Criminal Law I Notes By Judge Oscar Pimentel.docx

Criminal Law I Notes By Judge Oscar Pimentel

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CRIMINAL LAW If you look at the book of Gregorio and the book of Reyes, the two books have a different definition of criminal law. In the book of Gregorio, it says that criminal law is a branch of municipal law. I do not know if you have seen that in the book of Gregorio. But in the book of Reyes, it is a branch of public law. Is there a difference? It used to be, in the old times, that when you speak of municipal law, it has an application…local application. Then, naturally, we became a Republic, etc., we became an archipelago composed of several islands so…they actually did not change the definition, they only

corrected it. So, it became a branch of public law that defines crimes, treats of their nature and provide for their punishment.

CRIME: FELONY v. OFFENSE Look, the word ―crime‖ is (shall we call it) very very important because a crime is not

(shall we call it) only that which is punishable under the Revised Penal Code but it includes also those that are punishable under special laws. That is why we have a  ―felony‖. A felony is one that is defined and punished for an act or omission that is punishable under the RPC. On the other hand, an ―offense‖ is an act or omission that is

defined and punished under special laws or special penal laws. But then, there could be a mixture of (shall we call it) a felony and an offense. A single act may constitute a felony and at the same time an offense. Do you know of any (shall we call it) act or omission that is both a felony and at the same time an offense? ---silence — Let us see… Supposing a girl has a boyfriend (tuksuhan na…) eh, yang mga boys kasi

eh, if a girl has a boyfriend eh medyo nag-iisip kaagad ng hindi maganda. Ok, a girl has a boyfriend. She knows that her boyfriend is a snatcher. Alam niya, but you know love knows no boundary. Love is blind and the lovers refuse to see. Okay…one afternoon this man went to see his girl friend and said, ―Darling, here is a new cellphone‖. So, the girl said, ―Talaga bang bago yan?‖ ―Oh, yes, eh kabibili lang nung lalaki sa tindahan yan nung makuha ko e so bago nga‖. (Laughter) All right. So, they parted ways. The girl

went on her way but while she was there at Recto Ave formerly Ascarga, if you will still recall, nobody knows anymore where Ascarga is…its C.M. Recto. The girl suddenly

remembered that she promised her siblings that that day she is going to buy a lot of

food for them as one of her brothers let us say for example has recovered from an illness. She remembered about the cellphone because she had no money. She went to a side street in C. M. Recto. She met a man. She said, ―Pare, are you not the buyer of cellphones here?‖ ―Oh yes, I‘m the buyer.‖ ―I have a cellphone here..new ha…how much would this cost?‖ ―Oh well, let‘s see, about P1,500‖. ―Make it P2,000 naman‖.  ―P1,500.‖ The girl is actually desirous of getting money. Anyway, her boyfriend can

always bring her a cellphone anytime she wants. Just try to (shall we call it) stall the whole thing because the man might change his mind [medyo blurred, sorry]. However, here comes another man who asked the man who is buying the cellphone, ―Pare, may pinagbibili ka bang cellphone?‖ ―Just a moment, lumayo-layo ka lang. I have a transaction here. Just give me five minutes‖. ―Okay, I‘ll buy that phone -P1,500. Take it or leave it.‖ So, the woman agreed. She was paid P1,500. Then the man went to the person who was buying the cellphone and said, ―Okay, you want to buy this…P2,000‖  ―Okay‖. He agreed but it turned out that the person buying the cellphone, aside from

being the owner of the stolen cellphone, is a policeman. The man who was buying the cellphone was arrested. The woman who sold the cellphone was arrested. Now, the woman said why are you arresting me. ―You profited from the commission of the crime.‖ Eh, the policeman was studying law at that time. Under Article 19 of the RPC

paragraph 1, anyone who profits from the commission of any crime, etc., is an accessory. ―You profited from the commission of the crime of theft, etc. then you are an accessory‖. ―Aside from that,‖ the man said, ―you are a fence‖. ―How can I become a fence? I do not know what is fencing‖. ―No…anyone who with intent to g ain, shall deal

in, shall sell, shall buy, shall deliver, etc., any personal property which has been derived from the crime of robbery or theft is considered a fence. The man was also arrested. They were brought to court, etc. Now, they said. ―You have to choose whether you are going to charge us under the RPC as a felony or you are going to charge us for the violation of the Anti-Fencing Law as an offense. The policeman said, ―Whether I file a felony, of which you are an accessory to the crime of theft or violation of the AntiFencing Law, would not matter because even a single act that was committed by you may constitute a violation of the RPC and may constitute also a violation of a special law. And both can be prosecuted at the same time and judgment can be rendered in both cases without you being placed in double jeopardy. That has been the ruling of the Supreme Court in several cases where a single act would constitute a felony and an offense at the same time. Even in the crime of (shall we call it) obstruction of justice. In paragraph 2, harboring, etc.,concealing, etc., a person has been customated, etc., of a crime, etc., or destroying evidence under pgh 3 or whatever…that person is liable as an

accessory also under Article 19 and at the same time, he is also liable for obstruction of

food for them as one of her brothers let us say for example has recovered from an illness. She remembered about the cellphone because she had no money. She went to a side street in C. M. Recto. She met a man. She said, ―Pare, are you not the buyer of cellphones here?‖ ―Oh yes, I‘m the buyer.‖ ―I have a cellphone here..new ha…how much would this cost?‖ ―Oh well, let‘s see, about P1,500‖. ―Make it P2,000 naman‖.  ―P1,500.‖ The girl is actually desirous of getting money. Anyway, her boyfriend can

always bring her a cellphone anytime she wants. Just try to (shall we call it) stall the whole thing because the man might change his mind [medyo blurred, sorry]. However, here comes another man who asked the man who is buying the cellphone, ―Pare, may pinagbibili ka bang cellphone?‖ ―Just a moment, lumayo-layo ka lang. I have a transaction here. Just give me five minutes‖. ―Okay, I‘ll buy that phone -P1,500. Take it or leave it.‖ So, the woman agreed. She was paid P1,500. Then the man went to the person who was buying the cellphone and said, ―Okay, you want to buy this…P2,000‖  ―Okay‖. He agreed but it turned out that the person buying the cellphone, aside from

being the owner of the stolen cellphone, is a policeman. The man who was buying the cellphone was arrested. The woman who sold the cellphone was arrested. Now, the woman said why are you arresting me. ―You profited from the commission of the crime.‖ Eh, the policeman was studying law at that time. Under Article 19 of the RPC

paragraph 1, anyone who profits from the commission of any crime, etc., is an accessory. ―You profited from the commission of the crime of theft, etc. then you are an accessory‖. ―Aside from that,‖ the man said, ―you are a fence‖. ―How can I become a fence? I do not know what is fencing‖. ―No…anyone who with intent to g ain, shall deal

in, shall sell, shall buy, shall deliver, etc., any personal property which has been derived from the crime of robbery or theft is considered a fence. The man was also arrested. They were brought to court, etc. Now, they said. ―You have to choose whether you are going to charge us under the RPC as a felony or you are going to charge us for the violation of the Anti-Fencing Law as an offense. The policeman said, ―Whether I file a felony, of which you are an accessory to the crime of theft or violation of the AntiFencing Law, would not matter because even a single act that was committed by you may constitute a violation of the RPC and may constitute also a violation of a special law. And both can be prosecuted at the same time and judgment can be rendered in both cases without you being placed in double jeopardy. That has been the ruling of the Supreme Court in several cases where a single act would constitute a felony and an offense at the same time. Even in the crime of (shall we call it) obstruction of justice. In paragraph 2, harboring, etc.,concealing, etc., a person has been customated, etc., of a crime, etc., or destroying evidence under pgh 3 or whatever…that person is liable as an

accessory also under Article 19 and at the same time, he is also liable for obstruction of

 justice. Then, he may be prosecuted without him being placed in double jeopardy for both crimes. So, a single act may result to being a felony and at the same time an offense.  You must have h ave to remember that because there are times when what you know only is that if a person violates any provision of the RPC, concededly, you will say that he only committed a felony. But then, even that single act would constitute also an offense under a special law. There were so many. It used to be that illegal possession of firearms is still defined and punished under PD 1866. And that an illegally possessed firearm was used in the killing of another. There is only one act, the possession of the firearm which resulted in the killing of another but then during the time when PD 1866 was still in force, the crime of homicide may be prosecuted separately from the crime of illegal possession of firearms which is already passé or it is not anymore true because in RA 8294, illegal possession is already absolved in the crime of homicide and murder and in rebellion, treason, sedition and also attempted coup de etat. There is no such crime. Is there a crime of attempted coup de etat? Wala yun. I don‘t know how Sen. Revilla

arrived at a (shall we call it) or his researchers arrived at a crime of attempted coup de etat. Even if the coup de etat is attempted or whatever, it is still coup de etat. Alright. So, you are now familiar with how to treat a felony, on how to treat an offense.

