng parricide gamit ay battered woman syndrome? Mas mabuti pa ang self-defense, just chose the location of the wound. (Laughter) The law says as long as, of course, your answer in the first example is correct, (unintelligible) brother B provoking Mr. C, he can’t even defend his brother as a result of a provocation attacked Mr. B because he did not take part in the provocation. Supposing the next problem, Mr. A shouted at his brother. Okay Brother B, go ahead and attack Mr. C. He attacked Mr. C and then C, as a result of defending his brother B was killed. Is A now liable? Sir, yes, he is liable. I thought you said that the law says, he did not take part in it. He did not take part in the provocation. What do you understand when ‘did not take part in the provocation? Is it necessary that he himself participate in the provocation through overact like telling Mr. B to attack Mr. C? Or is it sufficient? Ano? Sir, the limitation is that (unintelligible) his brother to do that. But that is considered participation. Therefore he could not put up defense of one’s relatives. That would be sufficient participation. There is no need in actually participated in the provocation that is why it is sufficient. In fact, he might even become a principal (unintelligible). He was the one who told his brother, “Go ahead.” (unintelligible) may be an accomplice, giving moral support to his brother by (unintelligible) his act although it is not necessarily to accomplish the act. What about in that example, Mr. A and Mr. Mr. B were second-cousins. In the first, my example they were brothers. A was the brother of B. Assuming that A and B are second-cousins, in example number 1, Mr. B provoked Mr. C in the presence of Mr. A, and A and B are second-cousins. Then when C tried to attack Mr. B, A who is the second-cousin of B, defended Mr. B and in the process killed Mr. C. Can Mr. A put up a defense of a relative? Sir, no. Why? (unintelligible). Stranger, because he was outside of the relationship. Second-cousins, that would be fifth. It would be fifth degree of consanguinity. Why could he not put up defense of a relative?

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Sir because he is no longer part of the (unintelligible). Yes, but I’m there under number 3. Requirement number 3. Paragraph 3 of Number 3, defense of a relative. The part number 3 is not participated that makes the one defending him as liable or not liable? Sir, (unintelligible) he is not (unintelligible) by revenge, resentment or evil motive. Or evil motive. So it depends. It will depend because you will have to prove that he is defending a stranger not because of hate or revenge. But supposing in the second example, A and B are second-cousins and A gave the order to B, “Okay, continue attacking Mr. C.” And then made Mr. C bring out a knife and attacked Mr. B and then A defended Mr. B in the process, A was able to able to kill Mr. C. Is that a defense of a stranger? Sir, no because his actions would constitute in instigating (unintelligible). He may not be able to avail. That might be an evidence of hate of revenge. Let’s now go to number 4. We are now talking about number 4 where there is a civil liability. (Lubaoan)? (Laughter) Now, we were talking about number 4 under justifying circumstance there is no civil liability because there is no liability because there is no crime committed. But we are talking about number 4, that there is a civil liability, not because of the nature of the crime. My question is what are the essential elements in order that one can avail of paragraph 4, Article 11? (unintelligible). Evil? Kulang yun. Evil or? Pag sinabi mong evil (unintelligible) (Laughter) Hindi mahirap kabisaduhin kasi meron kadugtung yon. Pag sinabi mong evil kasi… Sir, actual evil. Ha? Actual evil. Actual evil. What actual evil? Actual evil, sir. Evil sought to be avoided actually exists. That is number 2. There must be – what kind of evil is it? Sir, actual evil. Anon nang evil ang sinasabi sa batas? Is it really evil? Danger, sir. Danger, maraming danger dyan. If you try to avoid something, you try to avoid something. Why are you avoiding that something because of that? The (unintelligible) of the devil? Danger. Danger or? Evil. Ganun pa rin. Sige, number 2.

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That the act done to avoid the (unintelligible) greater than the act done in order to avoid it. That the injury feared be greater than that done to avoid it. Yan ang gumawa. (Laughter) Number 3. Number3, sir, that there is no other practical… Practical? Practical lang ba? Pag practical lang, liable ka nyan. Or less harmful means to avoid it. Give me an example, yun na lang. Sir, for example, you are driving car. And then in front of the car there is… (unintelligible) white lady. (laughter) Baka yung example mo hindi mag-apply dyan. Baka (unintelligible) poor pa yan. You are drining a vehicle, you might be liable under culpa. That is poor example. Because you can avoid accidents. If you use the example of one driving a vehicle, you might be liable under culpa. It could be intentional na you avoided him. Meron sa quasilaw 21. Have you here about – there is 1 (People vs. Pica and Pica vs. Smith) 2176. The driver of a tanker, of a gasoline tanker. Nasa quasi-law nyo yan e. That is an old case. And then the driver was about to deliver gasoline inside the gasoline station, but the tanker was (unintelligible). So instead of the driver bringing the gasoline tanker to the gasoline station, but there were several houses near the gasoline station, he brought the tanker to another place although it was burned, there were also houses that were burned, the damage was much – the damage could have been worse if the tanker blew up inside the gasoline station. That is a case in your quasi book. Another example would be about (Jetson), have you heard about (Jetson) in your commercial law? What happened to (Jetson)? Sir, for example, (unintelligible) the nature of (unintelligible) the only way you can take the shipment to San Carlo. And the act of (unintelligible) on the part of the (unintelligible) under the circumstances. What is the danger of the actual injury – or the injury that actually exists in that example? (unintelligible) It has to be injury or evil that actually exists. You cannot just (unintelligible) intentional destruction of property. There is danger or simply the lesser danger. In the vessel or ship, what happened to the tanker or to the crew members or passengers? Their lives are in danger. That is the injury or evil. It cannot be avoided so how do you avoid a vessel or how do you prevent a vessel from sinking when the vessel is on the high seas? (unintelligible) I think there is a rule in (Jetson) tanker or the vessel. We will talk about (Jetson) and then we will vote. Pinagbobotohan yan eh. E kung naandun si Drillon. (Laughter) So (Jetson) is part of the cargo. What is the purpose? (unintelligible) Why did they throw overboard part of the cargo? Sir, probably… What is probably? That is the requirement. Why did they have to throw part of the cargo? To (unintelligible). If you save the ship from sinking, what do you save aside from the ship? You save the passengers and the crew. The lives of those who are inside it, and also the cargo that are already inside the vessel. All the essential elements are present. But there is a procedure underlying there. Bcc the law says or what you read is that there is a civil liability on the part of the boat, and where is the civil liability there? The liability would be on the part of the persons that benefited(unintelligible). Who are they? The owner of the vessel, the owners of the cargo saved, and the owners of the cargo that were thrown? All of them because all of them benefited from the (unintelligible) of the civil liability (unintelligible) civil liability the reason who committed the crime, but a civil liability that is (unintelligible). The law clearly states that it is not an exception actually because if there is no crime, there is no civil liability that what it says. They said it in paragraph 4 that is not a civil liability by reason of the commission of a crime is a civil liability (unintelligible) bomb. The act of (unintelligible). Number 5. Sir, lawful exercise of a liability or a duty. Duty? What duty? You said exercise of duty. Lawful exercise of duty.

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Lawful exercise and fulfillment of a duty. Exercise in the sense that it is exercise of a right. (Article 1455) states exercise of a right… To cause injury? One has exercise of that right? Is that what you mean? Can you cause damage to the property of another through the exercise of a right it will cause to damager to a property of another because you are exercising a right? Is that what you mean? Sir, the right to exercise should be lawful and by doing so should (unintelligible) offense or malice. Didn’t I ask you to read People vs. Francisco Sycip on BP22? That is very clear there. It is a violation of BP 22, the Supreme Court allowed exercise of the right of (unintelligible) of BP 22. Magandang example yan. What happened in that case? Sir, in that case, the (unintelligible) under contract. He bought a condominium. The sale of the condominium is governed by (PD 1985), I think, that’s the Condominium Law. In other words, in that law, there are some protection that are given to the buyers for the units. But the (unintelligible) condominium units are sold and call that pre-sale. In other words, the unit is not yet there, but the builder is already allowed to sell. But we do not yet see the condominium. Because of this final agreement, (PD 1985) protects the buyer. (unintelligible) condominium based on that agreement. But there is already payment made by the buyer. Pre-sale yan e. What happened to Mr. Sycip? (unintelligible) provision for the… Provision for the checks. Then (unintelligible) breach… Masyado kang maaga. So he issued post-dated checks. For every check that was issued, monthly check, that corresponds to the payment of completion. If the rate of completion of the condominium is 10%, then there is a corresponding post-dated check to pay the 10% completion until it is complete. So, there is an advanced payment but post-dated check. But the advanced payment is depended on the rate of completion. (unintelligible). What happened? He paid the, I think the (unintelligible) he was saying that the other party did not complete it, although na complete siya. So when (unintelligible) deposited the checks were dishonored because Mr. Sycip stopped the payments of the checks, but at the same time he had no funds. He stopped the payment of the checks, but he had no funds. Under BP 22 if you stop a payment of a check then the bank is mandated in case at the time the checks were dishonored, if there were sufficient funds. And the bank said he stopped the payment of the check but there were no sufficient funds. If that is the case, then the owner is still liable. Even if you ordered the payment of the check, if at the time the stop order was made, if there were no sufficient funds in the check, you can still be liable for violation of BP 22. He stopped the payment of the check, but there were no sufficient funds, and therefore liable under BP 22, is it not? What was the defense of Mr. Sycip? His defense was exercise of the right… Exercise of the right? What was the right to be exercised? (unintelligible) property. His right to stop the payment. Why? Because under the law, under (PD 1985) if the (unintelligible) are not fulfilled the obligation or completion of this condominium unit, then it is the right to cancel the construction on the valid defense that the acceptance of the right by Mr. Francisco Sycip was acquitted and so the (unintelligible). What about fulfillment of a duty? What do you understand by fulfillment of a duty? Sir, (unintelligible) unlawful exercise of duty and then (unintelligible) duty and that the means used to accomplish this duty… Let me give an example. Guards, in this case a jail guard, he is guarding a prisoner. The guard tried to escape so he grabbed the gun from the jail guard. They grappled for the possession of the gun. Then later on the jail guard was able to get the gun from the jail guard then the jail guard was able to get back the gun. And then the jail guard ran. He was running. The jail guard fired the gun at the prisoner, suspected prisoner. And then he died. What defense can the guard put up? Supposing the jail guard tried to escape, a prisoner tried to escape under the custody of a jail guard, grabbed the gun from the jail guard, then the jail guard fought with the prisoner as a result the prisoner died. What defense can be put up? Fulfillment of a duty or defense of one’s self?

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Sir, (unintelligible) defense is the fulfillment of duty. Legally, the prisoner grabbed the gun from the jail guard. The jail guard fought with the prisoner. As a result of the grapple for the possession of the gun, the gun fired, the prisoner died. What defense can the jail guard put up? They were grappling the gun? Yun na nga? What defense can he put up? The easiest defense that the can put up? Self-defense? He can put up self-defense because the prisoner is the aggressor. Supposing the gun did not fire and the gun fell to the ground. And then the prisoner now is running. In other words, he is now escaping. And then the jail guard fired the gun and then hit the prisoner at the back. What defense can he put up? Can he still put up self-defense? No. Why can he not put up self-defense? Because the prisoner is running. Because the aggression had already ceased when the gun fell from to the ground, is it not? So he cannot anymore put up selfdefense. But he picked-up the gun and then fired the gun because the jail guard was (staging). What defense can he put up? Sir… Can he put up fulfillment of a duty? No sir. Why can’t he not put up fulfillment of a duty? Sir because (unintelligible) prisoner to… But his duty is not to kill. What is his duty? To take in the custody… (unintelligible) but supposing he fired a warning shot? Do not run because I will fire my gun. He still insisted and then he fired the gun. And that is the only way to stop his from escaping, their firing the gun. That is the time that he can put up for fulfillment of duty. Then last, Mark, tapusin mo na. (Laughter) Obedience to a lawful order. That is the easiest one. Fulfillment, I mean, obedience to a lawful order of a? Superior order? Let us start with judicial killings. You are a soldier (unintelligible) under judicial killing. (unintelligible). Supposing – later on na lang. Your superior officer there is a soldier (unintelligible) following the orders. Are you liable? Sir, no. You are not liable? Sir, it depends. Liable ka nun. Why is it lawful to order the killing of somebody else. Liable ka because murder is unlawful. It should not be ordered even if it comes from a superior officer. But the order is unlawful. Pwede bang lawful and pumatay? Hindi di ba? Everybody finish the assignment. I’ll give you a long assignment. Konti lang.

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Transcript of Justice Peralta Lectures SESSION 5: EXEMPTING CIRCUMSTANCES

What is the element of dolo which is absent in exempting circumstances circumstances? Either freedom and intelligence. Is there a crime committed? Yes. What is the effect of an exempting circumstance? There is a crime but there is no criminal. Exempt from criminal liability but not for civil liability. Exception: In paragraph 4 and paragraph 7 of Article 12, there is no civil liability as well as criminal liability. Enumerate the exempting circumstances. See Article 12. Read RA 9344 in relation to par. 2 and 3 of Article 12. What do you understand by imbecility? A person is of age but who has the mental capacity of a minor. Like mongoloids. What do you understand by insanity? What should you prove so that insanity will be considered an exempting circumstance? According to People v. Ely Boy So, you have to prove that the person who committed the crime was insane immediately before, during and immediately after the commission of the crime. What about in People v. Genosa? Did the Supreme Court consider her insane? No. She was only given the mitigating circumstance of pars. 9 and 10 of Article 13. If an accused is a mental patient undergoing treatment, can he avail of insanity as an exempting circumstance? Yes. However, what is important was proof of what he or she did immediately before, during and after the commission of the crime. If these are acts of sane persons, thinking persons, he is not entitled to the exempting circumstance of insanity. In People v. So, there were 18 stab wounds. Four of which were fatal. All of them came from behind the victim. This is evidence of treachery and premeditation and therefore belies the claim of insanity. RA 9344 says that if the offender is 15 years or below, then the offender is exempt from criminal liability. They may be exempt from criminal liability but not from civil liability. You exempt the minor from criminal liability but you require him to pay for civil liability. What else should be done? The minor will be released to the parents, or guardians, or DSWD. Then, he will undergo an intervention program. Under the old law, there was no intervention program. The minor is exempted from criminal liability, pays the civil liability and that’s all. If an offender is more than 15 years but less than 18, acting without discernment, he is also exempt from criminal liability but not from civil liability. He will then be released to his parents, guardians, or DSWD then undergo an intervention program. Under the old law, if you invoke an exempting circumstance, the burden of proof is on the part of the accused. Under the new law, when a minor is arrested, then the arresting officer will have to determine the age of the minor. This will be done through his birth certificate, baptismal certificate, other related documents, interview of the child, testimonial evidence, etc. If despite all of these, you still cannot determine the age of the minor, the offender will be presumed a minor. Under the old law, there is no presumption of minority. However, under the new law, if you cannot ascertain that the age of the offender who raises the defense of minority, you have to presume minority. An intervention program is actually a program prepared by the DSWD. The court has no authority over its preparation. If you are a minor offender, 15 or less or more than 15 but less than 18 acting without discernment, then no case will be filed against you. The DSWD or the arresting officer will prepare an intervention program. The minor is not treated as an offender under the law. The law seeks to rehabilitate the minor. He will be released to the parents, guardians, etc. but he has to comply with the intervention program. If there are no parents because he was abandoned, he will be released to the DSWD. If the minor is abandoned or neglected or even if there are parents but they do not agree to an intervention program, then the remedy would be a petition for involuntary confinement under PD 603. The purpose of intervention is to rehabilitate the child. Unlike under the old law, even if you look like a minor and you raise the defense of minority, it will be the same. A case will be filed against you in the fiscal’s office. This is because that is a matter of defense that you have to prove. If you are exempt from criminal liability because you are a minor, you will just pay the civil liability and that’s it. That’s the end. Except if the court finds you guilty and suspends your sentence under Sec. 192 of PD 603. Example. 9 and below under the old law, exempt from criminal liability but you have to pay the civil liability. That’s the end of the proceedings. No rehabilitation program. Under the new law, 15 and below and 15 and above but less than 18 acting without discernment, then no case shall be filed against you. What happens is that you are exempt from criminal liability, pay the civil liability and undergo an intervention program. If the offender is between 15 and 18 acting with discernment, then they will determine what is the penalty. If the offender is between 15 and 18 acting with discernment, he is the only minor who may be criminally liable under the new law. If the offender is between 15 and 18 acting with discernment, then it will go to the fiscal’s

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office to determine probable cause whether there is a need to file an information. However, you will have to determine what is the penalty of the crime he committed. Even if there is probable cause that he committed the crime but the penalty for the crime committed does not exceed 12 years, then criminal proceedings may not proceed. Because before the arraignment, if the penalty imposable is less than 12 years, the minor is given the chance to admit his criminal liability. But that is not equivalent to plea of guilty during arraignment. Admission will be off the record. If he admits, then the case will no longer proceed to trial. The minor will now undergo what we call a diversion program which will be prepared by the court. The diversion program is the same with intervention program. It is also for rehabilitation of the minor offender. The only difference is that in a diversion program, a case had already been filed in court. In an intervention program, there is no case filed in court. The diversion program is prepared by the court; the intervention program is prepared by the DSWD. If however the penalty for the crime committed is more than 12 years, then it will proceed to trial. He will now be treated like an ordinary accused. If the court finds him guilty of the crime, then the court will promulgate its judgment whether acquittal or conviction. In that promulgation, then the period to appeal will begin to run. What will happen, which is mandatory for the court, is to suspend the sentence. Thereafter, there will be an intervention program after conviction. The purpose of this is to rehabilitate the minor. If the minor is rehabilitated because of the intervention program, the DSWD will now ask for dismissal of the case. If the court finds reason to believe this, the court will then dismiss the case. However, if the minor is incorrigible, then he will be treated like an ordinary offender. He will be returned to the court to serve his sentence. But there is a new development in 9344. Sec. 42 of that law states that “For this purpose, Section 4 of Presidential Decree No. 968, otherwise known as the ‘Probation Law of 1976’, is hereby amended accordingly.” Read Declarador v. Gubaton, G.R. No. 159208, August 18, 2006. If the incorrigible minor offender is brought to the court for service of his sentence, he may still avail of the probation law. Declarador v. Gubaton said: The law (RA 9344) merely amended Article 192 of P.D. No. 603, as amended by A.M. No. 02-1-18-SC, in that the suspension of sentence shall be enjoyed by the juvenile even if he is already 18 years of age or more at the time of the pronouncement of his/her guilt. The other disqualifications in Article 192 of P.D. No. 603, as amended, and Section 32 of A.M. No. 02-1-18-SC have not been deleted from Section 38 of Rep. Act No. 9344. Evidently, the intention of Congress was to maintain the other disqualifications as provided in Article 192 of P.D. No. 603, as amended, and Section 32 of A.M. No. 02-1-18-SC. Hence, juveniles who have been convicted of a crime the imposable penalty for which is reclusion perpetua, life imprisonment or reclusion perpetua to death or death, are disqualified from having their sentences suspended. If you look at the Probation Law, Sec. 4, you have fifteen days from promulgation of judgment to apply for probation. Now that minor whose sentence was suspended and the promulgation was suspended 6 months ago, may still avail probation. This is notwithstanding the fact the 15-day for perfecting an appeal had already lapsed. Even if the judgment has already been final and executory (because it has been made 6 months ago), a minor can still apply for probation because Sec. 4 of the Probation Law has been amended by Sec. 42 of RA 9344. Another difference between the new law and the old law is the determination of discernment. Under the new law, it is the arresting officer who decides whether the offender acted with discernment. Unlike under the old law, the court determines whether the offender acted with discernment. It is up to the accused to prove lack of discernment. Now, before the case is filed in court, the arresting officer has to determine discernment. Suspension of Sentence of a Minor There are now three laws that are applicable to suspension of sentence of minors: (1) PD 603, Sec. 192, (2) RA 9344, Sec. 38, and (3) RA 9165, Sec. 66. What is paragraph 4? Accident. Could you, as a rule, be liable for the performance of a lawful act? No. Under par. 1 of Article 4, you can only be liable for a wrongful act. Exception: If you perform that lawful act with negligence. If you do not perform the diligence of a good father of a family in performing the lawful act, then it becomes culpa. Under par. 4 of Article 12, you perform a lawful act but still you cause injury to another. But the injury was caused by mere accident. What do you mean by mere accident? Unforeseen. Inevitable. In par. 4, is there a crime committed? There is no crime. This should have been a justifying circumstance. That is the reason why there is no civil liability. What is paragraph 5? Irresistible force. What do you mean by irresistible force? What if someone says kill A or I will pinch you? Irresistible force is determined not by what you’re asked to do. It is determined by the force employed upon a person. The force must also be proportionate to the act sought to be done. Irresistible means that the force applied to you must be proportionate to the act that you are supposed to do.

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The irresistible force must be present during the commission of the crime. Here, there must be physical force at the time of the commission of the crime. Why exempting? The act is not voluntary. There is no freedom. What is paragraph 6? Uncontrollable fear. Is it necessary that the fear be present at the time the crime is committed? No. Can uncontrollable fear be present even before the commission of the crime? Yes. That fear may be present even a day before the commission of the crime. This is unlike irresistible force which is required to be present during the commission of the crime. Here, there is no need for a physical force to be present at the commission of the crime. Paragraph 7? Insuperable cause. This is only applicable to omissions. What is insuperable cause? What is lawful cause? SESSION 6: MITIGATING CIRCUMSTANCES What is the effect of a mitigating circumstance? You do not lower it by one degree. The rule is you will impose the penalty in the minimum. Not by one degree. Are all the elements of dolo present in mitigating circumstance? Yes, all are present. That’s why the offender is criminally liable. But there is a diminution of intelligence, intent, and freedom. What are the different mitigating circumstances? See Art. 13. What is the difference between a person more than 15 but less than 18 acting with discernment and one who is over 70 years of age? More than 15 but less than 18 with discernment is considered a privileged mitigating. Over 70 years of age is merely an ordinary mitigating circumstance. What are incomplete justifying circumstances? Under pars. 4-7 of Article 11, can there be an incomplete justifying circumstance? There is none. The incomplete justifying circumstances lie only under pars. 1-3 of Article 11. When is there an incomplete justifying circumstance? When there is unlawful aggression on the part of the victim but the other two requisites are absent. What if there is no unlawful aggression but the second and third requisites are present? There is no incomplete justifying circumstance. There must always be unlawful aggression. Read People v. Narvaez, G.R. No. on Defense of Property. In this case, there was unlawful aggression. The unlawful aggression was on the property. However, means used was not reasonable. Narvaez shot the unlawful aggressors with a shotgun. That was not nice. People v. Narvaez provides in part: The following provisions of the Civil Code of the Philippines are in point: Art. 536. In no case may possession be acquired through force or intimidation as long as there is a possessor who objects thereto. He who believes that he has an action or a right to deprive another of the holding of a thing must invoke the aid of the competent court, if the holder should refuse to deliver the thing. Art. 539. Every possessor has a right to be respected in his possession; and should he be disturbed therein he shall be protected in or restored to said possession by the means established by the laws and the Rules of Court (Articles 536 and 539, Civil Code of the Philippines). Conformably to the foregoing provisions, the deceased had no right to destroy or cause damage to appellant's house, nor to close his accessibility to the highway while he was pleading with them to stop and talk things over with him. The assault on appellant's property, therefore, amounts to unlawful aggression as contemplated by law. Illegal aggression is equivalent to assault or at least threatened assault of immediate and imminent kind (People vs. Encomiendas, 46 SCRA 522). In the case at bar, there was an actual physical invasion of appellant's property which he had the right to resist, pursuant to Art. 429 of the Civil Code of the Philippines which provides:

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Art. 429. The owner or lawful possessor of a thing has the right to exclude any person from the enjoyment and disposal thereof. For this purpose, he may use such force as may be reasonably necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of his property (Emphasis supplied). The reasonableness of the resistance is also a requirement of the justifying circumstance of self-defense or defense of one's rights under paragraph 1 of Article 11, Revised Penal Code. When the appellant fired his shotgun from his window, killing his two victims, his resistance was disproportionate to the attack. WE find, however, that the third element of defense of property is present, i.e., lack of sufficient provocation on the part of appellant who was defending his property. As a matter of fact, there was no provocation at all on his part, since he was asleep at first and was only awakened by the noise produced by the victims and their laborers. His plea for the deceased and their men to stop and talk things over with him was no provocation at all. Be that as it may, appellant's act in killing the deceased was not justifiable, since not all the elements for justification are present. He should therefore be held responsible for the death of his victims, but he could be credited with the special mitigating circumstance of incomplete defense, pursuant to paragraph 6, Article 13 of the Revised Penal Code. Is there an incomplete exempting circumstance? No such thing. What is the difference between incomplete self defense where: The first and second elements are present, the third is absent? Here, is incomplete self defense. There will be a privileged mitigating circumstance in this case under Art. 69 because a majority of the elements for justification is present. The penalty will be lowered by two degrees because there are two elements present. The first is present, the second and third is absent? Here, there is also an incomplete self defense. There will also be a privileged mitigating circumstance in this case under Art. 69 unlawful aggression is present. However, the penalty will only be lowered by one degree because only unlawful aggression is present. What is the difference between a privileged mitigating and an ordinary mitigating circumstance? A privileged mitigating circumstance cannot be offset by an aggravating circumstance. An ordinary mitigating circumstance can be offset by an aggravating circumstance. If the penalty is indivisible (reclusion perpetua or death), a privileged mitigating circumstance will still be applied. It will lower the penalty by one or two degrees. If the penalty is indivisible, ordinary mitigating circumstances will not be appreciated. Ordinary mitigating, as a general rule, only lowers the penalty to its minimum but not by degree. When do we apply par. 3 of Article 13? Lack of intention to commit so grave a wrong. It applies only to intentional crimes; when the liability falls under par. 1 of Art. 4. You are committing a felony although the wrongful act be different from that which he intended to commit. Is there a difference between immediate vindication and passion or obfuscation? When are you entitled to par. 5? Immediate vindication. When the act was committed in the immediate vindication of a grave offense to the one committing the felony (delito), his spouse, ascendants, or relatives by affinity within the same degrees. What is a grave offense? A crime committed against the person or honor of an individual. It is not necessarily a serious offense. If one commits a crime of rape against a daughter and the father kills the rapist, what mitigating circumstance can be appreciated? What do you mean by immediate? It means immediate vindication of the honor of your family. You do not act with revenge. Revenge is an aggravating circumstance. It may fall under evident premeditation. Can you appreciate both mitigating circumstances in one case? Yes. Like in People v. Genosa. This is an exceptional case. What is passion or obfuscation? The emotions are too high and too powerful that a person cannot control his acts. Read People v. Francisco Abarca, G.R. No. 74433, September 14, 1987.

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People v. Francisco Abarca provides, in part: We agree with the Solicitor General that the aforequoted provision applies in the instant case. There is no question that the accused surprised his wife and her paramour, the victim in this case, in the act of illicit copulation, as a result of which, he went out to kill the deceased in a fit of passionate outburst. Article 247 prescribes the following elements: (1) that a legally married person surprises his spouse in the act of committing sexual intercourse with another person; and (2) that he kills any of them or both of them in the act or immediately thereafter. These elements are present in this case. The trial court, in convicting the accusedappellant of murder, therefore erred. Though quite a length of time, about one hour, had passed between the time the accused-appellant discovered his wife having sexual intercourse with the victim and the time the latter was actually shot, the shooting must be understood to be the continuation of the pursuit of the victim by the accused-appellant. The Revised Penal Code, in requiring that the accused "shall kill any of them or both of them . . . immediately" after surprising his spouse in the act of intercourse, does not say that he should commit the killing instantly thereafter. It only requires that the death caused be the proximate result of the outrage overwhelming the accused after chancing upon his spouse in the basest act of infidelity. But the killing should have been actually motivated by the same blind impulse, and must not have been influenced by external factors. The killing must be the direct by-product of the accused's rage. We, therefore, conclude that Article 247 of the Revised Penal Code does not define and provide for a specific crime, but grants a privilege or benefit to the accused for the killing of another or the infliction of serious physical injuries under the circumstances therein mentioned. What do you mean by sufficient provocation? Sufficient provocation immediately preceded the act. Why did the person commit a crime in par. 6? There is a difference between pars. 5 and 6 on one hand and par. 4. Where do they differ? In pars. 4, 5 and 6, there is diminution of voluntariness. In par. 4, there is physical suffering. In pars. 5 and 6, there is moral suffering. Physical suffering goes away more easily. Moral suffering lingers more. Can you still put up sufficient provocation even if there is a lapse of time between the commission of the crime? No, because par. 4 states that sufficient provocation or threat on the part of the offended party immediately preceded the act. But in pars. 5 and 6, there is also the word immediate. What does that mean? Does 5 and 6 allow an interval of time to lapse? Yes. 5 and 6 allows an interval of time to lapse between the commission of the grave offense and the commission of the crime. This is not allowed under par. 4. The reason is that in pars. 5 and 6, the pain is moral. Moral pain or suffering lasts longer than physical pain. If you allow a sufficient interval of time in par. 4, the act now becomes revenge. Revenge is not mitigating; it is even aggravating as it is tantamount to evident premeditation. How many mitigating circumstances are there in par. 7? There are two: voluntary surrender and voluntary plea of guilt. When is there voluntary surrender? A crime was committed by Mr. A. So he is now a suspect. If he is now arrested by police officers and, upon such arrest, he says that he now surrenders. Is he entitled to the privileged mitigating circumstance of voluntary surrender? A crime is committed but no case was yet filed in court. You are the suspect and you are already positively identified by witnesses. Then, the policemen looked for you. Then you go to the police station and voluntary surrender yourself. Is that voluntary surrender even if a case is filed later on? Yes, because a case has not been filed against him yet. But supposing the parents told him to surrender. And he followed his parents and went to the police station to surrender. Is that voluntary surrender? Is there a difference if a public official was the one who told him to surrender? If it were a public official who persuaded the suspect to surrender, it would not be voluntary surrender. If it were the father telling his son to surrender, it would be voluntary surrender. In one Supreme Court decision, a person surrendered voluntarily. Then during the trial, he said that he did not commit the crime. But he proved that he surrendered voluntarily before the filing of the case. If convicted, would you appreciate voluntary surrender? No. The voluntary surrender must be coupled by an admission or an acceptance of guilt. Upon surrender, he has to admit to the commission of the act, even if not to the crime. However, during trial, he may put up self-defense. If there has already been a warrant issued by the court, is there voluntary surrender? It depends. If the policemen already started serving the warrant, then you surrender after that, there is no longer voluntary surrender. But if the authorities have not yet started serving the warrant and you voluntarily surrendered, you will be entitled to a mitigating circumstance.

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The voluntary surrender must be coupled by an admission of the act, not necessarily guilt. Because if what is admitted is the guilt or the commission of the crime, it will fall on plea of guilty. When must plea of guilty be made? It must be made prior to the presentation of evidence for the prosecution. What if he pleaded not guilty during arraignment, but he pleaded guilty during the pre-trial? There was a withdrawal of the plea of guilty so there was re-arraignment. Then, he pleaded guilty. Is he entitled to the mitigating circumstance of plea of guilty? Yes, because the prosecution has not yet started presenting its evidence. What if there had been arraignment, plea of not guilty, pre-trial, and trial. During the trial and before the presentation of evidence for the prosecution, accused stands up, withdraws his plea and gives a plea of guilty, is he entitled to the mitigating circumstance of plea of guilty? Yes, because the prosecution has not yet started presenting its evidence. If a witness is presented in a crime of murder, but that witness is not an eye witness. It was the wife of the victim who testified as to the civil liability of the accused. No evidence was yet presented as to the criminal liability of the accused. Then the accused withdraws his plea of guilty and substitutes it with a plea of guilty. Is the accused entitled to the mitigating circumstance of plea of guilty? No, because the prosecution has already started presenting its evidence. The law does not distinguish between presentation of evidence for the criminal liability and presentation of evidence for the civil liability. What about the mitigating circumstance of physical defect? When are you entitled to it? If the physical defect will not affect the commission of the crime, you will not be entitled to this mitigating circumstance. Example: You lack two hands. The crime committed was oral defamation. Your physical defect will not entitle you to a mitigating circumstance. Supposing a rapist only had one hand and one foot, will he be entitled to a mitigating circumstance? It depends on the manner of committing the crime of rape. If the rape was committed when the victim was unconscious, no mitigating circumstance. If the rape was done through force and intimidation, there will be a mitigating circumstance of physical defect. You have to relate the defect and the manner of committing the crime. What about par. 9? Partial deprivation of intelligence. What about par. 10? Analogous circumstances. Extreme poverty can be a mitigating circumstance in the crime of theft. Jealousy? Yes, if the emotion is so powerful and there is no sufficient lapse of time. It may be analogous to passion or obfuscation. In this case, however, it must be based on lawful sentiments. It should not be based on hearsay. Cleptomaniac? Debatable. Sleep walkers? Exempt, according to the Supreme Court, because there is a complete absence of intelligence. The problem is that there is no “analogous circumstances” provision in Art. 12.

Session 7: AGGRAVATING CIRCUMSTANCES What are the different kinds of aggravating circumstances? What are qualifying aggravating circumstances? Qualifying aggravating circumstances change the nature of the crime. It brings a crime to a higher penalty. Like Homicide, with treachery. It becomes Murder. The treachery qualifies homicide to murder. It changes the nature of homicide. Treachery becomes an essential element of murder; part and parcel thereof. Treachery which has been an essential element of murder, cannot be offset by mitigating circumstances. What are inherent aggravating circumstances? It is an essential element of the crime. It is part and parcel of a crime. It does not bring the crime to a higher level. If you remove that aggravating circumstance, the crime is not committed. One example is dwelling in trespass to dwelling. If you remove the dwelling, then there is no more crime. In robbery, treachery is inherent. You do not tell the victim whether you will rob him at a particular date, time and place.

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What are generic aggravating circumstances? Those that are common to all crimes. What is the effect of an aggravating circumstance? It will increase the penalty but in no case exceed the maximum. circumstances. It does not apply to qualifying circumstances.

However, this only applies to ordinary aggravating

What are special aggravating circumstances? Those not found under Art. 14 but are considered as aggravating circumstances because a special law provides for its application. A special aggravating circumstance cannot be offset by a generic aggravating circumstance. Examples: Illegal Possession of Firearms, RA 8293, Sec. 1 States: “If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance.” Dangerous Drugs Law, RA 9165, Sec. 25 states: “Notwithstanding the provisions of any law to the contrary, a positive finding for the use of dangerous drugs shall be a qualifying aggravating circumstance in the commission of a crime by an offender, and the application of the penalty provided for in the Revised Penal Code shall be applicable.” What are the different aggravating circumstances? See Art. 14. What is the aggravating circumstance under par. 1? Taking advantage of public position. If a public official commits a crime, will that be considered taking advantage of public position? Not necessarily. Advantage must be taken of the public position. If a public official’s position is an element of a crime or inherent in the crime, then there is no taking advantage of public position. Like those found in articles 204-245 of the RPC: malversation, technical malversation, direct bribery, etc. All of these crimes are committed by public officers in the discharge of their duties. When does public position become an aggravating circumstance? When it is not taken as an element of a crime or is not inherent in the crime. There are also crimes where taking advantage of public position is an element of the crime although not found in 204-245 of the RPC. An example is persuading a public official to commit a crime which is punishable under the Anti-Graft and Corrupt Practices Act, par. A, Sec. 3. An example is a policeman. The duty of a policeman is to protect the community. If he is the first one to kill or rob, his being a policeman is aggravating. Being public officer is not inherent in the crime of homicide or robbery. The policeman will be liable for homicide or robbery, with the aggravating circumstance of taking advantage of public position. It is considered as aggravating when the policeman performs an act not in the discharge of his duties but probably in relation to his duties. Those that are intimately related with the performance of the position are considered aggravating circumstances. Example, a government issued firearm is used by a policeman in killing. That will be taking advantage of public position. But if the crime is malversation, even if advantage was taken of his public position, the public officer will not be liable for an aggravating circumstance of public position. This is because public office is an essential element or is inherent in the crime of malversation. What is aggravating circumstance par. 2? You relate this to par. 5. What makes it aggravating in par. 2? The public officer is present. You are aware of his presence as a public officer and you still commit the act. But if you are not aware that he is a public officer and you commit a crime, then you will not be liable for this aggravating circumstance. This is because the essence of this aggravating circumstance is the contempt or insult to public authorities. The public officer must be present and the accused must know that he is a public officer when he committed the crime. In par. 5, is the presence of public authorities necessary? No. What is important in this case is the place of commission, not the presence of public officers. Even if there is no insult or contempt against public officers, you will be liable as long as the crime was committed in any of the designated places: the palace of the Chief Executive or in his presence, where public authorities are engaged in the discharge of their duties, or in a place dedicated to religious worship. Supposing the crime was committed where public authorities are engaged in the discharge of their duties and, at the same time, public officers were actually there, what will be the aggravating circumstances to be appreciated? Par. 2 or par. 5, or both? If the offender was aware of the presence of public officers in the place where they are engaged in the discharge of their duties, you will appreciate both pars. 2 and 5. This is because they are separate and distinct from each other. There will be two aggravating circumstances.