GENERAL CHARACTERISTICS OF CRIMINAL LAW But then, how about say for example violation of municipal ordinance. It is, of course, known to everyone that if any legislative body passes any ordinance, which is penal in nature, it will define the act that will be punishable and it will provide the penalty for the same. Just like an offense. Like just a felony. The only problem here that has been the subject of debates is whether violation of a municipal ordinance is a crime. I think that‘s not even in your book. Do you see a crime ? But it is not a crime because a crime has general application. Meaning to say that the two general characteristics of criminal law must be present in the crime, even the third. The two characteristics are generality and territoriality. Now, it would only mean that it is applicable to all those who sojourns or lives in the Philippines and that the act or omission that is punishable by law must have been committed within the territory of the Philippines or under certain exceptions in certain instances, it may apply to territories beyond our jurisdiction depending upon the circumstances, such as in an airship, a ship, etc., or even if the same is committed outside of the territory of the Philippines if it is a crime against the law of nations, or if, say for example, a case in regard to counterfeiting of currencies etc. or the introduction of those counterfeited currencies in the Philippines or instruments irrespective of the

place where it was committed we have jurisdiction over those crimes or that felony. The problem there that would usually be of importance is said can you consider an ordinance a crime. No, it cannot be considered as a crime. Some of you will reason out that, well, a crime in order to become as such must be passed by law first. Meaning to say that there must be a law that must be passed by Congress or must be decreed by the President in cases when there is Martial Law or when the President is so authorized by the Constitution. But then, when you speak of an ordinance, it has only of local application. It is only good for a certain, definite and limited territory such as a town, a municipality or when the same is an ordinance of a province or a resolution of the province, it is protected (?) within the territory of that province or in the event that it is a (shall we call it) an ordinance of the Metro Manila Commission, then within the confines of the Metro Manila area. So, it has a local application and therefore it cannot be considered as a crime because a crime has a wider application meaning that it covers the entire Philippines, it covers all those who sojourns or lives in the Philippines. It may be an infraction of a (shall we call it) an ordinance, etc. but if there is a penalty being imposed for any act or omission committed by the offender, nevertheless, it is only of local application. It cannot apply to the next town. Supposing there is an ordinance in a town prohibiting the spitting in public places but the next town there is no such ordinance, so you can go to the other town and spit without being held liable for violation of the ordinance. Okay, hmmm. As I was saying, criminal law would also deal about its characteristics. The general characteristics of criminal law are three, that is, 1.) General in nature, 2.) Territorial and 3.) Prospective.

I. GENERAL Now, there is no problem with generality except that, as you know, that by reason of treaties, conventions, committees, etc., there are certain persons that are exempted from criminal prosecution in our country, such as what, such as diplomat, etc., those who belongs to the diplomatic corps, including their entourage are (shall we call it) not supposed to be prosecuted in this country. But we have a problem in that respect, in RA 9156, that is, the Comprehensive Dangerous Drugs Act of 2002. There is a provision there which says that it is an aggravating circumstance if the offender facilitates the commission of the crime or facilitate the commission of any violation of RA 9156 with the use of diplomatic passports or with the use of diplomatic channels or well, of course, with the use of the influence of a diplomatic, etc., etc., now, naturally the offender there would be at least either a co-conspirator in violating the law on dangerous drugs. So, under 9156, even an ambassador or any person who possesses diplomatic immunity may be prosecuted under 9156. Maybe, this will be questioned

later as years go by in the event that there is a member of the diplomatic corps who may have been caught violating the provisions of RA 9165 (parang wron g number…J)  Also, in this generality that is where you are going to look at laws of preferential applications, etc., and you know for a fact that this would naturally affect the generality of the characteristic of our penal law. Even if the offender do not wish even step on our land, as long as he is present and that we can acquire our jurisdiction over him, he can be prosecuted in this country. There was a question that I asked one time, well, a passenger of a Korean airlines or whatever boarded the plane in New York their destination is Seoul, Korea. There was a typhoon so the plane has to be directed to Manila. The Korean was drunk because he is afraid of (shall we call it) the bumpy ride as there was a typhoon and he drinks too much wine. When he arrived at the airport, he quarreled with almost anyone he met. So, he was arrested and put to prison as he was able to injure somebody and that somebody complained. His reason was that I do not want even to be in your country, I don‘t like Filipinos. But then, i s the fact that he does not want to be in the Philippines to be considered as an exemption in respect to the criminal prosecution that may progress against him…NO. It cannot.

II. TERRITORIAL Okay, then you have territoriality. Territoriality is simply that the crime must be committed within Philippine territory with the exception of those found in Article 2 and other (shall we call it) existing laws in the Philippines. We all know that the Philippines is an archipelago. It is composed of 7,110 or 107 islands. Some of them has already sunk or have sunk so not anymore complete; nevertheless, we are still an archipelago.  And we have abandoned the (shall we call it) doctrine in regard to the territorial  jurisdiction of the Philippines as the 1935 and the 1972 Constitution provides. Because in the 1935 and 1972 Constitution, the territorial jurisdiction of the Philippines with respect to oceans and seas that surrounds us is 3-nautical miles from the highest point. To be measured from the highest point of tide. 3-miles from where? From the shore?...NO. That is not what the law says. It must be 3 -nautical miles from the highest point in tide. Do you know what is the highest point of tide? Some of you have been going to beaches, you do not know the highest point in tide. When it is high tide, the seawater usually goes even up and up towards some portion already of the land. And the territorial jurisdiction of the Philippines then was to be measured from that highest point of tide that was reached by the water and you measure three-nautical miles going to the sea. That was then our territorial jurisdiction. It was changed because of the adoption in 1987 of the archipelagic doctrine. I‘m very sure that all of you are familiar

with the archipelagic doctrine that as you have been taking this doctrine in your poli or

constitutional law. I did explain a little about archipelagic doctrine when you were still taking up your Crim 1 because I see familiar faces (Uy…Aze, kilabot ka talaga…J) whom I‘ve met about three years…four ye ars ago? Some of you have changed a little. The

same old faces. The archipelagic doctrine only (shall we call it) says that the Philippine territory with respect to the large body of water that surrounds us must be, must include 12 nautical miles from the baseline of the archipelago. And how do you determine the baseline? The baseline can be determined by actually locating the outer most points of an island. And likewise, the next outermost point of the other island next to it. What you have to do is draw a straight line from those two points and then look for another outermost point of an island. Draw another straight line until you reach the first straight, first outermost point which encompasses the land mass, etc., which includes the land mass includes all the bodies of water. That shall be considered as the baseline. From that baseline, you measure a distance of 12-nautical miles. And also, draw a straight line, so forth and so on based on the outermost point of the islands and there you are…you have the  archipelagic doctrine which will compose of the territory of the Philippines. Beyond that we do not have jurisdiction. It is simple. If you are going to look into it only you don‘t have to be very very adept in describing the (shall we call it)

terms that were used in the Constitution or interpretation but that would suffice.

 As, I said well, in the general characteristic of a criminal law, that is, territoriality —there are certain exceptions. The, well, when a public officer or employee commits a crime in relation to the performance of his duties outside of the Philippines, then he is still as if he is still committing the crime within our Philippine territory. Well, counterfeiting of coins, introduction of counterfeited coins and currencies and also crimes against law of nations and also there are new offenses that are considered as trans-national crimes.  Although we are a member of certain organizations that recognizes trans-national crimes, we have not yet actually passed a law which would be of use to us in connection with crimes that are committed in other countries of which we have  jurisdiction except those that are in violation of the law of nations such as what…piracy.

But do not state piracy only, it should be piracy in the high seas because that is the crime against the law of nations. We have what we call local piracy. It used to be that local piracy is included in PD 532. But because of RA7659, that is, the Heinous Crime Law, there is an express repeal of the law on local piracy in PD 532. The local piracy is now defined and punished under RA 7659 which was actually transferred to the provisions of the RPC as an amendment to the law on piracy.

Well, you would know that territoriality may have also some effect on ships, airships etc., we all know that the registration of a ship or airship (based on a thorough analysis of deciphering the words said) shall be the basis of the determination of jurisdiction. If the crime is committed within our territory irrespective of the registration of the ship, we have jurisdiction. Without our territorial jurisdiction, that is when registration will be the basis of jurisdiction. If, say for example, the crime that has been committed was on a ship that was not registered in the Philippines, the crime may be tried in the country where that ship is registered. But then, look, uhmm… what are the true rules regarding

ships that where the place of commission of any offense or crimes, etc. outside of the territorial limits of the Philippines. We adopt the French and Rousseau (?), one of them says that if it is only a (shall we call it) problem between the cruise, etc. then even if that ship is outside of the territory of the Philippines, it does not matter because the  jurisdiction is that country in which the ship is registered. But, in the event that it does not affect only the administration of the ship or in connection with management to proceed, then the jurisdiction is naturally with (shall we call it), it depends upon whether (shall we call it) the Philippines may be able to obtain jurisdiction over that particular crime. Ah…you recall the cases involving drugs in your Book One. Is it still

there? The cases of smoking of opium, smoking marijuana, etc., those are dead cases already. They are not anymore applicable. Then, if you smoke marijuana in a commercial ship docked in Philippine waters, etc., you may be held criminally liable and we have jurisdiction over the offender. But if the offender was found only to be in possession of marijuana in a ship in transit to another country, then we do not have  jurisdiction. But because of the passage then of RA 6425 which repealed the provisions of Article 190 and so forth of the RPC which makes violation of the law on drugs a special law, then irrespective of whether the ship was in transit, irrespective of whether you have the intention to use the drugs or not, irrespective of whether you want to smoke it or not, you are criminally liable. So, those cases regarding opiums, regarding marijuana which were cited in your book are only (shall we call it) cases to make your book a little bit thicker. Hmm…pampakapal lang yan. Because if they are of no use

already of course its also worth while to know that such cases can be compared to the cases now (noh) and you will know that in the years before the repeal of Article 190, we apply those laws, we apply those jurisprudence but thereafter we don‘t apply them

anymore.

III. PROSPECTIVE

Okay, do you have any questions in the meantime before I proceed? None…Then,

prospectivity. No problem about prospectivity. You just look at Article 22 of the RPC then there you are. Hmm… All penal laws, criminal laws must be prospective in nature Because it would violate the limitations on the passage of a penal laws that ―no laws

shall be passed which will be an ex post facto law, which will be a bill of attainder, which will violate due process of law. So, it must be prospective in nature. It will become retroactive only in the event that it favors the accused. This was illustrated in the (shall we call it) the case of People v. Martin Simon y Sunga and in the cases of Robin Padilla, Congressman De Guzman and others. You recall those cases? Martin Simon…you recall the case of Martin Simon? I discussed that in Book One and even in Special Laws. You recall that Martin Simon was convicted of posing drugs, marijuana…5

teabags of marijuana in Guagua, Pampanga. He was sentenced to life imprisonment under RA 6425. While the case is on appeal with the Supreme Court, the RA 7659 took effect and you know that in RA 7659, where if the dangerous drugs are sold or possessed, the weight of the drugs is a important in imposing the appropriate penalty. In cases of marijuana, if the weight of the marijuana is 750 grams and above, the penalty shall be life imprisonment to death. Reclusion perpetua...I should say…reclusion

perpetua to death. That is 7659 and well in the event that it is over 750 then you have to divide by three the remaining marijuana. The one-third would be the (shall we call it) should be punished by the least of the penalties which is prision correccional. As provided for in the same law. The two-third portion will carry with it the penalty of prision mayor and the other portion will carry with it the penalty of reclusion perpetua. That because Martin Simon only sold not more than 50 grams of marijuana which is not even 1/3 of the weight prescribed. The penalty that was imposed only to Martin Simon by the Supreme Court considering the retroactivity of the law which is favorable to Martin Simon is only up to 4 years and 2 months. At that time, Martin Simon has served already 6 years of his life imprisonment sentence. He was immediately released because the new law has a retroactive effect. Now, retroactivity naturally has an exception. What is the exception when a law has a retroactivity effect? Does it have any exception? Huh? What is the exception? If the law provides otherwise —number 1. How about those who are repeat offenders? Are they disqualified from the retroactivity of penal laws? No.

THEORIES IN CRIMINAL LAW Okay, we go to ahmm… we have actually taken up the three characteristics, the

theories of criminal law. There are actually three theories, not only two. The first is the

positivist theory, second is the classical and the third is the mixed theory. I would explain how it come to pass that there is a mixed theory. Now, this theories have for their basis the imposition of the penalty. The purpose why the penalty is being imposed to an offender. In the positivist theory, the purpose of imposing a penalty to an offender is naturally to report him, to rehabilitate him, etc. On the other hand, if you are going to apply of the classical theory it is more of retribution. It is more of the affliction of pain upon the offender. Meaning to say that the penalty that is being imposed upon the offender in classical theory is afflictive in nature. Now, but there are penalties that are afflictive in nature that is also (shall we call it) for the purpose of reformation and rehabilitation. Well, if the penalty is death and it is executed. There is no more chance of reforming. Don‘t you have any chance of reformation when the

person is dead already. Well, you will note that we have several laws wherein the positivist theory is applied. So, if you are asked in the bar, give an example of laws that is an application of the positivist theory or a question of that sort, can you give me…can you cite for me the laws or c an you give me some laws? Ha?!…tignan nyo. I thought that you know criminal law already. Let‘s see. The purpose is reformation. Look at the

Indeterminate Sentence Law, why is it that there is an indeterminate sentence? There should be a minimum and there should be a maximum. What is that for? What is the (shall we call it) the purpose of fixing the minimum and the maximum. And remember, ladies and gentlemen, there is a recent decision of the SC that prohibits the imposition of a straight penalty when the maximum of the penalty to be imposed is more than a year unless of course it is a penalty of six months as minimum to 2 year and 4 months.  You can impose a penalty of straight one year. But that is as far as you can go, you cannot impose a penalty of straight one year and one day. That is prohibited now by the new decision of the SC. According to the SC, it deprives the accused of the benefits of the Indeterminate Sentence Law. In other words, the SC recognizes that in imposing a penalty there is always a hope of reformation and rehabilitation. The moment that that person has served the minimum, naturally what happens? He is entitled to parole, he is entitled to a commutation of sentence, entitled to even a pardon…unconditional

pardon or even an absolute pardon. It depends on (shall we call it) his behavior while he was serving or he is serving sentence. So, that is one law. Give me another law. Probation Law…because in probation law, the court gives a person the opportunity of

trying to show the society that even if he is outside of the walls of prison, he can still be considered as serving his sentence. But then, he is still in the stream f the society where he belongs. Only that his liberty is restricted, the exercise of…

(Oh no, tape ends…)

DATE: JUNE 25, 2003 Wednesday

MISTAKE OF FACT Last time, I made mention of some principles that even a first year law student has already became to learn. But it is worthwhile to remember them because some may have the wrong impressions about the interpretation of the laws. I told you that mistake of fact can come only in certain cases when there is an exercise of ones rights that would justify the act that was performed by another. Lets say in the case of US v.  Achong, if you will recall, if not for the fact that Achong believed that the intruder at that time in his room was the bad elements that he was afraid of at Fort William McKinley. Then he would not have been excused from criminal liability. The facts of course are very familiar to you, unless you never read the case of US v. Achong. I‘m sure that some of my students have read the case of US v. Achong. I do not know the others. But it is a MUST for a first year law student to read the case of US v. Achong. The only problem there is some have a wrong interpretation of US v. Achong. They said that as long as when one is afraid of bad elements, etc., then in the event that he (shall we call it) inflicts injury upon that person then he is already excused from criminal liability. That is not correct. There should be other circumstances that should be present in order to excuse him from criminal liability. The facts (shall we call it) must be complete. You probably have read the case and in the few (shall we call it) paragraphs of the case, you will note that it was emphasized by the Supreme Court that Achong was from China. And Achong is a nervous person. So, look, the Supreme Court was laying down the basis for the (shall we call it) the judgment that they are going to render. Alright, Achong was a nervous Chinaman who just came from China and he has to get some employment in the country even as a cook at Fort William McKinley. As a matter of fact, as a cook he has to rent a room together with another person who also works in the same place. But this person who (shall we call it) is the roommate of  Achong knows of the fear of Achong as at that time in Fort William McKinley there are so many bad elements, meaning that there are so many thieves, robbers, killers. Fort William McKinley at that time was a forested area. You kn ow, it‘s actually (shall we call it) like what is now the natural forest in Northern Luzon, if there are still some, or in Mindanao. That was the condition at that time in Fort William McKinley now Fort Bonifacio. Because of the fear of Achong of bad elements, whenever he sleeps he brings along with him, near his bed, his kitchen knife and of course whenever his

companion in the room goes out and (shall we call it) is not yet in the room he usually locks the room, he props a chair, etc. because of fear. So, all the (shall we call it) preparatory facts have been enumerated by the Supreme Court in order for the SC may have a basis in what they are going to say later on. SO, what happened, Achong was allegedly awakened by the loud banging of the door. And he was asking who is outside of the door, the person would not even say a word. But this guy who was the roommate of Achong is (shall we call it) a joker. Meaning to say that he always wants to play jokes on Achong because he knows that Achong is a nervous Chinaman. And then, at that time, as you will find from the records of the case, I mean, from the decision itself, there are no electricity, etc., what they used for lighting are onl y the wits (?) etc. Meaning to say that it could not even illuminate the room very well. Those were the conditions of the times. The moment then that the sun sets at the west, nobody goes out except the bad elements. The good elements are the ones at home. It should be the reverse the bad elements should be at home and the good elements should always be outside to look for them. So, in the preparatory statements of the SC you know that they are trying to lay down the basis in that particular case. So, what happened, well when the person who was outside forced his way in just to scare  Achong, the chair flew towards the direction of Achong. It was dark, the chair hit  Achong. Achong believed that he is being attacked by a bad element. He got his knife and when he saw a dark figure approaching him, he stabbed the image of a man. Later on, after they were able to light the place, the man whom he stabbed is his roommate. Now, looking back at the facts that were enumerated by the SC… the belief of Achong,

etc., the condition of the place at that time, etc., and the acts performed by Achong. The SC came to the conclusion that it is not a misapprehension actually of facts only it was a mistake of the ACTUAL facts. Had it been true that the man who was trying to cause his way in was a bad element, and then had it been true that Achong was attacked because a hard object hit him, he would be well within his right to (shall we call it) protect his life and in protecting his life, he even has the (shall we call it) obligation to himself to put away the knife of any person who is going to take also his life. So, there you are, it is simple. The mistake of the facts surrounding the circumstances. Not only the mistake of some facts but taken altogether in the case of  Achong because if one of those facts that were enumerated by the SC in that case is missing, it would not even be a mistake of fact. Had Achong known that the one who was trying to enter is his friend, even if that chair had hit him, or is his roommate, would there be a mistake of fact? There would be none. (2X) So, there are times when the case are not being explained properly but you have to look at the case properly in order that you would be able to appreciate how the SC arrived at said conclusion. Remember that the phrase ―mistake of fact‖ was used by the SC for the first time only

in that case. Have you ever read any case before the US v. Achong, where the SC used

the word-mistake of fact? There have been no case that was decided by the SC of which it applied the phrase ―mistake of fact‖— NONE. That is why this is a jurisprudence which almost all cases followed and it has never been modified by the SC. Because it is and it was a good decision. Well, its just the same, you will meet certain cases like now the SC again invented a new phrase in the case, I believe of Estrada v. Arroyo, that is  ―radial conspiracy‖, or Estrada v. Sandiganbayan or something like that. I failed to

remember the actual title of the case. But what I remember is that the SC coined another kind of conspiracy and that is ―radial conspiracy‖. You will find the same a littl e bit intriguing. All we know about conspiracy is what —Everybody must have conspired and confederated and if there is no evidence of their confederation of their agreement, it is the concerted acts of these people tending towards the same end that should be considered. But then, there should be sufficient proof that they have at least known the purpose of one and they joined the purpose of the other. But in ―radial conspiracy‖

even if the people who is within the radius do not know what is the purpose of one, as long as he achieved the purpose for which the principal offender has attained. You are supposed to be guilty considering the theory of ―radial conspiracy‖. They say that  ―radial conspiracy‖ is just like a wheel. In the middle of the wheel there is wh at we call the places where you connect the scopes (? Sorry can‘t make out what he said eh wala

ako alam about wheels) towards the outer part of the wheel, etc. and those spaces in between the scopes (?) are the participants. Well, we will go to that when the proper time come, I‘m just trying to tell you that on the same manner that this ‗mistake of fact‘

was coined by the SC in the case of Achong.