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Supposing in a town fiesta, you commit the crime in the presence of a Mayor and you know that he is the Mayor. Will you be liable under par. 2 or under par. 5? If you know that he is a mayor and you commit the crime, you will be liable under par. 2. If the mayor then was discharging his functions, you will also be liable under par. 5. What is par. 3? Applicable to all crimes? No. This aggravating circumstance applies only to crimes against persons. In crimes against chastity, you cannot consider sex. It is inherent therein. When is it aggravating insofar as age is concern? Why is par. 3 aggravating? It shows the greater perversity of the offender to commit the crime. If you can commit a crime against an old man, against a woman, or against a ranking official, then there is no reason that you cannot commit the same against any other person. What about par. 4, dwelling? What is dwelling? Any structure used exclusively for rest and comfort. Does it include boarding house? Yes. Hotel? Yes. The place where you stay for the meantime, that is your dwelling because that is the place where you take your rest. Even if you rent it or you do not own it, it will be your dwelling as long as you take your rest there. In most of the crimes, dwelling is absorbed. Like in violation of domicile, robbery with force upon things, trespass to dwelling. In crimes against persons, dwelling may be aggravating. Like rape, homicide, murder. If it is robbery with force upon things, then dwelling is inherent, like in robbery in an uninhabited place. But if when you enter an inhabited, then you rob the house and then after robbery, you commit homicide or rape, robbery becomes robbery with violence against or intimidation of persons. In this instance, dwelling is considered as aggravating. But if it is simply robbery with force upon things, dwelling is inherent. Supposing A, B, and C entered into the house of D. Once inside the house, D was forcibly taken outside of the house. Then D was killed 1 kilometer away from the house. Will dwelling be considered an aggravating circumstance in the crime of murder? Yes, even if D was taken outside of the house, as long as the crime was initiated inside the house, dwelling can be appreciated. Supposing a store is adjacent or part of a house but a door or wall separates the store and the house. The crime was committed in the store. Will dwelling be appreciated? No, because the place of commission must be exclusively for the rest and comfort of an individual. If the crime was committed in the store, dwelling will not be appreciated. But if there is no wall separating the store and the house, then the store becomes part of the house. Killing inside the store will be aggravated by dwelling. What is abuse of confidence? In abuse of confidence, there is a special relationship between the offender and the offended party. After a long period of time and you get close to each other and trust one another, there is confidence established. The abuse of confidence, however, must not be inherent in the crime, otherwise, it will not be considered. Like in estafa under par. 1 of Art. 315, abuse of confidence is inherent. Also, abuse of confidence is inherent in qualified theft under Art. 310 and under Art. 337 on qualified seduction. Abuse of confidence may be appreciated in crimes against persons. What is obvious ungratefulness? In obvious ungratefulness, there is ingratitude by the offender against the offended party. Like when you send him to school, before he can’t even buy soap, you give him toothpaste, you clothe him, you adopt him, then he commits a crime against you. What is the aggravating circumstance of nighttime? Uninhabited place? What is band? Is band appreciated in crimes against property like robbery? Is there a crime of robbery with homicide in band? If the crime committed is robbery with homicide, robbery with rape, robbery with intentional mutilation, or robbery with serious physical injuries under pars. 1 and 2 of Art. 294, and the robbery was committed by more than three armed malefactors, the aggravating circumstance of band will be appreciated. However, if the crime is simple robbery or robbery under pars. 3, 4 and 5 of Art. 294 and it was committed by more than three armed malefactors, then the crime is robbery in band. Here, band will be inherent; it will not be aggravating. See Art. 295. What is par. 7? Is this appreciated in all crimes?

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If it is a crime of theft, and the theft is committed on the occasion of a conflagration, shipwreck, earthquake, epidemic or other calamity or misfortune, the crime will be qualified theft under Art. 310. See last sentence of Art. 310: “or if property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance.” In this case, par. 7 or Art. 14 is inherent in the crime of qualified theft. It will not be appreciated as an aggravating circumstance. What is par. 8? Distinguish aid of armed men from band? In aid of armed men, you use them to insure or afford impunity. In band, three or more armed malefactors actually participate in committing the crime. What is par. 9? Who 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 the RPC. What do you understand by final judgment? Judgment that has been final and executory. The 15 day appeal period had already lapsed. What do you mean by same title of the RPC? Homicide, Murder, Frustrated Murder, Rape, and Parricide are all under the title Crimes Against Persons. Theft, Estafa, Robbery, and Arson are all under the title Crimes Against Property. Somebody was convicted by a crime of frustrated homicide. Then the judgment has become final. The court how orders his arrest. While inside prison, he commits a crime of homicide. Is he a recidivist? Yes. What is par. 10? That the offender has been previously punished by 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. In par. 9, it is prior conviction by final judgment. In par. 10, it is previous punishment. If it is previous punishment under par. 10, the offender must have committed the crime after serving his sentence. But in par. 9, the law says prior conviction by final judgment. Will that include a crime committed while serving his sentence like in the example above? Yes. Reiteracion is only applicable after you have served your sentence. That is the meaning of previous punishment. The elements of recidivism are: (1) previous conviction by final judgment and (2) the crime committed must belong to the same title of the RPC. Example: A was convicted of rape. While in prison, he committed a crime of homicide. Is he a recidivist? Yes, because rape now is a crime against persons. B was convicted of acts of lasciviousness. While in prison, he committed a crime of frustrated homicide. Is he a recidivist? No, because the two crimes are embraced in different titles of the RPC. If not a recidivist, then what is he? He will be a quasi-recidivist under Art. 160. That article provides: “Besides the provisions of Rule 5 of Article 62, any person who shall commit a felony after having been convicted by final judgment, before beginning to serve such sentence, or while serving the same, shall be punished by the maximum period of the penalty prescribed by law for the new felony.” In par. 10, the penalty for the second crime should be higher or equal than to the first crime committed. If the crime is frustrated homicide and the other crime committed is acts of lasciviousness, reiteracion will not apply. This is because the penalty for acts of lasciviousness is lower than that of frustrated homicide. But if there are two counts of acts of lasciviousness and the first crime committed is homicide, reiteracion will apply. The penalty for homicide is higher than that of acts of lasciviousness. But there are two counts of acts of lasciviousness (two crimes to which the law attaches a lesser penalty). Therefore, reiteracion will apply provided the accused has previously served his sentence for homicide. What is par. 11? Price, reward or promise. It is very hard to find a crime that is aggravated by this paragraph. You usually become a principal by inducement if you give a price, reward or promise. If it’s a crime against persons, the person who killed another will be liable for as principal by direct participation in homicide aggravated by price, reward or promise. The person who gave the money will be liable as principal by inducement. What is par. 12? Why an aggravating circumstance? It shows the greater perversity of the offender.

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What is par. 14? Forms of mental trickery. How do you differentiate evident premeditation, abuse of superior strength and treachery in pars. 13, 15 and 16? In what crimes are they applicable? Only in crimes against persons. In rape, can you appreciate them? Yes, because it is now a crime against persons. What is necessary in evident premeditation? In evident premeditation, the planning of the killing and the actual execution of the crime must be separated by a sufficient amount of time. There must be a sufficient interval of time between the planning and the killing. The offenders must be given a sufficient amount of time to ponder and reflect upon their criminal plan. Despite of the sufficient interval of time, they still committed the crime. Therefore, evident premeditation must have been done prior to the commission of the crime. Supposing A, B and C planned to kill D. A will drive the vehicle, B will be the look out while C will kill D. Immediately thereafter, they went as planned. They executed as was devised. Was there evident premeditation? No. There is none. There should still be a sufficient interval of time between the planning and the execution. Even if 7 or 8 persons participated, killing by coincidence, would not be attended by evident premeditation. What is important is the interval of time. He must have reflected upon the act. After reflection, he still persisted in committing the crime. What about abuse of superior strength? You first have to determine when there is superiority in strength. What is aggravating is not merely superiority in strength but the abuse of superior strength. When is there superiority in strength? The plurality of the offenders vis-à-vis the offended parties does not automatically show superiority in strength. You have to weigh all the factors. It is not only the physical built of the offender. It will also depend on the weapon used and the manner of committing the crime. Once you have determined superiority in strength, you then determine whether there was abuse of that superiority in strength. When do you say that the offender took advantage of that superiority of strength? When the offender used it to weaken the defense; when the offender used it to commit the crime with impunity; when the offender used it to facilitate the commission of the crime; when the offender used superior strength to ensure the commission of the crime; or when the offender used superior strength to commit the crime with certainty. You have to show the manner of committing the crime. Supposing there are four armed men against one woman. But the woman was killed by punching the woman, is there abuse of superior strength? None. If somebody held the hands, one person held the shoulder, the other held the stomach and the last stabbed the victim, is there abuse of superior strength? Yes. The victim is defenseless. If all three aggravating circumstances of evident premeditation, taking advantage of superior strength and treachery are present in a crime, how many should be appreciated? Only one. All of them may be considered. However, for purposes of computing the penalty, only one aggravating circumstance will be applied. Treachery will absorb abuse of superior strength and evident premeditation. Why? Because they serve the same purpose. All of them were used to commit the crime with impunity. What is treachery? 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. The victim was stabbed at the back, is that treachery? Not always. If the attack was sudden and unexpected, is there treachery? Not always. There is another requirement of treachery. The first is that the attack was sudden and unexpected. The second is that the offender should have deliberately cautiously and intentionally adopted ways and means to commit the crime with impunity without the victim anticipating the attack in order to prevent or repel it. You have to prove that the offenders adopted ways and means deliberately, cautiously and intentionally in order to commit the crime with impunity or ensure its commission

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without danger to the lives of the persons committing the crime and without the victim anticipating the attack in order to prevent or repel the attack. See People v. Ambet Antonio and People v. Innocencio Gonzales. People v. Antonio provides in part: It is not only the sudden attack that qualifies a killing into murder. There must be a conscious and deliberate adoption of the mode of attack for a specific purpose. It is not enough that the means, methods, or form of execution of the offense was without danger to the offender arising from the defense or retaliation that might be made by the offended party. It is further required, for treachery to be appreciable, that such means, method or form was deliberated upon or consciously adopted by the offender. Such deliberate or conscious choice was held non-existent where the attack was the product of an impulse of the moment. There would be no treachery when the victim was placed on guard, such as when a heated argument preceded the attack, or when the victim was standing face to face with his assailants and the initial assault could not have been unforseen. Thus, treachery could not be appreciated where the victim was forewarned and could have anticipated the aggression of the accused. Since the sudden shooting of Tuadles was preceded by a heated verbal altercation between Tuadles and appellant Antonio, as admitted by both prosecution and defense, then it cannot be concluded that the shooting was committed with treachery. To establish treachery, the evidence must show that the accused made some preparation to kill the victim in such a manner as to ensure the execution of the crime or to make it impossible or hard for the person attacked to defend himself. A killing done at the spur of the moment is not treacherous. People v. Innocencio Gonzales provides in part: Treachery under par.16 of Article 14 of the Revised Penal Code is defined as the deliberate employment of means, methods or forms in the execution of a crime against persons which tend directly and specially to insure its execution, without risk to the offender arising from the defense which the intended victim might raise. For treachery to be appreciated two elements must concur: 1) the employment of means of execution that would insure the safety of the accused from retaliatory acts of the intended victim and leaving the latter without an opportunity to defend himself and 2) the means employed were deliberately or consciously adopted by the offender. The suddenness of the attack, the infliction of the wound from behind the victim, the vulnerable position of the victim at the time the attack was made or the fact that the victim was unarmed do not by themselves render the attack as treacherous. This is of particular significance in a case of an instantaneous attack made by the accused whereby he gained an advantageous position over the victim when the latter accidentally fell and was rendered defenseless. The means employed for the commission of the crime or the mode of attack must be shown to have been consciously or deliberately adopted by the accused to insure the consummation of the crime and at the same time eliminate or reduce the risk of retaliation from the intended victim. Accordingly, it has been consistently held by this court that chance encounters, impulse killing or crimes committed at the spur of the moment or that were preceded by heated altercations are generally not attended by treachery for lack of opportunity of the accused to deliberately employ a treacherous mode of attack. Thus, the sudden attack made by the accused due to his infuriation by reason of the victim’s provocation was held to be without treachery. Sudden attacks made by the accused preceded by curses and insults by the victim or acts taunting the accused to retaliate or the rebellious or aggressive behavior of the victim were held to be without treachery as the victim was sufficiently forewarned of reprisal. For the rules on treachery to apply the sudden attack must have been preconceived by the accused, unexpected by the victim and without provocation on the part of the latter. What is the meaning of deliberately? If A, B, and C wanted to kill D, they all went to D specifically to kill him. Supposing A and B quarreled. Then suddenly and unexpectedly, A pulled a gun and shot B. Is there treachery? None. The attack is sudden and unexpected but the second element is wanting. A did not go to B to shoot him. See People v. Antonio. If a heated argument preceded the killing, there is no treachery. Likewise, if the killing was coincidental as when A merely met B in accident then A killed B suddenly and unexpectedly, there is no treachery. See People v. Bulan. In that case, there was a quarrel between A and B. Then the two were pacified, A suddenly stabbed B. The Supreme Court held that it was murder qualified by treachery. This is because B was defenseless when the shot was fired. The altercation was already pacified so B could not have expected any attack on the part of A. People v. Bulan said in part:

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The crime committed by the appellants is murder qualified by treachery. Although there was an altercation between Estemson and the victim shortly before the latter was stabbed, treachery nevertheless attended the commission of the crime. As this Court held in People v. Teston: We disagree with the trial court’s ruling that treachery did not attend the killing. Treachery is present when the attack is sudden and unexpected, depriving the victim of any real chance to defend himself and thereby ensuring the commission of the crime without risk to the offender. The lower court held that since Vladiner and FORCA fought on the day of the killing, Vladiner was forewarned of the danger to himself. Also, it considered the fight as evidence that the accused did not consciously adopt their mode of attack “as their confrontation was coincidental.” That the victim and the accused had an altercation immediately before the attack upon the victim does not negate the presence of treachery. In People v. Molina, we held that “[t]reachery may also be appreciated even when the victim was warned of danger or initially assaulted frontally, but was attacked again after being rendered helpless and had no means to defend himself or to retaliate.” Similarly, in People v. Villonez, this Court declared that – However, we do not share the assessment of the trial court that there was no treachery in this case because the victim had engaged in a fight previous to the killing and was thus forewarned of an attack against him. Treachery may still be appreciated even when the victim was forewarned of danger to his person. What is decisive is that the execution of the attack made it impossible for the victim to defend himself or to retaliate. The overwhelming number of the accused, their use of weapons against the unarmed victim, and the fact that the victim’s hands were held behind him preclude the possibility of any defense by the victim. In the instant case, it has been established that while Vladiner was being held down by GACO and OSORIO, FORCA stabbed him several times. However, despite Vladiner’s helpless and vulnerable condition, TESTON still hacked him repeatedly, guaranteeing that the victim would not survive the attack. This undoubtedly constitutes treachery for the means employed by accused ensured the execution of their nefarious designs upon the victim without risk to themselves arising from any defense which the offended party might have made. This case may confuse you from the other cases decided by the Supreme Court. But what can we do? It’s the Supreme Court. Evident premeditation and abuse of superior strength is applicable to rape because rape is now a crime against persons. But is treachery appreciated in the crime of rape? Supposing the rape is done dog style. If the rape is frontal, that is a crime of missionary rape. That is simple rape. But if the man is facing the back of the woman, that is also simple rape. But the manner of committing the crime is dog style. In this instance, the rape is aggravated not by treachery but by ignominy. See People v. Siao. People v. Siao said in part: It has been held that where the accused in committing the rape used not only the missionary position, i.e. male superior, female inferior but also the dog position as dogs do, i.e. entry from behind, as was proven like the crime itself in the instant case, the aggravating circumstance of ignominy attended the commission thereof. Ignominy can only be appreciated in crimes against honor. Anything that prolongs the moral, not physical, suffering of a person is considered ignominy. If physical suffering is the one that is prolonged, that is cruelty. Moral suffering means humiliation. The classic example of ignominy in rape cases is when the husband is allowed to view the rape of his wife. That is the real ignominy in rape. If A inserts his penis into the vagina of B, then afterwards inserts it into B’s anus, under the old law, the crime is simple rape aggravated by ignominy. That’s not anymore true under the new law. Now, given the same set of facts, you will have two crimes. The first one is for simple rape under Art 266-A, par. 1. The subsequent insertion into the anal orifice will be sexual assault as a form of rape. What is unlawful entry? There is an unlawful entry when an entrance is effected by a way not intended for the purpose. When you enter a window an open, is that unlawful entry? Yes. What if upon entry through a window, certain articles were taken from a house? What happens to unlawful entry? It becomes an element of robbery with force upon things whether in an inhabited or in an uninhabited place. Art. 299 and 302. Supposing you enter an opening not intended for entry and then you kill the persons inside the house, what now happens to the unlawful entry?

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Transcript of Justice Peralta Lectures The crime will be homicide or murder

If there is no yet intent to rob, then you enter through the window, then you get caught, what is the crime committed? Trespass to dwelling. There is no more unlawful entry. It becomes an element of trespass to dwelling. When do you appreciate it? Because in crimes against property like robbery, it becomes an element. When it is used to facilitate the commission a crime and it does not become an element thereof. What is par. 19? That as a means to the commission of a crime a wall, roof, floor, door, or window be broken. This is the same as unlawful entry. What is par. 20? When do motor vehicles become aggravating circumstances? The motor vehicle should be a means used in the commission of the crime. It should not be used to facilitate escape. An exception to this is the crime of murder. In this crime, the use of motor vehicles is a qualifying aggravating circumstance. What is a motor vehicle? A vehicle with two or more wheels ran by a motor. What about a wheelchair ran by a motor, can it be an aggravating circumstance? No. A wheelchair cannot facilitate the commission of a crime. What is cruelty? That the wrong done in the commission of the crime be deliberately augmented by causing other wrong not necessary for its commissions. When appreciated? In crimes against persons and property. Treachery and cruelty may be appreciated in crimes against property. See People v. Escote. People v. Escote says in part: In fine, in the application of treachery as a generic aggravating circumstance to robbery with homicide, the law looks at the constituent crime of homicide which is a crime against persons and not at the constituent crime of robbery which is a crime against property. Treachery is applied to the constituent crime of “homicide” and not to the constituent crime of “robbery” of the special complex crime of robbery with homicide. The crime of robbery with homicide does not lose its classification as a crime against property or as a special complex and single and indivisible crime simply because treachery is appreciated as a generic aggravating circumstance. Treachery merely increases the penalty for the crime conformably with Article 63 of the Revised Penal Code absent any generic mitigating circumstance. In sum then, treachery is a generic aggravating circumstance in robbery with homicide when the victim of homicide is killed by treachery. Treachery and cruelty may be appreciated in crimes against property like robbery with homicide only when treachery and cruelty attended the killing. Take note, this only applies to crimes against property only when these two aggravating circumstances attended the killing. Example: Give me your money or else I will kill you. Here, treachery is absorbed in robbery. If you merely rob, treachery is absorbed in robbery. But if the victim is asleep when the robbery was taking place and, while the victim was still asleep, the criminals killed the victim. Here, the crime will be robbery with homicide attended by the aggravating circumstance of treachery. General Rule: Treachery is applicable only to crimes against property. Exception: In Robbery with Homicide, when the killing was attended by treachery.

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SESSION 8: ALTERNATIVE CIRCUMSTANCES TO PRINCIPAL ACCOMPLICE ACCESSORY In case you are wrong, it will now go to Article 15 you know? Rather than to memorize it again. You want to memorize? Students:

No.

Professor:

Okay, let’s go to Article 15. What are “alternative circumstances”?

Student:

Sir, “alternative circumstances” depending on the case, may be related to mitigating or aggravating, if the status of “relationship” of the complication and optional 0:02:54.7.

Professor:

When is “relationship” aggravating?

Student:

Sir, for some if the crimes of 03:07.

Professor:

I’m just asking you, when it is aggravating?

Student:

Sir, it is aggravating if…

Professor:

The crime of each person.

Student:

If the offender is the descendant of the offended party.

Professor:

In all cases?

Student:

Sir, it is clear in physical injuries except in serious…

Professor:

So in other words, it will depend on the crime. It will depend on what crimes committed. So if it is a crime against property, when is it aggravating and when is it mitigating? Crime against property, like robbery cases…

Student:

Property crime.

Professor:

Crime against property.

Student:

Sir, is it aggravating even if it is or property?

Professor:

Wait.

Student:

Sir, the offended party is lower in the – of the offending crime.

Professor:

So, it will be this ascendant against the descendant aggravating? Or you have to determine what kind of crime against property, heinous crime against property? In a crime of robbery, is it aggravating, mitigating or what?

Student:

Sir, if it is committed by the offended party – if the offended party is…

Professor:

The descendant.

Student:

The descendant, sir.

Professor:

Committed by the ascendant.

Student:

Committed by an ascendant. Sir, it is…

Professor:

Crime involving robbery, ha?

Student:

Yes, sir.

Student:

Robbery, sir, is mitigating.

Professor:

So, if it is committed by the descendant against an ascendant that could be aggravating in a crime of robbery? What about in the crime of theft?

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Student:

Sir, it should be…

Professor:

No, there is absolutory cause – 332. Thefts committed by the father or the son, or descendant and ascendant, there is no crime. That is an absolutory cause under Article 332. It is in robbery that there will be mitigating or aggravating, but not intent. That is an absolutory cause under Article 332. The father is not liable for the theft or committed by the son or is not liable for the crime of theft committed against the father.

Professor:

What about acts of crimes against chastity?

Student:

Sir, in crimes against chastity, it is aggravating to all (offenders) 0:06:03.9.

Professor:

Ano?

Student:

Yes, sir.

Professor:

Only so whoever is the offended party or whoever is the offender, whether the offender is the ascendant, or he is the offended party or the descendant whether he is the offender or the offended, that is always aggravating.

Except if it becomes an element or in here it can be crime like qualified seduction. If it is committed by the father against the daughter in the crime of qualified seduction that is inherent or acts of lasciviousness in Article 339 with reference to qualified seduction that is under Article 337 that is also in the end. So, if the father commits a crime of acts of lasciviousness against the daughter, or the son against the mother, that is always aggravating. But for the crime of - if the daughter consents to a sexual intercourse – when the victim is more than 18 and she is the daughter, committed by the father that is a crime of qualified seduction. Hihirit yan. Article 337: Qualified Seduction “Relationship” under Article 337. If there is no sexual intercourse or only acts of lasciviousness, where the daughter is more than 18 years of age, consents to commission on acts of lasciviousness or consents to lascivious acts requested by the father that is also inherent as a crime of acts of lasciviousness under Article 339 with reference to Article 337. You know what? Go back to Article 337 under the same sentence - that’s a crime of qualified seduction when a daughter consents the sexual intercourse of normal knowledge more than 18 years of age that is a crime of qualified seduction committed by the father. On the second part, second sentence of Article 337 even if the girl or even if the daughter is a prostitute or of a bad reputation and more than an 18-year-old daughter consenting with carnal knowledge even if she is of bad reputation, where the father does a crime of qualified seduction, so that is inherent. “Relationship” yan, hindi yan.. Article 339: Acts of Lasciviousness with the Consent of the Offended Party Can you go to Article 339? In Article 339 that is in acts of lasciviousness referring to Article 337. So, if the daughter consents to lascivious acts she is more than 18 - consents to the lascivious acts of the father then, the crime is acts of lasciviousness under Article 339. Therefore, that is also inherent. The “relationship” there is inherent. What about crime against persons, Mr. Cabahug? Mr. Cabahug:

Sir, with regards to that question, it is aggravating if it is committed by the offending party, is older than the offended party.

Professor:

(So, to answer this question?) 0:09:36.1

Student:

Yes, sir.

Professor:

If there is an intent to kill in a crime against persons that involves the ascendants or descendants and the victim dies, when is it if it is inherent? So if it is ascendant or descendant, that’s a crime of parricide if there is intent to kill. But if the victim survives - so the father attempts on the life of the son or the son attempts on the life of the father, but there is an intent to kill, what’s the “relationship” there?

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Sorry, sir. Because it is mitigating, only if there’s no intent to kill.

Professor:

No, let me say. We will go one by one.

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Because if the father or the son dies, “relationship” is inherent. But if the victim does not die and there is an intent to kill, so what is the crime? Student:

Sir…

Professor.

The victim does not die. If the victim does not die and there is intent to kill, then that is parricide or that is attempted or frustrated parricide, because there is an intent to kill then “relationship” is still inherent. But if there is no intent to kill and then the victim suffered injuries…So when is aggravating? When is mitigating?

Student:

Sir, sa mitigating included.

Professor:

Wala ngang intent to kill eh.

Student:

Wala, sir?

Professor:

So if there is no intent to kill, physical injuries lang yan. If it is committed by the descendant against the ascendant – always aggravating yan. Because there is no reason for the son to injure his father. But if it is committed by the father against the son – physical injuries. There is no intent to kill, and therefore, physical injuries.

It will depend on the extent of the injuries. So if it is less serious or serious –aggravating yan even if the offender is the father against his son, if it is less serious or serious – aggravating yan. But if it is slight physical injuries, yon ibibigay ko yon, because there is no intent to kill. If the assumption is that there is (pardo) 0:11:59.6, parental discipline. Bali kung less serious yan, that is already too much. So that is aggravating. Even if it is the son committing crime against the father whether one day he will…lang yan, always aggravating yan, because you are not expected to injure his father. What about in the crime of rape? Student:

Sir, it is aggravating nor mitigating. It is a qualified circumstance for the purposes of (pre-conditional term) 0:12:26.9.

Professor:

Or it is. It might be ano ha?

Do you know the difference between the aggravating circumstance in Article 15? In other words, idagdag natin aggravating circumstances in Article 15, especially on “relationship” and the aggravating circumstance under Article 14? See the difference? Special aggravating and then aggravating, alternative aggravating circumstances and then Article 14. Now, if it is a crime of – di ba dun sa qualified circumstance and qualified rape, you must have to allege at the time of the incident of rape the actual age of the minor. That is how you will read up – you will study this also in remedial law – well, in a crime of qualified rape or if the victim is less than 18 years of age and the father is the offender, then he will have to allege both. On the minority the actual age of the victim at the time of the commission of the crime and the “relationship.” Now, if you prove all those true, this so, then the crime is qualified rape, di ba? But if you do not prove or he cannot prove a “relationship” of a minority or there was improper allegation of minority or “relationship”, then you cannot be convicted for a crime of qualified rape. But if you do not prove or he cannot prove the “relationship” of adultery or there was improper allegation of minority or “relationship”, then you cannot be convicted for a crime of qualified rape. The problem, however, is that in that case there was an improper allegation of minority, because when you allege minority in the crime of rape, we have to allege the actual age of the victim at the time of the commission of the crime. You cannot merely allege minority, although you can properly allege “relationship” and put that during the trial even penalty cannot be imposed because there was improper allegation of minority.

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Question: But the victim is the daughter and the accused was the father. There was an allegation of “relationship” and then proven during the trial. Can you not appreciate that as an alternative aggravating circumstance? Because anyway, that is an alternative aggravating circumstance in a crime of rape which will now make it an aggravating circumstance, because the victim is the daughter and the father is the accused. Do you get the point? So in other words, you are charged with qualified rape. So I assume that you know what is a qualified rape. If the victim is the daughter, a minor, less than 18 years of age, and then the accused is the father then you allege both circumstances. But, do you allege both circumstances especially minority? It is not complete it is just alleged minority. You have to allege the actual age of the victim at the time of the commission of the crime and likewise allege the “relationship”. So, you have to allege them properly. Now, if you put them during the trial then that minor or “relationship” shall be now appreciated and the crime now is qualified rape, because these two circumstances were properly alleged in the information and proven during the trial. But the problem is, there was a proper allegation of “relationship”. But in so far as minority is concerned, there was no allegation of actual age. Ang nakalagay lang minor. Ang sabi ng Supreme Court dyan, “There is an improper allegation of minority.” You have to allege the actual age. Do you follow? Now, if that is what happened even if you prove that at the time of the commission of the crime of rape, less than 18 yan, that minority cannot be appreciated. Why? Because of improper allegation. Do you follow? But you were able to prove “relationship” because the victim is the daughter and the accused is the father. Can you not appreciate now that “relationship”? Special alternative aggravating circumstance in Article 15. Do you follow? So in other words, if you cannot classify that as a crime of qualified rape and there is an improper allegation of minority, then you can still impose the maximum penalty because of the proper allegation of “relationship” and you were able to establish “relationship” – father and daughter – therefore, that should be appreciated as an alternative aggravating circumstance, so you can impose the maximum penalty. Do you follow? Sabi ng Supreme Court, “Hindi pwede.” You know why. So that is the difference between alternative aggravating and aggravating circumstances under Article 14. Alternative aggravating circumstances can only be appreciated in crimes where the penalty of death will not be imposed. So in other words, yung alternative aggravating circumstances sa Article 15 can be appreciated in crimes if the penalty that will be imposed is not the penalty of death. Unlike in aggravating circumstances in Article 14 where they can be imposed even if the penalty of death is to be imposed. Do you follow? Kaya sabi ng Supreme Court, “If that “relationship” will now be appreciated in order to impose the maximum penalty of death,” hindi pwede. And that is what they distinguished. Therefore, aggravating circumstances under Article 14 and alternative aggravating circumstances. Republic Act No. 9346 “An Act Prohibiting the Imposition of Death Penalty in the Philippines” Now, I will explain this to you. We will take up 9346 to illustrate what is now the effect of this ruling in view of the amendment of the Death Penalty Law in 9346. Do you understand now? Because in the crime of rape, “relationship” is always – and if they do not fall under a qualified rape, “relationship” is always aggravating whether the offender belongs to the lower degree or higher degree – immaterial, there is no such thing as a mitigating circumstance in a crime of acts of lasciviousness or even in a crime of rape. Walang mitigating yan, aggravating parati yan. except, as I said, if it is appreciated as a qualifying circumstance in a crime of qualified rape. This will now become inherent in a crime of qualifying rape. Ang Supreme Court kasi ayaw iimpose ng penalty of death before, so hinahanapan. This is a case of rape, I forgot the name, because it is a case that is usually I assigned in a crime of rape. This is the kind of rape as how to many crimes of rape are committed when the accused ejaculated twice, so that is one of the issues. The accused ejaculated twice and the accused was convicted twice by the lower court. Sabi ng Supreme Court, “There is only one crime of rape, because rape is not consummated by the number of ejaculation, but only as to whether or not there is only one slightest penetration”. So pag may slight spermiation - also created a crime of rape? Mahiya ka, pahinga yung lalaki. Isa naman. Yun dalawa na yun. But not ejaculation. That is one of the issues. Okay? Student:

Sir, just for clarifications. So alternative aggravating circumstances will only be appreciated....

Professor:

To impose the maximum penalty.

Student:

If now the penalty it will not hand down to the death.

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Yes. Kasi di ba, okay – slightly.

What is the effect of an aggravating circumstance? Di ba ang effect ng aggravating circumstance is to impose the penalty to its maximum? But never to beyond the maximum period. Let us say, let us take the case of reclusion temporal. So there is a maximum period of reclusion temporal which is eight years. Regardless of the number of aggravating circumstances, the penalty cannot go beyond reclusion temporal. Because the effect of an aggravating circumstance is to impose the maximum penalty, but in no case shall exceed the maximum. Now, if you have a penalty of reclusion perpetua to death; therefore, the penalty of death is the maximum penalty naman. Then the imposition of the penalty of death will depend on the attendant aggravating circumstances. Let us say, reclusion perpetua to death, and then if it is attended by let us say a few have taken advantage of public position, then the maximum penalty will be imposed, that means death penalty. In the case of qualified rape, supposing the rape committed is reclusion perpetua to death, but because it is a qualified rape, because it is committed by a father against a daughter of less than 18 years of age, if these are properly alleged and then proven during the trial then the maximum penalty of death shall be imposed. Do you follow? Now, but because the penalty is reclusion perpetua to death; and you were not able to allege minority, meron naiwan na “relationship” which is an alternative aggravating. So the question is, because you cannot prove a crime of qualified rape and still the penalty is reclusion perpetua to death, what is now the effect of “relationship” as an alternative aggravating? Will you now impose the penalty of death because there is an alternative aggravating circumstance of “relationship?” Sabi ng Supreme Court, “No.” You cannot impose because the alternative aggravating circumstance there will only be appreciated to increase the penalty, but not when the penalty is already the penalty of death. In other words, the alternative aggravating circumstances cannot be appreciated for purposes of imposing the penalty of death. Only the aggravating circumstances in Article 14 may be appreciated in order to impose the penalty of death. So that is the difference between Article 14 and Article 15. Professor: Yes? Student: Sir, but then the (deluded tension 23:24) that meet alternative circumstances may only be appreciated if the penalty if not death only when there are two allegation or there is an improper allegation. Professor: No. What I meant was di ba qualified rape? There are two circumstances in qualified rape. One is minority and – you look at your qualified rape in Article 335. The 10 qualifying circumstances: number one, when the victim is less than 18 and the offender is the father or grandfather. Because that is the provision in the law then you have to allegedly give probation to both minority and “relationship.” But it will be improper if you will just allege by the ruling. So you have to really allege the actual age of the minor child and the “relationship.” Now, in improperly alleged “relationship” and then proved that during the trial – no problem. But you proved during the trial that the victim was a minor, but there was improper allegation. Let us say, you just mentioned minority then that is not a crime of qualified rape because these two must be properly alleged and proven during the trial. But you were able to prove “relationship”. You were able to allege the “relationship” – father and daughter. You were able to prove “relationship” during the trail – father and daughter. Can you not appreciate that as an alternative aggravating circumstance? Sabi ng Supreme Court, “You can appreciate it if the penalty of death will not be imposed.” In other words the alternative aggravating circumstance or “relationship” can be appreciated only when you appreciate it, the penalty of death is not imposable. So in other words, what the Supreme Court said, “Only aggravating circumstances in Article 14 may be appreciated to impose the penalty of death.” Student: Even then 25:32 does it all have to be alleged otherwise… Professor: 25:38 is to allege. Student: So what would matter it will not be together… Professor: Wala na.That is why I said it must be improperly alleged and proven during the trial except with the case of People versus Catubig. Now, good that you asked me. If you do not allege aggravating circumstance, the only effect of nonallegation of an aggravating circumstance even proven during the trial is the criminal liability. So if it is not alleged even if you prove it, you

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cannot increase the penalty to its maximum period, because it must be properly alleged and proven during the trial. That is the rule. Di ba? But if your purpose of proving an aggravating circumstance, which was not alleged in the information, is to determine the civil liability of the victim as to the award of exemplary damages then you will allow it. Example: You are a judged with a crime of homicide. Yun pala, when you were trying the case, you were already establishing treachery. When you establish treachery and you are only charged with homicide then of course you will object, because you will now be violating the right of the accused to be informed of the nature of the charges against him because that is not alleged in the information. Hindi ba? So you are charged with the homicide, you cannot prove treachery. Because if you prove treachery, then you are proving a crime that is not alleged in the information. Because if you prove treachery in the killing then the crime becomes murder. So you cannot do that. But supposing I prove treachery not for the purpose of proving the crime of murder, but in order to establish that my client or the heirs of the victim are entitled to exemplary damages, you can do it. That is the case of Catubig. You can do it. If the purpose of proving in aggravating circumstance is to determine if the offended party is entitled to exemplary damages under Article – let me see, 2229…I think 2230 of the new Civil Code - then you can prove because award of exemplary damages in criminal cases may be determined by the presence or absence of aggravating. So, parang pinu-prove mo recovery of civil liability pwede mong i-prove yan pero hindi alleged. WhyBecause, what do you allege in information? Only the ultimate fact constituting the offense. Yung elements of the crime, you allege that. But you do not allege the requirements for the recovery of civil liability. Do you allege in information, the requirements of recovery with moral damages? You do not. So, you can put treachery in order to recover exemplary damages even if it is not alleged in the information, because there is no privilege that may cause to the accused, because that is not supposed to be alleged in the information yon – People versus Catubig. Okay? But all of the aggravating circumstances whether inherent, qualifying, ordinary, here, the purpose is to determine the extent of the criminal liability of the accused. Those must be properly alleged and proven to the trial as if that is the crime in itself. Okay. Yun ang (rason) don. It’s good that it was not presumed in People versus Catubig. Professor:

Okay, let’s go to Mr. Patajo. Are you related to Justice Patajo?