MISTAKE IN IDENTITY Well, in the case of People v. Oanes it is different and I know that you are familiar with that case. Only that in the case of People v. Oanes, actually there are three defenses that Oanes and company put up in that particular case although in the book of Reyes, etc., not in the original copy, there were only two. Well, the three were… 1.)mist ake in identity which they claim will excuse them from criminal liability because of the peculiar situation that the person whom they have been looking for is a notorious criminal; 2.)regularity in the performance of their official functions; 3.)they even invoked mistake of fact. Now, going to mistake of fact, there can be no mistake of fact there because the circumstances is not almost the same, not even 10% the same as that of the case of People v. Achong. The fact is that one is a company who is ordered by their superior to look for a certain Balagtas who is a well-known criminal. They were ordered to bring such criminal dead or alive to the assailant. While one is in fact looking for Balagtas, they were informed that a man fitting the description of Balagtas is in a hut in the

middle of the field. And when they went there, they saw a person fitting the description of what they claim to be Balagtas and despite the fact that that person was lying on the bamboo splits which serves as the floor of the hut and with the back turned towards them and apparently is slipping, they shot the person full of force. When they turned over the body, they discovered that the man is Tengco, the farmer. So, they said, had it been true that Tengco is Balagtas, they are well within their exercise of duty in (shall we call it) shooting Tengco because he is a well- known criminal. Since when…have the police been authorized to take the law into their own hands. Even during the olden times it is not allowed. How much more during that time…how much more now. Well, of course, now we do not believe anymore in the regularity in the performance of the official functions of public officers or employees. We always say, hindi… mali yan…

talaga naman. So, your comment probably speaks of the minds of the youngsters or the young generation today. That public officers or employees, whenever they are involved in an incident, the perception is that they abused their authority and they are not regularly performing their duty. Well, it is actually their fault also and it is the fault of the generations as well…uhmm..we only came to (shall we call it) that particular

attitude or we developed that attitude after two years or 3 years of Martial Law. The first two or three years of Martial Law were good. It was after three years or so when the military authorities and the peace officers started to abuse even those people from the government offices. At that time, you know, we want to be disciplined eh. Even those who does not believe in the administration wants also to be disciplines. You can  just imagine at that time, you can travel without fear etc., of being arrested, all that you have to do if there is a checkpoint is stop and allow these people to go over your things by merely looking at it, then you can go on your way. In between any checkpoints, you won‘t have any fear that another checkpoint will be put up by somebody else. And then well, the slogans ―Tapat Ko, Linis Ko‖ it all started during Martial Law…don‘t you know that? Etong mga ginagamit na slo gan ngayon, they were

slogan of Martial Law. They were. You will not believe me but then, if you have a lot which you have forgotten to be existing so you have not even cleaned it, the city or municipality which has jurisdiction over your lot will clean the same, will plant (shall we call it) vegetables or edible fruits there. And the municipality will charge you for fencing it and for planting things there. They will charge you and that is correct. No rodents, no cockroaches, etc., there are food that can be taken out from your even residential lot. Wouldn‘t that be nice? Oh ngayon…hindi na. They will plant, what, shanties and they

will produce, not food, but people. And then you squat on the lot of another, you just go to a private of the Philippine Army or a private of the Integrated National Police or the Police, he will take time, he will take the trouble of going there and tell the one squatting to discontinue with what he is doing otherwise you will see yourself in jail. Those were the days. But now it is different. Drivers were disciplined…drivers…ay, hindi

pwede yang ahas ahas mong yan...huli ka…paghuli sayo, they are going to ask you to

go to Crame just like Ariel Ureta. You know what Ariel Ureta did at that time while he was in his show, his televis ion show? He just said, ―Sa ikauunlad ng bayan, bisikleta ang kailangan‖. When the slogan of Marcos is ―Sa ikauunlad ng bayan, disiplina ng kailangan‖, he said it is bisikleta. Well, he said ok, sa ikauunlad pala ng bayan yan..bisikleta…alright, let‘s go t o Crame,magbisikleta ka dyan. (hagikgikan ang mga

pipolJ) That is true, you ask Ariel Ureta (heheheJ) So, okay, that is regularity in the performance of public functions which was not present at that time. How could that be regular, you shoot a man sleeping that is treachery. You did not even tried to verify whether he is the same person you are looking for. It turned out that he is another person. So, there is no regularity in the performance of public function. The cases punished is an example of, say for example, a wrong belief that mistake in identity, regularity in the performance of public functions which does actually exist will be a defense —No, even mistake of fact.

MISTAKE IN THE BLOW Well, aberratio ictus etc., no problem with that. I have already explained. I believe that if a person committed a mistake in the blow there could be two things that could happen. Either that he may be justified or that he may not be justified. Unlike in complete mistake of fact, it is always justified. Unlike also in error in personae etc., it is always not an excuse if it is error in personae. Because you cannot take the law into your own hands. All right, in aberratio ictus as I said one is exercising a justifiable act then there could be an excuse in aberratio ictus. I give you already an example where two men who were in the midst of a quarrel and one tries to defend himself, here comes the wife or the sister of another then that was the time when the one exercising self-defense triggered the blow to defend himself and hit the person who intervened, there was a mistake in the blow but the mistake in the blow was in the exercise of selfdefense and therefore it is excused form criminal liability. You see, but if he does not, then he is criminally liable. The error in law or mistake in law, you all know, Article 3 of the Civil Code, ―Ignorance of the law excuse no one from compliance therewith‖. It‘s

only of course, sometimes, the people in Congress who may be excused from Ignorance of the Law, or the President of the Philippines. But then you see where Erap is now. Probably even if what he did are within the bounds of the law but I don‘t --uhmm---the error in law that I know that the President was excused was when the President of the Philippines was at one point, not the president today but a former President, who called the Senate President and the Speaker of the House and ordered them to see to it that Congress amend the ‗law of supply and demand‘. Ahhh… he could

be excused for that. It is not actually a written law but it is a natural law. He may also be excused if he tries to violate the law of gravity. Okay, there is no more problem regarding this.

MALA IN SE v. MALA PROHIBITA Now, connected to all these are, of course, the distinction between mala in se and malum prohibitum. All that, all of the felonies that are defined and punished under the RPC are considered as mala in se, those that are wrong from the very beginning, that it should be abhorred, and everything, it is by its very nature wrong, such as what, stealing the property of another, stealing his wife, stealing (you know) properties of the government etc., killing people not in the act of self-defense, raping a man or a woman but then raping a man is not a crime as rape it was then only an act of lasciviousness. But there never had been any case that has been filed during those years about acts of lasciviousness involving two persons who are of the same sex…none. You can look at

the records of the decisions of the SC, there is no such crime that was ever filed and if there is it did not reach the SC. Because then, even if you have a tendency to become a sissy or you have a tendency of leaning towards the other sex, it will be cured by probably a rope or it will be cured by a cane or something else. That is how these particular phenomenon are being cured at that time. You are still young…you know when I was young…if a man is called ‗binabae‘, we call them ‗binabae‘ at that time

because his ways etc., he moves like a woman. After some years he is being called as  ‗babayote‘, the most vulgar term now is bakla or bading. Parating gulpi ng tatay yan,

tsaka ng mga kapatid, tsaka ng mga tiyo. Wala sa pamilya natin ang bakla o bading. Gulpi sarado yan. Talagang gagawing lalaki yan. O paano gagawin…Sige, ikaw ang mag-araro araw- araw. Oh…ano ano magbabakla-bakla ka…kailangang maging lalaki ka.

So, sa ayaw maging taga-araro araw araw, he does not want to plow the field everyday, he will act like a real man. Naturally, it will be carried throughout the years, he will forget his inclination. Pero ngayon, the mother and the father are encouraging these people, ―hindi, you have a future there. You can be a beautician, sometimes a

magician. Kasi pag hindi na pwedeng pagandahin, you must be a magician para gumanda yan. (Si sir, funny pala J) Those were things that well, I‘m just trying to tell you that were the attitude of the people of yesteryears. Now, but there are times when malum prohibitum are by themselves mala in se. Like, for example, theft of electricity. It is a special law but then since time immemorial it's bad to steal. Theft of transmission lines, etc., these are special laws. But then, the typical malum prohibitum is BP no. 6 then 8294, do you know what they are? BP #6 is a law that prohibits the carrying of bladed weapons which you are not using for your occupation. So, those who are

exempted are butchers etc., those who are cooks etc., they are exempted. But then the Filipinos are known to be farmers, fishermen, woodcutters, they carry bolos whenever they got the farm. What will you use if you go to the farm? Have you sharpened your hands to substitute for a bolo? (heheheJ) So, it becomes malum prohibitum. It used to be that you can carry whatever bladed weapon you want to carry because it is the nature of farmers, it is the nature of Filipinos at that time whose main preoccupation are farming, fishing etc., and they have to use these kinds of bladed weapons. Now, even firearms, during the times of (shall we call it) Limahong etc., Filipinos even during the times when there were Battles of Biak na Bato or whatever, we used these escopetas (mukhang Spanish word —I‘m not sureL) because at that time we have the right to bear arms. But it is of a limited nature not a (shall we call it) not in the nation because there were only nine provinces which rose against the Spanish regime. Wag naman nilang sabihin na the entire Philippines rose against the Spaniards. Kaya mali rin yang declaration ng June as Independence Day. Did Visayas participated, hindi eh. Kaya dapat magalit ang mga Bisaya dun, yung mga from the Visayas because its only nine provinces that claimed to have rose against the Spaniards at that time. Did Mindanao rose against these people? Did the people from Batanes etc., did the people from Bicol rose against them —they did not. And yet we are celebrating the Independence Day on June 12. Nag-away pa nga si Aguinlado tsaka si Andres Bonifacio…o, ayun patay si  Andres Bonifacio. Alright so, learning from history we can see that mala in se may be also a malum prohibitum depending upon the circumstances. Even drugs at one point, possession of drugs is simply malum prohibitum because…(whoops…tape produces a weird sound — Aze ran for back upJ)

(2nd tape)  Your great great grandparents etc. believes that marijuana if boiled, the (shall we call it) its not a soup noh…the boiled marijuana, the water there etc. is used to relieve

stomach pains. Yes! I learned that from my grandmother. So, it is not wrong per se. The right use of these plants are beneficial to us. But they do not want to do it now. If you ask the laboratory people etc. ―we will be suspected of being pushers‖. Because of

the strict implementation of the new laws on drugs. And then now they are quarrelling as to who is going to be the head…the ultimate head. But under 9165, the head of the imposement (is there such a word?J) of RA 9165 is the director of the PDEA. All others who may be appointed by the President shall be under him. Hindi pwedeng sabihin mong si Barbers even if he resign as a Senator. He will still be under the Director of PDEA because that is the law. HE was the one who authored it. So, he cannot violate the law that he himself authored that is why he discontinued with his plan of resigning.

 Yes, somebody gave him the right advice. ―Kayo nagpasa nyan sir   eh. Bakit kayo

magiging head? You made the head of the PDEA as the Chief Implementing Officer of the law and all other will be under the PDA. That is now a very specific malum prohibitum law.

INTENT v. MOTIVE Okay. About intent and motive. When is the determination of intent necessary? When? Sometimes the determination of what is the intent of the offender would affect only the extent of his criminal liability in most times. If he does not have any intention to kill, he performed an illegal act but it resulted in a killing. What will happen? There is only be a mitigating circumstance. If he intended to commit a (shall we call it) more serious offense, but what was committed was only a minor offense, then he will be punished for the minor offense only. He intended to commit a major offense but he committed only a minor offense, the same, he will only be convicted for the minor offense. So, you will not that this intent is sometimes only necessary to determine the extent of criminal liability of the offender. Intent is not an issue in special laws or in malum prohibitum. Whether you have an intention to violate the law or not, you are still liable. Sabihin mo,  ―I have no intention to violate RA 8294, that is, illegal possession of firearms. But then

the Supreme Court is never turning towards making RA 8294 as mala in se. In two decisions of the SC, in connection with illegal possession of firearms, the SC said that it is necessary for the State to prove animum posidendi in order to secure conviction of an accused in the charge of illegal possession of firearms. So, intent is necessary in that particular special law. And it went further by saying that transient (?) possession of firearms which does not have any license does not make the offender criminally liable. Something is really developing on the law on illegal possession of firearms and further you will note the jurisprudence laid down by the SC in 8294. What? Considering that the allegation that the accused do not have any license then found to be in possession of a gun is a negative allegation. It is up to the prosecution to prove by proof beyond reasonable doubt that negative allegation. It is not for the accused to prove that he has a license that it is for the prosecution to establish that he has no license. Failure on the part of the prosecution to establish that he has no license, he is entitled to acquittal. So, you see the developments in criminal law. These are the developments in criminal law esp. on mala in se and malum prohibitum. Okay. Well, even in drugs, you will see sometimes some weird decisions of the Supreme Court regarding drugs. Have you ever heard of (shall we call it) the case in drugs that a policeman who was on a follow-up case who was urinating in a makeshift fence made of leaves of coconut and other branches of (shall we call it) bushes. Well, urinating he saw a garden patch. And he

noticed what was planted in the garden patch of about 1,000 sq. meters. You know what he found? Marijuana plants. So, what he did was to go to his chief o f police. ―Sir, may marijuana plantation dun.‖ Oh, they formed a team etc. they went to the place

and they accosted the owner and the person who is alleged to be tending the plantation they arrested him, uprooted the plants, brought the plants to the police station. Charged him with cultivation of marijuana. Do you know what happened? Huh? (Silence) Accdg to the SC, while the law on drugs is malum prohibitum yet we have to establish that the rights of that person was not violated and what right —the right to be secured in his person, in his property etc — accdg to the SC, that is not an application of  ‗plain view‘ because the police officers have all the time to secure a search warrant. Eh,

nandun ka na nga eh, kita mo na, accidental pa. Its not the same as when the police officers received information that several, that two persons were repacking shabu inside a hand-shafty (?) and well the police officers upon being informed went there and then they went around the place, saw a small hole, they peeped through the hole and saw these people packing so they barged in the door, confiscated the shabu etc. and arrested these two people etc. The police may say that it is in plain view. We did not search. But the SC said that you searched when you peeped through the hole. So, the seizure, the search, the arrest are all illegal. Acquitted. This states the fact that this is malum prohibitum. We can go on and on because it is endless. Just like your iced tea — bottomless (heheheJ) There are so many (shall we call it) sometimes unbelievable decisions, the first one is the Aminundin (?) case.

IMPOSSIBLE CRIME  About impossible crimes. When there is an inherent impossibility of accomplishing a particular act or crime or when there is an employment of ineffectual and inadequate means. The first, inherent impossibility of accomplishing a crime, may be divided into two. 1.)Legal impossibility and 2.) Physical impossibility.

There is legal impossibility when actually under ordinary circumstances; there could be no legal accomplishment. For example, Now that rape has been transferred from crime against chastity to crime against persons, a person went to the house of a beautiful woman and that person is already entertaining lewd and he has already wanted her carnal knowledge of that woman. So, he forcibly entered the home of that woman through the window. And seeing that the woman is only wearing a night piece or whatever, he had sex with the woman. The next morning, news, as you know in neighbors, spread that woman was found dead. There is evidence that somebody

touched the woman, meaning to say, had sex with the woman. So, the authorities then tried to investigate. They now (shall we call it) try to determine the time of the death of the woman, the time of the intercourse etc. And they were able to establish that at the time of the intercourse, the woman is already dead because she suffered heart attack two hours prior to the intercourse. Can there be any legal possibility of the woman being raped? No, there is no legal possibility that the woman can be raped. Because rape can occur only when the offended party, whether a woman or a man under the new law, is alive. So, it is a legal impossibility of accomplishment.

The physical impossibility of accomplishment was the case of a group of persons who wanted to kill somebody. So, they conducted surveillance, they asked the people around, ―kailan ba natutulog si Pedro dyan sa kanyang bahay na itinayo? Balita namin natutulog sya dyan paminsan minsan ng walang kasama‖. So, you know the neighbors,

madaldal ang neighbors eh, I never (shall we call it) encountered a neighbor who does not talk about his neighbor. Kahit dito sa Maynila, hindi nga kilala, ―alam mo yang neighbor kong yan…tulak yan. O ganito yan‖. Di naman nya kilala. They do not even know why. ―O, umaalis yan pag gabi, etc., naka -motorsiklo yan. Babalik yan madaling araw, eh anong ginagawa nya nagtutulak yan.‖ They do not have any evidence. So, these neighbors said, ―Alam mo bukas, nandyan yan, tuwing Huwebes nandyan yan.

So, this people who wanted to kill that person prepared themselves for Thursday or whatever. Positioned themselves and thinking that the person is already there as the information that reached them is that at 8 o‘clock that person is already home and it is already 9 o‘clock and the person would be asleep, they peppered (?) the entire house with bullets coming from automatic rif les, then they left. ―Patay na yan. Not even a cockroach will live.‖ When they were already trying to enjoy themselves the next day, they were surprised and amazed to see the person in the market. ―Huh, multo!‖ But

when they asked around they were informed that that person did not sleep in the house that Thursday night. Can you kill a person when he is not in the place where you wanted to kill him —NO. That is physical impossibility, not legal. Can you steal an article that has already been consumed or a food that has already been consumed by the owner or by somebody else. No, of course, that is physical impossibility, not legal.

How about the distinction between the employment of ineffectual means and frustrated or attempted. There are some authors who cannot distinguish. And sometimes their distinction of the two is different from each other or sometimes wrong. There would be frustrated crime…Oh, let us say for example…I will just give an example for the

meantime. A wife has a husband who is a fisherman. This fisherman has been engaged in gathering tropical fishes in the sea and selling these tropical fishes to a buyer. The husband is earning no less than 1,000-2,000 almost everyday but he gives his wife only P200, the rest he spends for karaoke, drinking with friends. The wife is already praying that he sings the song ‗My Way‘ in the karaoke bar. You know, if you sing the song ‗My Way‘ delikado ka. Somebody might stab you. (Hehehe J. Participative na ang mga tao kasi free cut sa CIV). Or shoot you dead. Sabi ng asawa, ―sana kantahin na yang ‗My Way‘ para matapos na ang kalbaryo ko. Eh, ayaw kantahin. So, the wife said, ―Ayaw mong kantahin ang ‗My Way‖, I will do it My Way. (4B with a loud Hahaha J). She went

to (shall we call it) the suppliers of the chemical being used by her husband to catch tropical fishes. Do you know how they catch tropical fishes? Cyanide…not so much

cyanide but they replaced some other (shall we call it)like a powder or a powder mixed it with cyanide. Yung Johnson powder na plastic container, dun ilalagay yung cyanide. If you squeeze it, only a few cyanide will leave the plastic container. And that would be enough to stun the tropical fishes, they have already a container which is being actually augmented by oxygen. The fish would naturally recover etc. up to the time that they can sell it. This man has been doing it for 20 years. One morning, sabi ng asawa,  ―Sobra na itong asawa ko, malason nga.‖ She got a spoonful of cyanide, mixed it with

the food of her husband. So, her husband arrived and a little bit tipsy still because he has been singing in the karaoke bar and drinking, spending money which should have been given to the family. Okay lang, kain lang siya. After eating, sabi niya, ―Dear, bakit

naman parang bagong putahe itong binigay mo sa akin. Medyo ang lasa kumakagat eh.‖ (hahaha J). ―Para bang may konting halong cyanide.‖ Siguro naiisip mo lang yan. Bu the wife is waiting for her husband to drop dead. Eh, hindi. ―May natira pa pala akong pera dito. Nagyayaya si kumpare dun sa kabi lang karaoke. Makapunta nga.‖

Later on, of course, the husband became suspicious. There was an investigation, it turned out that the wife poisoned him. But you know one spoonful of cyanide which is enough to kill an ordinary person did not kill her husband. The question now is was the cyanide which is the instrument to cause the death —remember, and not to kill the husband of the victim it is not enough under the circumstances. All right, let us say for example another incident took place, so that we will know the distinction of an impossible crime and a frustrated or attempted crime. Eto, a person is armed with a gun, she shot at her husband. Binaril nya. Philandering etc. She is a poor shooter, tinamaan lang dito yung asawa (pointing at his arms). Was the weapon used by the wife sufficient if ever it was used properly to kill the husband? Yes, di ba. So, if your going to look at the two examples —in the use of cyanide, the cyanide although it is a weapon which if used may kill a person because of the strong constitution of the husband who developed almost an immunity from cyanide one spoonful of cyanide is not enough weapon to kill him. So, that is employment of inadequate means.