Student:

Yes, Sir.

Professor:

Oh, your father?

Student:

Grandfather.

Professor:

But is your father the doctor?

Student:

Yes, sir.

Professor:

Maaga nag-asawa yung father mo?

Student:

Oho.

Professor:

Your father is only around 46 ano, 47?

Student:

Ah 47 po.

Professor:

Ayun. Tatay mo pala yun. Maaga nag-asawa. Auntie mo si Lorna? Auntie mo si Lorna?

Student:

Yes, sir.

Professor:

I see. Kaya lang marami kang absences.

Student:

Sir, nagkasakit ako last week.

Professor:

Doctor ang tatay mo eh.

His grandfather (appealed) before me when I was a judge, siyempre retired na sya. His grandfather is a very good lawyer. I do not know the grandson. This one is like the father.

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So, he presented his witness for one hour and thirty minutes and then the other party started cross examining the witness. At eleven o’clock in the morning, he already started his cross examination, so, it was already twelve o’clock. So, I told the justice, “Justice, it’s already twelve o’clock. Can we continue at some other time?” But the other counsel who was cross examining the witness of his grandfather was saying, “Your Honor, we still have a lot of questions to ask on cross examination, so there is no problem.” 0:30:48.2. We disagreed but not in cross examination. But actually, he has not yet conducted cross examination, your Honor.” Ano kayang ibig sabihin nun? Walang pa siyang napapanood na maganda, di ba? Okay, so, Mr. Patajo, so your grandfather is Justice Patajo. So, that’s a relationship. What about the degree of education? Student:

Sir, it depends on the nature of the crime.

Professor:

Not determine ano? That’s the second element. The first thing is what is the degree of the education of the offender. The second one is the nature of the crime. So it will depend, therefore, on two things no? A lawyer commits a crime of rape. Is having a lawyer, high degree of education and an alternative aggravating? That is alternative mitigating.

Student:

No, sir.

Professor:

That is alternative mitigating?

Student:

Right.

Professor:

Mitigating? The lawyer commits a crime (did not matter that they were) 0:31:48.7 mitigating? Neither mitigating nor aggravating siyempre. But a lawyer commits a crime of murder?

Student:

Sir, no.

Professor:

Not also?

Student:

Not also.

Professor:

A lawyer commits a crime of estafa?

Student:

Sir, aggravating.

Professor:

Aggravating, why?

Student:

Sir, because the lawyer knows the law on how to circumvent certain things 32:15.

Professor:

Because it can – estafa is committed with deception or through fraud eh, di ba? It takes advantage. Supposing a leper – now, the leper went to school – commits a crime of rape. Mitigating or aggravating?

Student:

Not mitigating.

Professor:

Commits a crime of murder?

Student:

Sir, the same.

Professor:

Commits a crime of falsification.

Student:

Sir, mitigating.

Professor:

Why mitigating?

Student:

Sir, because if the degree of education is not that high then the aggrieved party should come up with a 32:51

Professor:

So, you will not know.

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In other words when it is rape, he does not need to go to school and learn rape. But then in falsification, even first year students sometimes they do not know “falsification.” Anything that is changed now is falsification. Dapat depende. It’s not always falsification if you need to change di ba? When you alter a document that has already been consummated or signed, it does not mean that if you change that is falsification, di ba? So a letter, okay. What about intoxication? Student:

Sir, mostly aggravating if the offender is a habitual drinker or he would be drunk for him it to be able to 33:37.

Professor:

Of course purposely intoxicated, innocent in order to call it a crime, then that is aggravating. Or he is a habitual drinker and then commits a crime, then aggravating. Otherwise, when somebody commits a crime under the influence of liquor, is it mitigating or aggravating?

Student:

Sir, mitigating.

Professor:

It will depend kung habitual or purposely which is not, then it is mitigating.

Professor:

What about drugs - under the influence of drugs? That is an alternative. I mean that is special aggravating under Section 25, Republic Act 9165. Do you know what are the special aggravating circumstances?

Student:

Sir, I do not know sir.

Professor:

Do you know special aggravating?

When a licensed firearm is used in the killing under Republic Act 8294 that is special aggravating, then also Section 25 of Republic Act 9165 that is Dangerous Drugs Law. Although the law says, that is qualifying aggravating that can also be special aggravating – qualifying aggravating. The law uses the word qualifying, but that should be special aggravating. Then the use of an unlicensed firearm in a highway robbery, under the Revised Penal Code 306, 310. I think it’s 306. Do you know what is the difference between aggravating and special aggravating? Taking advantage of public position that may also be considered as special aggravating. Special aggravating circumstances are those that cannot be offset by ordinary mitigating. Because the rule on aggravating circumstances is that aggravating circumstances can be offset by ordinary mitigating. But if it is special aggravating circumstance, it cannot be offset by an ordinary mitigating; like, taking advantage of public positions. In Paragraph 1 of Article 14 because of the provisions of Article 62, Paragraph 1A when one takes advantage of public position, the maximum penalty shall be imposed regardless of the mitigating circumstances. So, that’s the meaning of special aggravating, it cannot be offset by ordinary mitigating, okay? So, many absences, Mr. Patajo. Student:

Sir, I got sick.

Professor: Nagkasakit ka? Anong sakit mo? Baka ang sakit mo – minsan may mga sakit na ang student, eh. You can be prepared pag may sakit. Okay. So, let’s continue. Manalaysay? Okay, let’s now go to Article 16. Student:

Persons liable. The following are criminally liable for grave and less grave felonies.

Professor:

We will finish up to Article 20 to the PD 1829 and PD 1612.

Student:

Ang dami naman.

Professor:

Sixteen up to nineteen, mag-pipinsan yan eh, di ba? Ano ba ang Article 16? Who are all liable eh, di ba? Who are those liable?

Student:

Those people who are liable are those who commit grave felony, crimes that may be brought about (great grave and less grave) felonies.

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Professor:

Great grave and less grave felonies, even the principal, even if you have an accomplice, you have an accessory.

Student:

For light felonies, the persons criminally liable are the principals and the accomplices.

Professor:

So, there are no accessories for light felonies. So, what is so far the motive? Only in grave and less grave, very simple eh. The law is very simple. Pag grave or less grave felony meron accessory, may principal at saka accomplice. Pag light felony principal lang at saka accomplice, di tapos. We go to Article 17. Who are principals? Konti lang naman eh.

Student:

The following are principals: Those who directly participate in the commission of the crime. Second is those who directing force or the use of another to commit a crime. And the third is those who by cooperation take part in the commission of the crime by performing an act without which said act without having an accomplice.

Professor:

So in other words, there are three kinds of principal. Principal by the one who executes. Principal by force or inducement or the one who put point irresistible force. Those who give reward or money or promise, under Paragraph 12 of Article 14. That’s why I said this may be inherent in a crime in principal re-inducement. Those who give money, reward, promise, suspend it in order to commit the crime, or those who use irresistible force, compels somebody by irresistible force. Those with creative impulse 39:26 an agreement. These are the people who are responsible for the commission of the crime. So that is the principal re-inducement. What about the principal with indispensable cooperation?

Student:

They performed an act without which…

Professor:

The crime should not have been committed.

Student:

The crime will not get committed.

Professor:

Mahirap yun ano? Like what, give me an example of a principal with indispensable cooperation.

Student:

An example would be in the crime of rape…

Professor:

Rape? Never mind rape, walang indispensable rape? You look for a crime where the crime could not be committed without the other. Yun yung principal with dispensable cooperation. In a crime of adultery, in the crime of concubinage, di ba ang adultery is a crime that can be committed by a married woman, hindi ba? By having sexual intercourse with a man. The man cannot be liable for adultery. It is the woman who can be liable, di ba? So, the principal by very fact is the woman. The guy there is a principal by indispensable cooperation. Without him, there could be no adultery. Also in concubinage, without the woman, the man could not be liable for concubinage. So, the woman there is indispensable, di ba?

In a crime of bribery, you cannot commit the crime of bribery without a giver. Although the dealer is liable for committing a crime of corruption as a public official, he is actually indispensable in the crime of bribery. But there are other examples of principal with indispensable cooperation later on when we already learn what is an accomplice. Who is an accomplice Ms. Manalaysay? Ms. Manalaysay:

Professor:

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An accomplice are those who are not mentioned in the previous chapter, but those who took part in the commission of the crime by prior or simulataneous act. Not that indispensable, mahirap yun.

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Ms. Manalaysay: No, they are not indispensable. Professor:

So, this one they are indispensable. So, how will you now distinguish (is) dispensable cooperation?

In theory, yes, but in actuality, mahirap yan pag sinabi mong cannot be committed without a principal then it is indispensable cooperation. In accomplice, still the crime is committed even without the participation of the accomplice whether by prior or simultaneous. Do you know how they call an “accomplice” sometimes? An “accomplice” sometimes they call it “accessory” before the fact. In Article 19 an “accessory” is accessory after the fact because an “accomplice” is actually an accessory, only that his participation is before the fact, before the commission. Kasi prior or simultaneous. Unlike in accessory under Article 19, because the participation is after the commission of the crime, then you call him “accessory” after the fact in Article 19. You have only actually an accessory, but he commits the crime kasi prior or he participates prior or simultaneous. A man is already dying; he is lying full straight on the ground. Somebody fired his gun many times, seven times. So, somebody was walking. I was walking. Then he saw that man was already dying, yun pala kaaway niya. He brought out his gun and then hit him on the head, pinalo yung ulo, then died. What is the participation of the one who hit the man with a part of the gun. Student:

Sir, was he only an accomplice?

Professor:

Why accomplice?

Student:

Because it wasn’t necessary for him to have hit the man on the head because that man would have died already …

Professor:

Supposing he fired his gun and then died.

Student:

Wait, the second guy fired his gun …

Professor:

Kasi example, instead of hitting with the butt of the gun, he fired the gun instead.

Student:

And then, the person died because of the firing?

Professor:

It’s not really the problem.

Student:

If the man – the previous guy shot him already seven times?

Professor:

He is already dying…

Student:

Then he was convinced 43:40 by the first guy, but the second guy will only be the accomplice.

Professor:

So, he will be the accomplice. Why an accomplice?

Student:

Because…

Professor:

You mean there was no firing. He would die just the same?

Student:

He would die.

Professor:

There are the difference between conspirator and accomplice. Conspirators/accomplice. How will you distinguish? Yes, that is the best test of whether or not the man is an accomplice or a conspirator. Anong test?

Student:

When you’re a conspirator, the principal is the one who planned the commission of the crime. But then if you’re an accomplice, the principal had already planned the crime and they’re only proposing when you’re only being imposed of the crime.

Professor:

Proposing, proposing?

Student:

No. I mean you’re…

Professor:

Your willing to propose?

(Crosstalk)

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You propose the conspiracy to commit a crime and then you accepted it conspiracy pa rin yun? Anak, do not use the word “proposal” kasi he might become a conspirator also. When a conspiracy is already hatched, the A, B and C are conspirators, they conspired to kill Mr. D. So, these are the principals because they were the ones who conspired to kill Mr. D. If after the head acts a conspiracy and then they are now going to the place where they are supposed to kill Mr. D and all of a sudden they invited E to join them and then killed Mr. D, what is the participation of Mr. E? He is not a part of the prior conspiracy to commit the crime.

Student:

He is only an accomplice.

Professor:

He is only an accomplice as long as - may kadugtong yun.

Student:

As long as the crime was the one hatched?

Professor:

As long as Mr. E was not the one who fired the gun and killed Mr. D. Because if Mr. E even if Mr. E was only invited to join the conspirators and then proceeded there, if Mr. E was himself the one who fired the gun, he becomes a principal, di ba? By direct participation. The participation of each should not be indispensable. If he was not in the act as a lookout or what then his liability is only that of an accomplice, because he is not part of the conspiracy to kill. That’s the difference between accomplices. More importantly, an “accomplice” is one who participates prior or simultaneous. And his participation is not indispensable. When do you say his participation is indispensable and then the participation is not indispensable?

Student:

When the person would have died anyway or the person would have been consummated anyway without it…

Professor:

“A” wants to kill Mr. D but he has no gun to kill Mr. D so he went to a friend, “Pare, pahiramin mo ako ng baril, I will kill Mr. D.” So Mr. C, knowing that his gun will be used by Mr. A to kill Mr. E gave his gun. Sigue pare, patayin mo. O, eto baril. So what’s the participation of the owner of the gun?

Student:

He will be the principal by the extent of the law.

Professor:

Why?

Student:

Because without having…

Professor:

That’s the problem. There are many – is that the only way to kill Mr. D, through a gun? That is not indispensable. Indispensable is if that is the only way to kill Mr. D and yes, that’s the only available people to kill. Yun, yun ano yun, principal by indispensable cooperation. He is only an accomplice in that case.

Now, okay. Okay ha, very good. Nag-aaral pala kayo. Mas magaling ata kayo sa dating kong klase. Mas magaling kayo. Okay, let’s go to an “accessory.” Who is an accessory? Let me see, if there is conspiracy is there a need to distinguish who is an accomplice or is an accessory? Student:

Let’s say you were saying conspiracy and they arrived under the same time.

Professor:

No, in both expressed or implied conspiracy. Kasi we are talking about A expresses. So there is an agreement to kill and they actually killed the victim. What about the implied conspiracy?

Student:

I think shouldn’t we imply conspiracy necessary that is part of participation was again that such that the crime wouldn’t have been committed at all?

Professor:

In other words, there is no reason to distinguish who is an accomplice accessory, it was pure assuasive.

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The reason why we are distinguishing who is the principal, accomplice or accessory is, of course, we want to determine the extent of the liability of each of the offenders. But there is no need to determine the extent of the liability of the offenders if there is conspiracy. Because conspiracy is the act of one is the act of all and therefore, everybody liable. You’re only defending who is an accomplice or who is an accessory, who is a principal, the inducement or cooperation, if conspiracy does not exist. So, who is then an accessory? Student:

An accessory is one who harbors over such in the…

Professor:

Hwag muna. I am not asking you about the different accessory. I just want to know who is an “accessory.”

Student:

An “accessory” is one who has participated in the crime after the fact

Professor:

One who participates after the commission (crosstalk) either, number 1.

Student:

As a public officer who…

Professor:

Number 1 ka? Bakit ka napunta ka na sa number 3?

Student:

Who gains profit from the…

Professor:

Those are profits or benefits from?

Student:

From the proceeds of the crime?

Professor:

Effects of the crime?

Student:

Second is if being conceived, should they conceal the object of the crime?

Professor:

Kakasabi ko lang magagaling ang klase. (Crosstalk) No need to memorize. Initially for that word, even if you cannot memorize verbatim – but do not miss the important word. Kasi if you miss the important word, then you will hear a different meaning that might be PD 1829 that might be obstruction of justice.

Student:

Sir, the body of the crime…

Professor:

What body of the crime? What do you do with the body of the crime?

Student:

Concealment.

Professor:

Destroy, conceal, ano pa? The instrument used (in the crime) and the body of crime in order to prevent its discovery. Number three?

Student:

The public officer who assists in harboring or in the escape of a criminal?

Professor:

Again. I do not blame you kasi yun paragraph 3 kasi, if you analyze paragraph 3, there are actually two accessories in paragraph 3. Dalawa yan. Private individual and 51:01 are present. Yung number 1 sa public officer by taking advantage his public position, has assist, escapes or harbors…

Student:

A criminal.

Professor:

Hindi criminal. The person acts as the principal – the person accused of the crime. The principal in the commission of the crime or assists, escapes, harbors – or assists the escape of a person who is guilty.

Student:

Guilty of treason, murder, parricide, or attempt on the life of the Chief Executive.

Professor:

Or…

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Student:

…a habitual delinquent.

Professor:

So, there are two accessories therefore, in paragraph 3. One is a private individual. Therefore, it is a private individual. The one that is assisting should already be convicted of a crime. Convicted of any of the five mentioned in the second part of paragraph 3 of Article 19, di ba?

Student:

Yes, sir.

Professor:

Ano yun? Treason…?

Student:

Treason, murder, parricide, or attempt on the life of the Chief Executive…

Professor:

Or a habitual delinquent. But if he is a public officer…

Student:

All he had to do was – a criminal does not have to be convicted with that. It’s just that he has to have taken advantage of this public official can be (concealment) or assisting in (the schedule) 52:31.

Professort:

Or assisting the state of a…?

Student:

Principal.

Professor:

Principal of a crime. So, therefore, hindi pwedeng accomplice kundi accessory. Principal of a crime, so there is no need of one convicted of a crime or is charged as a principal in a crime. That’s sufficient as long as he takes up (complete) with the public position. 52:55, so a public officer assisted in the escape of one who is charged with theft – assisted escape. Teka, ito babangain si public official. Is he an accessory?

Student:

Yes sir.

Professor:

A private individual assisted the escape of a person guilty of the crime of homicide.

Student:

No, sir. Because what this is required is that the…

Professor:

Murder?

Student:

Murder or if this homicide – well, it was parricide. (Crosstalk)

Professor:

So, he is not an accessory

Student:

He is not an accessory.

Professor:

Because he assisted the escape of a person guilty of a crime of homicide not included in the 5 mentioned by law.

Student:

Yes, sir.

Professor:

So, murder, treason, parricide…

Student:

Attempt on the life of a Chief Executive and…

Professor:

Habitual delinquent. Very clear, ha?

Student:

Yes.

Professor:

Because we have to study this in PD329 later on.

Student:

Yes, sir.

Professor:

So, let’s go back to paragraph 1. If you profit and benefit – you profited or benefited from the effects of the crime, what does that mean?

Student:

Sir, on the scene of the crime was as an accessory because he received the proceeds of the crime.

Professor:

So, it will depend on what crime. It will depend on what crime. If you profited from the effect of robbery or theft, what’s the crime?

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Student:

That would be…

Professor:

Violation of the anti-fencing law. That is PD1612, Violation of the Anti-Fencing Law. You are courting a lady. Then another student is also courting that lady. For reasons only known to the girl, she chose the ugly one and rejected you. Nagkamali, eh. She chose the ugly one. So one day he went to their house, the girl because he wants to visit the girl. But before you arrived you saw the car of your rival, the one who won the heart of the girl that you are courting. Then, you got something sharp then you started puncturing the tires of the car of that boy. And then, you got your jack and then after you destroyed them you ran away from the destroyed 55:30. Question, what is your crime? What’s the crime that you committed? Malicious mischief yan, malicious mischief. Then what you sold, you sold the tires. Yun – those were maliciously destroyed. You made use of them by selling them. Is that the accessory?

Student: No, sir. You are the principal of the crime in that. Professor: That’s what I told you, di ba, under Article 308. Not all persons who profit from the effects of the crime are accessories under paragraph 1 of Article 19. If you are profited or benefited from the effects of theft or robbery then the crime is violation 56:19 you (are offence). Now, if you profited and benefited from the effects of malicious mischief, then you are liable for the crime of simple theft under paragraph B of Article 308. So you do not become an accessory under paragraph one. But what is the difference between an accessory and (offense). Do you know the distinctions? Student:

Sir, the distinction is that when the (offense) is usually the third party to the things of proceeds …

Professor:

Remember you applied. Pumunta ka na sa third party. We have already pointed out that the first distinction is that offense it is can only be appreciated if the crime is theft or robbery. What is the other one? There is an assumption. One he is in of the stolen item is presumed to be offense. There is no presumption as an accessory. There is no such presumption. One he is in possession of stolen items probably in the offense. What else? Penalty.

Student:

Sir, if the accessory in the penalty of the crime is…

Professor:

There can be no accessory without a principal. And a crime of fence says he is the principal of crime in itself.

Student:

Yes sir.

Professor:

Violation of 1516, there is a principle of crime which his self. Accessory, no, because in accessory there must be a principal.

Student:

Who was the convicted because if there is no crime and then there can be no accessory.

Professor:

What else? The penalty of a fence is higher than the penalty of an accessory.

Student:

The penalty for an accessory 58:25 – sir, they present that for the offence, if regardless of age of the penalty with annual amount of…

Professor:

Value of the thing.

Student:

Yes. Value of the thing which is less than five pesos.

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Professor:

What about if you profited from the benefit of estafa? What is the crime?

Student:

It is said that you are only liable as an accessory if you are liable to…

Professor:

Estafa is not covered by 58:49.

Student:

Yes sir.

Professor:

What about if you benefited from the crime of qualified theft? Is that included? Yes that is included. The qualified theft is first included. Okay.

What is actually accessory in number 2 of Article (90)s, let us see. When you destroy the instrument or conceal the instrument, what are you actually trying to do? Student:

Sir you are trying to hide the fact that attempting...

Professor:

You are concealing.

Student:

Yes, sir.

Professor:

You are hiding something in order that crime will not be discovered. What about corpus delicti? What do you understand by corpus delicti – the body of the crime.

Student:

Sir, corpus delicti not necessarily body.

Professor:

It is not necessarily physical order.

Student:

It refers to the fact that a crime is committed by a person...

Professor:

In other words, both of the crime more on the fact that circumstances are established in the commission of a crime.

Yes, that is what happened in the cases in Cebu ba yan? Where two sisters were killed and raped 1:01:07. The fiscal filed one case and information alleges that the accused were liable for the crime of kidnapping and serious illegal detention with homicide and rape. Bago yun. But in the other case, the body of the woman was never recovered. The other girl was never recovered. So what the fiscal did was to file the crime of kidnapping and serious illegal detention. He did not file a case of kidnapping and serious illegal detention with homicide and rape. That is wrong. Because according to the fiscal, the body was never found, so there is not corpus delicti. So it would be a kidnapping. Even if the body if not found, if you can prove that that person was killed and that person was raped, that is sufficient. You do need to bring to the court that somebody is – that body was autopsied and 1:02:05 (destroying) 01:02:08 evidence can prove the existence of a body of the crime that is what I am saying. Otherwise, it will be very hard for somebody to be liable as in accessory under paragraph 2. The meaning is destruction of body of the crime, therefore, that is physical object. Erasing the fingerprints. When somebody entered the house, the only way to determine an owner of the house is through fingerprints and then the police can erase the fingerprints. Is he an accessory under paragraph 2? May fingerprints di ba? Now, fingerprints ang ginawa ng police binura nya and then meron siyan nakitang fingerprints. Probably he knows the robber. Before the investigator arrived, ginawa ng police – that is what happened in the case of Webb. Yun ba yun? Yung investigator. Even in the case of Sanchez, the rape evidence of Sanchez, may mga drug stain dun sa ano, dun sa Ford Fiera. And then the policemen cleaned the Ford Fiera in order to ano, to remove the drug stain from the car. But what happened with Hubert Webb, what the policemen Biong did was to clean the door and the window pane so that the finger prints would no longer be lifted. There was an examination conducted by the SOHO. Ano yun, what crime is that? That is an accessory on the crime 63:44. It is not limited only to bribery in crime, evidence from the tomb, the commission of the crime included under paragraph 2, not only destruction. So, if you do need parts of the crime as the subject matter of the crime, a physical object, you cannot apply anymore paragraph 2. It includes anything that will prevent the discovery of the crime. Even physical evidence is included under paragraph 2.

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What about paragraph 3? So, we are finished with paragraph 3, ano ha? What is obstruction of justice there? Let us compare the two with the aggravating criminal. Student:

Sir, obstruction of justice is the…

Professor:

Importante yan.

Student:

Sir, the custody or the apprehension of …

Professor:

Okay, I will ask you. A senate hearing is conducting the distribution about graft and corruption. There is an allegation that a group of public officials are protecting the other public officials and therefore, they are preventing the witnesses to appear before a senate hearing conducting investigation about the alleged graft and corrupt practices acts committed by government officials. Are these government officials liable for preventing the witnesses to appear before a senate hearing involving the investigation of a criminal case in aid of legislation? Not covered. Nahihirapan ka, di ako na lang muna magsasabi, not cover.

Student:

Yes, sir.

Professor:

P.D. 1829 is applicable only through criminal investigations conducted, being conducted while the police or any government agency tasked to investigate the commission of crimes, police, NBI, fiscal’s office and also those that are undergoing trial. So, if you commit any of those acts mentioned in P.D. 1829, that there will be only obstruction of justice, if what is obstructed is et al. going criminal investigation. Not an investigation of the senate or congress, because their investigations are not for purposes of filing cases. Their investigations are for…what? In aid of legislation or in aid of re-election, sabi nila ha. So, not to determine who should be liable, okay. What are the acts punished under 1829? No need to enumerate it. I just want you to know what is really P.D. 1829 obstruction.

Student:

Sir, a person’s 66:39 resolution or who presents from that time.

Professor:

Parehas na - almost the same as paragraph 2 and paragraph 3 of Article 19. Paragraph 2 actually of Article 19 is obstruction, because you are preventing the discovery of the crime. So, anything that will prevent the discovery of the crime is punishable under P.D. 1829. Of course, what are not included in Article 19, yung preventing what?

Student:

Sir, preventing witnesses to appear.

Professor:

Preventing witnesses to appear was a violation of the P.D. 1829. What else?

Student:

Sir, the 67:17 of altering of evidence.

Professor:

In order to prevent the 67:22. So that’s also P.D. 1829. What about accessories under paragraph 2?

Student:

Sir, accessories after Article 19?

Professor:

Yung Article 19, paragraph 3, di ba accessory yan?

Student:

Yes, sir.

Professor:

One who will assist you to escape, di ba?

Student:

Escape or harbor.

Professor:

What is punished under P.D. 1829? What is punished in 1829 so far as assisting the escape or harboring? Wala. There is no crime. There is negative. The law does not specify what crimes unlike in paragraph 3. Kasi kung a private individual only those guilty of the crimes of –

Student:

Treason.

Professor:

Yun.

Student:

Parricide or –

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Professor:

In P.D. 1829, the law does not specify. If you harbor a criminal undergoing investigation or pending case, you are liable in P.D. 1829, di ba?

Student:

Yes, sir.

Professor:

More broader yan. More on paragraphs 2 and 3 of Article 19. Almost the same, except yun nga prevent witnesses to appear, destroy the documents. This will usually be covered by paragraph 2. Avoid the person whom you 68:45, even a suspect eh, harboring a suspect. That’s violation of P.D. 1829. One is undergoing investigation by police. Can you harbor the person that will reinvestigate? You’re liable under P.D. 1829. So, ang scope niya broader than paragraph 2 or paragraph 3.

Next question: So, there are acts that are punished in PD 1829 which are likewise punished under paragraphs 2 and 3 of Article 19. My question is, if the acts are punished in 1829, and likewise punished as accessories under paragraph 2 and paragraph 3 of Article 19, how many cases are you going to file? Student:

Sir, just one.

Professor:

Just one.

Student:

Yes sir, because the law of…

Professor:

Dyan, wala pang tinanong sa bar, eh. Yan ang ini-expect kong tanong sa bar eh. Because what is special law, eh criminal special law eh. 19 is a punishable under the Revised Penal Code. So, if the act if punished under P.D. 1829 at the same punished of that accessory, under Article 19, what do you file or acts are covered by the law? Both will apply?

Student:

Sir, because 70:08 of only one penalty will be imposed – the higher penalty.

Professor:

What the law says is that, if that arises, then the law that is violated is PD 1829. You will be charged with violation of PD 1829. However, the penalty, the highest penalty or the act that provides for a higher penalty will be the one that will be imposed. Do you follow?

Student:

Yes, sir.

Professor:

Or let’s say you assist the escape of one who is guilty of the crime of murder that is two degrees lower. Then an accessory to the crime of murder - the crime of murder is reclusion perpetua to death, di ba? So, two degrees lower for reclusion perpetua to death is prision mayor. But look at PD 1829. What is the penalty PD 1829?

Student:

Sir, 71:13.

Professor:

Lower. The penalty in PD 1829 is lower.

Student:

Yes, sir.

Professor:

But the penalty of accessory to the crime of murder is higher.

Question: What is the law violated? Then the law violated is PD 1829. However, the penalty of an accessory in the crime of murder will be the one that will be imposed. That’s the implication of that provision in PD 1829. It is still a violation of Presidential Decree 1829, but the penalty to be imposed shall be the penalty that provides for a higher penalty, when the offense or the crime that provides for a higher penalty. Walang tinanong sa bar yan, eh. Let’s go to Article 20. What is Article 20? Absolutory cause. Student:

Sir, persons who are exempt as an accessory.

Professor:

Are those?

Student:

Sir, the spouse, the ascendants, descendants, legitimate, natural, adopted brothers and sisters, or relatives by affinity within the same degrees of the affinity.

Professor:

But in so far as accessories? Anong accessory?

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Student:

Sir, this is applied the first time for the first product under Article 20.

Professor:

So, in other words, Article 20 is applicable only if the accessory falls under paragraphs 2 and 3 of Article 19. If the principal is the father in a crime of estafa and then the father goes home, “Anak, kumain kayo dito. Binili ko ito galing sa estafa.” And then the children ate. Siyempre. Are the children liable as an accessory?

Student:

No, sir.

Professor:

Because they profited from the effects of estafa? They are liable. Kasi that is accessory under paragraph 1 eh. Article 19, liable sila. bukod sa magkakasakit ang tiyan. Ang hindi liable, kung accessory falls under paragraph 2 or paragraph 3. Let’s say, Rolito Go. The wife of Rolito Go harbored her husband after he was convicted by the RTC. Di ba nag-escape siya? He went to Pampanga. I think it was found out that the wife kept the husband already guilty of the crime of murder.

Question: Is the wife liable as an accessory under paragraph 3 of Article 19, a private individual harboring a person already convicted of the crime of murder, under Article 20, liable? No, not liable. That is an absolutory cause. The effect of Article 20 is that if you fall under Article 20, you will not be an accessory under paragraph 2 and paragraph 3 of Article 19, but you become an accessory under Article 1. Anyway, my important question is this. If you are charged under the Revised Penal Code as an accessory under paragraph 2 and paragraph 3, then you fall under Article 20. By the way, Article 20 is what we call absolutory cause. That is an absolutory cause. If there should have been a crime, an absolutory cause is, there should have been a crime, but you are not criminally liable by reason of public policy. That’s the meaning of an absolutory cause. By reason of a court public, the information does not condemn you. Eh kung ginago ang asawa mo, do you think the public will condemn you for keeping your husband who is already convicted of a crime of murder? Of course, public will not condemn you. Bakit? Eh kung hinuli mo, then the wife, eh di maghanap pa ng ibang lalaki yan. Mabuti pa siya na lang. Kaya absolutory cause. Anyway, that’s the meaning of absolutory cause. There should have been a crime, but the offender is not criminally liable by reason of public policy. Like in the crime of Article 16, there is no accessory, light felony that is an absolutory cause. There was never a crime, but by reason of public policy, there’s no such thing as attempted light felony. Also in Article 7, there is no such attempted light felony except the crimes against versus of property. That is also an absolutory cause by reason of public policy. Eh, kung i-penalize an accessory in light felony, light felony pero may accessory pa, wala ka ng ikukulong baka yung judge na. Negative na eh. Ano ang penalty ng light felony, arresto menor? One month to thirty days. Two degrees lower for arresto menor. Negative. Negative plus yung ikukulong mo, judge? Wag naman. That is the reason. There is a crime. By reason of public policy, there is no criminal liability. So, supposing now, you can avail of the absolutory cause in Article 20, di ba? So, Mrs. Rolito Go, assuming that her case was dismissed. I heard her case was dismissed when they filed a case against her for being an accessory, because of Article 20. Instead of filing a case under accessory, paragraph 2 of Article 19, I now file a case against her for violation of PD 1829, which says this is a law independent from the provisions of Article 19. Question: Can she invoke Article 20? Because according to her, when I can invoke Article 20, but the fiscal will say, “You cannot invoke Article 20 because that is a special law.” What will you say? Student:

Sir, 77:25.

Professor:

You cannot invoke?

Student:

Sir, because when you are 77:30 a crime under a special penal law, you’re…

Professor:

Yes, but you can apply the provisions of the Revised Penal Code, the special penal laws under Article 10 as a suppletory law. Supplementary. That she can still avail. What application of Article 10? That is favorable to the accused. Actually, PD 1829, an accessory penalized to the same acts. The only reason why PD 1829 was enacted by Marcos at that time, walang gusting magpaimbestiga kasi nun? Kasi nananakot nung panahon ng Martial Law. Tingnan mo yung number nyan, 1829. If it is PD 1829 78:18 that was already towards the end of his rule making power.

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Mga ano yan, mga 1989. May Batas Pambansa na nung 1984. So, yung mga ayaw magpa-register, matigas na ang ulo kaya inano nya eh. So that the penalty is higher than accessory. Actually, PD 1829, in most cases, mas mataas ang penalty dyan kaysa accessory under the Revised Penal Code. Except of course if you have committed a capital offenses ng batas.