Inadequate yun. Hindi pwede pumatay kahit anong gawin mo dun sa husband —ihalo mo man sa pagkain niya, ipainom mo man sa kanya, hindi pa rin mamamatay eh. Yun ang inadequate. Sasabihin mo attempted murder —in attempted murder the weapon must also be (shall we call it) effective to achieve your purpose. It must be enough or it must have the capacity to achieve your purpose. Yun…would it have the capacity to achieve your purpose? Wala eh. Pero yung baril, kung tinamaan yung husband, if the husband was hit, at the throat; at the head etc. mamatay ba? Siguro patay yun. So, that is the difference between an impossible crime with the use of inadequate means and attempted or frustrated homicide. You should understand. I believe that some of you may still be wondering, tama ba yun? That is correct. Ineffectual…talagang walang mangyayari kasi it wo n‘t have any effect ion the victim. Alright, just like poison, hindi

pwedeng attempted eh, because the weapon must be capable of achieving your purpose. Let‘s say again the wife, galit dun sa husband, malason nag itong asawa ko,

sobra na. One morning, the wife went to the market and she met one of the fisherman there, ―Pare, meron ka pa bang cyanide? Kelangan ng mister ko eh.‖ ―Ah,meron pa.‖  ―Pahingi nga.‖ Cge, mare basta papalitan mo lang ha. Oh, eto nakasupot. She went

home and placed the cyanide in a small container. After working the whole day, bukas na yan patay na yan. Sa umaga, I will make coffee for him, I will place the cyanide in his coffee. He is fond of drinking coffee. After drinking coffee, naturally, he will be dropping dead. She went to sleep early so that she can serve her husband with a coffee mixed with cyanide. She doesn‘t know that their maid was (shall we call it) not yet sleepy at the time. Sabi ng maid, ―Ma -arrange nga itong mga ito, para bukas alam ko ang kinalalagyan. Ah, eto nagkama li si ma‘am. Bakit dito nakalagay ito? Ah para dito ito…alright. Nilinis pa. Paggising nung amo, kinuha yung pinaglagyan niya, sinalin na niya, tinikman okay. Darling, coffee. ―Uy, salamat, thank you.‖ The man continued

drinking the coffee. The woman is expecting the husband to drop dead. Walang nangyari. ―Ano kaya ang nangyari?‖ So, she investigated. ―Ay naku, ito yun ah…bakit

nagkapalit? Eh coffee mate yung nandito, bakit nalipat dito? Ang nalagay ko doon sa cape, coffee mate‖. But is there already a crim e that she committed? YES. Because the crime is already in her mind and what is being punished in impossible crime is the criminal propensity or tendency in the mind of the offender. But then, would that instrument she used be enough to kill not even to kill a fly. But if the fly naturally dived in the coffee it will drown itself. But, of course, be careful ha. Do not always throw the coffee. Magagalit kasi yang Batangueño, tsaka Ilocano, tsaka yung taga-Bohol. Alam niyo ba yung istorya nun? (sir, gave out a laugh J) Pag-Ilocano daw, kukunin nun yung kutsara, sasandukin na ganun kasama yung konting kape, itatapon na ganun. Iinumin na. Okay lang yan, hindi pa naman umikot yung dumi dyan eh. Eh kung tiga-Batangas, titignan muna, hahanapin yung pakpak. (itinaktak ni sir yung imaginary fly) tsaka iinumin. Eh, yung Boholano, oh who is from Bohol? This is a joke. Pag tiga-Bohol daw,

titignan yung bangaw. Naku, papagpagin pa. Sayang. Lumaki ng konti yung tiyan, piniga pa. (hehehe J) kasi maraming nainom. Itinapon…yu n. Tsaka ininom. (4B and sir got hysterical J) Its just a joke among friends when we were still college students. Because I have some classmates from Bohol, from Batangas, Ilocano. Of course, my roots is from Ilocos accdg to my having traced my roots for about 8 years. That is on my father side. And on my mother‘s side, they are from Batangas. So,nagsama yung

dalawang kuripot. Going back. The rule with respect to these impossible crimes, no problem. We don‘t have any problem anymore. I think that you have u nderstood the whole thing about impossible crimes. Then, of course, we have Article 5. But in Article 4 ha, something is wrong there. What is Article 4, the last paragraph…oh, never mind. Its

only on impossible crimes.

 ARTICLE 5, RPC The fifth article is about the duty of the courts. A court has the duty of deciding the case even if there appears to be no law which has been violated etc. The court should not refuse to decide the case. In the event of (shall we call it) that the court finds that the act is reprehensible etc. and that there is no need to repress the same and there is a need to have the same be punished but there is no law punishing it, the court should also decide. But then it shall recommend in the Office of the President thru the DOJ that the same be the subject of legislation. Meaning to say, that the President should certify the same as urgent. I think Article 5 miss the point. The President should only certify urgent bills di ba, well probably this is urgent. But there are times when an act may be repressed etc. but some people usually do not want them to be the subject of legislation. Those that impose cruel or unusual punishments etc, the court should impose the proper penalty but the court may recommend to the Office of the President either for commutation of sentence, or for a legislation to be passed in order that the penalty be lowered. Just like the case of a young woman who (shall we call it) was charged and convicted of illegal recruitment in a large scale at the time she committed the crime she was only 17 yrs. old, she got into wrong company, in the company of illegal recruiters and she went on her own until her conviction. She tried to invoke the mitigating circumstance of minority because she claims that at the time that she committed the crime she was only 17, therefore, she is entitled for a penalty one degree lower from the penalty imposed by law. But the problem is that the penalty imposable for such an offense is life imprisonment. And all of us knows that in cases of life imprisonment, there is no penalty lower by one degree. All other penalties wherein the penalties are in years, months, etc. having to turn them as prision correccional, prision mayor, reclusion temporal, there is no penalty lower by one degree. Are you

taking up now Civil Law Review? (4B: Yes) Look at the law on inter-country adoption. I believe its in your Civ Rev. There is something wrong there. RA 8043. You will be surprised dahil matagal nyo nang kinukuha ito. Who authored that law? What I know, it was approved by Ramos. But then the people who passed the same in Congress, actually some of them are lawyers, but they did not use their knowledge of the law. Kaya nagkakabuhol-buhol itong ating sociedad eh. Even our laws… ah, do you have a copy? If my recollection serves me right. What are the penalties in violation of the provisions in the Inter-Country Adoption. Quoting from Section 16: a.) ―Any person who shall knowingly participate in the conduct or carrying out of an

illegal adoption, in violation of the provisions of this Act, shall be punished with a penalty of IMPRISONMENT RANGING FROM SIX (6) YEARS AND ONE (1) DAY TO TWELVE (12) YEARS AND/OR FINE OF NOT LESS THAN FIFTY THOUSAND PESOS (P50,000).‖ Etc… b.) ―Any person who shall violate established regula tions relating to the confidentiality and integrity of the records…etc…. shall suffer the penalty of IMPRISONMENT RANGING FROM ONE (1) YEAR AND ONE (1) DAY TO TWO (2) YEARS…etc…‖ 

But look at the second pgh of letter B: ―A penalty lower by two (2) degrees than that

prescribed for the consummated felony under this Article shall be imposed upon the principal s of the attempt to commit any of the acts herein enumerated.‖ 

Could there be two degrees lower from a specific penalty of 6 years and 1 day to 12 years? WALA. So, this pgh is useless, it‘s an absolutory cause even if you invert your book…wala. There is no penalty for attempted violations of that particular law. Kung  judge, ordinary judge, inapply niya, that is ignorance of the law. Congress…you cannot

say that they are ignorant of the law. That does not apply to them. But there is no such penalty that can be imposed…2 degrees lower? Wala namang degrees yan eh. See how

I can remember. Mali yan. You ask your prof in (shall we call it) CivRev, sana he knows also criminal law so that he can explain that to you. But, I am sure there is no such kind of penalty in our criminal justice system. Mali yan.

 You know what happened there in that particular case. The SC still convicted the girl. Sentenced her to life imprisonment but in the last portion in the dispositive portion, the SC said, it is hereby recommended to the Office of the President of the Republic of the

Phils. that the penalty of life imprisonment imposed upon the accused be commuted to…and they even specified…an indeterminate penalty of 10 years and 1 day to 17

years and 4 months. They can apply Article 5 because for them it is cruel to the young person she is only 17 at the time of the commission of the crime. She might have been 18 at the time that she was convicted. And maybe when the SC decided, she might be 20. So, she might be 27 years old when she reached the Bureau of Corrections. There are other cruel and unusual punishments that our laws have actually imposed. If you look at RA 9165, there are cruel and unusual punishments there. Even those who are possessing only of chemical ingredients etc., there is already a presumption that you intend to manufacture metamphetamine hydrochloride or other drugs etc. And the penalty would be life imprisonment to death. What is worst is if you are a candidate for public office… (Naku, nag-end na naman ang tape pero lapit na mag-end yung discussion…Sorry.J)

~~~end of tape~~~

DATE: JUNE 30, 2003 Monday

STAGES OF A FELONY…

Before I discuss the stages of a felony, I want you to be aware that there are crimes or felonies that by their very nature do not have any stage except for being consummated. These are called Formal Crimes. Examples of which are physical injuries, there is no attempted physical injury. You want to tell me, you want to hit a person with your fist, then you missed…attempted slight physical injuries? Acts of lasciviousness, unjust vexation, oral defamation —these are formal crimes. There is no attempted stage, there

is no frustrated stage, it is always consummated.

There are also crimes which do not have complete stages. There are only two stages and these are only attempted and consummated. You all know that rape, despite the fact that it was transferred from crimes against chastity to crimes against persons, still

maintain its two stages —attempted stage and consummated stage. Even the sexual assault, there is no frustrated stage because it adopts the principles of rape. Likewise, in the crime of arson, it does not have any frustrated stage. It is either attempted or consummated. The mere discoloring by reason of fire of any part of a building shall be considered as consummated arson.

…AND ITS APPPLICATION

I will not dwell any more on the definitions of attempted, frustrated and consummated. I will just discuss to you different crimes and the application of the stages of the commission of the crime. The application of the three stages of the commission of the crime in the crimes of theft or qualified theft or robbery is different from the application of the three stages of the crime in the event that there is an intent to kill a person. It is also supposed to be different when it comes to rape. What makes the crime of theft peculiar? Because in the crime of theft, it would admit of situational stages in order that we will be able to determine whether a theft if attempted, frustrated or consummated. If, say for example, the crime of rape is committed in an enclosed establishment of which any person who enters the same and who leaves the same will be subjected to inspection, the determination of whether the taking of personal property inside that place with intent to gain and without the consent of the owner should be considered either an attempted, frustrated or consummated theft. If you will recall, those cases that were cited in the books of Gregorio, Faylona and other books  – the old ones, you will be misled in some of the cases there in to believing that in the event that a person took personal properties inside an enclosed establishment, it may be consummated. Say for example, in one of the cases that was cited in the book of Kapunan and Faylona (?) or whoever it was and in the book of Gregorio etc. about the guards who intercepted a truck loaded with linens and that they were able to apprehend the driver of the truck.  According to the decision in that particular case, if my recollection serves me right, the crime committed is consummated theft as what was frustrated only is the actual benefi t that this people will derive from the crime. I have been disagreeing with the comment there because the whole decision was not read altogether. Let us put it this way, in several cases decided by the SC, if the taking of a personal property with intent to gain and without the consent of the owner took place in an enclosed establishment of which the person who enters will be inspected and again inspected when he leaves the premises for that he is under close monitoring by the people thereat. The moment that that person lay hand on any property with intent to gain already and he was apprehended when he was not yet leaving the premises, the crime committed is only attempted theft or qualified theft. But when the person who took the personal property

tried to leave the premises believing that he will not be noticed by the guard or believing that he can get away with it. But because of the alertness of the clerk, he was able to notice the personal properties being spirited away by the offender and that the offender was apprehended before he leaves the premises, he did in fact tried to leave the premises, the crime committed is only frustrated theft. That is the case that I told you about the theft of the linens in a hospital…it is actually frustrated theft. It is

consummated, even if the person is still within the premises if he has the opportunity of disposing of the property. Say for example, he is inside the premises, he threw the personal property over the window knowing for a fact that a friend or somebody will pick it up and that it would be turned over to him, then that would be consummated theft. Because at that time, he has already taken full possession of the property and he has the opportunity and, in fact, there was an opportunity on his part to dispose of the property. It is different in an enclosed place where no inspection of the person that are coming in and out is being done. You remember the customs personnel who in a roll of belts, took one and placed it inside his drawer, somebody noticed him and then he was arrested. What crime is committed? CONSUMMATED THEFT. That is a correct decision because he has already taken, not only temporary possession, but also complete and  juridical possession of the property. Of course, there is intent to gain. There is also already ―without the consent of the owner‖ then it is already consumma ted theft. How about in open spaces? In open spaces, it is actually the fact of complete control or temporary control over the property or temporary possession or complete possession of the property that will determine whether the crime committed is attempted or consummated. It will become frustrated only if there are causes independent of the will of the perpetrator that prevented the consummation of the crime. Say for example, some of you are always there at Powerplant. Almost every afternoon before going to class, you are there. What are you doing there? Why don‘t you use the library? It used

to be when we were still in Salcedo, the students are very very serious about their study. Here, no more because of the Powerplant (What????!!!! That‘s not true, di ba?) It‘s good that we are still landing in the top ten. Supposing we do not land in the top

ten anymore, who are you going to blame? You, yourself. Okay, in open spaces, let us say for example that somebody picked your wallet. The person has already in his hands your wallet but you noticed it so immediately grabbed the hands of the thief. What crime is committed? Is it attempted theft or frustrated theft? The issue there that must be resolved is whether he has complete possession of the property to your exclusion. The answer is NO. Because he is still within reached that is why were able to grab his hand. That is why the crime that has been committed is only attempted theft. If he was able to run and he has already the opportunity to dispose of the property but you were faster than him that you overtook him and caught him, the crime committed is already consummated. Consummated…yes. I will give you an example that is an experience of

a probinsyano or a promdi. Most of the promdis are being taught by their parents to be careful here in Metro Manila. ―O, anak mag -iingat ka. Baka may magnanakaw dyan. Wag mong pagtitiwalaan kahit sino kahit katabi mo.‖ But then the father went even farther, ―May I have your wallet please.‖ The father got almost an invisible strin g but

those that are being used by fishermen and he patched a hole at the edge of the wallet. He tied the string and said, ―Son, if you‘re going out you‘ll just tie the other end of the string on your belt.‖ The son was an obedient one so when he felt a ta g at his

belt, he suddenly turned around and saw a person with his wallet. But that person is having a hard time of running away because of the string attached to the wallet. He was able to grab the theft. What crime is committed? IS it attempted or frustrated or consummated? It‘s frustrated because the cause or causes that is independent of the

will of the thief is the string connected to the wallet that prevented him from consummating the crime of theft. You see, that is in an open space.

IN ROBBERY it is different. The moment that force, violence or intimidation is employed upon a person and that the offender was able to get hold of the property that is already consummated whether the person was apprehended inside or outside of any enclosed premises. Because there is force, violence or intimidation upon persons but it would be different if it is force upon things. You know the ―akyat -bahay‖, there will not harm people etc., they will just surreptitiously climbed the walls etc. --in evasion of service of sentence that is unlawful entry this is what they have been saying but actually what is being committed by the thief is ‗climbing the walls‘ escalamiento and it is only after

climbing the wall when he commit unlawful entry. Say, for example you find him with the properties already in his hands or in his bags and his was about to jump out the window but you where able to get hold of his shirt or his pants and he was not able to leave. What crime did he commit? Consummated? No…it is frustrated because you are

the owner of the house and you have the duty to guard your property. You were there acting like a guard of an enclosed place and you were able to apprehend a person who has already taken possession of your property but what was not able to fully take the same away due to cause or causes independent of his will. But supposing he was inside the room, he was still placing those things inside his bag when you grabbed him. What crime is committed? ATTEMPTED THEFT. Now, supposing, he destroyed the door and the lock…ah, it would be different. The moment he lays his hand on any of those properties, it is already CONSUMMATED ROBBERY. The moment he broke open a receptacle and took out the contents, that is already consummated. The application of all these principles is just as simple as that. You will never be lost because just try to find out that he have complete physical possession of the property to the exclusion of

others. If it is THEFT, he must have complete possession to the exclusion of others with the opportunity to dispose in the event that it is consummated. If it is ROBBERY, it is not necessary that he has the opportunity to dispose, the moment that he has already broken a door, a window, he has taken possession of the property, the moment he has employed force, violence or intimidation of the person and was able to get the property of that person…that is already CONSUMMATED even if he was immediately

apprehended. These are simple reminders to you.

How about FRUSTRATED HOMICIDE, MURDER, PARRICIDE etc…ATTEM PTED or

CONSUMMATED. U should be guided by the cases of People v. Bolinaga and People v. Calalo. The first case happened somewhere in the Visayan region. A foreigner has some workers in his fishpond. His workers asked him that they be paid already of their salaries and that they also would like to ask for advances or ‗bale‘. The foreigner refused, ―ang tamad -tamad nyo. You are lazy, you‘re not doing anything, you ought not to be paid with your salaries and you can‘t borrow anything from me.‖ So, after a whi le,

believing that his people have already but Bolinaga and company just stayed nearby. When the foreigner was in the veranda seating in a wooden chair, Bolinaga surreptitiously approached the foreigner and with a sharp bladed weapon stabbed the foreigner. But the bladed instrument, instead of hitting the foreigner, hit the back of the chair. So, nothing happened to the foreigner. But then the prosecutor charged Bolinaga of frustrated murder. Claiming that all the acts of execution necessary for the consummation of the crime are present and that it was not only consummated because of causes or a cause independent of the will of Bolinaga, i.e., the presence of the wooden chair at the back. Meaning that the knife instead of hitting the victim, hit the back of the chair. Bolinaga was convicted by the trial court. It was affirmed by the SC. So, Bolinaga served the sentence. But thereafter came the case of Calalo and the Court of Appeals disagreed with the SC. The CA said under the circumstance, considering that the victim did not suffer any fatal injury That would have caused his death then the committed should only be attempted. It was followed by several decisions of the SC citing the case of People v. Calalo which was decided by the CA only. The lesson there that you should keep in mind. In cases of crimes where there is an intent to kill, if the wound inflicted is a mortal wound which would have caused the death of the victim if not for the timely medical assistance that was given to the victim or because of the strong resistance of the victim to such kind of force or that the person has a strong body or whatever, he did not die then that is