Session 9: PREVENTIVE IMPRISONMENT FOR PD 9346 ABOLISHING DEATH PENALTY We will use examples based on specific crimes under the Revised Penal Code. When you reach Article 48, of course, you should know about the complex crimes, compound and simple complex crimes, the principle of continuing offense and also continual delito, and then also special complex crimes. Although in your books, the books do not mention about special complex crimes, but as early as Article 48, at least you should know already what are the special complex crimes. So, you read Article 294, paragraph 1 so you’ll make a comparison. And then afterwards, you read likewise Article 61 to 62, yung 49 to 50, 51, these are provisions pertaining to penalties of attempted or frustrated, you just read it. After Article 48, you read up to Article 60, just read them. But when you reach Article 61, 62, 63, 64, 65 up to 69 up to 70, then you have to memorize 61, 62 up to 70. Under these articles, we likewise read the following: 1) The Indeterminate Sentence Law, likewise the Three Fold Penalty Rule. What is the Three Fold Penalty Rule under Article 70? So that’s it. I will lecture. That will be the coverage of the lecture, but I hope that when you come here, you should already read the provisions that I asked you to read. Otherwise, you will not understand what I’ll be talking. Of course, you know what complex crime is. When you talk of complex crime, we are not talking only of complex crime under Article 48, but there are other complex crimes like special complex crimes. These are not the same as complex crimes under Article 48. Professor: So your deadline is on Monday? Students: Yes. Professor: When is your revalida? When will you defend your cases? It depends on the schedule? Students: Yes. Before we start, we were talking about theft plus first time of the ___04:28. There is a decision of the Supreme Court, dated June 21, 2007, that’s the case of Valenzuela versus People of the Philippines, but that decision came out only a week ago. That decision, because that was promulgated June 21, 2007, came out after the judgment became final. Naging final lang after 15 days. Probably, that case was available only the first week of July and today is only the second week of July. Then we were talking about stages of penalty. In Article 6, we were talking about there is no crime of frustrated rape. Now there is no crime on frustrated theft. That is a new doctrine. There is no more crime of frustrated theft. In line of that decision that is an embank decision. I do not know kung bakit eh. The first case about the frustrated theft was in 1918. Ngayon lang nila iniba ang doctrine after how many years. Now, they said that there is no crime of frustrated theft. The main reason is that they now change the doctrine that the crime of consummated theft is ___05:51. The one that we are talking, if the two elements are present, one is materialization and the other one is you get the legal issues because of the manner that you would like to, the freedom to dispose. The full doctrine is that, when the freedom to dispose is frustrated and therefore, even if the thing is illegal possession, that is frustrated theft. Let’s say nahuli ka sa suma. But today, before you could bring it out, frustrated theft ‘yun. Because with the freedom to dispose of it cannot be committed or cannot be done because we have to pass through a gate guard. Ngayon wala na yung ano. The element of freedom to dispose is no longer present or is no longer an element of a consummated crime of theft. Simply because theft is the final, the loot of taking of a property. The mere fact that you already in actual possession of the thing stolen, that is already consummated as crime of theft. Even if you were arrested before you have disposed of it. In other words, because of that decision, there is no more attempted, there is no more frustrated theft. It is either attempted or consummated crime of theft. You read that decision, but sometimes it is very hard to understand because they are referring to decisions during the Spanish time. Matagal na ‘yang mga decisions na yan. But anyway, if you have some friends taking the bar exam, you have to tell them that they have to read the case of Valenzuela versus People of the Philippines, June 21, 2007. And today is already July 11. Biro mo kung di ako nagbabasa ng new cases, patay na. Because that’s what I do during my favorite time, free time. I may not be able - The only time that I can read cases is during free time. I have trial in the morning and then I come to class at 5 o’clock or 4:30. Instead of having siesta at noontime, wala na akong ginawa kundi nagbabasa. Oo, and this will be an indication. I was able to stroll in Vigan. There goes a beautiful case about libel. We won the plus 10 by Justice Azcuna. And also, probably Monday, I will also review with you a case about mistake of fact and fulfillment of the duty, pinaghalo-halo nila eh.

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So, anyway, so that’s the one that I would like you to read. And remember, Valenzuela versus People of the Philippines. You want to have a recitation or would like to recite? Well, madali naman yung mga basahin diyan. I just wanted to know what is preventive imprisonment, what is auxiliary imprisonment, what’s the difference between life imprisonment and reclusion perpetua? Lahat yan gusto kong tanungin. The rest – mahirap yung 45 at tsaka 47. So that means, I required you to read Article 45 together with Section 21 of Republic Act 2165 for destruction of evidence then Article 47. I also required you to read Republic Act 9346, the provisions involving the penalty of theft. We will read direct dictation, very easy. Professor: Just read Article 21. Anyway, ___10:02 is where the statement of the Principle of Prospectivity. We will – so that when we talk about Prospectives of Criminal Law. But just go to Article 23, what is the affect of pardon by the private offended party? Student: Sir, pardon by the private offended party does not extinguish the criminal action as a general rule. Professor: The criminal liability, imprisonment maybe exempted? Student: Except on crimes… Professor: So except it will extinguish. What will we extinguish? Is there something that is extinguished? Student: Sir, legal liability. Professor: Only the legal liability. So, you cannot extinguish criminal liability. It requires an affidavit of desistance, persecute an affidavit of desistance. Will that cause the extinction of a criminal liability by the execution of an affidavit of desistance by the private complainant? Student: Sir, I don’t think it would be enough. Professor: But affidavit of desistance – supposing the affidavit of desistance, the contents of that affidavit of desistance is that after analyzing the back side, now pardon the accused. So, those are the contents of an affidavit aside from the fact that there is no crime committed and he also stated that I’m now pardoning the accused. Will that cause the dismissal of the case? Student: Yes, sir. It would in effect be an expressed pardon. However, sir; it must be done in court. Professor: I thought you cannot extinguish the criminal liability of the accused as a rule. Student: As a rule, sir. Professor: So you cannot. You cannot bring the affidavit. Still you cannot. Student: Even. Yes, sir. Professor: Except the civil liability. Student: Yes. Professor: What is the exception? Student: Sir, the exception would be crimes enumerated in – Sir, for private guys like Rick for whom concubinage adultery but as not no longer reserve in the new law. Professor: So, because rape is no longer part of Article 335, which is crime of being rape and lascivious acts and heinous crime against person, so it is no longer a private crime. It has become a public crime. The private offended party can actually pardon an accused charged with a private crime on the Article 344. But it’s not – is there any new requirement? Student: Sir, the pardoned would be expressed and it must be done before the - in accordance with the Criminal court. Professor: Would there be an implied pardon? What about how did you express it? Is there such thing as implied pardon in private crimes? Student: Sir, probably with the – they are no longer ___12:57. Professor: “Yung concubinage o adultery.” The woman got pregnant and then the husband did not take any action after giving birth then the child is already very reformed. He’s already grown up. The husband did not take action against the wife that can be considered as applying implied pardon. That can be. So the pardon must take place before…

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Student: Before the institution of the criminal actions, sir. Professor: Roughly correct from the pardon by the President Act. There are two other kinds of pardon, but the pardon that we are referring here is the pardon that you cannot put and then cross. If the other two pardons are – the absolute pardon under Article 89 and the conditional pardon under Article 92. Okay. What about preventive imprisonment? Is preventive imprisonment or preventive measure a penalty? Student: No, sir. It is not a penalty but it can be deducted from the penalty. Professor: Never mind. Do not go refer to the effect. Student: Yes, sir. Professor: My question, is that a penalty? Preventive measure or preventive imprisonment, is that a penalty? Student: No sir, it is not. Professor: If that is not a penalty, he should be under prison. In the preventive imprisonment, one is actually dependent. Student: Yes, sir. Professor: So if you actually depend, your liberties for his arraign, for freedom, and liberty of disarraign. Therefore; if your liberty is the crime, is that not a penalty, because you cannot enjoy your liberty in the meantime? What are the preventive measures that you know? What are preventive imprisonments that you know? Student: Sir, it would be a detention by - herewith, the accused fails to file a – when he can file for bail but he has no money to Professor: Pay the bail. Student: To pay the bail, sir. Professor: What else? Student: Sir… Professor: Then the offence is not bailable? Student: Yes, sir. Professor: You are denied bail because offence is not bailable. What else? Student: Sir, when the accused is a drug addict and under rehabilitation, sir. Professor: So the period of detention or rehabilitation is likewise a preventive measure. What else? What about those who appraise on their suspension? Preventive suspension while it is suspected, does that have a preventive measure? Student: Yes sir, for public officials. Professor: What else? What about those who are suffering from – the penalty that is suffering from a mental illness. What should be causing? Student: Sir, this would directly be the confinement of a hospital or a mental hospital. Professor: We cannot proceed with the trial? How do you release a person who claims to be mentally sick? How about - it should be – can we proceed with the trial if the person is mentally sick? Student: I think the court should order the ___16:18 in the confinement ___16:20.

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Professor: You cannot discard it. Only those who can understand the rigors of trial can proceed with the trial. But if the patient – because he could not understand. You arraign him but he cannot understand, the arraignment would be invalid. In the rules of criminal procedure, even if you read the information in a dialect known to him, he will not be able to understand. You cannot proceed with the trial because the arraignment would be invalid if you insist that he be arraigned when he cannot understand. So, he will have to be confined in the mental hospital. What’s the purpose? Student: Sir, let’s say the accused cannot be impart to other people there. Professor: How come? Student: Sir, the ___17:02 cannot be a source of being envision to other people if he is… Professor: Hindi naman siya homicidal, eh. Paghomicidal. Yun, we can hunt. It’s just a homicidal tendency, in what pardon? Student: Sir. Professor: He needs a reason, a valid reason. You cannot proceed with the trial if he is mentally – if there is something wrong with him mentally, because the first thing that you do if the rule on criminal procedures is to arraign him then inform him of the nature of the charges. If the same person cannot understand the accusation against him that will become invalid in the arraignment. He will have to undergo treatment until such time that he can withstand then he goes to trial. All of these are what? Preventive measures. Student: Yes sir. But they are not considered as penalty according to the Revised Penal Code. Professor: So what’s the mere effects later on trial proceeded? What will then be the effect on preventive measure or preventive imprisonment? Student: Sir, the preventive – the accused was convicted and was given a particular sentence. The time that he spent during the time that he was on preventive measures prior to his conviction, can be used to reduce the amount of penalties through a given act of the convicted. Professor: It shall be credited. Student: Yes, sir. Professor: It shall be credited to him in full, envision that… Student: On a condition, sir, that he follows the rules and regulations. Professor: He agreed in writing. He agreed in writing to abide by and follow strictly the rules and regulation of the institution base on that for he is entitled for full credit. If he is not, then he will not be entitled to full credit. Student: Yes sir. Professor: But – that actually that is convicted. Student: Yes, sir. Professor: But supposing he is acquitted. Student: Obviously sir, it could not be credited sir. Professor: What will happen to him? He will be released. Acquitted and he will already be released from confinement. Student: Yes. Professor: Sorry na lang. Student: Sorry na lang. Professor: So that the effect is…bad experience. But you can file damages. Student: Sir, I guess the Department of ___19:18.

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Professor: There is a law allowing recovery of damages on some cases but the amount of damages that we can recover is only 10,000. You file to recover your damages. Eh, kung ___19:32 baka sisingilin ka pa ng 20,000 eh. Exact lang ang sisingilin mo. Sobra naman, di ba? Then let us go to auxiliary imprisonment. What about auxiliary imprisonment? What is auxiliary imprisonment? Student: Sir, auxiliary imprisonment is a provisional remedy issue the status netted out by the court. Sir, when a convicted cannot be in court to see ___19:57 he is imprisoned here. Professor: But not in all cases. There is a limit of this auxiliary imprisonment under the law. There are several rules on auxiliary imprisonment, so it will depend after the penalty that it is imposed. If the penalty is more than prision correccional, is there auxiliary imprisonment? Is the penalty more than prision correccional? Student: I don’t think so, sir. Professor: So, we only apply if the penalty is? Student: Sir, I think they were lower than ___20:36. Professor: Really even it is was – Ha? Student: Lower than ___20:39, sir. Lower than prision ___20:40. Professor: But it will depend if there’s a fine and then a penalty at the same time. So, if it is purely a fine, then there is auxiliary imprisonment. But in no case are exceed? Student: Six months. Professor: Six months if there is a penalty of imprisonment and fine. We’ll all see the penalties prision correccional and fine, there’s auxiliary imprisonment? Student: No more, sir. Professor: Prision correccional and fine. Student: And fine, sir? Yes, sir. But it is only higher than prision correccional and no more then. Professor: So, if it is higher than prision correccional plus fine, there is no more auxiliary imprisonment for the man. That’s the rule. But if this is only bailing of the fine, there’s already auxiliary imprisonment. Because auxiliary imprisonment is base on what? Student: Sir, base on the fine. Professor: On the fine if he cannot pay the fine. Student: Sir, base on usual ___21:33. Professor: Because it is on basis, it is not billeted, you have to pay. They have to pay the fine, by reason of insolvency because if they have still graves to pay, then they will let them. You’re not insolvent. Where is the heck to prove that this is insolvent? By reason of insolvency is that have to go to the court and they take care that they are insolvent. It is only the court that can declare you insolvent. There is a special proceeding for insolvency. So, you still have to go to court and then declare that you are insolvent. I think the meaning of insolvent there is already directly done. The accused has really no money to pay the fine. If you want to, like explaining the rules, Wala na ngang kuwarta, papalitan pa ang application for insolvency. Paano na yung driver na naconvict na walang kuwarta? And therefore, cannot pay the fine. Do we expect the driver to file a case of petition for insolvency? The meaning there is, there is no money being paid. So, that is auxiliary imprisonment. Now, what about life imprisonment? What is penalty of life imprisonment? We all don’t know imprisonment, eh. This is the topic of Article 47. Panay imprisonment yan, perpetual disqualification, fine, based on afflicted, have the different penalties that may be imposed, duration, offense of the penalties, hanggang Article 47 yan. Panay penalties.

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Student: Sir, the penalty of life imprisonment. This act, I mean, imprisonment for life imposed for trying to suit our mal a projibita and impose upon by special law suit. It does not have any accessory penalty. I don’t think it is being ___23:28. Professor: We will all repeat. Almost correct except one. Student: Sir, no fix duration. Professor: What else? No fix duration, no accessory penalty, there is no ___23:53 under a special law mala… Student: Projibita. Professor: …projibita. So, are you saying that the penalty is not imprisonment then the accused will have to serve the sentence until he dies. Kasi walang duration eh. Student: Yes, sir. For the ___24:18. Professor: So, there are cases for penalty in the law, like for example, Dangerous Drugs Law under the Republic Act 9165. You will find there penalties like, 20 years and 1 week for life imprisonment. Let’s take the case of illegal possession of shabu under Section 11. If the weight of the shabu is more than 10 grams but not more than 50 grams, then the penalty could be - if the weight of the shabu is more than 5 grams, but not more 10 grams, then the penalty is 20 years and 1 day to life imprisonment. If your answer as to the duration of life imprisonment is that there’s no duration, then you try to understand the penalty of 20 years and 1 day to life imprisonment and then we will follow your answer, then if you interpret that penalty, then it will be interpreted like this. You served for 20 years and 1 day, then life imprisonment. Kasi the penalty is 20 years and 1 day to life imprisonment, di ba? Student: Yes, sir. Professor: So you first served 20 years and 1 day, then after 20 years and 1 day, then you serve life imprisonment. Because according to you, there is no duration, eh di ba? So, there on, let’s us be open with our legislature in the Senate. The legislators eh, they do not understand the penalty that they are imposing. ‘Di ba kung 20 years and 1 day to life imprisonment, is perpetua yan? Serve 20 years and 1 day, they’re not going to be serving 20 years and 1 day, you continue serving life imprisonment. But life imprisonment has no duration. Kelan matatakot yan? In most cases, they fix life imprisonment. They decrease the length of 25 years, that’s the only way to ___26:22 to solve that problem. Di pa nila sinabing 20 years and 1 day to 30 years, di tapos. Sabihin mo pa 20 years and 1 day to life imprisonment. Like the penalty of reclusion perpetua to death. Ibig sabihin serve reclusion perpetua, then afterwards bitayin. Ganun din yun eh. When there was one guy in the seminar, they are all in a happy mood. “Judge, you are cuffing me of the shabu. What penalty are you going to impose? Then, I will impose a penalty of 20 years and 1 day for life imprisonment, because ito eh. Ganun? Interpret mo nga? What do you understand by 20 years and 1day to life imprisonment? You serve 20 years and 1 day and after serving 20 years and 1 day, you cannot get out, you continue serving life imprisonment. Ganun ang interpretation. Talaga lang, eh. But the Supreme Court solved the problem by fixing the duration of life imprisonment to 25 years. If they will encounter again the same problem, Supreme Court fixed 25 years. Okay. What about, is there a difference between reclusion perpetua and life imprisonment? Student: Yes sir, there is a difference. Professor: What is it? Student: Sir, for reclusion perpetua, it really involved crimes which are mala ___27:44 in character. Professor: Does it have a fixed period? Student: Yes, sir. It has a fixed period.

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Professor: What is the fixed period? Student: 20 years and 1 day to 40 years, sir. Professor: Therefore, does it have periods like minimum, medium, and maximum? Student: Yes, sir. According to the Supreme Court, it has a period, but only for the purposes of pardon, sir. Professor: Oh, it is. It is a fixed duration. But there is no minimum or medium, because the Supreme Court said that reclusion perpetua remains to be indivisible. When you say the penalty is indivisible, then that means that you can cope with rules. Like minimum, medium or maximum in rules. But that case is only with reference to penalty, you know? Student: Yes, sir. Professor: So, even if reclusion perpetua has a fixed period of? Student: 20 years and 1 day to 40 years. Professor: It remains to be? Student: Indivisible. Professor: For purposes of? Penalty. But not for purposes of what? Student: Inclusive pardon. Professor: What else? Student: And the Indeterminate Sentence Law. Professor: No, sorry, cannot be applicable. Indeterminate Sentence Law, it remains to be indivisible. That is also indivisible under reclusion perpetua because life’s death provision of law, reclusion perpetua is not covered by the Indeterminate Sentence Law but for purposes of pardon. Why by purposes of pardon? Student: I think, sir, you need the recommended pardon. I think for the minimum, you need a… Professor: After all you can be granted pardon, after you have serve one-third of your sentence. If you want to know what is one-third of your sentence, then there must be a fixed duration of reclusion perpetua. Therefore, if you want to determine if an accused is entitled to pardon, if the penalty of reclusion perpetua years, but you have to determine the minimum if you have already served one-third of the sentence. That is why there is a duration of reclusion perpetua. What else? Student: Sir, for the - the Threefold Penalty Law? Professor: For purposes of the Threefold Penalty Rule under Article 17. If the accused serves to be convicted of several crimes, then he should know what is the maximum or the duration of the penalty. Because you cannot serve more than three times of the penalty, which is the most severe penalty. Is that okay? Very good. Sige. Mag aral palagi, ha? You will take the bar exams, that’s the way you prepare and then you recite. Ba’t hindi ka na lang mag review? Alangan naman tatanungin kayo sa bar exams eh, what is perpetual disqualification? Hindi naman tatanungin yan. Ano ba’ng tinatanong sa bar? Preventive. You look at your notes. You read the past questions. Yan ang tinatanong. Professor: Miciano. Miciano: Yes, sir. Professor: So, therefore, there is a difference between life imprisonment and reclusion perpetua. Under that, we can identify what are the penalties that may be imposed in case you’re convicted?

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Miciano: Sir, in case of conviction, first we have death penalty. Professor: Never mind the specific provisions there. A is convicted of a crime. What would be the consequence of a conviction provision of the accused after trial? What will happen to him? Of course, there will be penalty. Miciano: Yes, sir. Professor: What penalty here the court will impose? Never mind the specific penalties in Article 25. Miciano: The convicted person can be imposed where a principal penalty, and accessory penalty, the penalty… Professor: And, and, what else? Aside from principal penalty, accessory penalty, what else? Miciano: Sentence of life death. Professor: If there is any. Student: Yes. Professor: If there is any. Student: Yes, sir. Professor: What are the principal penalties that may be imposed? Miciano: Sir, under Article 25, it was divided into clearances at the ___32:07, and then after that you have the ___32:11 which includes reclusion perpetua, reclusion temporal, permanent or temporary. Professor: Never mind. The terms permanent or temporary disqualification is not a principal penalty. That is an accessory penalty. So we are talking of principal. The temporary disqualification, permanent, civil interdiction, all of these are accessory penalties. They are not principal penalties. So, we are talking about principal penalties here. Miciano: After reclusion… Professor: Capital muna yung death. Miciano: Death and then… Professor: Capital penalty, then applicative. What are the applicative penalties? Miciano: Reclusion perpetua, reclusion temporal, and then reclusion mayor. Professor: And then what is the next rule? Miciano: And then correctional penalties, which are prision correctional and arresto menor, and destierro. Professor: Hindi, arresto mayor muna. Miciano: And then, after that we have arresto menor and destierro. Professor: Arresto mayor is what? Correccional penalty? Miciano: Life imprisonment. Professor: Life penalty. Why is destierro a penalty? Miciano: Because of the ___33:22 Professor: So, you think – well, they think that is a penalty because you are prevented for entering a certain place within the city kilometer radius. But if we are talking of a penalty of destierro, in death during – in death under exceptional circumstances. You look at your 247.

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The penalty in 247 is destierro. When the spouse surpasses the spouse in the absence for ___33:54 with another woman and then immediately thereafter, case ___33:57 both of them, then we cannot say it’s destierro. That destierro in 247 is not considered as a penalty because 247 is an absolute torre cose. Absolute torre cose is the one when the would be offender is not criminally liable by reason of public policy. On 247, absolute torre cose. They say or authority say that the destierro in 247 is not in the course of a penalty. It is rather the protection to the innocent spouse who killed the spouse or killed the paramour or the mistress, because he will be prohibited from entering a certain radius or a certain radius of 50 kilometers, that is preventing him from trouble. So, that is not considered as a penalty in 247. Okay. What about as to fine? How do you – how do you compensate this? Is not the fine also a penalty, principal penalty? Miciano: Yes sir. It is a … Professor: Under article 26, the principal penalty is what? So, if fine is a principal penalty, and you cannot really fine, then what will happen? Miciano: Sir, you then become ___35:11. Professor: So, is it a penalty? Miciano: Yes. Professor: Now, okay. I will not ask you anymore the duration under article 27. I think you know the duration. For purposes of discussion lang, we will take up Indeterminate Sentence Law and computation of penalties. But anyway, it is very easy to memorize. Reclusion perpetua, 10 years and 1 day to 40 years. Reclusion temporal, 10 years and 1 day to 20 years. Prision mayor, you just add one to one day and one day below the minimum, 6 years and 1 day to 20 years. Prision correctional, 6 months and 1 day to 6 years. Arresto mayor, 1 month and 1 day to 6 months. Arresto menor, 1 day to 30 days. Tapos. Now, we will do this next meeting. So now, if you can – what about civil liability? What does it consist? Miciano: Civil liability includes the attorney - the preparation that… Professor: It takes good preparation or sequential evidences. Miciano: Indemnity. Professor: Indemnity. But if the accused is insolvent, what will happen to the civil liability? Miciano: Since the accused is insolvent, then an order of payment is provided in the Revised Penal Code such that we would do ___36:39 the recreation for the landless and then after that. Professor: In that order. Still, but you don’t have money. There is an order, Law of Insolvent. You cannot pay the fine, you cannot also pay the civil liabilities. So what will happen? Will you pay the civil liability? Miciano: Sir, for the fine, criminal liability. But for the civil liability ___37:00. Professor: That’s auxiliary imprisonment. Miciano: ___37:03. Professor: You cannot be imprisoned? Miciano: No, not really. Professor: That will violate the constitutional provision that no person should be imprisoned for nonpayment of debt. The declaration of the court’s actualization of civil liability is what they called judicial debt. It is because that declares, so that is judicial debt. So you cannot pay, you cannot be imprisoned. But that will be tantamount to a person going to jail for nonpayment of the debt. So, sometimes you call the civil liability as “technically”, that’s what they called “technically liability.” You pay the fine is technically penalty. But you are asked to distinguish between technical penalty and technical reliability then the distinctions are those that are already mentioned. That’s very important, the technically penalty and technical reliability are very important in relation to paragraph 1 of Article 89.

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What is the effect of debt on the part of the accused, in so far as the personal penalties and impersonal liability? Nakalagay ito sa paragraph 1 of Article 89. That’s why while you are here, I’m only telling so that it would be easier for you to understand paragraph 1 of Article 89 later on, by the order of the ___38:22 Law. Where the Supreme Court doctrine, papalit-palit ang doctrine ng Supreme Court. Yung affect of debt in case of pending appeal, di ba? Have you read that? It is the case of the ___38:38 or review your books on criminal procedure causing the effect of debt when the case has pending appeal, as to the criminal liability and civil liability. There’s nothing that we can impose in light of that Article 89, paragraph 1. So, what are the divisible penalties? Miciano: Sir, the divisible penalties are penalties that cannot be divided. Professor: Yeah, divisible? Miciano: Indivisible. Professor: Indivisible penalties are those that have no fixed duration. These cannot be divided into three figures. What about divisible penalty? Miciano: The divisible penalty can be divided into the three groups. Professor: What about reclusion perpetua? Miciano: Sir, reclusion perpetua is still an indivisible as well as divisible penalty but for purposes of pardon or for ___39:30. Professor: So it remains to be indivisible penalty for purposes of computing the penalty. Indivisible. So, there are two indivisible penalties? Debt and … Miciano: Reclusion perpetua. Professor: And the others are divisible penalties. Sometimes, I call the divisible penalty is babae. Oh, iyong indivisible, lalake. But I think divisible, may periods. Indivisible, walang periods. Alam mo, that’s helpful when you take the bar exams. It will be easier to remember. Pag natanong yan, divisible babae pero yung indivisible, lalake.” You will remember that easily when you take the bar exams. Okay. What about accessory penalties? What do you understand by accessory penalty? Miciano: Sir, they are not specifically provided for in the Revised Penal Code, but they are imposed also in reclusion perpetua. Professor: In other words, the accessory penalty goes with the principal penalty. So you go and read Article 40, 41, 42, then you will read there accessory penalties where the penalty is death and so on. But there is one, okay. Anyway, we will take that up later after the review. I will ask you about Article 45. Article 45 on evidence? Student: Every penalty invoked under the Revised Penal Code, from there, it will then prevented the constitution and forfeiture of reclusion perpetua. Professor: So in other words, the confiscation or the forfeiture of whatever evidence in that case can only be done when there is a decision, di ba? 45? What does the law say? Decision, before the decision or what? Student: Every penalty invoked for the commission of crime shall carry with it the forfeiture and confiscation of the evidence. Professor: Your interpretation, therefore of Article 45 is that the confiscation or forfeiture shall be done after trial or during judgment. Student: Once there has been judgment from the court. Professor: But can you not withdraw something from the court even before judgment? Student: Sir, in drug cases.

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Professor: Where is it in Article 45? As a rule, in krimen? Therefore, in the state of forfeiture or confiscation that means it will include destruction. That will include destruction. Student: Yes, sir. Professor: For example, if you see an unlicensed firearm. What will you do with the unlicensed firearm? Student: Dispose of it immediately. Professor: You must dispose of it. But you are not supposed to return it to the accused. You are not also allowed to license it to another person. You’ll dispose of it then probably just destroy it. So destruction, therefore, takes place after the trial. What about drugs? I didn’t include it, aside from Section 21, because that is an exception to Article 45 of the Revised Penal Code. The process is very long. I don’t expect that you can memorize Section 21. The process in Section 21 is very long so it takes a few hours if magaling ka. Under Section 21. Time’s up. Student: I’ll try. Professor: O sige, you try. Student: Sir, the apprehending team must conduct an inventory and take hold of the drugs you have confiscated and the firearms to PDEA and then these will be brought to the forensic laboratory for qualitative and quantitative examination and then in 24 hours, that will be done in 24 hours. Professor: And then what happens? Student: And then the court will conduct an ocular… Professor: Hindi pa. After the examination of the chemist, the chemist will execute or will come out with a report on determination and the examination must be under oath. Student: Yes, sir. Professor: Then? Student: Then after the litigation, then the court will conduct an ocular inspection and then proceed to either destroy the articles but if they are of useful purposes, then they need to dispose it accordingly. Professor: Almost correct except that before the destruction of the evidence, the law says that within 72 hours from receipt of the information, the court shall conduct an ocular inspection. And within 24 hours from the ocular inspection, the court will destroy the evidence in the presence of the accused, his counsel, the fiscal, media, PDEA then the destruction shall be recorded. The chemist will take representative samples, and then they will also get two disinterested persons from the community to observe the destruction. So, in other words, that is actually a judicial process. That’s part of judicial process. But it’s the process that takes place even before arraignment. It is a judicial process because what happens is that the court will record the proceeding. Merong recorder dun, eh. Merong court, may stenographer. Whatever takes place during that process is recorded. And then they will form part of the records of the case. Because if you know, prosecute the accused later on, what will be presented on legality of the trial will be the representative sample. Ano ba yung representative sample? Let’s say this one is – there are white bags. The chemist will then take a portion of that and on the other specimen, another portion, a very small part, you call those as representative samples. So during the trial, because the purpose, the real time in drug cases is that you cannot be convicted if you do not present the evidence during a trial. Hindi pwedeng testimonial lang yun of the desistence. The drugs must be presented unlike in illegal possession of firearms. Even if you do not present the gun, you will need a representation of the firearm before he can be convicted. But in granting this would be enough, it must be presented before the court for the purposes of real time. So destroy the evidence before arraignment. Then what will happen is that because pf the part of destruction will be part of the record, so by the time that the prosecution will present its evidence then he will just identify. He will not identify the representative samples. And then he will mark the fact of destruction. That is the only crime where the law allows destruction of the evidence even before trial. Now, which is reasonably exception to Article 45 of the Revised Penal Code. You cannot destroy the evidence before trial in other cases.

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Let us say, a knife was used in the stabbing. The knife will be offered as an exhibit. So you cannot now destroy the knife even before there’s no judgment. Otherwise, you will not have any more evidence to establish. Yun. But yung drugs, pwede yun. Okay. That’s the process. That’s the Section 21, exception to Article 45. Now, under Article 47, we will finish Article 47 and then we will discuss the cases and then we will not have any more break, and then I can give you a decision. Kasi sayang naman yung oras, ganun e. Minsan nagbrebreak yung flow ng thoughts ko eh. Pagdating ko dito, yung iniisip ko, iba na. Paris Hilton na eh. Kaya nawawala eh. In Article 47 has been already been made or implied or already been voted by 9346. So, anyway, forget 9346 this time. What is Article 47? Student: The penalty of death shall be imposed in cases provided by a ___48:19 in an attempt to widen the offenders in preparing for seven years of age. When a ___48:25 is applied, when the required majority votes must be ___48:31 is not. Professor: Masyado silang powerful, eh. Malulugi si Armida, di ba?. May istorya dyan eh. Student: It requires that the voters do not complain. Professor: So that’s the post Article 47. You are correct. All cases now, although there is no more penalty on death, so to speak. The penalty of death is already abolished. Student: No, it was mainly suspended by RA… Professor: Suspended or prohibited? Student: The implementation of death is prohibited. Professor: But it is not abolished because the penalty of death is already in the Constitution. What is provided in the Constitution that however, is that in the meantime the penalty of death shall not be invoked? It was right there in the 1987 Constitution until such time that covers, binds, compelling reasons to pass a law defining what heinous crimes are and providing for the penalty of death which was what they did on December 31, 1993 when the Death Penalty Law Republic Act 7659 was enacted. So, nangyari ngayong 9346, sinuspend yung 7659 because you cannot note. What I mean is, in lieu of suspended 7659 and now prohibits the provision of the Penal Code. So what is suspended is the death penalty law but what is prohibited is the imposition of the penalty of death. We are not yet through with penalties. I assigned you (Bon versus ___50:23 and Salome). Have I assigned you to read Bon? Anyway, what happened in (Bon versus ___50:33) is that…Mahirap i-explain because we are not yet…probably you are reading, you will understand it…the way you understand it…but we will simplify so that you will understand it. Now, when it is a crime of qualified rape – Have you heard about the crime of qualified rape? The doctrine in qualified rape is that, if the offended party, let’s say the case of Bon, is the daughter. Di ba sinabi ko noon is the daughter, minor. And then he properly alleged, the actual age and then the relationship, then it becomes a crime of qualified rape. When the crime is qualified rape, then the mandatory penalty of death shall be imposed. Do you follow? That’s what happened with Bon. He was convicted of qualified rape, three counts. The concept is that he was likewise convicted of the crime of attempted rape. Now, because he was convicted of qualified rape and therefore the penalty is death, but because there is a law prohibiting the imposition of the penalty of death, then he should only be meted the penalty of reclusion perpetua. There is no problem. It is very clear. But the problem is what would be the penalty of attempted rape? Now, in Article 51-52, 50 to 52. I think it’s 51, the penalty of attempted felony is two degrees lower of the penalty of the crime provided for by law. So, if the penalty of the crime is death, then two degrees lower to the penalty of death is prision…What? Student: Reclusion temporal. Professor: Reclusion temporal because he had death, reclusion perpetua and reclusion temporal. So, the law of reclusion temporal then the duration of reclusion temporal is 12 years and one day to 20 years. Assuming that the two degrees lower is reckoned by the penalty of death then the penalty of attempted rape should come from reclusion temporal. But because of 9346, and therefore there is a prohibition to impose the penalty of death, then you can only impose the penalty of reclusion perpetua. Because the law says that instead of imposing the penalty of death then the proper penalty of reclusion perpetua or life imprisonment shall be imposed.

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Question: What was imposed is reclusion perpetua. Where do you reckon – what penalty are you going to reckon the two degrees lower than that prescribed by law in case of attempted rape, di ba? Kasi if you reckon the penalty of death, let’s say two degrees lower to penalty of death then it is reclusion temporal. But if it is two degrees lower to reclusion perpetua, which was the penalty that was imposed because of the prohibition imposed the penalty of death then the penalty is lower. It will only become prision mayor. Therefore, it is the penalty 6 years and 1 day to 12 years. So that is the question. What penalty are you going to reckon the two degrees lower? Is it the penalty of death which should have been the penalty imposed but you can no longer impose or the penalty of reclusion perpetua which was which the penalty that is actually imposed? Sabi ng Supreme Court, what is most favorable to the accused is two degrees lower to reclusion perpetua. So, the two degrees lower should be reckoned with the penalty that is actually imposed. Yun ang (Bon versus ___54:24). Which is different from the case of People versus Salome because the reckoning penalty there is death. But in the case of Salome, People versus Salome, the issue there is the civil liability, not criminal liability yung (Bon versus ___54:43) kasi, it has something to do with criminal liability. But in the case of Salome, it has something to do with the award of civil liability or damages. Now, the doctrine in cases involving penalty of death or reclusion perpetua is like this, like probably you will also start using your damages in Article 2220 no. There are damages in the book 2290, 2220 sa civil code, di ba? That’s what I believe are cause and damages. When a person dies in a crime involving violence or in a crime of rape, the award of moral damages is automatic. There is no need of proof so that’s the doctrine. The award of civil indemnity and the award of moral damages are automatic. Hindi na gaya ng pinag-aralan namin noon eh. Pag nagbigay ng return of moral damages, then you present the witness and then prove that you are suffering from mental anguish or wounded feelings by reason of the act. Di ba nirepresenta mo? Sasabihin mo kung rape yan, kung namatay ‘yung asawa ng babae -- biyuda. Then biyuda will be presented. Then the private prosecutor would like to recover civil liability. Then he will provoke question on the biyuda. He will ask, “What do you feel now that your husband is already dead?” In other cases, ganun ang moral damages eh, di ba? They’ve to relate the act and the sufferings by reason of the act; you are suffering. “Now that your husband is dead, how do you feel now?” “I can no longer sleep.” “Why?” “Because my husband is no longer there sleeping beside me. I have wounded feelings.” Oh, ganun. “I have sleepless nights.” That is the way to recover moral damages, hindi ba? But under the principle, breakdown by the Supreme Court and so far as moral damages in case death or rape is concerned, automatic. No need of proof. Even in civil indemnity, you just prove that somebody died. Automatic ‘yan. Hindi mo na i-proprove kung sinong pumatay o nahuli na. Automatic ‘yan. Even if you do not present evidence as long as the accused is convicted, then you award moral damages and civil indemnity. Now, the doctrine about civil indemnity in death penalty is if it is a death penalty that is imposed, then an automatic award of civil indemnity of Php75,000. In case of moral damages then there is also an automatic award of Php75,000 pag penalty of death. But if it is a penalty of reclusion perpetua, then there is an automatic award of Php60,000 mas maliit civil indemnity and Php50,000 moral damages. Automatic likewise, no need to prove. Therefore, there is a difference between the civil indemnity and moral damages in the penalty of death and the penalty of reclusion perpetua. Do you follow? The accused now is convicted of qualified rape, and therefore, he should have been punished with the penalty of death. But because of Republic Act 9346, you cannot impose the penalty of death you impose only the penalty of reclusion perpetua. Question: Di ba nag-question ngayon? How much civil indemnity are you going to award? How much moral damages are you going to award? Is it Php75,000 because the penalty of death should have been imposed or Php50,000 each because the penalty does not actually impose reclusion perpetua? Yon. The real answer is it should be the civil indemnity or moral damages corresponding to the penalty of death. So, magkaiba. Kapag criminal liability, the two degrees lower should be reckoned with reclusion perpetua. But in the civil indemnity or moral damages, should be the penalty of death than reclusion perpetua. So, magkaiba. There are new doctrines by reason of 9346, kapag civil indemnity, moral damages ang basis mo kung penalty of death even if reclusion perpetua is the one that is imposed. But if it is stages of a felony, then your basis would be one degree lower or two degrees lower would be the penalty of reclusion perpetua, the one that is actually imposed – not the penalty that should have been imposed, the (Bon versus ___59:55.) Pati mga kilala nyo dyan, hanap ka ng desisyon dyan. Yung isang kaso si Justice Azcuna. Malakas ang piso sa criminal cases. Although, I will tell my students before taking the bar. Kaya lang baka makalimutan ko eh. Minsan, ang dami kong iniisip. Ang hirap kasi sa criminal law, taun-taon ay gagawing new law.

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By next year, they will improve the new law. I hope it will remain to be legal for the law is constitutional and therefore legal. Yung Bond Security Act. If that will be considered then we will have to review again for that law because that will be included. Gaya itong kumuha ng bar ngayon, dalawang laws ang itinuro sa kanila ngayon – the Act of 9344 and 9346. Sa inyo pag nagtake kayo ng bar, i-include na ‘yung Bond Security Act, because that was signed as early as April 11, but effective July 15 the other day, so that might be included in your bar exam. So, next, next week, we will take up Article 48. But as I said, you are going to review the provisions that I mentioned because we will be meeting for two hours, not only we already start with computation, penalties, and then by Wednesday next week, then we will take up the application of the Indeterminate Sentence Law. But the laws that I told you to read…did I tell you to read Indeterminate Sentence Law in relation to Article 64? Yes? So, tama na para makapagpahinga kayo.

Session 10: COMPLEX CRIMES TO COMPUTATION OF PENALTIES Complex Crime – Article 48 We discussed already the effects of 9344 and 9346 or what we call “the penalty of death” in so far as attempted or frustrated felonies. We have to reckon the reclusion perpetua in determining the penalties for attempted felony and we have to reckon with the penalty of death in so far as moral damages and civil indemnities in the crime of rape or even murder. Today in our topic, we have 48. We didn’t study this in your Book 1, probably you were only asked to memorize and give you some examples. So, we have two kinds of complex crimes under Article 48. That will be “compound complex crime” and the “simple complex crime.” Now, the first thing that we should know in Paragraph 1 is that for the first kind of complex crime is that it cannot be complex with light penalties. You can only complex two or more grave or less grave penalties. Now, in a complex crime under Article 48 or compound complex crimes, of course, the offender is motivated by one criminal resolution. Because it is motivated by one criminal resolution whatever the product of this single act then it is considered as a single complex crime. Now, this must be differentiated with the other kind of complex crimes which we call the “simple complex” where crime is essential in the commission of another crime. Now, the offender, likewise, is liable for one crime because one crime is essential in the commission of another crime. The rule, however, will not apply if one crime is committed in order to conceal another crime. Now, if you will take up Book 2 on complex crime under Article 48 whether compound complex or essentially the simple complex crime, we will give you some discussions. But, of course, we are already here, so I will give you some illustrations on complex crimes and whether compound or simple so that you will know how to apply them. Then we will go to continual numericto and then later on special complex crimes. So, if I draw an image here and then I would want only to kill somebody here, so my intention is to kill one person, but three are killed, then that is the best example of a complex crime because my only purpose is to kill one. But in executing that single resolution, it produces two or more grave or less grave penalties. That is the best example of a compound complex crime. Now, if I fire a gun and then it hit somebody else and then the bullet exited from the back of another and then hit another one, then I will also be liable for a complex crime under Article 48, because one bullet that was fired hit two or more persons. My only motivation was to kill the person who was first shot, but that act produces two or more grave or less grave felonies. However, if a gun is used and then it is fired to that extent to different victims, bang, bang, bang, bang; and then four died, then I will be liable for four separate crimes, because for every pull of the trigger is considered one-half. And therefore, there will be as many crimes committed as there are number of bullets fired. If the trigger is pulled four times, it will be determined by how many times you pulled the trigger of the gun and how many persons are shot. But if the gun is an automatic riffle, and therefore, an automatic riffle is one where there will be several bullets that will come out from the muzzle of the gun. And then by one pull of the trigger, there are several bullets that will come out from the muzzle of the gun then ten died. So, how many crimes are committed or will that be a complex crime? So I pulled the trigger once, because it is an automatic riffle, ten bullets came out from the muzzle of the gun hitting five persons or hitting ten persons. So, how many crime or crimes? The Supreme Court said when is an automatic riffle the rule is that if there is an evidence to show how the muzzle of the gun was framed, let’s say you have an automatic riffle, if the muzzle of the gun was moved from left to right, like that, even if there is only one pull of the trigger, there is evidence that show that the muzzle of the gun was framed at several victims even if there is only one pull of the trigger, there will be as many crimes committed as there are number of victims. That is not a complex crime. Because if you frame the muzzle of the gun to different victims, then your intention is to kill all those victims where the gun is framed, and therefore, that is not a complex crime. But when there is no evidence to show how the muzzle of the gun was framed. In other words, you just heard a burst of fire, then ten died, then that is a complex crime. Because there is no showing how the muzzle of the gun was framed on the victims.

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Then you have also a complex crime, like in the case of reckless imprudence. Did I tell you that in reckless imprudence, there is really a doctrine many years ago until now. But they have not yet changed the doctrine. Although, some say, and I’m included in the opinion that there is no complex crime in culpa, reckless imprudence. But the Supreme Court said reckless imprudence, if it results to several crimes then there will only be one crime of reckless imprudence under the principle of complex crime in Article 48. Example: You are driving a vehicle and then you bumped the other vehicle. The vehicle is totally damaged and then you killed somebody inside the vehicle. There are actually two results of your single act of driving the vehicle. One is homicide, the other one is damage to property. So, the doctrine is not – even if it is a reckless imprudence case, if there are several acts, I mean, if there are several persons who died or injured or the property was damaged, then there’s only a single crime of reckless imprudence. The problem, however, is that in the case of (Leonida versus Dorothils), what happened in that case is, the accused was convicted of reckless imprudence; he was driving a vehicle. By reason of recklessly driving the vehicle, the vehicle that was bumped was damaged and then the passenger in the other vehicle died and somebody suffered a slight physical injuries. So, because it is a complex crime, under Article 48, the Supreme Court said, “That case could not be a case of one complex crime, but rather one complex crime and the other one is a separate crime.” There are two crimes in that example, in that case. Why two crimes? Because it is a complex crime under Article 48. And therefore, if it is a complex crime under Article 48, you are only punished for one act, but you cannot complex light felonies with less grave or grave penalties. So, what the Supreme Court did was to separate the two crimes. One is reckless imprudence resulting in homicide then causing damage to property. And the other crime is reckless imprudence resulting in slight physical injuries. Because slight physical injury is a light felony which cannot be complex with grave or less grave felony. If the position of the Supreme Court is that reckless imprudence is not a complex crime, then there could have been one crime of reckless imprudence. But because the position of the Supreme Court is that reckless imprudence is based on a complex crime, then there are two crimes committed in that case, because one produced a light felony which cannot be complex with grave or less grave felony. So, reckless imprudence resulting in homicide then causing damage to property – that is one crime, and the other crime is reckless imprudence resulting in slight physical injuries. So, whether you agree with that decision or not, we will just follow the decision. Kasi what is punished in reckless imprudence is not the result, what is punished in culpa is the act of recklessness, not the result. Whatever is the result, you are punished by the reckless act like that, the doctrine told you as far. Now, the other one. One of the most interesting cases is the case of - when there is no intent to kill from the very beginning. But do not be confused with “without intent to kill” that I’m talking about because there is a clear decision from the Supreme Court – Kalimutan versus People of the Philippines. It is a March 2006 case, then by Justice Nazario. I do not agree with that decision, but what can we do? We will just follow the decision for it is like this. When there is no intent to kill and then you cause damage or you killed somebody else, you intend to kill and then you killed somebody else, then you can easily conclude that that is not intentional crime because there is no intent to kill. And therefore, you will conclude that that is a culpa or fault, because if there is no intent to kill, then it will be substituted with reckless imprudence. But reckless imprudence is something that the act is lawful from the very beginning. In other words, you can only liable for culpa or reckless imprudence when you failed to perform the required diligence of a good father of the family in performing a lawful act. Ganun ang essence ng culpa. So if you drive a vehicle, that is lawful. But if you fail to perform the required diligence of a good father of the family in driving a car and then you hit somebody else and then it becomes culpa. That is the meaning of culpa criminal or criminal negligence. But in that case of Kalimutan, binato eh at may nag-away and then binato niya. Then nung binato natamaan yung spine. It was a small wound, but as a result because he was hit on the spine, he died. Ang sabi ng Supreme Court, “That is reckless imprudence because there is no intent to kill from the very beginning.” Hindi pwedeng maging reckless imprudence yan eh. That should be intentional crime, only that there is no intent to kill. Because when the act is wrongful from the very beginning, throwing a stone at the back of somebody else is wrongful.” So, you throw a stone, whatever you say that is wrongful. Natiyempo that cannot be culpa. But the Supreme Court said, “That is culpa because there was an intent to kill.” They are citing several indications. Well, anyway, that’s the decision. We will just follow. That’s only a division. But in the earlier case of People versus Inocencio Gonzales, yun ang magandang explanation of the Supreme Court where there is no intent to kill from the very beginning. So, what the Supreme Court said is that when there is no intent to kill from the very beginning. It does not say that there is no intent of the crime. What the law, the Supreme Court says, “No intent to kill.” So, that means that you probably injured somebody else, but it is not intending to kill, then you should be liable under intentional crime, but your liability will be mitigated. Because your liability will fall under Paragraph 1 of Article 4, you are committing a felony although the wrongful act done be different from what you have committed, so no intent to kill. Supposing you fire a gun, but no intent to kill that can never be culpa. Why? Because firing a gun is wrongful. But supposing you do not intend to kill that person, but as a result he died. Pwedeng mangyari yun eh. Would that be culpa criminal? Will that be criminal negligence? That is still intentional crime because firing a gun is wrongful. In fact, if you commit a wrongful act, whatever is the result of your wrongful act, you are liable. Under Paragraph 1 of Article 4, hindi ba liable ka? Sabi ng Supreme

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Court sa Kalimutan eh throwing a stone daw is culpa.” He should have exercised the required diligence of a good father of the family that if you throw a stone at somebody, something will happen to you. Hindi ganon ang culpa criminal.” Anyway, that’s the decision. Now, what I am trying to put up here, in the case of Inocencio Gonzales…so the report said there was no intent to kill. But there was an intent to commit a crime. Because firing a gun that might have been grave threat, that might have been illegal discharge of firearm, but is still wrongful. So, you will liable for the consequence of your firing the gun, okay. So, they quarreled; one quarreled with another. Now after the quarrel (to shorten the fact), after they quarrel, yung natalo sa away went to the car and then brought out a gun. When he brought out the gun, he fires the gun at the back of the car, not knowing that the wife of the one who was driving the vehicle, yung kaaway niya, the wife and the son were at the back of the car, heavily tinted yung Revo eh.” They were both at the back of the car – heavily tinted. So, when he fired the gun, it was more of something that initiated. Kasi tumatakbo na yung sasakyan ni Mr. Andres, who was already driving the vehicle moving out from the parking area. Kinuha yung baril parang pahabol ba. ‘Gago ka rin!’ Bang! Binaril niya sa likod. It was not directed against Mr. Andres, yung kaaway niya, but it was directed on the back of the car. So the Supreme Court said his intention only was some sort of a fit of anger. Gusto lang niyang – napahiya kasi because there were so many people around. “Gago ka din! Bang!” But because directed at the back the bullet ricocheted and then hit the wife of Mr. Andres that caused her death after giving birth to a healthy baby. Namatay yung asawa eh, ngunit nanganak buhay. But the bullet exited from her left tummy and then hit the son who was sitting beside her. But the wounded son was only a grazing wound, therefore, slight physical injury lang. It was less than nine days of treatment. The question there is what is the crime committed or what are the crimes committed? The answer may differ depending upon your appreciation of the fact. When your answer is there is an intent to kill because the victim died, the woman died, then there is only one crime or complex crime because there was only one bullet hitting two persons, so he was only liable for a complex crime because it is homicide complex with attempted homicide, di ba if there is an intent to kill? If there is an intent then you will be liable for a crime of homicide complex with attempted homicide. But if there is no intent to kill, then there will be two crimes committed. One is homicide causing death for the pregnant woman and slight physical injuries for the injury sustained by the son. Why? Because that is the difference between physical injuries and attempted or frustrated homicide, di ba? If there is no intent to kill and the victim survives then the only crime that can be committed is physical injuries. But if there is an intent to kill from the very beginning and the victim survived, then the crime is attempted or frustrated homicide. Now, if there is an intent to kill, then that will be a crime of homicide complex with attempted homicide. Why? Because attempted homicide is a less grave felony. But if there is no intent to kill, then there will be no crimes committed. One is homicide for the death of the wife and the slight physical injuries for the injuries sustained by the son, because there is no intent to kill. Now, why two crimes? Because slight physical injuries is a light felony, which should not be complex. So you can only complex grave or less grave felonies, if the Supreme Court says there are two crimes committed. Very interesting ang case na yan. But because of this Kalimutan baka hindi makalimutan. It was opened the decision that was by presiding justices. I wanted to ask them pagkaganoon ang decision. Anyway, that is their decision, so we’ll just follow the decision. The better decision is the case of Inocencio Gonzalez, People versus Inocencio Gonzales. Student: Sir, what was the two crimes of Inocencio Gonzalez? Professor: Two crimes? Student: Yes sir. Professor: That with Inocencio Gonzalez. There are two crimes because if there is no intent to kill and the victim died that is homicide. But the one who survives, he will only be liable for physical injuries, because that is the difference between attempted and frustrated. If they are attempted homicides and then you survive, then physical injuries. Now, because the injury sustained by the son is only slight physical injuries, less than nine days of treatment, then he is liable for slight physical injuries. Now, you cannot complex homicide and slight physical injuries, because the slight physical injury is a light felony and you can only complex grave or less grave felonies. But if there is any intent to kill then if the victim dies – homicide – and then the other one survived – attempted homicide – then that will be already a complex crime of homicide complex with attempted homicide. Because this time, attempted homicide is already a less grave felony. That is the meaning of the one act constitutes two or more grave or less grave felonies. Yan ang twist dyan sa kaso na yan. Now, in the case of the crime is essential in the commission of the crime…Now, do not answer a question immediately that the one crime is essential in the commission of the crime then it is a complex crime. Because the first crime committed may be an element of the second crime committed, and therefore, you do not apply that principle.

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Like in the crime of forcible abduction, with rape. Usually when the woman is abducted in order to commit rape that is usually a kind of rape. The abduction is part of the violence or force as the element of the crime of rape. So do not immediately say that that is a crime of forcible abduction with rape. If the abduction of the woman is part of the commission of the crime of rape, absolved yung abduction doon. That is what I mean. But in the first crime committed is really essential in the commission of another crime, then that could be a second complex crime. What are those crimes? Yung estafa to falsification, the crimes would be estafa through falsification of official or public document or yung estafa or malversation through falsification of public documents that will fall under the second crime. But if your crime is committed to conceal another crime, there will be two crimes committed. Okay, I will give you an example. Of course this is basic. There is no crime of estafa through falsification of private document, ha? There is no such crime of estafa through falsification of private document. If you take the bar exam then that is your answer, you will get bigti. Because that has been taught many times. Ako sa first year ko parati ako pinupokpok eh. Book 1 and Book 2, I always failed to tell them. Because in the principle of a complex crime, when one crime is essential in the commission of another crime, be sure that the elements of the first crime are not common with the elements of the second crime. Now, if one of the elements in the first crime is likewise the element of the second crime, then there is no complex crime under the second part of Article 48 or the second example. Like for example estafa. What are the essential elements of estafa? You have deceit and damage, di ba? Falsification by private document, there are also two essential elements. One is falsification of a private document, and the act of falsification and damage. So, there are two essential elements of falsification of private document. Falsifying the document and then causing damage – estafa, deceit and damage, so they are two more elements of damage. Now, in these two crimes because they have common element, then there is no complex crime of one crime essential to the commission of another crime. It will either be estafa or falsification of a private document. Unlike in the falsification of a commercial document or a falsification of public document because damage is not an essential element, so you can complex it with malversation or estafa. But no estafa through a falsification of a private document. Pagsinagot nyo sa akin yan, uulitin nyo ang criminal law. Sino niloloko nyo? Kasi basic yan eh. Parang bang homicide with murder. Pagsinagot mo homicide with murder, uwi ka dyan, grabe. Okay. Let’s go further. So I’ll give you an example. You know, you have a city treasurer to who have received money from a tax payer, the one that was paid was let say 100,000 pesos. So he paid 100,000 pesos. “Di mo pa alam the city treasurer would like to make use 10,000 pesos of the 100,000 pesos collected, di ba? Tonight, he wants to go to Airforce 1 to make gastos. Hindi nalang nagtiis dyan sa Starbucks eh. So instead of issuing a receipt with the amount of 100,000 pesos. So, he issued the receipt with the amount of 90,000 pesos. Can you follow? So what is the crime is committed. That is a crime of falsification under 171 by taking advantage of public position. Because he is a public officer and changed the amount from 100,000 to 90,000 pesos then that is a crime of falsification because you are affecting the integrity of the document. So the 10,000 pesos difference in the receipt and one that was accepted, he went to Airforce 1 mamayang gabi so he spent 10,000 pesos. So that 10,000 pesos would have been the amount kept by him as part of the funds entrusted to him because he collected it from the tapayer. He committed actually two crimes. One is the act of falsifying the official document, the other one because that is part of the crime. So, 10,000 pesos is a crime of malversation, which was committed in the ending. So that is a classical example of what crime is essential in the commission of another crime. He falsified the document in order to commit a crime of malversation. If you reverse the facts then the answer will be different. So, you paid 100,000 pesos then the treasurer reflected indeed the 100,000 in the receipt. So there is no falsification, but in the evening, you got 10,000 from the 100,000 pesos collected. So he went to (Cosmic) this time. In (Cosmic), he spent 10,000 pesos. So he made use of a fund entrusted to him by the government and that goes to an accountable officer. Then later on because he cannot anymore get 10,000 from other sources in order to cover up the 10,000 pesos that he used and got one of the receipts already issued by him before and then changed the amount in that receipt to reflect that somebody only paid 90,000 instead of 100,000 to – he change the amount of 100,000 to 90,000 pesos to cover up that 10,000 pesos that he use earlier in ___. There are two crimes he committed. One is the act of malversation, the other one in the act of falsification where he falsified the amount of 100,000 pesos and reflected only the amount of 90,000 as collected. So, is there a complex crime? In that case, then there will be 2 crimes committed. Why? First there was a crime of malversation committed and then later on he changed the amount in the official receipt, therefore, he committed a crime of falsification. Therefore the act of falsifying the official receipt was not for the purpose of committing the crime of malversation, but rather was for the purpose of concealing a crime that has already been committed. Therefore there are two crimes. That is the meaning. So you have to be very careful. One crime is committed to conceal a crime that has already been committed, there will be two crimes committed.

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And next question, what is continuado delito or continuing offense or continued offense? Continuado delito or continuing offense or continuing, continued offense, continued offense. Pare-parehas yan. Continuing, continued, continued, continuado is continued. Delito is delict. Pare-parehas yan ha. The principle that is applied in continuado delito is not a complex crime it is a single crime. There are series of acts committed, but because the offender is motivated by one criminal resolution, there is only one crime. Hindi complex crime yun, there is only one crime. Example, yung example sa libro matagal na. yung manok. Di ko alam kung bakit na andyan ___ yung manok, ha? In the area of the community, in anything, where the community and then there were six houses wherein he stole one rooster from each of the houses, anim. Because they were all committed, it is a crime or offense. One crime of theft, if there is one victim, as a rule that is one crime of death because there is an unlawful taking of a personal property belonging to another. So it is sufficient to consummate a crime of theft if there is only one victim. But if there are of six victims on one occasion, you committed a crime of theft involving six victims, all on the same occasion, there is only one crime because you are motivated by one criminal resolution. Not because it is a complex crime, but under the principle of continuado delito or continuing theft or continued or continues offense. Magkaiba yun. Now, this will be very important when you will be taught how to differentiate between simple robbery and highway robbery. Anyway, because there will - you know when you charged highway - so I will tell you what is the important of this continuado delito. You are riding a vehicle, a passenger bus, you announce a hold up and there are six passengers and therefore six are deprived of their personal properties. You use force of intimidation. How many crimes are committed? Anim na victim ha inside the vehicle. There is only one crime. That is the principle of continuado delito. It is not basedon the number of the victims but rather in the series of acts are committed on one occasion and, therefore, the offender is motivated by one criminal resolution. So, continuado delito yan. Ngayon, ang sabi ng Supreme Court when you differentiate between simple robbery and highway robbery. Yung highway robbery is a robbery that takes place along the highway. But in the robbery along the highway, there are many – there should be acts of robbery committed indiscriminately or several acts of robbery committed. So, if the crime of highway robbery can only be committed if there are several acts committed or several crimes of robbery are committed, and therefore not only an isolated one. Will you consider, therefore, a bus with 24 passengers and then the offenders announced a holdup and all of them were divested, 24 of them, will you consider that as highway robbery? Because the exhortation took place along the highway? Because in a highway robbery kasi, there must be indiscriminate acts of robbery, it might and have not be an isolated one. Because if there is no indiscriminate acts of robbery, and that it is only an isolated one even if it is committed along the highway, the crime is nearly simple robbery Under Article 293. So therefore the difference between the simple robbery and highway robbery, the main difference ano ha, is the fast that how many acts of robbery are committed. Yun ang issue dun eh. If you apply the principle of continuado delito even if there are four principle victims inside the bus, that is only one crime of robbery, so that is simple robbery. So dapat dyan isang bus, then after robbing one bus then comes another bus, ni-rob ulit, ‘yun ang highway robbery. Because it is not determined by the number of victims on one occasion, but rather after one robbery is committed another crime of robbery is committed. Yun. That’s the meaning continuado delito. Now, you have heard also a special complex crime. Have you heard about special complex crimes? What is a special complex crime? Now, special complex crime is different from the complex crime in Article 48, they’re not the same because one is special the other one is not special. But answer was given, nagsusulat ako eh. From Article 48 and then we will take up the special complex crime later on, at least you know already what’s the difference. Now, when we say special complex crime, very simply means that there’s a specific provision of law. There is a specific provision of law in the Revised Penal Code where the law already provides that the crimes should be a special complex crime. In other words, there are provisions rather in the law where the law already provides the commission of crimes other than the principal crime. Like mga siyam lang naman yan, eh. But we will take the case of Article 294 Paragraph 1. You open your Article 294 Paragraph 1. That’s the special complex crimes where the principle should not be forgotten by those who will take the bar exams. Pag hindi nyo alam yung special complex crime tsaka complex crimes, five years pa rin kayo sa akin. Kasi iyan ang dapat matutuhan, hindi makalimutan because students believe that if there are two or more crimes committed on one occasion, complex crime parati yan eh na under Article 48. Hindi. Because there are what we call special complex crimes. Therefore, if it is a special complex crime, then it is treated as a single indivisible crime. When we speak of a single indivisible crime, you can not separate the other crime committed on the occasion of the commission of a principal crime. Let’s go to 294 Paragraph 1. The law says that if on location of robbery, so that is the principal crime, homicide, rape, intentional mutilation or arson is committed, then the penalty shall be reclusion perpetua to death. Here comes a provision where the law recognizes the commission of one or more crimes. And the principal crime is robbery and then the other crimes that may be committed may either be homicide, rape, intentional mutilation or arson. Therefore, a provision of law recognizing the commission of crimes other than the principal crime. That is the meaning of a special complex crime.

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Now if you find a provision in the Revised Penal Code, simply look to Article 294 and therefore that is a special complex crime. The rule in Article 48 is not applicable. There are separate rules on special complex crimes. We go to Article 122 so that it would be easier for you to understand criminal laws later on. The other complex crime is Article 123, the Crime of Qualified Piracy, 1-2-3. So you look at the crimes that may be committed on the occasion of piracy. There are physical injuries, homicide, rape or physical injuries are committed, then the penalty shall be reclusion perpetua to death. That is Article 123, the Crime of Qualified Piracy. That is also a special complex crime. Why? Because the law recognizes the commission of homicide, rape, physical injuries on the occasion of piracy. That is also special complex crimes. How about the other one? It could be under Article 256-A or the Law on Rape. When the victim, in the crime of rape dies, then the crime is rape with homicide or when there is an attempted rape and the victim dies, then that is a crime of attempted rape with homicide. Or in the second paragraph of 260-A, when the victim in a sexual assault dies, then the crime is already complex as committed on a victim of sexual assault then the crime is sexual assault with homicide. Special complex crime din yan because aside from rape, homicide will be committed or aside from attempted rape homicide maybe committed or aside from sexual assault, homicide maybe committed. So the law therefore mentions crimes that maybe committed on the occasion of rape, therefore, special complex crime. The other one is Article 257, the Crime of Kidnapping and Serious Illegal Detention. Other than the occasion or violation of kidnapping and serious illegal detention the victim is killed. So that is also special complex crime because the law recognizes the crime of killing other than kidnapping and serious illegal detention. Then of course 294, we have 296, I think or 297, attempted robbery and/or frustrated robbery with homicide. After 294, I think the next one is 297. Attempted Robbery or Frustrated Robbery with Homicide, so aside from attempted robbery or frustrated robbery, a crime of homicide is committed. Then, later on we’ll go to Article 320, yan ang susunod 320. When the victim dies on the occasion of arson, then the crime is arson with homicide. Under 320, destructive arson with homicide. So that is likewise a special complex crime. Then under Republic Act 6539, when a person is killed on the occasion of carnapping, the crime is qualified carnapping under Republic Act 6539. These are special complex crimes and therefore if these are special complex crime, we do not anymore apply the rules in Article 48. The rules will be reset. There will be separate rules for the special complex crimes. I will explain them one-by-one. I think you have an example of a complex crime, so we will take the case of – supposing a policeman is directing traffic, you do not like the way he was directing traffic, so you throw a stone. Your only purpose was to hit the policeman as a result he died. So there is only one act of the throwing stones, you are committing two crimes. One is direct assault and the other one is homicide. So, in that case, you produce one act producing two or more grave or less grave felonies. The law that is applicable in that case is Article 48. Why? Because if you look at the crime of direct assault under 148 or the crime of homicide, under Article 249, you may find there that in these two crimes, these two crime do not recognize the commission of other crimes other than direct assault or other than homicide. Homicide is defined, when killing takes place without any attendant circumstances make sure in the foregoing that seems murder into 248. So, aside from homicide, there is no other crime that maybe committed, recognized by law. Aside from direct assault, there is no other crime committed on the occasion of direct assault. So, therefore, if one act constitutes two of more grave and less grave felonies, then the law that we will apply is Article 48. So the rule, therefore, is direct assault with homicide or murder if there is a qualified aggravating circumstance. If however, Article 294 Paragraph 1, robbery. If the victim in the crime of robbery is killed, then we nominate the crime as robbery with homicide. Now, what rule are you going to apply? Is it Article 48 on complex crimes because one act constitutes two or more grave or less grave felonies? Will rule 48 be applicable? When on the occasion of robbery one is killed. No. The rule that is applicable is the rule on special complex crimes because homicide is committed on the occasion of robbery and homicide is recognized as a crime that maybe committed on the occasion of robbery. Do you follow? Ganun ang special complex at saka complex, although they differ now in some rules, okay. If this one is Article 48, let’s take the case of direct assault with homicide. The rule that is applicable here is Article 48. Now, robbery with homicide, the rule that is applicable is what? Special complex crime. Why? Because homicide is recognized as a crime that we committed on the occasion of a principal crime of robbery. Now, the homicide or rape or intentional mutilation or arson, these are not treated per se as crimes. They are rather part of a single crime. So in other words, when we speak of parts of a single crime, this homicide, rape or intentional mutilation or arson is part and partial of a single indivisible crime. You cannot separate them. Therefore, these are not treated per se as crimes, but rather part and partial of a single indivisible crime. That is the meaning of special complex crime. Therefore, first rule, supposing in Article 48, the policeman did not die, assuming that is intent to kill like, and the policeman did not die. Would there be a crime of direct assault with frustrated homicide or attempted homicide? Is there a crime of direct

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assault in frustrated or attempted homicide? What about here, the victim did not die, so there is a crime of robbery with attempted or frustrated homicide? Two distinctions. Supposing, we will look in the case – okay sige. We will first answer. Is there such a crime of direct assault with frustrated homicide or attempted homicide or if it is consider the crime if it is not consummated? It is attempted or frustrated state assuming that there is intent to kill? Do you consider this a crime of direct assault with frustrated homicide or direct assault with attempted homicide? Now, what about here? If the victim did not die, in a crime of robbery, he almost died. He suffered mortal wounds. He fired his gun. He was seen on the check, he survived because of immediate clinical assistance. Will you consider the crime of robbery with frustrated homicide or robbery with attempted homicide or robbery with frustrated murder? No. If the victim survived, you cannot consider it attempted or frustrated. If the victim survived, then, the crime will be robbery with serious physical injuries or robbery or simple robbery depending upon the extent of the injuries. You can’t if there is no attempted or if there is no frustrated. Here yes, under Article 48, pwedeng attempted or frustrated yan. Why, because what are constituting two or more grave or less grave felonies? But here the second crime is not considered as a separate crime because the homicide there is part and partial of a single indivisible crime. Walang robbery with attempted or frustrated homicide. The other reason is that when you commit a crime of robbery, then the intention of the offender is intent to gain, unlawful taking or intent to gain. If you make attempted and frustrated, that there is like wise an intent to kill, is it not? Here intent to gain. You are not attempted and frustrated, what will happen? You will have two intentions, when in fact it is a single indivisible crime. If it is robbery with homicide then it is a crime against property. The intention of the offender is to rob. Now, if you use there attempted and frustrated homicide then, you will have two intentions - intent to rob and intent to kill, which is not allowed in a special complex crime because in special complex crime the intention is only intend to rob. Therefore, this is only a crime against property. Hindi pwede magkasama yan. Do you follow? Now, the other difference is that when the word homicide is use here, it is used here this is use its generic sense. If they include murder, parricide, infanticide. You turn homicide there, so there is no crime of robbery with murder. Minarder mo na yung law kung merong robbery with murder. Walang robbery with murder. The other difference is, we will take the case of People versus Jeffrey Garcia, this is a 2001 case where the victim was – in the other two cases there - the victim was forcibly abducted. In forcible abduction, then you are motivated with, what is the element of forcible abduction under 342? Free to decide. In other words, their purpose is not to rape. Their purpose only is to abduct the woman with lewd designs that makes that. You take the woman against her will and then pindot pindot. Anong Tagalog ng lascivious acts? You know why, because if you use your fingers in touching the private organ of the female, hindi na pindot-pindot yun, sexual assault na yun eh, as a form of rape. You use your finger to touch the private organ of any person, that’s no longer acts of lasciviousness. That’s already a crime of sexual assault as a form of rape. So ang acts of lasciviousness, limited na lang sa touching the breast of a woman. Yun na lang, you make pindot- pindot. At least, we’ll know. We’ll know kissing with gusto. ((Crosstalk)) If it is merely kissing on the cheek, without the consent of the woman, that is only - what is the crime? Is it not unjust vexation? That is vexing the senses of the woman. Kung stolen kiss lang kung ayaw nya? Because gusto nya is only tibo. You kiss the woman lips to lips, ayaw n’ya? Acts of lasciviousness yan. That is not anymore vexing the senses of the woman.

So, therefore, however, the purpose of – assuming, I tell you assuming, because sometimes abduction is absorbed in the crime of rape, but there are several decisions of the Supreme Court that there is such a crime of forcible abduction, forcible abduction with rape.

Now, so therefore, if the woman is forcibly abducted, so, for example, abducted and then, after forcible abduction, yun pala you brought her to another place and then raped her three times. Look at the difference between special complex crime and complex crime of the rule. A woman was forcibly abducted, and then later on brought to the place and then she was raped. So, the forcible abduction was essential in the commission of a crime of rape.

Now, in another example, these are the two cases of People vs. Regala and People vs. Sultan. The woman was robbed, and the occasion of robbery, she was raped three times. The rule that is applicable here is Article 48, “When one crime is essential in the commission of another crime, the rule that is applicable there is the special complex crime, because rape is committed on the occasion of robbery.” Do you follow? And so, how do you distinguish the two now? In Article 48, when forcible abduction with rape, the law says, “When one crime is essential in the commission of another crime.” So that is singular. In other words, you can already complex it under the second type of complex crime if one crime is essential in the commission of another crime. Therefore, if forcible abduction was already sufficient to complex it with one rape, then this one is forcible abduction with rape. Do you follow? Now, the succeeding rapes here will be treated as separate crimes of rape. No more forcible abduction because the forcible abduction was only for the first crime because the law says, “When one crime is essential in the commission of another crime.”

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Therefore, the two succeeding crimes will be treated as separate crimes of rape. So, there will be three crimes. One is forcible abduction with rape, and then two separate crimes of rape. But what about this, on the occasion of robbery rape is committed. Now, the old doctrine was - di ba sabi mo special complex crime, the crimes there are not treated per se as crimes, but they become part and parcel of the single indivisible crime. Therefore, you cannot separate rape from robbery because that is part and parcel of the crime of robbery with rape. Because of that principle that you cannot separate this crime of rape, you cannot, therefore, treat the second and third rapes as separate crimes. They cannot be treated as separate crimes because they become part and parcel of one crime. But the old doctrine was that because this is a special complex crime and then you cannot separate rape, they treated the rape as purely as aggravating circumstance. Aggravating circumstance analogous to ignominy under paragraph 17 of Article 14 moral summary. Ganun ang old doctrine. But the new doctrine now in Regala versus Sultan, if there are – regardless of the number of rapes here - there is only one crime of robbery with rape. One crime of robbery with rape. No more analogous aggravating circumstance analogous to ignominy. Why? What is the reason of the Supreme Court? Dun lang nila na-realize, eh. Tama eh, bakit? Tingnan mo doon sa enumeration sa Article 14. Unlike in Article 13, under paragraph 10 of Article 13, “Can other circumstances analogous to the foregoing? That is Article 13 of mitigating circumstances. But you look at the last paragraph of Article 14, cruelty, yan eh. And then in paragraph 21 of Article 14, di ba, “prolonging the physical suffering with all of them given to consummate the crime.” So, walang provision of analogous aggravating. So, sabi ng Supreme Court, we could not treat rape as analogous to ignominy because in the first place, Article 14 does not allow it. So there can be only one crime of robbery with rape.. Now, before I forget, the other differences here, supposing in a crime of - I threw a grenade and I only want to kill one person, but three died. How do you denominate the crime? Tatlo ang namatay. Can you denominate the crime as multiple murders, multiple because three died? If somebody – if several survived, then multiple murder complex with frustrated or attempted murder, di ba? Now, what about in number 4? This is different. In the crime of robbery, 10 died or 3 died? Tatlo ang homicide. How will you denominate the crime? Do not call it robbery with multiple homicides. There is no such crime as robbery with multiple homicides or robbery with multiple rapes, or robbery with double homicide, or robbery with double rape. Why? Because the homicide and rape are not treated as crimes per se, but part and parcel of the crime. So you denominate the crime as robbery with rape regardless of the number of rapes, or robbery with homicide regardless of the number of homicides. There is no such thing as robbery with multiple, double, or robbery with multiple homicides or robbery with double homicide. Okay, but here yes, under Article 48; multiple murder complex with attempted or frustrated murder. And the other one is, supposing on the occasion of robbery, one died and then one suffered injuries. How will you denominate the crime? May namatay, and one almost died. So on the occasion of robbery one died and then one almost died. So, one survived, the other one died. How will you denominate the crime? Robbery with homicide complex with attempted or frustrated homicide? Walang attempted or frustrated homicide. How will you denominate the crime? Definitely hindi rape. Robbery with homicide period.

The physical injuries are included in the term, “homicide” because that is the crime involving violence, robbery with violence. So, any violence that may be committed on the occasion of robbery is included in the generic term, “homicide.” Therefore, there is no such crime as robbery with homicide and physical injuries. Walang ganun, because the homicide there is using the generic term. It includes everything that takes place on the occasion of robbery with violence, di ba? Kaya delikado yun number three dyan eh. Yung robbery with rape, pag malaman ng rapist yan tsaka robber , eh di tatatluhin yan. One crime lang eh. That’s the (danger). So, yon ang special complex, and complex crime under Article 40. Any? We will go back to this when we will take up Book Two. Yes? Student: Sir, but in the robbery with rape, in the counting of the penalties is the number of rapes even if it is not made robbery with multiple rape? Will it still be considered? Professor: Yes, that could be still the same. The penalty does not change. The penalty is still reclusion perpetua or death. Yes, reclusion perpetua to death yan eh. Pwede rin gagawin. Reclusion perpetua to death din eh. The problem that you may ask probably is -, sige ikaw na muna. Student 2:

Sir, in the Rules 30 in the case in the book where six chickens were stolen.

Professor:

One crime lang yan.

Student 2: One crime lang po. Sir, but, what if for example you entered the house and then you found five women there, and then in one single location, one single criminal involved to rape all of them. So -

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Professor:

What is the – now, okay, that’s a good question. You enter the house, your intention is to rob?

Student 2:

No sir to -

Professor:

You commit a crime of rape, five yun.

Student:

Five.

Professor:

Five yun. Different women on different occasions. Kasi ang rape kasi....

Student:

Sir, in one occasion sir?

Professor:

Yes.

Student:

Just like the chickens?

Professor:

Hindi continuado delito yon. That is not continuado delito. (Laughter). If you are already party to a crime of rape made on purpose. ((Crosstalk)) Crime of persons yon. Tama naman sya eh. They are all committed on single occasion, five women are raped So, what one crime only.

That benefit to the case of Antonio Sanchez. Yung kay Antonio Sanchez, di ba? How many of them were charged? I think apat sila na-charged eh. Only one committed the crime of rape. Only one, si Sanchez lang eh, according to the evidence. But the three conspirators, likewise principal by dispensable cooperation. Let’s say tatlo, no apat? Kung yung apat, ito to the girl, kung itong isa was the one who raped, and then the other three likewise individually raped, and all of them conspired in every rape, tig-aapat yan sa rape. So, one committed the crime of rape, these three conspired. So the act of this one will also be the act of the three. So apat yun. So, for everyone apat, tig-aapat yun, crime of rape. That is the essence of the crime of rape. Biruin nyo dun eh, isa lang ang ng rape, yung tatlo liable sa lahat ng rape. But supposing all of them committed the crime of rape, tig-aapat iyan, mabigat. Kay Sanchez nandun pa rin. Talagang mabigat. Yes? Student:

Sir, what if in the commission of the robbery, do we (unintelligible)?

Professor:

Hindi, then you can denominate the crime as robbery with homicide and rape. Between the robbery – robbery with homicide and rape. Now, you see the sequence in the law. When you denominate a special complex crime, you look at the sequence. Ang sequence kasi sa Paragraph 294, where the (adjudication) of robbery, homicide, rape, intentional mutilation or arson.

So, therefore because homicide comes ahead of rape, then the crime should be robbery with homicide and rape. Just to designate, just to put the proper designation. Yes, because rape is not a crime. It is not a crime that we also include. I mean, rape is not a crime that is included in the generic term “homicide.” Unlike in physical injuries that is why robbery with homicide and rape. Student: Sir, when the person to die is also the criminal, (unintelligible)? Professor:

Oo. In the crime of robbery with homicide, even if the victim, even if the robbers are the victims, it is still robbery with homicide. It does not matter who dies on the occasion of robbery.

Student:

And then sir, there is only one penalty?

Professor:

There is only one penalty, reclusion perpetua to death. Yan kasi ang essence nang special complex. Yung other crimes committed are not treated per se as crimes. They are rather treated as part and parcel of the a single and indivisible crime. Ganun ang special complex. Yes?

Student:

Sir, in the Sanchesz case for example, it is committed on the occasion of robbery. Sir, I’ll follow that second line of thought wherein the four of them raped the particular individual four times, sir. So, four counts of rape for all four of them. Sir, you stated because it is committed on the occasion of robbery, so it could be just robbery with rape, sir?

Professor:

No, you will have to apply the principle of expressed conspiracy or implied conspiracy. Kasi di ba, I was telling you that if the agreement is only to rob, di ba? If the agreement is to rob, and then some of the robbers raped the woman, then they cannot be – the others cannot be liable with they endeavored to prevent for, or endeavored to prevent the raping of the woman. But if assuming that all of them conspired to commit the

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crime of robbery with rape, all of them there is only one crime of robbery with rape, regardless of the because the rape there is part and parcel of the crime of robbery. Student: Sir regardless of raping them how many times, Sir? Professor: Oo. Except as I said, in the conspiracy does not include the raping, then the only who raped will be liable for the crime of robbery with rape. The others will be only liable for the crime of robbery. Ganun kasi eh. Kaya sabi ko nun when we are talking about Article 8, the rule of conspiracy and expressed conspiracy will differ if the crime that was committed in special complex crime gaya nito, and the intentions only to rob four people. Expressed conspiracy conspire to rob the house of Miss A. And then when A, B, and C of the house they rob the house of Miss A, and then one of the robbers raped Miss A. Then because there is only one who raped Miss A, then the question there was would be the liability of the two robbers. Of course the three of them will be liable for the crime of robbery because that is the one that is covered by expressed conspiracy. But what about in the rape concerns because rape cannot be separated from robbery being a special complex crime so, therefore, the principle is, if one raped the woman then he will be liable for the crime of robbery with rape, but the two who did not participate in raping Miss A, they are likewise be liable to robbery with rape if they did not endeavor to stop the one who raped Miss A. They did not endeavor, and they did not participate. The answer is not based on whether or not they participated eh. The answer is whether or not they tried to prevent the one who raped. If they did not try to prevent, nakita nila na, tapos hindi naman nila sinaway. Lahat sila liable in the crime with robbery and rape. There will only be one crime of robbery with rape, that is the essence of the special complex crime. Talagang ganun eh. Special complex crime kasi, hindi mo pwedeng iseparate. Necause that would be principle special complex crime. Not a complex member under Article 48, but rather single indivisible crime. So the second crime becomes part. Now, if however the crime is committed is merely rape and therefore ((Crosstalk)). Would you not believe the crime was robbery with rape and arson because rape comes ahead in the sequence comes ahead of arson. Robbery or serious intentional mutilation. So rape with intentional mutilation, then the crime is robbery and rape and intentional mutilation. Rape comes ahead of intentional mutilation in the sequence. Now, if it is robbery and rape then, I mean, homicide then rape then robbery with homicide and rape because homicide comes ahead of that of rape. So, you take your break. Anong oras na ba?. So, hindi na tayo magbe-break? Student:

Sir, if the accused enters a house, and B. C, and D were there. A killed B, and then A raped C, and then A intentionally mutilated D and then afterwards burned the house.

Professor:

Burned the house?

Student:

Sir, how many crime, how many penalties?

Professor:

Now, because there two or more persons committing the crimeand there is prior agreement?

Student:

Sir, no. Just one person, and then that person…

Professor:

One person lang?

Student:

Just one person, sir. And then that person...

Professor:

Robbed first?

Student:

Robbed first and then killed person B, then raped person C, then intentionally mutilated person D, then afterwards burned the house.

Professor:

Let us say, is it a good question. Although we are also to take that up in 294 ang essence kasi ng robbery with homicide and intentional mutilation, rape or arson, all these crime are committed on the occasion of robbery. All by reason thereof. So, it is a matter of that is how determining if all of these crime were committed on one occasion because if that’s happen that the rape took place ahead of the robbery or the killing took place ahead of the robbery. So, of course, the arson took place after the robbery. Now, (unintelligible) the rule. Robbery should precede the homicide. That is the rule.

Do you notice that? The rule is that in order to determine the intention of the offender in a crime like that you have to determine what is the real intention. If you want to determine the real intention of the offender, what was the first crime committed? If the first crime committed is robbery and therefore committed all of these crimes mentioned, there is only one crime for single indivisible crime of robbery with homicide, rape, intentionally mutilation, and arson. But if you cannot determine from the facts as to what would be the real intention of the offender, for example, pinatay mo muna, example lang ano. Supposing you killed

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first the victim. Then after killing and after took his watch, dalawang crime yun.. That will be killing and then the taking of the watch is theft because there is no more force or intimidation that you can employ. If, however ,even if the killing took place ahead of the unlawful taking, if the reason why you killed the victim is that to unlawfully take his property, then that is still robbery with homicide even if the killing took place ahead of the robbery. It is a matter of determining what is the intention of the offender. Kung hindi naman ni-rape mo muna, then after raping the girl she is already helpless. As an afterthought, pinaggugulo properties niya, dalawang crime yun. It could be rape and yan. But this situation may happen. That his intention is really to rob, pumasok dun, meron siyang ni-rape, pagka-rape niya, pinatay niya. Tapos nakakita pa ng lalaki, tarantado ka, minutilate niya. Pagalis niya para to cover all the evidence ayon, sinunog nya. Pwede mangyari yun. It would be a robbery with homicide, rape, intentional mutilation or arson. All the crimes that are committed on the occasion of robbery. That’s the long version. Student:

One penalty lang?

Professor:

There is one penalty reclusion perpetua to death. The penalty of robbery with homicide is heavier than special complex crime. At what penalty non complex crime is that the maximum penalty shall be imposed. The maximum penalty of the most serious offense shall be imposed. So, let us say, in the process multiple murmur the penalty is reclusion perpetua to death then the penalty shall be death.

But in a robbery with homicide the penalty is only reclusion perpetua to death. You can only impose the penalty of death if there cannot be mitigating circumstance. Mas mababa ang special complex. Of course it will depend on what is crime committed because if it is a special complex crime assault with homicide, mas mababa sa robbery with homicide kasi sa because robbery with homicide is reclusion perpetua to death, the homicide is only reclusion temporal. So, with that we’ll go to another topic. Now, we will took the penalties na para mabilis. When is your examination? Student:

August 6?

Professor:

August 6 na ba? Okay, but we still have to meet next week two meetings, four hours, I can finish no problem.

We will go to penalties. Now, there are two groups of penalties in the computation of penalties. We have the indivisible and then the divisible penalties. Indivisible and divisible penalties. So, you will find here the hierarchy of penalties in Article 27 and even Article 25, when you determine penalty of death, reclusion perpetua and then reclusion temporal, prision mayor, prision correctional, prision mayor, and arresto mayor. You have here the penalties according to severity from the highest up to the lowest, death, reclusion perperua, reclusion temporal, prision mayor, prision correctional, arresto mayor. Now, for purposes of penalties, for computation of penalities, you have to divide them into two. You have what we call the divisible penalties and we have indivisible penalty.. Now, when we speak of divisible penalty, there is now the penalties with fixed duration which can be divided into three or several periods. And then indivisible though it cannot be divided into three periods. Although in Article 27, there is now a fixed period of reclusion perpetua which is twenty years and one day to forty years. For purposes of computation of penalty, reclusion perpetua remains to be indivisible. There are only two reasons why reclusion perpetua has two periods. One shall be explained next meeting. One is for purposes of the three-fold penalty rule and the other one is for purposes of pardon, conditional pardon. Kaya when you are asked to serve reclusion perpetua indivisible then it depends. If it is for the purpose of computing the penalty, reclusion perpetua is an indivisible penalty. For purposes of Article 17, the three-fold penalty rule or for purposes of conditional pardon under Article 92, then it is a divisible penalty. Now, it is not easy to remember the divisible and the indivisible. Pag sinabi mong divisible, then we are referring to babae. Why babae? May periods eh. Arresto minor hanggang reclusion temporal may periods. Babae yan.. Reclusion perpetua to death lalaki yan. Bakit? Walang period. So, before we go to other topic, you know you should know you will never understand indeterminate sentence law without knowing how to graduate penalties. You cannot understand indeterminate sentence law if you do not know how to graduate penalties. When you speak of graduating penalties if there are simply knowing what is the penalty next lowering degree or what is the penalty to decrease lower if the penalty provided for by law. Criminally, what comes next has demeaning from the highest up to the lowest aspects of. When penalty is death, then the penalty next lower in degree is reclusion perpetua. If the penalty is reclusion perpetua, then the penalty next lower in degree is reclusion temporal and so on because the other importance of graduating penalties is knowing ewhat would be the penalty of attempted, frustrated, accessory and accomplice because is attempted, two degrees lower. In frustrated, one degree lower, Accessory, two degrees lower. Accomplice, one degree lower. You can never be able to determine the penalties of attempted, frustrated, accessory or accomplice if you do not know what is one degree or two degrees lower. But in the Revised Penal Code, pinapahirapan pa kasi pwede nalang sana kung penalty prision mayor, reclusion temporal, hindi eh. Pag mga penalties iba-iba depende kung ano ang gusto nila. Therefore Article 61 is very important. Let us go to

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paragraph 1. If the penalty consists of a single indivisible, so what is the example of a single indivisible? It is either death or reclusion perpetua. If we cannot determine if the penalty is reclusion perpetua. If the penalty consists of two indivisible penalties that means what are the two indivisible penalties? Reclusion perpetua to death. So if the penalty reclusion perpetua to death, that is a penalty in a crime of homicide, what is the penalty next lower in degree? Then reclusion perpetua. Do you follow? It is reclusion perpetua to death penalty. Pagkat isinusunod yan dito, yan ang mababa. The other one is if the penalty consists of a maximum of a divisible penalty and though indivisible penalty, wala ng ganyan ang penalty. This used to be the penalty of murder before it was amended. Like in the example, what is provided for is this, if the penalty consists of a maximum of divisible penalty and two indivisible penalties, therefore penalty is reclusion temporal maximum to death. That is the penalty next lower in degree. Now, is this one divisible or indivisible? Student:

Divisible.

Professor:

Babae or lalake ito? Pag babae yan, biyakin mo pahati ng tatlo. In lower degrees. Bakit? (Laughter) We had a seminar, (Babao) was there. He was in the board lecturing on the new judges. So I took the whole afternoon session on what are the penalties for the new judges. I used also the same words so everybody was also laughing. But there was no malice. Linawin ko. If one is divisible, when you encounter a divisible penalty, then you have to get three periods, that must be the minimum, medium, and maximum. If this one is one degree, when you speak of one degree, that means one penalty. If reclusion temporal maximum to death is one penalty. If reclusion temporal maximum to death is one degree, therefore, one penalty, then the penalty next lower in degree should be also one degree. And indivisible penalty is one degree if it is divided into three periods. So, kung ito pano to, tatlo yan, kukuha kayo ng tatlo. Medium, minimum, maximum, and therefore the penalty next lower in degree is prision mayor maximum to reclusion temporal medium. Do you follow?

Now, if the penalty, however, consists only of two periods. Let us say, prision mayor minimum to medium, tatlo lang yan. That would be in the penalty of theft, where the amount is more than 12 but not more than 82,000, the penalty is prision mayor minimum to medium. What is the penalty next lower in degree because there are only two periods here, and that is one degree. One degree two period and then one degree , then you have to have also two periods. So maximum and medium. So that can be prision correctional medium to maximum of two periods. Dalawa ito, dalawa. Ngayon kung tatlo it because this is one degree, tatlo yan, tatlo rin dito. That is one degree, so prision correctional. Kung tama ito, tatlo dyan. Tatlo ito eh. One, two, and three. So tatlo yan. Kung dalawa ito, medium-minimum, because one degree consists of two periods then dalawa rin yan. So the penalty next lower in degree to prision mayor minimum medium is prision correctional medium-maximum. If the penalty is prision mayor, minimum, and that is one degree, one degree yan, one penalty, then the next penalty next lowering degree is prision correctional maximum. Kung iisa yan, ganun na rin. Kung dalawa yan, dala wa yan. Kung tatlo yan, tatlo yan. Kung apat yan, wala yan. Pang-apat, hanggang minimum, medium, maximum lang. So that’s the meaning of graduating penalties? Now if you know how to graduate penalties, then you have solved one of your problems. What problem was resolved? Application of the Indeterminate Sentence Law. This, we’ll take up later after we have completed the study on this. So in the meantime, we leave Article 61 because we have to follow the sequence of the law in Article 62. In Article 62, there are two new provisions in Article 62, and I told you last time, Yung meron nu’ng dalawang provisions diyan sa Article 62.” And then we’ll be asked in the bar exam where if the aggravating circumstance is taking advantage of public position. That is paragraph 1A: If and when a public officer takes advantage of his public position, there is the – then the maximum penalties shall be imposed regardless of the presence of mitigating circumstances. That’s the new provision. The other provision there is: When he has committed or organized crime or syndicate, the syndicate has committed with two or more persons commit the crime for the purpose of gain. Then the maximum penalty shall likewise be imposed. The new kind there also appreciated of privilege mitigating or aggravating circumstances at saka mitigating circumstances, hindi ba? Aggravating increases the penalty but in no case shall exceed the maximum ordinary mitigating circumstance and mitigate the penalty and, therefore, shall lower the penalty. Qualifying aggravating circumstances are no longer considered in determining the proper penalty imposed qualifying an inherent. Only, therefore, ordinary aggravating, ordinary or generic aggravating circumstances are to be appreciated in order to impose the penalty in its maximum period but in no case shall exceed the maximum. Of course, you know what is the effect of a privilege-mitigating circumstance? A privilege-mitigating circumstance cannot be offset by an ordinary mitigating circumstance. Whereas an ordinary mitigating circumstance can be offset by an aggravating circumstance. Then we go to the last paragraph of Article 62 paragraph 5, then we will learn. You will read there who is a habitual delinquent. Now, habitual delinquency applies only to those 5 crimes mentioned in the law. “Robo-bubo, hubad. Anong hubo? Robbery, theft, estafa, and then you have serious physical injuries and falsification and less serious physical injury, di ba? “Robo-hubo. So lima.” Now so therefore, habitual delinquency is likewise crime involving repetitions, di ba? But these are less divisive is the repetition, reparation is likewise repetition and then quasi-recidivism under 160 is like with repetition, and they have habitual delinquency again, repetition. Tumahimik ang Revised Penal Code ng repetition. Repetition ng repetition. I do not know in Criminal Law Review, if there is repetition.

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Oo nga, hindi ko alam bakit ako, I failed three students last time. They were graduating but sabi ko, I cannot change the grades. So one got 74, and then they have got a passing grade of 75 in order to take the course. Yung dalawa hindi, so what they did was to re-enroll in the second semester. So, there was a special class only for three students, tapos bigla akong naging professor sayang ang bayad tatatlo lang kami. Wala na, ganun pala, so I will request the office that somebody failed… Para sa akin, ___ na lang kami. That means that – ano pa ba ang sasabihin ko lalaki. You know, that’s only a joke. Okay, so habitual delinquency, therefore, is repetition. But you know, the main difference, if you have a problem on habitual delinquency then you cannot find the answer from the aggravating circumstances. Kasi ang recividsm madali lang. Embrace the same title. Prior conviction. Yung sa reiteration interruption naman, prior punishment. Therefore, you committed the crime after you have served your sentence. And the penalty of the second crime committed is higher, hindi ba? But sabi ko, delinquency, madali lang because habitual delinquency will only take place on the third crime committed. Hindi pwede sa second crime committed. On the third crime committed, not on the second because of the specific provision in Article 65 paragraph 5: When the third crime committed of “Hubo-Robo,” falsification, serious physical injury, estafa, and less serious physical injury as long as the last crime committed, determined and committed within the taking period from prior conviction or release. “Dalawa ang sa division at sa reiteration. Walang repetition.” Sa recidivism, conviction. Sa number 10, sa Article 14, prior punishment. This is one is conviction and release, so in other words, the 10-year period can be reckoned from the date of conviction by final judgment or from the date of release. So, example, may tatlo kang estafa. Mabigat ano ha, tatlong estafa. O kwan na lang tatlong theft na lang. Theft tatlo, ha? So 1980, you were convicted of the crime of theft. Convicted theft, then you served your sentence then you went out in 1982, released. And then 1984, convicted again of theft and then release. Mas mataas na. Probably recidivism, assuming that you were already released or reiteration. Mas mataas ang value of detain. So, the penalty you served the sentence up to 1992. You were released 1992. And then in 2001, loko eh, nag-theft ulit. Theft ulit. Now, will you consider the third crime now as being now being a habitual delinquent? The last time that you committed is 2001. He was convicted in 1984. If you reckon the 10-year period from the time that he was convicted, then that is already more than 10 years. O gandang anniversary kasi nakalagay dun the last crime committed should have been committed within the 10-year period. But because habitual delinquency, dalawang reckoning period kasi ang habitual delinquency prior conviction and release. So, the 10-year period is already, is already more than the 10-year period if you reckon the time when he was convicted in 1984. But because he was only in 1992, and the crime was committed 2001, still he is a habitual delinquent because the 10-year period can be reckon from the time of his release, not only from the time of his conviction. Kaya habitual delinquent pa siya. So bago ka mag-habitual delinquent, tingnan mo muna kung kailan nacommit ng crime. Then you commit the crime after the 10-year period from your release because that is longer, habitual is shorter, eh, di ba? Yun ang habitual delinquent. Now, hindi ba pwedeng burahin ‘to? Pwede na. Now, let’s go to computation. We just started with Article 63, and then next Monday, we will take up Article 64, up to the last Article on computation, including Indeterminate Sentence Law. Then afterwards, we will take up Probation Law, then also Suspension of Sentence under Article 192 of PD 603, Section 38 and Section 42 of Republic Act 9344, Section 66 and Section 70 of Republic Act 9165, otherwise known as the New Law of Grafts. So, tatlong laws ang babasahin ninyo. Okay, apat pala. I will give you the assignment now. After we are through with the Indeterminate Sentence Law, then you read PD 1990, amending PD 968, otherwise known as the Probation Law. Memorize Section 4 and the qualifications and disqualifications in the Probation Law. Then we will also study 9344, the Law on Welfare, Juvenile Welfare Act. In so far Sections 38 and 42. And then likewise, PD 2603 in so far as Article 192. This is also Youth and Welfare Act. And then Section 66 and Section 70, in relation to Section 98 of the Comprehensive Dangerous Drugs Law of 2002, that is Republic Act 9165 because you were not under me in Special Penal Laws. Sila, alam nila. When I start talking about, then they can remember. Silang tatlo, si… Kung nag-aaral sila nun. Parang palagi ata natutulog palagi si (Mr. Buhaw) nun. Kasi singkit ang mata. Kaya di ko alam kung natutulog. So we go to Article 63. What we find in Article 63 are rules that are applied in – rules in the condition of the penalty when the penalties are indivisible. You know, what are the two indivisible penalties? What are the two indivisible penalties for purposes of computation, reclusion perpetua, or death? Now, the rule is very simple. So the penalty is reclusion perpetua, that means single indivisible or the penalty of death. That means, single indivisible, there is no effect of ordinary mitigating or aggravating. So regardless of the number of mitigating or the number of aggravating circumstances, if it is a single indivisible penalty or reclusion perpetua, no effect. It cannot be lowered. It cannot go higher than reclusion perpetua. Or if a single indivisible penalty of death, regardless of mitigating or aggravating, it cannot be lower than death; it cannot be higher than death. Why? It is higher than death, dapat meron ka nang ataul. So that’s the rule. When there is no effect of ordinary mitigating circumstances, walang epekto yan. You remember, because there is a different rule for the divisible penalties. Now, if the penalty is reclusion perpetua to death. That means, you have the penalty consisting of two indivisible, like in the penalty of murder, and the penalty of robbery with homicide, the penalty of rape, then it cannot be reclusion perpetua to death. Then these are the rules, that we will have to apply. Just follow. Nandito na sa libro. Dito na, bagama’t, okay.

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No mitigating, no aggravating, then the lighter penalty shall be imposed. That means, reclusion perpetua. No mitigating or aggravating. That means that the penalty is reclusion perpetua, like, one or more mitigating circumstances, then the lighter penalty of reclusion perpetua. No mitigating but one aggravating, then the lighter penalty of death. No mitigating, no aggravating, lighter penalty of reclusion perpetua. One or more mitigating circumstances, when I used mitigating circumstances, I am referring to ordinary. We will take up privilege later on. One or more mitigating, no aggravating, death. One or more aggravating, no mitigating, I mean, one or more mitigating, no aggravating, reclusion perpetua. One or more aggravating, no mitigating, death. Now, if there are 4 aggravating, 3 mitigating, then what will you do? Then this is how we apply the rules on offsetting. If there are 4 aggravating and 3 mitigating, then it simply means we have to offset. That means we have to subtract, 4 minus 3 you offset, 4 minus 3 equals 1 aggravating. One aggravating, what’s the penalty? Death, di ba? Now, if there are 4 mitigating, then 3 aggravating, then 4 minus 3 equals 1 mitigating. One mitigating, no aggravating, what’s the penalty? Reclusion perpetua. Four aggravating, four mitigating, what will you do? Four minus four equals zero, what’s the penalty? Reclusion perpetua. That’s the end of the computation of penalty if it’s indivisible because if the penalties are indivisible penalties, then Indeterminate Sentence Law is not applicable. ISLAW. In the record ISLAW. Indeterminate Sentence Law is not applicable. Therefore, Indeterminate Sentence Law is applicable only to divisible penalties. They are not applied to penalties of life imprisonment, reclusion perpetua, or death. So this is the simplest computation. Because that’s the end of the penalty, okay? We will take up Article 64. Next, review your assignment next Monday. I hope that you read your assignment. I will ask you to compute in the examination. “Pakukompyutin kayo. Walang cellphone, walang computer. Student:

Pati calcu. Calculator, ‘yung normal calculator.

Professor:

I will not ask you to take the exact.

I will just tell you kung ano gagawin natin. I will not give you the exact. Kapag ginawa ko na exact yan, paano na lang? May kokompyutin. I will tell – I will just give you what will be minimum, medium, or maximum. Just the principle. That’s what they ask in the bar exam. You are not asked to compute actually. You are asked where would – if this is the penalty provided for by law. Then, it is attended by litigation circumstance. Where would be the penalty applied in the Indeterminate Sentence Law? Ganun lang. But you are not given – you are not asked the exact. Do you follow? So, your assignment will be Article 64 Computation of the Indivisible Penalties, then you read up to Article 69. So, Article 64 you have to memorize and 65, but 66, 67, 68, and 69 you just read them. But Article 70 you have to memorize and then – you know how to explain Article 70. Then 71 to 79, you read that. Just read, read and read lang. Then Article 80 has been amended by those that I have already mentioned in Section 66. Eighty is Suspension of Sentences. Article 80 is about minor offenders. So, minor offenders had been amended by Article 192 of PD 603 and then probably Section 38 of Republic Act 9344, Section 66 in some cases Republic Act 9165. So, the laws that I have mentioned a while ago will be read together with Article 80. Then 81 to the rest, wala na but memorize 89 to 100. Article 89 to 100, you have to memorize. We already discussed (Bon), ano? The effect of (Bon), ___ lang maintindihan. Bon versus Court of Appeals, and then Salome, People versus Salome on civil liability. Iyan ay itatanong sa bar ngayon this year. Maniwala kayo. Bakit? Balita ko eh. Somebody I will not mention somebody. He was asking for my lecture notes eh. Siguro, kapag ganyan yan, nagkaroon ng mga lecture notes. Lahat-lahat, nagsususpetsa ako eh. I will not mention who was the one asking. They were also asking for, kasi ganyan yan eh. They were also asking from other lecturers of ___ so I suspect it comes from a lecturer in ___ from Ateneo. SESSION 11: COMPUTATION OF PENALTIES So, what are we take up last time? Then how to differentiate? Not yet? So, we only have taken up Article 13 or Article 52? So, we’ll start with 61? Who would like to recite? So, we will now go to computation of penalties. But before we go to the computation of penalties, we should know first how to graduate penalties because if you do not know how to graduate penalties, then you will never understand Indeterminate Sentence Law. So, graduation of penalties is found in Article 51, but we now go to the complicated ones. . Now, what is graduation of penalties? Now, if you have the penalties in accordance with the scale of penalties in Article 21 then death, reclusion perpetua, reclusion temporal, then prision mayor, prision correccional, then arresto mayor, then arresto minor. These are the penalties from highest to lowest. The highest is death, reclusion perpertua, reclusion temporal, prision mayor, prision coreccional, arresto mayor and arresto minor. The graduation of penalties simply knowing what is the penalty next lower in degree. In other words, with the highest penalty is death then the penalty lower than death is reclusion perpetua. If the penalty is reclusion perpetua, then the penalty next lower in degree to reclusion perpetua is reclusion temporal. So, it is actually knowing what is the penalty next lower in degree.

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Now when you speak of degree, then that is penalty provided for by law. For example, the penalty of homicide, it is reclusion temporal because one degree - because that is the penalty provided for by law. So, when we speak of degrees, then that are the penalties for a public crime. So degrees, therefore, will be death or the reclusion perpetua and reclusion temporal and so on. But the penalties in the Revised Penal Code are not the same as – are not ano? The penalties there are sometimes in their periods or two indivisible penalties. So before we go to that, now, if you talk of penalties, then you should know first what are divisible or indivisible penalties. Divisible penalties are those that have fixed durations which can be divided into several periods. These are divisible penalties. Now they called themselves - they call these penalties divisible because they have fixed periods which can be divided. They have fixed durations which can be divided into three periods. Now these are indivisible penalties because they cannot be divided into several periods. There is no such thing as reclusion perpetua in its minimum, medium or maximum or death in its minimum, medium, or maximum. So, we called it indivisible. Although, reclusion perpetua is a period of 20 years and 1 day to 40 years in Article 27, for purposes of penalty, computation of penalties, reclusion perpetua remains to be indivisible. Now, the reason why reclusion perpetua is a fixed duration for purposes of Article 70, the triple penalty rule and for purposes of conditional pardon, which we’ll discuss later on. So, for purposes of computation of penalties, therefore, reclusion perpetua remains to be indivisible, People versus Conrado Lucas (in sum) and that is the doctrine. The Court has provided Lucas (in sum). Now, when the penalties are divisible, then it is simply means that the penalties can be divided into three periods. Kasi pag divisible yan, there musts always be a minimum, medium, and maximum period because if you do not divide the penalty into three periods, then you cannot arrive at the proper penalty provided for under the rules in Article 64 of the Revised Penal Code. So, divisible penalties, that is what I always tell my students, you know, para mas madaling maalala. Sometimes, I call them babae, may periods eh. Pag indivisible, walang periods, lalake ito. So ito, babae ito and then lalake. Now, if you go to the rule on graduation of penal rules, graduation of penalties that is – that means the next lower in degree.. Then the rules can be a little bit complicated because we will go one by one. The law says, the (prision) rules that when the penalty consists of a single indivisible, that means single indivisible, the penalty is death or the penalty is reclusion perpetua, the penalty next lower in degree, it cannot be is the penalty lower to that of death or lower to that of reclusion perpetua, di ba? Single indivisible. The law says single indivisible then you cannot – it is either death or reclusion perpetua as a single indivisible. But in the law says, the penalty consists of two indivisibles. Then what the law means in that is the penalty is reclusion perpetua to death. That means that the penalty consist of two indivisible penalties then the penalty is reclusion perpetua to death. That means that the penalty of a crime of murder. So when the penalty consists of two indivisible penalties, then the penalty next lower in degree is reclusion temporal. What does it mean? If the penalty is two indivisible penalties then the penalty is reclusion perpetua to death, then penalty next lower in degree would be reclusion temporal. And then the second rule under sections, Article 61 is that if the penalty consists of a maximum period of a divisible penalty and two indivisible penalties, then the penalty would be – when the penalty consists of maximum period of a divisible penalty and two indivisible penalties that means that the penalty is reclusion temporal to death. One maximum period of a divisible consisting of two indivisibles, therefore, reclusion temporal maximum to death, which includes in between reclusion perpetua. Now you will find here that there is a period kasi babae. Now, what’s the penalty next lower in degree? Now, this is now the penalty, this is one degree, that’s the meaning. Okay. So, that is one degree, reclusion temporal maximum to death, and then what’s the penalty next lower in degree now? When the penalty now becomes a divisible and this one has a period, it consists of three penalties eh, one, two, three. They become also one, two, three pababa. So, the penalty next lower in degree would be the prision mayor maximum to reclusion temporal minimum. So, tatlo yan, tatlo ,then tatlo. Now if the penalty, however, consists of two of several periods corresponding to different penalties, then the example would be prision mayor maximum to reclusion temporal medium, then the penalty next lower in degree will also be one degree. Then, you count three. There are three periods then, medium, minor, and maximum prision correccional. That is one degree, one degree. If however, the penalty only provides for two periods, let’s say, the penalty of death is prision mayor minimum medium, so, there are only two periods, prision mayor, minimum, medium. We will find in this particular penalty, there are only two periods, and that is one degree. This is one degree, likewise. Because there are only two periods, then you count two periods, likewise, that is the penalty next lower in degree, prision correccional medium, maximum. Now, if the penalty consists of one period, prision mayor minimum, then therefore, this is one degree. That is one degree to get prision correccional maximum plus the penalty next lower in degree. If there are two here, then two. If there is only one here, then one. If there are three periods, three, then three. That is the (unintelligible) penalty next lower in degree because this is now a divisible penalty and, therefore, consists of three periods, that is one degree, then one degree lower, multiples of three in

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order to have one degree. If this one is one degree, prision mayor minimum, medium, then one degree would be likewise two periods of the penalty next lower. If it is only one, then only one. That is the meaning of graduation of penalties. Knowing what is the penalty next lower in degree, okay? Anyway, it is very easy to understand. You will understand this better. In the meantime, that is Article 61. Okay. Now, let’s go to Article 63. This is the easiest because, now, when I use the example, there I refer to ordinary mitigating circumstances because in your Article 62 you only consider ordinary mitigating circumstances for purposes of Article 63 and 64. Never mind privilege mitigating circumstance in the meantime. Now, in Article 62 except for Paragraph 5, the law says how to appreciate mitigating or aggravating. They only appreciate generic or ordinary aggravating in order to increase the penalty, but in no case shall exceed the maximum. Therefore, if the aggravating is qualifying or the remaining is (mere) aggravating, they do not anymore consider those aggravating circumstances for purposes of computing the penalty. For example, murder, qualifying circumstance is treachery. Do not anymore consider the treachery for purposes of purposes of increasing the penalty because the treachery is already is included, it qualifies already the crime of homicide to the crime of murder. So, in (unintelligible), when the crime is already there, do not consider anymore aggravating circumstance of bearing in the computation of the penalty. When we talk of computation of penalties, therefore, we are talking here of ordinary or generic aggravating circumstances and ordinary mitigating circumstances. We will apply the rules on offsetting and so on. Anyway, very easy. Rule number 1 is when the penalty is a single indivisible penalty, therefore, death. If the penalty is a single indivisible penalty of death or -or ha, I did not say “of”, reclusion perpetua, so, regardless of the presence of ordinary mitigating or aggravating circumstances, the penalty is death. The penalty is reclusion perpetua. In other words, there is no effect whatsoever on the penalty, regardless of the number of ordinary mitigating or aggravating circumstances. It remains there. So no reclusion of ordinary, mitigating, no effect of aggravating circumstances. Do you follow? Now, if however, the penalty consists of two indivisible, therefore, the penalty is reclusion perpetua to death, this is a penalty in a crime of murder, then the rules would be as follows under Article 63. No mitigating, no aggravating, the lighter penalty of reclusion perpetua. No mitigating, no aggravating, the lighter penalty of reclusion perpetua. One or more mitigating - one or more mitigating, no aggravating, the lighter penalty reclusion perpetua. Dalawang reclusion perpetua. Dalawa lang kasi pagpipilian mo, eh. Now, one or more aggravating, no mitigating then death. So, no mitigating, no aggravating the lighter penalty of reclusion perpetua. One or more, one or more ordinary mitigating, no aggravating, lighter penalty reclusion perpetua. On or more aggravating, no mitigating, higher penalty of death. Now, if there are several aggravating or mitigating circumstances, then what would be the rule? For example, if there are four aggravating, three mitigating, then you apply the rule of offsetting. You offset the aggravating and the mitigating. So, if there are four aggravating, three mitigating, then four minus three then equals one aggravating, no more mitigating. One aggravating, higher penalty, death. If there are four mitigating, there are three aggravating, then offset. Then there is one remaining mitigating. No aggravating, one mitigating, then lighter penalty. If there are four aggravating, four mitigating, apply the rule of offsetting. Four minus four equals zero. No mitigating, no aggravating, lighter penalty. So, that is the end of the penalty. Why? Because the Indeterminate Sentence Law is not applicable to indivisible penalties. Reclusion perpetua, life imprisonment, and death. The Indeterminate Sentence Law is not applicable. So the end of the penalty will begin. So, madali lang yung indivisible. Kaya madali lang kayong mga lalake. Babae, ang hirap. Talagang ganun, nililigawan ka, mahirap eh. Oo, mahirap. Babae di nanliligaw sa lalake. Swerte mo. Do you follow? Let’s now go to the more complicated ones. Look at your Article 64, the rules on divisible. The study will have to understand now - why do we have to study graduation of penalties? That is the time now that you will apply the Indeterminate Sentence Law. But then, let us go first to Article 64. You see, the ordinary mitigating act, there is no effect of several ordinary mitigating. The only effect of ordinary mitigating is that the penalties are being in reclusion perpetua. They cannot go lower from ordinary mitigating. Now, let us go to Article 64. Article 64, therefore, rules on divisible, Article 64. Now, let us assume that the penalty of homicide is - we will take the example of the penalty of homicide which is reclusion temporal. That is the penalty. Divisible, o babae o lalake? Ano gagawin natin sa babae? Hahatiin? We will divide. Once the penalty is divisible, we have to divide the penalties always to three periods. Otherwise, we do not divide the penalty into three periods, then you cannot apply Article 64. So we divide into three periods. Kasi kung divisible penalty, there is always a minimum, medium, and maximum because if we do not divide the divisible penalty into three periods, then we can not apply Article 64.

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Example, so, reclusion temporal is the penalty of homicide. Now, what is now the now effect of mitigating or aggravating circumstance? Then, the effect would be if mitigating and so on, and we apply Article 62. So you cannot apply, therefore, Article 64 if you do not divide the penalty into three periods. So you will have the minimum, medium, and maximum periods. Now, after you divided the penalty to three periods, then you now apply Article 64.. After they divided the penalty to three periods, they will now Article 64. What is Article 64, paragraph 1? aggravating medium period. Again, we divide that into three. No mitigating, no aggravating, medium period. aggravating, minimum period. One or more aggravating, no mitigating, maximum. Do you follow? aggravating. Kasi doon dadalawa lang pinagpipilian eh. Dito tatlo. No mitigating, no aggravating, medium. aggravating, minimum. One or more aggravating, no mitigating, maximum.

No mitigating, no One mitigating, no No mitigating, no One mitigating, no

So, if there are several aggravating or mitigating circumstances, they apply the same rule. If there are four aggravating, three mitigating, then apply the same rule. Offset then we have one aggravating now. One aggravating, no mitigating, what’s the penalty? Maximum. Now, four mitigating less three aggravating, then four minus three, one mitigating, what’s the penalty? Reclusion temporal minimum. Four aggravating, four mitigating, four minus four equals zero. No more mitigating, no more aggravating. What’s the penalty? Medium. Do you follow? Now, this is now the difference between the two. Supposing there are no aggravating, but two ordinary mitigating circumstances. Here, there are two ordinary mitigating circumstances. What was difference? Now, the difference is that in a divisible penalty, no ordinary mitigating circumstances is equivalent to one degree lower. Therefore, if the penalty is reclusion temporal and there is no aggravating circumstance and that was pleaded guilty, and therefore, full voluntary surrender, then the penalty because there are two ordinary mitigating circumstances, then the penalty will be lowered by one degree. Then what is one degree lower to reclusion temporal? Prision mayor. What do you now when the penalty now is divisible? Divide that into three periods: Minimum, medium, and maximum. There are no other mitigating circumstances. You have already applied the presence of two ordinary mitigating circumstances. Zero na. Now, what’s the penalty? Prision mayor. Here, two ordinary mitigating circumstances, you cannot go lower that reclusion perpetua, you stay here. Why? Because by express provision of Article 63, regardless of the number of ordinary mitigating circumstances, if the penalty consists of two indivisible penalties or one divisible penalty, the penalty cannot be lowered by one degree even if it is attended by two or more ordinary mitigating circumstances. Do you follow? Wala pa kayo sa indivisible. Now, what about the – never mind. Let us assume that the offender at the time of the commission of the crime was 17 years of age acting with discernment, privilege mitigating circumstance. At the time of the commission of the crime of murder, he was 17 years of age acting with discernment and, therefore, it is privilege mitigating circumstance. Likewise, in a crime of homicide, at the time of the commission of the crime, he was 17 years of age, no privilege mitigating circumstance, the penalty of homicide is reclusion temporal. What is the effect of a privilege mitigating circumstance? Now, if it is a privilege mitigating circumstance, whether minority or complete justifying circumstance or executive circumstance, automatic yan inaapply mo agad yung effect. So let’s say, the penalty is reclusion perpetua to death, at the time of the commission of the crime, he was 17 years of age acting with discernment then under Article 68, the second sentence of Article 68, equivalent to one degree lower. If that is the problem, that’s a privilege mitigating circumstance even if this is indivisible, this one lowered it by one degree. Kasi privilege eh. Hindi na ordinary. If you get privilege mitigating circumstance, lower the penalty immediately to one degree because that is a privilege mitigating circumstance. Here likewise, if the penalty – if a 17-year old, lower it immediately to prision mayor. It must be lower than reclusion temporal is prison mayor, lower it immediately. Do you follow? Now, let’s go to Indeterminate Sentence. Are you following? Ngayon tinatanong ka ng sabay. Nung two years ago, kawawa naman yung nga estudyante. Okay. (Ms. Flores). Iisa lang, isa lang naman. Now, let’s go now to the Indeterminate Sentence Law. Now, as I said the Indeterminate Sentence Law is not applicable when the penalty is … Student: Sir, reclusion temporal, but mostly half of the maximum medium. Now, lets say if the penalty provided for by law is, let’s say reclusion temporal minimum to medium, there are only two periods, hindi ba? Penalty. Now, because this is one degree, this one degree lower will also consist of two periods following. So, that is maximum and then medium of prision mayor medium, maximum. So, that was the one. This is the problem. (unintelligible). How will you apply Article 64? That’s your problem. I-apply mo yung tatlo. Let’s say …I will reserve this for Indeterminate Sentence Law. So, if the penalty let’ say the crime of theft in Article 309 where the amount of the thing stolen is more than twelve and not less than 22,000, the penalty is prision mayor minimum, medium.

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That is one degree because that’s one penalty. So, there are only two periods there. Now, your problem is how are you going to apply Article 64 because there are only two periods here. Then this duration you divide that into three. Now, if the penalty is prision mayor minimum, like in illegal possession of firearms, minimum because that is one degree then you divide that prision mayor minimum into three periods then you have minimum, medium, and maximum. The examiner will not ask you this problem. Even in my examination, I will not ask you this. Do you follow? Because you will have to look the table of the penalties of periods in the book of Justice Cruz. In other words, you will read this way. The penalty is no mitigating, no aggravating, it is here. So, how will you call this? Then that will be prision mayor minimum to medium in its minimum period. One mitigating, no aggravating, then prision mayor minimum to medium in its minimum period. One aggravating, no mitigating, then prision mayor minimum, medium in its maximum period. If it simply one, no mitigating, no aggravating, then prision mayor minimum in its medium period. One mitigating, no aggravating, then this is prision mayor minimum in its minimum period. One aggravating, no mitigating, then prision mayor minimum in its maximum period. Always divide the periods into three because you cannot apply Article 64 without dividing it. Okay. Student: Sir, in your example of the murder who (unintelligible). Okay, if this is the problem now, let’s say, reclusion perpetua to death. That is indivisible. It’s not indivisible. At the time of the commission of the crime, privilege mitigating circumstances, because it is entitled to one degree lower under Article 68. What is one degree lower reclusion perpetua to death? What is the penalty less lower in degree to reclusion perpetua to death? Ano ang susunod sa reclusion perpetua? Babae o lalake? All:

Babae.

Because naging babae yan, divide into three. Okay. Okay? Then apply Article 64. Apply Article 64, because the penalty of indivisible and now is converted into a divisible penalty, okay? Now, this one Article 64, reclusion perpetua. What do you do if the penalty is reclusion temporal? Divisible or indivisible? Students:

Divisible.

Babae? What do you do with babae? (unintelligible) hatiin natin siya. Okay, okay. Hahatiin natin siya. So, you have minimum, medium, and? Student: Maximum. Question. No mitigating, no aggravating, what’s the penalty? No mitigating, no aggravating, what’s the penalty? Students:

Medium.

Medium. And that is provided for in Article 64. Medium under Article 64 RPC. Now, you look at your Section 1 of the Indeterminate Sentence Law. Now, this is a computation under the Revised Penal Code, is it not? But in the Indeterminate Sentence Law provides which is mandatory to both special law and mallum prohibitum. I mean Revised Penal Code and mallum prohibitum. The law says that in imposing the penalty, there must be a minimum penalty to be taken from any of the periods of the penalty next lower in degree to that provided for by law and the maximum penalty to be taken from the penalty provided for by law after they have considered the provisions of the Revised Penal Code. We will explain. The law says now, if you see this penalty range of reclusion temporal is 14 years, 8 months and 1 day to 17 years 4 months. So, that is the range of reclusion temporal. Do you follow? It is 14 years, 8 months and 1 day to 17 years and 4 months. But the penalty does not adhere because under the Indeterminate Sentence Law, it is prohibited to impose a determinate penalty. In other words, a fixed penalty is prohibited. It is prohibited to - kasi kung 14 years 8 months and 1 day to 17 years and 4 months, if there’s no Indeterminate Sentence Law, probably you can impose a penalty of 15 years because that’s within the range, hindi ba? Probably, you can impose a penalty of 16 years or even a penalty of 17 years, hindi ba? But the law prohibits that because under the Indeterminate Sentence Law, there must be a minimum penalty and a maximum penalty. Now, where will you get the minimum penalty? Section 1 provides that in imposing a penalty, there must be a minimum penalty to be taken from – what is the penalty next lower in degree? Students:

(Prision mayor)

To be taken, babae o lalake? Students:

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Babae. Madali lang, hindi ba? Okay. Then the laws says in imposing a penalty there must be a minimum penalty to be taken from any of the periods of the penalty next lower in degree and the maximum penalty to be taken from the penalty provided for by law after you have applied the provisions of the Revised Penal Code. How will you explain that? Okay. Now, the range prision mayor is 6 years. Let me explain. Hindi naman kayo pagmememoraysen, ano ah. But, just to explain to you what is the meaning of Section 1, okay? I’ll repeat. Penalty of homicide. No mitigating, reclusion temporal. No mitigating, no aggravating, what’s the penalty? Students:

Medium.

Reclusion temporal, medium. But the Indeterminate Sentence Law provides that in imposing a penalty, there must be a minimum penalty to be taken from the penalty next lower in degree, prision mayor, in any of its periods and the maximum penalty shall be taken from the penalty provided for by law after applying the provisions of the Revised Penal Code. So, what do you mean by that? If I were now the judge, I can impose a minimum penalty of 6 years and 1 day of prision mayor minimum as the minimum penalty to 16 years as the maximum or I can impose a penalty of 12 years as the minimum to 17 years as the maximum or even 9 years as the minimum to 15 years as the maximum. In other words, the judge is given a leeway of choosing a minimum penalty from 6 years and 1 day to 12 years and the maximum penalty from the range of reclusion temporal medium. Do you follow? So, we shall impose a minimum penalty to be taken from the penalty next lower in degree in any of its periods and the possible penalty to be taken from the penalty provided for by law after you have applied the provisions of the Revised Penal Code. Now, you see the big difference here, ano. If there is no Indeterminate Sentence Law, then you can impose these 15, 16, and 17. But the law says there must be a minimum penalty to be taken from the penalty in any of the periods of the penalty next lower in degree and a maximum penalty of the penalty provided for by law after you applied the Revised Penal Code. Do you see the big difference here, why? Just can just imagine you are convicted with a crime of homicide. Homicide ‘yan eh, reclusion temporal. Wala pang mitigating, wala pang aggravating yan eh. If the judge is generous, if he will impose a 6 years and 1 day by the time you have already reached your 6 years and 1 day in prison, you are already allowed for parole. Pwede ka nang lumabas. Kung wala ‘yan, e di ang tagal nun, after 16 years uh, 15 years uh. Ngayon kung medyo ang akusado, medyo panget. Gawin mo minimum 12 years to 17 years. So that he can only undergo parole by the time he reached 12 years. Do you follow? Yan ang purpose. It can be allowed. That’s the difference between conditional pardon and parole. The conditional pardon, you can only be pardoned after you have served one-third of your sentence. Ang parole, you can only be entitled to parole after you have served the minimum sentence. Do you follow? Now, this is the computation of the penalty. If the penalty – if the crime is punishable under the Revised Penal Code or if it is punishable by special law, that thing, the nomenclature of penalties under the Revised Penal Code, hindi ba? We ano, we studied Article 10. So we all know the provisions of the Revised Penal Code. When the special law adopts the nomenclature of penalties under the Revised Penal Code. For example, in the case about illegal possession of firearms. Babalikan ko ‘yun. Babalikan ko ‘yun. Illegal possession of firearms is punishable by prision mayor minimum, (unintelligible). We have here a special law, illegal possession of firearms, but the penalty provide for by law is a divisible penalty, prision mayor, minimum count. If that is the penalty provided for by law, then follow the same computation. Therefore, is it babae o lalake? Student: Babae. Babae. I-divide mo ng tatlo yan, minimum, medium, and maximum. No mitigating, no aggravating, then medium. Then applying the Indeterminate Sentence Law, what is the penalty next lower in degree of prision mayor minimum? Prision correccional, ano? Maximum. Divide that into three, where will get your minimum period? Then, under the Indeterminate Sentence Law then you get your minimum period here with a maximum period. Do you follow? So, here comes special law. For the penalty – the computation of penalties based on the Revised Penal Code because the special law adopts the nomenclature of penalties in the Revised Penal Code. Do you follow? Okay. Now, there are other – this was the – there are five questions asked in the bar exam in two years ago on this. Question number one, do you apply the provisions of the Indeterminate Sentence Law to special laws? Of course, this one, yes. Because it adopts the nomenclature of penalties in the Revised Penal Code. But supposing the special law does not adopt the penalties in the Revised Penal Code. So, the penalty is 2 years to 4 years, oh 2 years to 4 years. Are we going back right in the Indeterminate Sentence Law? Because there is no one degree lower. What’s one degree lower? Only the penalties in the Revised Penal Code can be graduated starting from death, reclusion perpetua, reclusion temporal, prision mayor, prision correccional, arresto mayor, arresto minor. Penalties outside of those mentioned, they cannot be graduated because only those mentioned in Article 61 can be graduated. Absent na naman si (Zaragosa)? San nakaupo yan? Dito? Okay na ‘yan. Absent na naman.

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Student: Sir, (unintelligible). Professor:

Ah?

Student: (unintelligible) Professor:

Ano nangyari?

Absent. Tama na (unintelligible) Mark, patinding patindi ang grade mo. Custodio, lalakad ka ba? (unintelligible). Okay take your break. Student: Sir, question. Yes? Student: Sir, after applying the Indeterminate Sentence, why not go (unintelligible)? No more, but you know the general penalty. No more. After we’ve applied the Indeterminate Sentence Law that is the end of the computation. Student: Sir, what is the second step of defining the prision mayor minimum to maximum? (unintelligible). Student: (unintelligible). No the same. Student: So, the prision mayor into (unintelligible) ten years? For the crime of what? Student: For example, what is the maximum period of prison mayor? Di ba prision mayor minimum di ba? We divide that into three periods. So, if you have divided the prison mayor, prision mayor minimum, you divide that into three periods. So, after you have divided that into three periods then no mitigating, no aggravating. This is the application of Article 64 di ba? But the penalty does not end there because the law says that the provisions of the Indeterminate Sentence Law are applicable both the special law and the Revised Penal Code. So, presume that your minimum was one degree lower to prision mayor minimum, one minimum, ano susunod? Prision correccional maximum, kasi one period dito, one period din di ba? Ngayon, what do you do with this? Divide it the cost of the three periods to get your minimum. So, after you have divided prision correccional maximum into minimum, medium, and maximum, then you can choose your minimum penalty from here and your maximum penalty from here. So, if you want any precise, ah? Student: Will you be acting as for example? What is the maximum of prision mayor in...? I will ask you in the examination? Susmaryosep! Eh di sadista naman ako. Ang gagawin ko na lang (u) as your exam. Wala nang makakasagot nyan. Student: So, meron ba kayong (unintelligible)? Student: The maximum penalty of prison mayor, minimum (unintelligible) and anywhere within prision correccional maximum? Ganun lang, ganun lang tatanungin ko, pero will you get the minimum penalty? It would be the same then will be taken from any of the periods of prision correccional maximum and the maximum penalty will be taken from prision mayor minimum in its minimum period. That means you are correct. Di mo na tatangunin yong – maraming nagkakamali dyan sa bar. Student: Sir, to clarify, when we get the maximum, we apply the imposable penalty after taking into consideration the mitigating and aggravating. But sir with regard to the minimum, do we take into consideration?

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Ah no more, no more because you have already applied eh, pag inapply mo na yung ordinary mitigating then that is time that you will wait. So let say because I have been using all the mediums. Let’s say – let us – lagyan natin mitigating. Let’s go to reclusion temporal. The accused pleaded guilty. Ano, babae o lalake? Students: Babae. The accused pleaded guilty, what is the penalty? Students: Minimum. So, that’s the application of Article 64, is it not? No one mitigating, no aggregating, reclusion temporal. What is the penalty next lower in degree? Students: Prision mayor. Prision mayor. Where will you get your minimum penalty under the Indeterminate Sentence Law? Any of the periods of prison mayor, minimum, medium, and maximum. We will get your minimum here, you will get your maximum there. Now, if there is one aggravating law mitigating, no aggravating law, no mitigating then aggravating here di ba? So that is the application of Article 64. One aggravating, no mitigating then your minimum will not change, but your maximum will change. Do you follow? Ganun. It will depend. That is the importance of mitigating or aggravating. Do you follow? Student: What about the special privilege mitigating? Basta may privilege mitigating and unang gagawin ninyo apply agad. Magaling. Let’s say mother, mother muna ha? At the time of commission of the crime a 17-year-boy, privilege mitigating of circumstance. Assuming that there is one aggravating ha, that one aggravating di ba? Okay reclusion perpetua to death. But you may not offset aggravating with that of the privilege mitigating circumstance. What do you do? Apply first dito. So, what is one degree lower to reclusion perpetua to death? Reclusion temporal. Babae or lalake? So, babae? Hatiin natin dyan, di ba? Okay. Now, if you have applied already the effect of a privilege mitigating circumstance meron pang naiwan, one aggravating, do you follow? One aggravating law mitigating, what is now the penalty? Reclusion temporal, maximum. Where will get your minimum penalty? Reclusion mayor depending on its period. Very good. Minimum Medium. Maximum. Basta may privilege apply agad because that cannot be offset. Let’s say there is one mitigating, likewise, one mitigating. So, one privileged and mitigating penalty reclusion perpetua to death. What will you do? Apply privilege, mitigating circumstance one degree lower, yun na. But there is one aggravating still one ordinary mitigating, what do you do? Apply the law on offsetting, zero. No mitigating, no more aggravating. What is the penalty? Medium. Apply the penalty Indeterminate Sentence Law, one degree lower, then your maximum (unintelligible) minimum. Do you follow? Ayun yung sinasabi ko eh. Bakit hindi pa tayo tapos? Meron pang nga computation sa (unintelligible) penalty or less at saka penalty under special laws wherein it does not allow the penalty in the Revised Penal Code, okay? This could be - the part of this computation with the penalty are those provided for in the Revised Penal Code whether a crime punishable under the special law, I meant under special law or the Revised Penal Code because the penalty are those under the Revised Penal Code then follow this computation. However, if the penalty under special law does not follow the penalty the Revised Penal Code then are we going to apply the Indeterminate Sentence Law? Yes, mandatory. We should apply the conditions of the Indeterminate Sentence Law both special law and Revised Penal Code. So, in the penalty therefore, is two years to four years. We do not find the penalty like this in the Revised Penal Code. We only find in the Revised Penal Code on those that I mentioned, on the divisible and indivisible. So this is a penalty, therefore, under special law. Now, question, are we going to apply the Indeterminate Sentence Law? Yes, mandatory. What will we do then? Because there is no penalty next lower degree of all the laws penalty in the Revised Penal Code can be graduated, then the answer, how do we apply Indeterminate Sentence Law? So, then the answer is found in the second sentence of Section 1 on the Indeterminate Sentence Law. It is found in the second sentence of Section 1. The law says that if it, if an act is punishable, is punished under a different law of any other law, then the minimum penalty shall not be less than the minimum penalty provided for by law, and the maximum penalty shall not be higher than the maximum penalty provided for by law. That is the second part of Section 1. If an act is punished by any other law then the minimum penalty shall not be lower than the penalty, minimum penalty, provided for by law, and the maximum penalty shell not be higher than the maximum penalty. Therefore, your minimum penalty and maximum penalty will come from this range. So, if you, therefore, impose a penalty, you will not impose a straight penalty of two years, you will not impose a straight penalty of three

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years, or straight penalty of four years. There must be always a minimum and a maximum period to be taken from the range of the penalty not lower than two years and not higher than four years. Therefore, I can impose a penalty of two years as the minimum to two as the maximum, three years as the minimum, four years as the maximum, two years as the minimum, three years as the maximum, two years and one day to three years and one day. In other words, I can choose any of the periods within two years and four years where I will get the minimum and maximum periods. Do you follow? That is the application of the second sentence. You can impose - if an act is punished by any other law, then the minimum penalty shall not be lower than the minimum penalty provided for by law, and the maximum penalty shall not be higher than the maximum penalty provided for by law. Therefore, I can impose a minimum penalty and a maximum penalty to be taken from two years to four years, but I cannot impose the straight penalty. Why? Because that is prohibited by the Indeterminate Sentence Law. Okay? Question in the bar exam, six months and one day cannot be six months and one day to three years. Question #1: The court imposed straight penalty of one year. Then in another problem, the court imposed a straight penalty of 10 months, then a straight penalty of two years. Number 4, penalty of six months and one day to one year, six months and one day as minimum to one year as maximum. Number 5, six months and one day as the minimum to three years as the maximum. So, that is the problem. The penalty is six years and one day to three years. The court imposed a straight penalty of one year. Is the penalty correct? Yes, it is correct. Then at the second problem, the court imposed a penalty of straight penalty of 10 months. Is the penalty correct? Yes. What about in #3? Wrong. What about in #4? Wrong. What about in #5? Correct. Why? Why correct? Okay. Now, if the penalty is one year or less then the Indeterminate Sentence Law is not applicable. So you find here, six months and one day to three years, there is a range from six months and one day to one year. So, the Indeterminate Sentence Law does not apply if the penalty is one year down to six months and one day. Therefore, if the Indeterminate Sentence Law is not applicable if the penalty six months and one day to one year then you can impose a straight penalty as long as the straight penalty does not exceed one year. So, one year therefore is correct. Ten months is correct. But what about two years? No, because the moment that you impose a penalty higher than one year then the Indeterminate Sentence Law must have to be applied. If you now impose a penalty higher than one year, there must now be a minimum and a maximum period because the Indeterminate Sentence Law is now applicable. Here, six months and one day to one year, that is wrong. You can impose straight penalty. Number 5, six months and one day to three years, correct because the maximum penalty is already more than one year. Do you follow? Student: Yes. Yan ang tinanong sa bar two years ago. Of course sa atin yun, nakuha nila. Sabi nila (unintelligible) yata ako e. Hindi. Sa akin ba ito? Nakuha nila. Sakin ba ito? Ha? Akin ba ‘to? Sigurado kayo? Okay. Do you follow now? Very easy. That is Indeterminate Sentence Law. But you just – you memorize yung disqualification, not for me but for your bar exams. Yung disqualification, life imprisonment, reclusion perpetua, penalty one year, treason, penalty of treason, (unintelligible) mga disqualifications lang yun. But Indeterminate Sentence Law should apply mandatorily to Revised Penal Code and special laws, mandatory yun. You cannot escape. Now let us go to (unintelligible). Student: Sir, yung Number 4 (unintelligible)? Kasi di ba your maximum here is one year di ba? Student: Ah dapat straight penalty. Straight penalty yan. Ito, because the three years now is more than one year. Tama yan, straight penalty yan. Okay. Now let’s go to another computation on what they call the Triple Penalty Rule. The Triple Penalty Rule is found in Article 17. Tinatanong sa bar yan Triple Penalty Rule. Supposing Mr. A was convicted of homicide in Davao. In Davao, homicide, reclusion temporal. Then he was convicted in Manila, attempted homicide, therefore, prision correccional. Then in Caloocan, another serious physical injuries, so arresto mayor. Assuming tama penalty ko. Then another in Quezon City for serious physical injuries, arresto mayor. The convictions emanated from different places in different courts. The heaviest penalty of offense is reclusion temporal. Supposing he was convicted here in January 2007. Here was convicted February 2006. Here 2005. Here 2007 February. Here March 2007, Quezon City on 2007. The convictions were made in different places. Question: How will he serve the sentence under the Triple Penalty Rule? How will you serve? Now, it should be successively. The rule states if the accused can the serve the penalty simultaneously, then we will have to serve his penalty simultaneously. But here, we cannot serve the sentences simultaneously because the convictions took place on different dates. So, how will you serve the sentence? Then he will first serve the most severe penalty. So, if he is now

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serving the max. Unang conviction niya is in Manila, prision correccional, dumating ngayon yung reclusion temporal, January 2007. So, if he is serving the prision correccional then after reclusion temporal ahead of the two convictions, the reclusion temporal should be the one he should serve first and then later on the other penalties, but as much as possible they have to be served simultaneously. Do you follow? Lagyan lang natin ng case para mas maganda. We will put fixed periods so that – kasi manipis din yung ginawa ko dun, mahirapan tayo. Let’s say in Manila, the penalty is three years – decrease natin – then in Cebu is two years penalty. I’m talking about the maximum ha - and then in Davao penalty is likewise three years, and then another one in Caloocan two years, then another one in Quezon City two years. Now, on different dates, different courts, how will you serve the sentence? Almost the same. How will you serve the sentence? Now, if you total the number of years then that will be 10 years. As much as possible – ay 12 ba? Oo tama 12 di ba? Tama 12, galing. So, 12 years di ba. Now, the rule in Article 17, as much as possible, the sentences must be served simultaneously. If it is not possible, however, then it will be successively. Do you follow? Kung almost the same yan, it should be simultaneously but if it is not then successively. But in no case shall be more than three times the heaviest of the penalties. So, if he will serve now, let’s say almost at the same time he was convicted, will he serve 12 years? No. Under the Triple Penalty Rule, he will serve his sentences simultaneously but in no case shall with more than three times of the heaviest penalty, therefore, most three times then should not be more than nine years. Yan. That is the meaning of Triple Penalty Rule. He will serve the sentences simultaneously, but in no case shall be more than three times of the heaviest penalty. That is the meaning of the Triple penalty Rule. You will only apply the Triple penalty Rule if this one is lower than this one. For example, this one is one. E di how many? Seven. Di ba? E di 3 x 3, nine years. E di ko iseserve yan syempre because you will be serving a sentence which not part of conviction. You will apply Triple Penalty Rule if you multiply the heaviest penalty, multiply that by three that will be lower than the total number of years. That is the meaning of the Triple Penalty Rule. But it should be always advisable that they should be served simultaneously. If it is not possible then that will have to be served successively or one after the other. Student: Sir question with regard to simultaneous… Sentences? Student: Yes sir. So, what do you mean Sir, for example Manila 3 years, Cebu 2 years. He all convicted… All at the same time. Student: All at the same tine, he will only serve 3 years? No. He will only serve 9 years. If this one is out? Student: No, simultaneous, Sir. (unintelligible) No. He will serve not the total number of years, but… Kasi imbes na magserve siya ng 12 kaysa sa offset niya kasi more danyos yan, he will serve them siguro simultaneously, but in no case be more than 3 times of heaviest penalty. He will serve them all. Kaya lang kung sabay-sabay yan, you multiply it by 3. Do you follow? So, that if you multiply the heaviest penalty by 3, and it is 9 years and that is lower than the total number of years that will be the total number of years that will be served. Student: Sir, according to your previous example, if he is going to serve 3 years in Metro Manila and then 2 years in Cebu… The provision is Manila 3 years di ba? Cebu 2 years. Now what are the (unintelligible) the triple penalty law may apply even if the convictions permitted by different courts in different places because they (unintelligible) not more than the Triple Penalty Law is the Director of Prisons. So, if you are sent there, not you ha. You’ll be convicted here in Muntinlupa if you receive a court adjustment all for there to be in custody. So ang magcocompute nun ay yung Bureau of Prison because there is a wrong impression that the triple penalty rule will only may apply if the convictions were meted out by court in Manila. No, that’s not true. The convictions may come from other places because the one who will compute is the Director of Prisons in Muntinlupa. Dadalhin ka doon to serve your sentence. Of course, if the penalty is arresto minor, you will not be brought there. If the penalty does not exceed 6 months, usually the imprisonment is served in the provincial jail or the city jail, if there are jails. If there is none, then he will go to Muntinlupa. What I am emphasizing here is that even if the convictions were meted by different courts from different places, the triple penalty law is still applicable. But in no case shall exceed 30 years, but in no case shall the penalty exceed 30 years. Now the 30-year period there is taken from the penalty of reclusion perpetua. That’s the reclusion perpetua for purposes of the triple penalty rule, it is a divisible because they chose the 30-year from the penalty of reclusion perpetua which is 20 years and 1 day to 40 years. Okay?

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Now, in (71) in the scale of penalties, that is actually a repetition of what we had read in Article 27 and 25, the scale of penalties. So 71 to 77, is the gradations of and the duration of the computation of penalties. Until Article 80, suspension of sentence. Madali lang yung 72 to 79, it is a repetition of what we already studied. Computations. What is the penalty? It is not a totally excusable. I-memorize nyo lang yan. Memory work. So, let’s go to Article 80. I think I discussed already the case of the Arabejo versus Lubaton. Okay. Now Article 80 has been (arrested) by PD 603 under Article 192, 192 o Presidential Decree 603. Then later on he received a note from the clerk of court, which is the Juvenile Delinquency Law where suspension of sentence likewise now provided in Section 38 and they have also suspension of sentence pertaining to violation of the Dangerous Drugs Law under Section 66 Republic Act 9165. So, there are actually three laws that now provide for suspension of sentences of minor offenders. Now, in Article 192 in PD 603. There are two requirements in order that one may be entitled to suspension of sentence. Number 1, that at the time of the commission of the crime, the offender at the time of the commission of the crime and at the time of the trial, the offender is less than 18 years of age and number 2 requirement, the penalty of the crime - not the penalty imposed by the court - the penalty of the crime committed by the minor offender should not carry the penalty of reclusion perpertua, life imprisonment, or death. So, yun ang provisions ng Article 192 of PD 603. Now in case of the provisions in Republic Act 9344 Section 38, the only condition there is that by the time of the commission of the crime the minor offender was less than 18 years of age, even if he has already reach the age of 18 during the trial and entitled to suspension. Walang kundisyon-kundisyon. Also, in Section 66 of Dangerous Drugs Law. At the time of the commission of the crime, less than 18 years of age, even if at the time of the trial he is more than 18 years of age, entitled likewise to suspension of sentence. What do you understand by suspension of sentence? Okay. Have I not explained it? Not yet. Ganito siya. Okay. You know the three provisions meaning suspension of sentence is this, before they proceed with the trial assuming that the minor committed a crime and, therefore, proceeds with the crime. If on judgment day, the accused is acquitted, no problem. They promulgate a decision that he will be acquitted. But supposing he is not acquitted, he is convicted, what the court will do is promulgate the judgment of conviction. Read the decision in front of his counsel, in front of the minor. Then, after promulgating that decision, then the court shall suspend the sentence. In other words, he will not implement the sentence. The purpose there is for him to be rehabilitated. Now, under 9344, they call it diversion program. Under PD 603 Article 192, they call it rehabilitation. Sa Section 66 ng 9165, it is also rehabilitation. But they serve the same purpose. The purpose of rehabilitation, the purpose of the diversion program is to give a fixed period of time for the minor to rehabilitate himself. Of course, he will have to comply some of the conditions in the diversion program. He will be under the custody of the DSWD. Those who undertake the rehabilitation or protection of minor offenders. So that what happens, promulgate, suspend sentence. Now, if you are rehabilitated after a fixed period of time, then the minor will be brought to the court and then a motion to dismiss will be filed because he has been rehabilitated, he has been reformed. So what happens in this judgment of conviction, the judgment of conviction, he has already been convicted because he has been reformed, the case against you will be dismissed. The case of this minor will be dismissed. The records of the minor will be considered confidential and privileged in character. So, if you want to apply in the college of law later on, then you are asked if you have ever been convicted or charged with a crime, even if the minor says no and then you discover that he cheated, that cannot be used against him because the case of this is mostly dismissed and the record are confidential and privileged in character, only between the minor and the court. That is when the boy is rehabilitated or reformed. But if the boy is not rehabilitated or he is not reformed, what the court will do is that the minor will be returned to the court for execution of judgment. Kasi incorrigible eh. Di mo na… Wala, wala ng pag-asa e. Then, he will serve his sentence. He will go to the penitentiary to serve his sentence. But under Section 42 of 9344, since (1942) he can still apply for probation. Ha, di ba? Look at your Section 42. For this purpose Section 4 of PD 968 of 1976 is hereby amended. Nakalagay sa Section 42 di ba? We will exploit this. I told you about 9344. It is like this. Supposing six months ago I promulgated a judgment of conviction. Then, I told the minor, okay, I will suspend the sentence. I’m giving you time to go on rehabilitation or diversion program. You follow the rules. Then after six months, he is reformed or rehabilitated, then a motion to dismiss will be filed. So, instead of executing the judgment sentence, I will dismiss the case immediately. The record will be confidential in character and privileged. However, it is the reverse. So six months ago I promulgated the decision. Then later on, after six months, he is incorrigible. Then, what I am supposed to do is that I will require them to go to the National Penitentiary and then serve the sentence. But under Section 42, the minor can still apply for probation because the law says that he can still apply for probation and for this purpose, Section 4 of PD 968 of 1976 is amended. What does that mean? Under Section 4 of PD 968 amended by 1257 and then further amended by PD 1990 Section 4, the period of the initial filing of the case for probation is within the period of perfecting appeal, is it not? To perfect an appeal, you file you application for probation to perfect an appeal. Now, six months ago, I promulgated the judgment in the lower court. Is it not? If you are to appeal in a promulgation judgment in a criminal case, then you have 15 days to file a notice of appeal within the 15-day period from promulgation. If you do not file

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any appeal within the 15-day reglementary period, counted from promulgation, then the judgment becomes final and executory. Hindi ba? Now, what does that Section 42 provide? If he fails from the diversion program, he can still file a petition for probation. Even if they judge mentioned they have already been considered final and executory because the law says Section 4 of PD 968 of 1976 is hereby amended. What is amended there is the 15-day period, provide an application for probation. So that is deemed amended. Kaya maganda yan eh. (Unintelligible). Oo, kaya maganda ang minor, incorrigible na pwede pa rin mag-apply ng probation eh. Oo, although six months have already lapsed since the promulgation. But the law says, Section 4 of PD 968 of 1976 on probation law is hereby amended. Ngayon, you will find in Section 13, so what happened in the (Declarador) is this, you know, when you apply for - when your sentence is suspended under PD 603 of Article 192, there are two requirements. At the time of the commission of the trial, less than 18, and at the time of the trial is still less than 18, then the penalty of the crime you committed should not carry a penalty of reclusion perpetua, life imprisonment or death. But (Declarador) was charged with murder. At the time of the commission of the crime, he was 17 years of age. No, not (Declarador), the heir of the victim. Ginawa ni Judge Lobaton, before he could reach the age of 18, kasi alam n’ya ang requirement, not less than 18 at the time of the trial and less than 18 at the time of the commission of the crime. So before he turns 18, he promulgated a judgment of conviction. But imposing a penalty of reclusion temporal and he applied Indeterminate Sentence law because of a privileged mitigating circumstance. Then after the promulgation, he suspended the sentence because according to him he is still a minor, and therefore entitled. Do you follow? Question, is he entitled? Under Presidential Decree 603 on June 4 amended, Article 192. He is not entitled supposed to be. Why is he not entitled? Because the crime that he committed carries a penalty of reclusion perpetua or death. It is not the penalty that is imposed by the court. It is rather the penalty of the crime he committed. So what happened? Then the heirs of the victim went to the Supreme Court. The only issue there is whether it was improper for Judge Lobaton to grant a suspension of judgment considering that the penalty of the crime he committed is penalty of reclusion perpetua or death. In the meantime, naging effective yung 9344. Now if Section 30 and 192,S 38 is now favorable to the accused because the only requirement in Section 30 is, at the time of the commission of the crime, less than 18. Even if you already reached the age of 18 at the time of the trial, you are still entitled to suspension of sentence. Although sabi ng Supreme Court, sabi niya, it was wrong for Judge Lobaton to grant the suspension of sentence because of the penalty. But on the time the Supreme Court decided that, 9344 now will effect eh. Hindi nila binigyan ng retroactive effect. Sabi ng Supreme Court, 9344 does not amend PD 603. Therefore, it does not amend PD 603, then he is not entitled to suspension of sentence because of these two requirements. Whether we argue with that decision, never mind. Ako, ‘di ako maka-agree dun eh, why? (Improper) practice. Because there is inconsistency, you know. The present provision in the Section 38 is inconsistent with 192, eh. So, if they are inconsistent, then the one that is inconsistent with the present law is deemed amended Nasa repealing laws yun eh. Well anyway, that is the decision. Now, our next topic would be, who are the – sige we will take up probation na lang next meeting. Student: (Unintelligible) minor was acting with discernment? Of course, acting with discernment yan. In 9344 kasi always acting with discernment. Di ba dinicuss ko dun, nakinig ka dun? The (abuse) of minors, di ba? Di mo (naalala) o di ko nilagay kung ano’ng mga ages? Aren’t they? Di ko sinabi yung category, hindi ba? Okay, I will do that Wednesday. Now, that is the category of minor offenders. According to (Volvaire) 9344 section 6, section 7, 32 or 38 or 42, never mind. Or 122 or 23. Iuupo pa lang natin. We will show what’s the effect of the offender. Now, if the offender is 15 or less, exempt na. Exempt from criminal liability di ba? Criminal liability. But he will have to go, undergo an intervention program. Di ko ba ginanun? Wala? Wala akong ginawang parang graph, wala? That is a problem. He is to be released to the parents, but he will have to undergo intervention program. That’s number one. Number two, if he is 15, more than 15, more than, 15-18, without discernment, he is safe. Except from criminal liability, then likewise, intervention program. Number three, 15 to 18 with discernment. Number 1 or number 2, ano’ng effect? With discernment? Maraming effect yan. A)

Penalty is less than 6 years. Dalawa yan. 1. Diversion program to be given by the Punong Barangay. 2. By the DSWDO, Social Work Development Officer head or WDO or social worker na lang.

Diversion program likewise, this one, if the penalty is less than 6 year period, then the diversion program will be prepared by the Punong Barangay. Now, it’s less than 6 years, a victimless crime, then diversion program to be prepared by DSWDO or local DSWDO. Now, that’s not (unintelligible). If the penalty is more than 6 years, but less than 12, what will happen? If less than 12 years, of imprisonment? O ayan.

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B) Ano’ng mangyayari. If the penalty is more than 6 years but less than 12 years, what will happen to him? Ano’ng gagawin ng husgado? He will undergo diversion program to be prepared by the court. The diversion program will be prepared by the court. How does that happen? Ang gagawin d’yan - in other words, pag nakita mo na ‘yung penalty less than 6 years, the case will not go to the court. Even if you acted with discernment, even if you acted with discernment, if the penalty is less than 6 years, as a rule, the case will not yet go to court. He will have to undergo diversion program. While if the penalty is more than 6 years but less than 12 years, the case will go to court. Why? Because the diversion program will be prepared by the court. But what happened here is that before the arraignment, ‘yung minor dito, before the arraignment, he will go to the judge. I’m not admitting, that is like an admission. Sabi n’ya dun eh, I’m not really – it’s not an arraignment, parang confidential. Sasabihin yun ng judge, I’m admitting the commission of the crime, so can you grant me diversion program? Then if that happens, then the court will grant you a diversion program, and therefore, there is no arraignment. Okay? Do you follow? No arraignment kasi inamin niya eh. Now if the penalty is more than 12 years, what will happen? Trial If convicted, there’s suspension of sentence and then diversion. Meron ditong complications, I will explain ha. Okay, now here, 15 years or less, except from criminal liability, but liable for civil liability. He will have to undergo - the minor will be released to the parents, but will undergo intervention program. More than 15 less then 18, acting without discernment, is exempted from criminal liability then, he will have to undergo intervention program. Do you follow? Now, supposing he fails the intervention program, what will happen? Kasi in both cases, the child is released to the parents eh. Now, if he has no parents, he is neglected, he is abandoned, or he does not agree with the intervention program or there is a violation of the intervention program or he fails in the intervention program. Naka-release sa parents ‘yan eh. Ano’ng mangyayari? Then the law says, they will file – the DSWD will file a petition for involuntary confinement. They will have to file a petition for involuntary confinement so that the minor will now be under the care of a government institution for his rehabilitation. Do you follow? It will go - it depends on the intervention, if he is abandoned, neglected, fails the intervention program, or the parents do not agree to the intervention program., or even if there is an intervention program and he fails the intervention program, then file a petition for involuntary confinement under PD 603. Do you follow? Presidential Decree 603, on youthful offender. File a petition for involuntary confinement under PD 603. Now, if the penalty is less than 6 years, then the case is not brought to the court. Why? Because under the law, they will have to undergo a diversion program to be prepared by the Punong Barangay. Or if it is a victimless crime, then diversion program to be prepared by the DSWD or the Local Social Work Development Officer. Local -- and LSWDO – Local Social Work Development Officer. ‘Yan! Do you follow? Now, supposing he (lied) will also depend on diversion program. The parents do not agree with the diversion program, he fails in the diversion program. What will happen with him now? Then, file the case with the fiscal’s office for P.I. File case with fiscal’s office. Do you follow? Pinagbibigyan ng pagkakataon, eh. Then, you have to file the case with the fiscal’s office for preliminary investigation. Now, supposing a he fails in the diversion program in letter B. E di ba, this one here is, because it is the diversion program referred by the court, then it presupposes that there is already an information filed before the court. Dito walang (unintelligible) sa husgado, e. Sa letter B, because the penalty is more than six years but not more than 12 years, file the case before the court. But before arraignment, if he agrees the commission of the crime to the court, then the court can grant a diversion program. Do you follow? Now, it depends on the diversion program, in paragraph B, what will happen? Then, arraignment. He will now be arraigned. Di ba, arraignment? But the submission before the diversion program should not be taken against him as a plea of guilty. Do you follow? Here, a penalty of more than six years but less than 12 years. Therefore, there is a – you file a case here before the fiscal’s office and therefore information is filed. So, before he pleads guilty or not guilty, the court must give him a diversion program if he admits to the commission of the crime. Now, it depends in the diversion program, his admission before a diversion program was granted should not mean a plea of guilty in the arraignment. That is not considered as a plea of guilty. So here is the arraignment, then it will go to trial. Do you follow? Now, if the penalty is more than 12 years, trial na ‘yan. Arraignment, trial. If it is not completed, then promulgate the decision and then suspend the sentence, then give him a diversion program. Di ba, what I told you about Section 38 in relation to Section 42. So, that explains the (treaty) in 9344. Pinapahaba pa ang batas, eh. Meron ka namang minor, eh. O, Mr. Buno? Meron kaming minor, eh. Student: If the person who commits (unintelligible) does not admit to the commission of the crime?

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Yes and no. It’s like this, ano. Yung sa letter B kasi, the case is already filed before the court because the penalty is more than six years but less than 12 years. So, the case is already filed before the court. But, you know, when you file the case before the court, there is an arraignment, di ba? Now, if before arraignment, the minor goes to the judge confidentially. Sabi niya, “Your honor, I want to be rehabilitated, pwede ba? Ha? Inamin ko naman yung pagkakamali ko, e. Bigyan mo ako diversion program.” That’s what happens in letter B. Now, if he fails now in the diversion program. Then, he will be brought to the court for arraignment. Now, whatever admission that he made before should not be taken against him. So, he can still enter a plea of not guilty. Then, he will go to trial. Then, that’s it, suspend the sentence again. Do you follow? Student: What if, for example, during the confidential meeting, the minor does not want to agree to that arraignment? In other words, even if – lahat naman ay binibigyan ng pagkakataon. Even if he is already convicted, eh. He is entitled suspension of sentence, eh. I-diversion mo na naman. I do not know they will grab it or not. Pero, I tell my friends, eh. Biro mo nung 15-18, o can still be exempt for a criminal liability? In view of the tendency one acted with or without discernment, it’s not the court, e. Yung police ang umiinterview nyan if he acted with or without discernment. E sabi ko sa kanila, when I was 16 years old or 17 years old, I knew already what I was doing. Why? I had only five girlfriends. Misis ko ang arraigner. Sabi ko, when I was 17 years old, I knew what I was already doing at that time, because I had already five girlfriends. Oo, at that time. Tapos sabi nila, acting with or without discernment. Seventeen years old, alam mo na ang ginagawa mo, e. Sabi ko, lima nga ang girlfriend ko, e. Sabi ko, totoo ba’ yun? Hindi lang nila alam. That was the joke. Okay, so we will continue next Wednesday. Do not anymore read 81-86. They are provisions pertaining to Republic Act 8177, the law on the death penalty as amended. So, ‘yung 81-86, yun ang mga laws how a person is to be executed. Wala na yan, eh. Di ba, sabi ko that is entitled to (unintelligible) person executed, the day of executed on any day, working day, a curiosity is born on the day of his execution, in the morning, when the sun rises in the morning on the day of his execution. Oo, dapat, but not any more than eight hours from the time he was informed in the morning. So, it cannot be earlier than 2 o’clock, but cannot be later than 4:30. But usually, ang execution, alas tres, di ba? Ang execution, bakit alas tres? But they were already executed, yung pumatay ng pulis, yung kaaway ni (unintelligible) robbery-holdup. They were cloaked, and then Fr. Bacani ata, o Bishop Bacani, CBCP, members of the CBCP ata were trying to convince President Erap not to execute them. But he really called up, daw, but at that time advanced yung relo or something o isa pa baka wrong number. So never mind 81-86, then we will take up our Article 89 up to 130. That will be coverage – madali lang naman itong 89 e, 89 memory work, 90 memory work, 89-94 memory work yan e. Then the others can already study pertaining to principles of criminal law. Therefore, every person is criminally liable and civilly liable, tactical analysis yan e, considering liability. (Unintelligible) at saka yung execution of – considering liability there is only the finding difference of (rape). Kung may motion, pwede yan, di ba? Considering liability, criminal negligence, some negligence or (unintelligible), di ba? So that’s all.

SESSION 12: PROBATION LAW TO CIVIL LIABILITIES Article 86. Generally, penalties are served in the national penitentiary. An exception to this is arresto menor under Art. 88. This penalty may be served in the municipal jail or in the house of the defendant himself under the surveillance of an officer of law. If you’re convicted in Manila, and the penalty is arresto menor, you serve at the city jail of Manila. There is no need to go to the National Penitentiary. Article 87 is Destierro. Here, the accused shall not be permitted to enter the place or places designated in the sentence, nor within the radius therein specified, which shall be not more than 250 and not less than 25 kilometers from the place designated. Probation Law Probation should be taken together with Art. 94 on partial extinction of criminal liability. The most important part of Probation Law is Sec. 4. It states that the period for applying for probation shall be within the period provided for filing an appeal. That means 15 days from receipt of the notice of judgment. If you file a notice of appeal, you are forever barred from applying for probation. On the other hand, if you file an application for probation, you are deemed to have abandoned your right to appeal. The options are mutually exclusive. The reason there is you should not take advantage of the processes of the court. When you file a notice of appeal, then you do not disagree with the judgment of the court. When you apply for probation, you agree with the judgment of the court. Therefore, you cannot file a notice of appeal and then apply for probation because the courses of action are inconsistent. Once an appeal is made, even if the judgment of the trial court is modified, you cannot anymore apply for probation. For example, the penalty given by the trial court is more than six years. In this instance, the you cannot apply for probation because the probation law does not apply when the penalty imposed is more than six years. Then you appeal. On appeal, the appellate

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court lowered the penalty to less than six years. Is the accused entitled to probation? According to the Supreme Court, the accused is not entitled for probation. Once you file a notice of appeal, you are forever barred from applying for probation. Your possible cause of action is to request Congress to amend Sec. 4 of the Probation Law. The lowering of the penalty by the appellate court even if due to miscomputation by the trial court of the penalty will be immaterial. The remedy is to file an administrative case against the erring judge. See Pablo Francisco v. Court of Appeals. Pablo Francisco v. Court of Appeals provides in part: Therefore, that an appeal should not bar the accused from applying for probation if the appeal is taken solely to reduce the penalty is simply contrary to the clear and express mandate of Sec, 4 of the Probation Law, as amended, which opens with a negativeclause, "no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction." When an accused applies for probation in the lower court and then it is denied, what is the remedy of the accused whose application for probation has been denied? Can he apply a notice of appeal? No. An order granting or denying probation shall not be appealable. His remedy is to file a special civil action for certiorari under Rule 65. The reason is that the grant or denial of probation is simply based on the discretion of the court. So if it is based on discretion then the remedy of appeal is not available. Grant of probation is a mere privilege; it is not a matter of right. You can only apply for probation once and only for one judgment of conviction. When you have already applied for probation before, you cannot apply for probation the second time around. If you are convicted by two different courts, then you cannot apply for probation with any of the two courts. But there are instances when a judgment of conviction may cover two or more crimes like in violation of BP 22. So for every check involved, there will be one violation of BP 22. Now, supposing A is the drawer and B is the payee. A issued several checks for B. All the checks bounced. There will be as many violations of BP 22 as the number of checks involved. If there are 10 checks involved, then the offender will be liable for 10 violations of BP 22. Supposing all the cases were lodged in one court: Makati MTC Branch 1. If the accused is convicted, he will be convicted for 10 counts of violation of BP 22. However, the judgment will only be made in one judgment. If you total the number of years as penalty for the 10 counts of violations of BP 22 (assuming each one had 1 year penalty), there will be a total of 10 years imprisonment. The Probation Law is applicable only to penalties not exceeding six years. Is the accused entitled to probation? Yes. Because the maximum six year period is determined not by the totality prison terms but rather whether the each prison term exceeds six years. As long as all the violations of BP 22 are lodged in a single decision, and each prison term does not exceed six years, the Probation Law will apply. See Pablo Francisco v. Court of Appeals. Pablo Francisco v. Court of Appeals provides in part: Multiple prison terms imposed against an accused found guilty of several offenses in one decision are not, and should not be, added up. And, the sum of the multiple prison terms imposed against an applicant should not be determinative of his eligibility for, nay his disqualification from, probation. The multiple prison terms are distinct from each other, and if none of the terms exceeds the limit set out in the Probation Law,i.e., not more than six (6) years, then he is entitled to probation, unless he is otherwise specifically disqualified. The number of offenses is immaterial as long as all the penalties imposed, taken separately, are within the probationable period. For, Sec. 9, par. (a), P.D. 968, as amended, uses the word maximum not total when it says that "[t]he benefits of this Decree shall not be extended to those . . . . sentenced to serve a maximum term of imprisonment of more than six years." Evidently, the law does not intend to sum up the penalties imposed but to take each penalty separately and distinctly with the others. Consequently, even if petitioner was supposed to have served his prison term of one (1) year and one (1) day to one (1) year and eight (8) months of prision correccional sixteen (16) times as he was sentenced to serve the prison term for "each crime committed on each date of each case, as alleged in the information(s)," and in each of the four (4) informations, he was charged with having defamed the four (4) private complainants on four (4) different, separate days, he was still eligible for probation, as each prison term imposed on petitioner was probationable. Now, the problem is if you have 9 cases for violations of BP 22 (for 9 years) lodged in Makati MTC Branch 1 and the other case (for another 1 year) was lodged in Makati MTC Branch 2. There will now be two judgments of conviction. A judgment for 9 counts of BP 22 in Branch 1 and another judgment for 1 count of BP 22 in Branch 2. Can he apply for probation? No. This is because this time, there are two judgments of conviction. You can only apply for probation if there is one judgment of conviction. The remedy is to consolidate all the cases in one court. Even if there are only two counts of BP 22 which meted a penalty of two years each but they were lodged in two different judgments, you cannot apply for probation. You can only apply for probation for a single judgment of conviction. Is an MR considered an appeal? No. There is another important section regarding probation. This is Sec. 70 of RA 9165 (the Dangerous Drugs Law). In the dangerous drugs law, by express provision of Sec. 24 of RA 9165: Section 24. Non-Applicability of the Probation Law for Drug Traffickers and Pushers. Any person convicted for drug trafficking or pushing under this Act, regardless of the penalty imposed by the Court, cannot avail of the privilege granted by the Probation Law or Presidential Decree No. 968, as amended.

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The probation law is not allowed in drug trafficking and drug pushing. Of course, it is also not allowed for other violations under 9165 which entails a penalty of more than 6 years. Illegal possession of drug paraphernalia or illegal use of drugs can be the subject matter of probation. This is because it is not drug trafficking or drug pushing and the penalty does not exceed 6 years. There is a beautiful provision in RA 9165. That is Sec. 70. Let us take for example a minor, 17 years of age acting with discernment. 17 years of age is a privileged mitigating circumstance. Supposing he was caught possessing 51 grams of shabu. If he was caught in the act of selling (this is drug pushing) then the probation is not allowed. Under Sec. 98 of RA 9165, the RPC is not applicable to RA 9165 except in cases of minor offenders: Section 98. Limited Applicability of the Revised Penal Code. Notwithstanding any law, rule or regulation to the contrary, the provisions of the Revised Penal Code (Act No. 3814), as amended, shall not apply to the provisions of this Act, except in the case of minor offenders. Where the offender is a minor, the penalty for acts punishable by life imprisonment to death provided herein shall be reclusion perpetua to death. However, the law further provides that if the offense committed by the minor carries a penalty of life imprisonment to death, then the penalty shall be reclusion perpetua to death. What is the effect of conversion of the penalty from life imprisonment to death to a penalty of reclusion perpetua to death? The penalty now becomes a penalty under the RPC. According to People v. Martin Simon, if the nomenclature of the penalties provided for in the special law is similar to those provided under the RPC, then the RPC shall apply. Therefore, the effect of conversion of the penalty from life imprisonment to death to a penalty of reclusion perpetua to death is that the RPC shall now apply as a general rule. If the penalty is reclusion perpetua to death, can we now lower the penalty by one degree considering the presence of a privileged mitigating circumstance? Yes, because the penalty of RP to death is now within the nomenclature of the RPC. The rules on graduation of penalties under the RPC will now apply. If we did not convert the penalty, we cannot lower the penalty by degree. This is because there is no penalty next lower in degree to life imprisonment to death. Only those penalties from the RPC can be graduated. What is the penalty next lower in degree to reclusion perpetua to death? Reclusion temporal. This is a divisible penalty. Can you now apply the Indeterminate Sentence Law? Yes. No more mitigating, no more aggravating. What is the maximum of the penalty? Reclusion temporal medium. This is an application of the RPC, Art. 64. Where will you get the minimum of the penalty? From anywhere within the periods of Prision Mayor. Can the accused now apply for probation? Here, the maximum of the penalty is more than 6 years. Can he still apply? Yes. The answer lies under Sec. 70. That section provides: Section 70. Probation or Community Service for a First-Time Minor Offender in Lieu of Imprisonment. Upon promulgation of the sentence, the court may, in its discretion, place the accused under probation, even if the sentence provided under this Act is higher than that provided under existing law on probation, or impose community service in lieu of imprisonment. In case of probation, the supervision and rehabilitative surveillance shall be undertaken by the Board through the DOH in coordination with the Board of Pardons and Parole and the Probation Administration. Upon compliance with the conditions of the probation, the Board shall submit a written report to the court recommending termination of probation and a final discharge of the probationer, whereupon the court shall issue such an order. If the offender is a first-time minor offender, even if the maximum of the penalty imposed by the court is higher than that required under the Probation Law, he can still apply for probation. This is the exception. Why is it that he is entitled to probation? Because the example is illegal possession. But if the example is selling of drugs, you still convert the penalty from life imprisonment to death to reclusion perpetua to death; and you will still apply the above computation. However, he cannot anymore apply for probation. This is due to the explicit language of Sec. 24 of RA 9165. The law prohibits probation in drug trafficking or drug pushing. So even if he is a minor, if he is convicted under drug trafficking or drug pushing, he will not be allowed to apply for probation. The other thing in probation is that probation is not a penal law. Even if it is favorable to the accused, it cannot be given retroactive effect. See Pablo Bernardo v. Cecilio Balagot. The probation law is not a penal law and therefore cannot be given retroactive effect even if favorable to the accused. When you apply for probation, the court will not immediately grant your application. What will happen is that upon your application, the court will require an investigation. The probation officer will conduct an investigation on your background and will submit his report to the court. The resolution of the court will be based on the report submitted by the probation officer. If the court grants the probation, it will issue a probation order fixing the period of probation to a period not more than 2 years.

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Probation cannot be more than two years. When the probation is granted, there will be some conditions imposed by the court. Those conditions must be complied with by the accused. If the conditions are not strictly fulfilled, then the court may revoke the probation. If the probation is revoked, the court will issue a warrant for the arrest of the accused. Once arrested, the accused will now serve his sentence. The problem is there were two cases: People v. Fajardo and People v. Soriano. The issue in those cases was whether or not the condition for the payment of civil liability may be validly made in the order of probation. One of the conditions for the grant of probation was the payment of civil liability. Is that valid? No. It will violate the equal protection clause. Only the rich people will be able to apply for probation because they are the ones who are able to pay the civil liability. But, if the accused himself volunteered that he will pay the civil liability, and that promise to pay the civil liability is included as one of the conditions for the grant of probation, such condition will be valid. If the accused fails to pay, the probation may be revoked. Another thing about probation is whether or not it is a ground for partial extinction of criminal liability under Article 94. Yes, it is. This is because upon the grant of probation, the accused will no longer go to jail. He will be released but subject to certain conditions. Article 89. Total extinction of criminal liability. What is the effect of death? The most important part of this article is par. 1, the effect of death. The law says that if death of the offender occurs before final judgment, then the personal penalties and pecuniary penalties shall be extinguished. Personal penalties refer to imprisonment; pecuniary penalties refer to fines. If the accused dies at any stage of the trial, the personal and pecuniary penalties will be extinguished. What about the civil liabilities? Are they also extinguished? You first have to determine when did the accused die. If the accused die before judgment, everything will be dismissed – the pecuniary penalties, the pecuniary penalties and the civil liabilities. This is because there is no final judgment. The guilt or innocence of the accused has not yet been determined. His liability has not been decided yet. The problem is when the accused dies pending appeal. Insofar as pecuniary and personal penalties are concerned, both are extinguished. What about the civil liability? The civil liability ex delicto is also extinguished. See People v. Bayotas. This is without prejudice to the filing of a case for civil liability arising from sources other than the commission of the crime. People v. Bayotas says in part: Death of the accused pending appeal of his conviction extinguishes his criminal liability as well as the civil liability based solely thereon. As opined by Justice Regalado, in this regard, "the death of the accused prior to final judgment terminates his criminal liability and only the civil liability directly arising from and based solely on the offense committed, i.e., civil liability ex delicto in senso strictiore." Corollarily, the claim for civil liability survives notwithstanding the death of accused, if the same may also be predicated on a source of obligation other than delict. Article 1157 of the Civil Code enumerates these other sources of obligation from which the civil liability may arise as a result of the same act or omission: a) Law; b) Contracts; c) Quasi-contracts d) . . .; and e) Quasi-delicts. What is the difference between pecuniary penalty and pecuniary liability? Pecuniary penalty refers to fine. Pecuniary liability refers to civil liability (actual, exemplary, moral damages). If you cannot pay the fine, you serve subsidiary imprisonment. If you cannot pay the civil liability, you cannot serve subsidiary imprisonment because that will be unconstitutional. No person shall be imprisoned for non-payment of debt. What is amnesty? Amnesty is granted by the President with the concurrence of Congress. It is usually applicable to political crimes. What is the effect of absolute pardon? No more criminal liability, no more accessory penalty. But there is still civil liability. The President cannot pardon the civil liability aspect because that is personal between the private offended party and the accused. When does marriage totally extinguish criminal liability?

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Transcript of Justice Peralta Lectures

Art. 344 provides: “In cases of seduction, abduction, acts of lasciviousness and rape, the marriage of the offender with the offended party shall extinguish the criminal action or remit the penalty already imposed upon him. The provisions of this paragraph shall also be applicable to the co-principals, accomplices and accessories after the fact of the above-mentioned crimes.” What about prescription of a crime? When do you start counting the prescriptive period? Memorize Art. 90. For crimes under the RPC, Art. 91 provides for the manner of counting the prescriptive period. Art. 90. The period of prescription shall commence to run from the day on which the crime is discovered by the offended party, the authorities, or their agents, and shall be interrupted by the filing of the complaint or information, and shall commence to run again when such proceedings terminate without the accused being convicted or acquitted, or are unjustifiably stopped for any reason not imputable to him. The term of prescription shall not run when the offender is absent from the Philippine Archipelago. Under Art. 90, if a complaint or information shall have already been filed, the prescriptive period will be tolled. Even if you go anywhere in the world, the prescriptive period will not run. The second paragraph will only apply if there is no yet complaint or information filed. If the accused goes out of the Philippines, the prescriptive period will be suspended. The order of the enumeration above on who should discover the commission of the crime should be followed. In falsification of deeds of sale of real property, when do you start counting the prescriptive period? From the time of falsification of the deed of sale? From the time of discovery of the falsification? Or from the registration of the deed of sale in the proper registry of property? You count the prescriptive period from the time of registration in the registry of property. If it is a sale of real property registered in the proper registry of property, then it is constructive notice to the whole world. In falsification of a marriage contract, when do you start counting the prescriptive period? From the time of falsification of the marriage contract? From the time of discovery of the falsification? Or from the registration of the marriage certificate in the civil register? You count the prescriptive period from the time of discovery. A registration of a marriage contract is not constructive notice to the whole world that you are already married. Third parties do not care if you are already married. This is unlike the sale of real property. What law governs prescription of special laws? Act No. 3326. Benjamin Romualdez v. Simeon Marcelo, as regards to prescription of special laws, states in part: xxx xxx xxx Besides, the only proceeding that could interrupt the running of prescription is that which is filed or initiated by the offended party before the appropriate body or office. Thus, in the case of People v. Maravilla, this Court ruled that the filing of the complaint with the municipal mayor for purposes of preliminary investigation had the effect of suspending the period of prescription. Similarly, in the case of Llenes v. Dicdican, this Court held that the filing of a complaint against a public officer with the Ombudsman tolled the running of the period of prescription. In the case at bar, however, the complaint was filed with the wrong body, the PCGG. Thus, the same could not have interrupted the running of the prescriptive periods. xxx xxx xxx The law on prescription of offenses is found in Articles 90 and 91 of the Revised Penal Code for offenses punishable thereunder. For those penalized under special laws, Act No. 3326 applies. Section 2 of Act No. 3326 provides that the prescription shall begin to run from the day of the commission of the violation of the law, and if the same be not known at the time, from the discovery thereof and the institution of judicial proceedings for its investigation and punishment. The running of the prescriptive period shall be interrupted when proceedings are instituted against the guilty person, and shall begin to run again if the

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Transcript of Justice Peralta Lectures

proceedings are dismissed for reasons not constituting jeopardy. Clearly, Section 2 of Act No. 3326 did not provide that the absence of the accused from the Philippines prevents the running of the prescriptive period. Thus, the only inference that can be gathered from the foregoing is that the legislature, in enacting Act No. 3326, did not consider the absence of the accused from the Philippines as a hindrance to the running of the prescriptive period. Expressio unius est exclusio alterius. xxx xxx xxx While it is true that Article 10 of the Revised Penal Code makes the Code suppletory to special laws, however, Act No. 3326 cannot fall within the ambit of “special law” as contemplated and used in Article 10 of the RPC. In the case of United States v. Serapio, the Court had the occasion to interpret the term “special laws” mentioned in Article 7 of then Penal Code of the Philippines, which is now Article 10 of the Revised Penal Code, as referring to penal laws that punish acts not defined and penalized by the Penal Code of the Philippines. Thus – This contention makes it necessary to define "special laws," as that phrase is used in article 7 of the Penal Code. Does this phrase "leyes especiales," as used in the Penal Code (article 7) have the meaning applied to the phrase "special laws," as the same is generally used? x x x It is confidently contended that the phrase "leyes especiales," as used in the Penal Code (article 7) is not used with this general signification: In fact, said phrase may refer not to a special law as above defined, but to a general law. A careful reading of said article 7 clearly indicates that the phrase "leyes especiales" was not used to signify "special laws" in the general signification of that phrase. The article, it will be noted, simply says, in effect, that when a crime is made punishable under some other law than the Penal Code, it (the crime) is not subject to the provisions of said code. Even if we consider both Act No. 3326 and Article 91 as supplements to RA No. 3019, the same result would obtain. A conflict will arise from the contemporaneous application of the two laws. The Revised Penal Code explicitly states that the absence of the accused from the Philippines shall be a ground for the tolling of the prescriptive period while Act No. 3326 does not. In such a situation, Act No. 3326 must prevail over Article 91 because it specifically and directly applies to special laws while the Revised Penal Code shall apply to special laws only suppletorily and only when the latter do not provide the contrary. Indeed, elementary rules of statutory construction dictate that special legal provisions must prevail over general ones.

In this case, the Supreme Court, on reconsideration, said that the crime had already prescribed. Article 91, par. 2, in relation to Art. 10 is not applicable as suppletory to Act No. 3326. Why? The suppletory application of the RPC engendered under Art. 10 of the RPC refers only to SPECIAL PENAL LAWS. It does not apply to mere special laws. Act No. 3326 is a law on prescription. It is not a special penal law but a mere special law. Therefore, the RPC, through Art. 10 cannot apply because Act No. 3326 is not a special penal law. Prescription of penalties Prescription of penalties apply when the accused is already convicted but he cannot be arrested. Memorize Art. 92. Partial Extinction of Criminal Liabilities Under the RPC, there are three kinds of pardon. The first is pardon by the private offended party under Art. 23: “A pardon of the offended party does not extinguish criminal action except as provided in Article 344 of this Code; but civil liability with regard to the interest of the injured party is extinguished by his express waiver.” The second is absolute pardon under Art. 89. The third is conditional pardon under Art. 92. Conditional pardon is different from parole. In parole, you are entitled to it after you have served the minimum penalty of your sentence. In a conditional pardon, you are only entitled to it after you have served 1/3 of your sentence. If you violate a condition of parole, you will be arrested and you will serve your remaining sentence. If you violate a condition of a conditional pardon, two things might happen to you. The first one is under Art. 159: Art. 159. Other cases of evasion of service of sentence. — The penalty of prision correccional in its minimum period shall be imposed upon the convict who, having been granted conditional pardon by the Chief Executive, shall violate any of the conditions of such pardon. However, if the penalty remitted by the granting of such pardon be higher than six years, the convict shall then suffer the unexpired portion of his original sentence.

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Transcript of Justice Peralta Lectures

If the penalty remitted is less than six years (meaning that when he was pardoned, he had only less than six years remaining in his sentence), then he will be liable for “other cases of evasion of service of sentence.” That is a crime to which he will be liable. But if what is remitted is more than six years (meaning that when he was pardoned, he had more than six years remaining in his sentence), there will be no crime of “other cases of evasion of service of sentence.” However, he will be rearrested and he will serve his remaining sentence. Allowance of good conduct? What is commutation of sentence? In commutation of sentence, the penalty is lowered. It is different from conditional pardon, parole and probation. Do the math. Civil liability What is subsidiary liability? If the principal accuse cannot pay the civil liability, then somebody should pay it. What is the subsidiary liability of an employer? To hold the employer liable, you first have to prove that at the time of commission of the crime, the principal accused was an employee of the employer. The subsidiary liability cannot be enforced unless and until the principal accused fails to pay for the civil liability by reason of insolvency. Case: A was the taxi driver of B. A committed reckless imprudence resulting to homicide in running over C. The heirs of C cannot implead the employer B in the criminal case because criminal liability is personal. It was only A who was impleaded in the criminal case. A judgment was rendered convicting A and sentencing him to pay P2M for civil liability. A cannot pay due to insolvency. What will the heirs do? The remedy of the heirs is to file a motion for the execution of the subsidiary liability of B in the same criminal case. They need not file a separate civil action to avoid duplicity of suit. The motion, however, must be founded on two requirements: (1) in the criminal case, there must be evidence that the accused is the employee of the employer; and (2) you have to prove that the employer failed to exercise due diligence in the selection and supervision of the accused employee. Well, of course you also have to prove that the accused employee is insolvent.




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