when it is frustrated. So, aside from the wound being a serious one, it must also be directed to a vital part of the body. If its not directed to a vital part of the body, even if the wound is serious, it might not even cause death sometimes. It is still not frustrated homicide or murder, it will only become attempted. And you will know that even if the victim is not hit as long as there is an act that was committed by the offender which tends to achieve his purpose and he commences the acts of execution but nevertheless he was not able to complete the same and it is not by reason of his own spontaneous resistance, then it is considered as an attempted homicide or murder. It is very easy.  You can see already the picture that is drawn for you to know what is attempted homicide, attempted murder, frustrated homicide, frustrated murder. They are so easy to remember. Sometimes, the intention to kill may be deduced from the force that was employed, etc. Say, you used a gun, I intend to scare him only…hindi tama ‗yun.

Nobody will believe you because if the person is hit whether or not you have the intention of killing him there is already almost an absolute presumption that intent to kill is present. Sometimes you can convince the court that there is not intent to kill depending upon the circumstances. But then, there you are.

In cases of RAPE what is the new developments aside from the addition of some means of committing the rape and addition of some acts that is considered as rape such as marital rape and sexual assault. But sexual assault is not actually rape. It is that it is simply a sexual perversion. You were my students, some of you in CRIM 2, and I do not know if I told you about the case of People v. Campungan. Not yet? The case of People v. Campungan is the new jurisprudence when it comes to what is attempted and what is consummated rape. It was Justice Bellosillo who penned the decision and it was penned during hostilities taking place between the army and the MILF in the Camp  Abubakar. If you will recall it around year 2000. So, probably Justice Bellosillo became-how do you call it--interested in the use of the acts being committed at that time by the people engaged in hostilities. He actually used some terms which are only used in acts of hostilities or in acts of war. Now, how did he use those terms. If I remembered correctly, he said it in this wise, ―If there is only a  shelling of the castle of passion, that is only attempted rape. But if there is already of a bombardment of the drawbridge, that is already consummated rape.‖ Let me explain the other disquisition of Justice

Bellosillo in that particular case. It used to be that our concept of consummated rape is that the mere touching of the male organ on the labia of the pudendum of the women is already consummated rape. That is what you have read, that is correct. But then Justice Bellosillo added some conditions. In order that a crime of rape may be

consummated there should not only be the touching of the male organ on the labia of the pudendum of a woman, there must be at least even a slightest penetration. But not only that, the penetration was by an erect male organ.  You are smiling…but there was another case decided also by Justice Bellosilo. Probably you will laugh at this but this is true. A man obsessed with the woman, climbed the house of the woman, went to her room while the woman is half asleep, he undressed the woman and went on top of the woman. It was the testimony however of the woman that when the man was trying to have carnal knowledge of her, no matter what the man did he could not have an erection. IN other words, the male organ is always a question mark (hahahaJ). Now, that is why we coined the case as the case of the ‗limp syndrome‘. The lower court in

its decision has the girl testified that although the male organ was limp, it kept on touching and brushing the labia of her pudendum. And even went on further by saying that there could have been a slightest penetration. Justice Bellosillo in his ponencia said that in order that the rape may be consummated, the male organ must be capable of penetration. Under the circumstances, the victim admitted, herself, that the male organ is not capable of penetration and therefore, there could be no consummated rape. But then, you will be surprised at the ending. The SC did not even convict the man of either attempted rape, acts of lasciviousness or even unjust vexation. The SC totally acquitted the man. Maybe not out of pity…(hahahaJ)…but then probably the SC is satisfied that

the man has already met the penalty that he deserves. He is already in the SCRA. And every citizen in his town knows that he is safe company for women. (hahahaJ) That whenever he passed by, especially the woman, ―Pedro, hindi ka na pwede.‖ The lesson

is that in order that rape may be consummated, there is an erect male organ capable of penetrating the labia of the pudendum of a woman and that, of course, there is the slightest penetration of the same then it is considered as consummated. We have abandoned the previous rulings. Be careful ha. That is actually the jist of the decisions of the SC. It all started in the case of Campungan adopted by several cases which came after that citing such case. That is rape.

 AS I said, in ARSON, there is no problem. The mere fact that a part of a building changed color by reason of a fire that is already consummated. In one case, the man was already lighting a piece of cloth dressed with gasoline, then he was immobilized by some persons, the crime that he committed was attempted arson. Are there questions that you‘d like to ask?

Is there ATTMEPTED ESTAFA? WALA. It is always consummated. NO questions. Its good if everybody understood what I‘m saying here.

CONSPIRACY Let us go to conspiracies and proposals. There are two types of conspiracies. But actually in the case of Jinggoy Estrada v. Sandiganbayan, I have a copy here, there might be three kinds. The conspiracy that we all know is the agreement between two or more persons to commit the crime. But then, mere conspiracy by itself is not punishable unless there is a specific law defining and punishing it, such as what? There are four conspiracies that we know, but if you include conspiracies under RA 9165, there are five. Conspiracy to commit treason, rebellion, coup de etat, sedition and, of course, conspiracy to commit any of the provisions under RA 9165. In my view, in 9165, conspiracy to violate such shall merit the same penalty as if the act has been consummated. Look how drastic is the law.

Conspiracy as a means of committing the crime. We all know that the ‗act of one is the act of all‘. But there are instances where such principle is not applicable. Let us go to

that first. In the complex crime of robbery with homicide, is the mere fact that two or more persons conspired and confederated with each other to commit of robbery, the  ‗act of one is the act of all‘ and the penalty to be imposed to one shall be the same penalty to be imposed upon the other? That is your belief probably. But you will find out that if you are just going to examine closely the laws —in ROBBERY WITH HOMICIDE, the offenders may agree to commit robbery in diff. ways. If the offenders agree to commit the robbery with force or violence or intimidation upon persons or if they agreed to commit robbery in a place which is inhabited and that on occasion thereof, death occurred perpetrated by one or more of the offenders. Even if one who became a lookout did not participate in the killing, they are all liable and the penalty for one shall be the same penalty imposed on the other including the lookouts. That is the case of People v. Robles. Do you recall that case? Some of you were my students in Crim 2 noh. I remember that coz I was the one who decided it in the lower court. (heheheJ). You remember the Macalino exchange cars or whatever. Dito sa Pasong Tamo ba yun. He has a house just nearby. He had it painted by two painter. So, these two people who are both from Tondo came to know what is inside his house. Came to know that he keeps money, they came to know that he has valuable properties inside.  After they were finished with their contract, the two get an idea. ―Tapos na naman tayo eh, let‘s ro b the place. The maid knows us. We will just tell the maid that we left some

of our tools inside and we are gonna get it.‖ And they know that Macalino leaves his house at exactly 8 o‘clock min the morning so it was after 8 that they went in to the

house because all the other members of the family had left for work. They invited Robles who is a gang mate. ―Pare, lolooban natin yung bahay dun. Ang nandun lang maid. Wala nang magagawa yun.‖ So, Robles said, ―Okay lang basta hati hati tayo sa

makukuha. When they went there, Robles posted himself in a nearby sari-sari store as a lookout so he will give the sign if and when a patrol car came along or a barangay  ‗tagay‘ passed by the place. Immediately after entrance, the two were met by the maid.  ―Oh, what do you want?‖ ―We left some tools inside. We are just going to get them.‖ ―O

sige, kunin niyo. When the maid turned her back, they started to stab her. The maid suffered more than 12 stab wounds with the use of screwdrivers. (ulk!) So, para yung icepick, walang dugo yun, not messy ha. There is not much blood that will come out. The problem is that after ransacking the place, Robles hailed a taxicab, they loaded all the things that they took in the house including money. IN their hurry, after closing the door of the compartment, they did not notice that some of the wires from the electrical equipments are dangling from the compartment. The two who were seated at the back are even carrying on their lap some properties. They passed by Delpan Bridge but there was a traffic jam at the time. They looked around and saw a mobile near them and the policemen were looking at them. It was the testimony of the two policemen that they became suspicious. Because whenever they look at the faces of these three people, these people will turn their head. They were so suspicious because no owner of any electrical equipment will allow the wires of such to dangle from the compartment of the car. So, they did was to go down from the mobile car, approached the taxicab and offered the driver to go down from the taxicab and walk some distance away. And asked these people to got down from the taxicab and put them under arrest. When they returned to their mobile car, they heard from the radio that there was a robbery that took place in Makati and that the maid was killed. The taxi driver was asked, where did you pick this people up…Makati ho ganitong street. Ah, eto na nga…huli! The two

were convicted and they did not appeal. It was only Robles who appealed, he was the lookout and claims that I did not agree in the killing of the maid. What I did agree on is only in committing the robbery so I should be sentenced for the crime of robbery and not for the complex crime of robbery with homicide. The SC said, when you agreed to rob a place which is inhabited, you know that there will be a resistance. And you know that you have to employ either force, violence or intimidation upon persons. Therefore, any act of the others that resulted to the death of the victim by reason of the employment of violence, you are equally responsible. The penalties that were imposed upon the two should also be imposed upon you. But let us change the facts a little, supposing that what was agreed upon was to rob the place after the maid has left. Would it change the decision of the SC? And going further, supposing that the house

has been abandoned for more than a week, it became an inhabited house and at the time when these people decided to rob the house, they do not know that a vagrant was loitering in the premises and they killed the vagrant in order that there will be no witness to the commission of the crime but one of them is a look-out and that he did not even had a knowledge about the killing of the vagrant. If you are going to decide on the two subsequent examples that I gave, would the decision in the first be the same decision in the second and the third? The decision in the first would be applicable only to the second circumstance because in the 2nd circumstance, even if the decision was to rob the place after the maid has left the place, there is no assurance that the maid would not return and if anyone was killed on occasion or during the course of robbery, the ‗act of one is the act of all‘ and the penalty of one is the penalty for all

even if one of them did not agree to the killing of any person who may be present in the premises. But if the premises has already been declared as uninhabited, and it so happens that there is a vagrant, you look at Article 202, any person who inhabits or who loiters in uninhabited places without any means of subsistence is a vagrant and that person is even violating the law, the look-out cannot be held criminally liable of the complex crime of robbery with homicide. He will only be liable for simple robbery. Only those who directly participated in the commission of the robbery shall be meted out for the penalty of the complex crime. Now, you see how these particular conspiracies evolve. In conspiracy also as a means to commit a crime…remember this ha…it is not

essential nor necessary that each and every detail of the conspiracy or the act which these people have arrived at as the means to commit a crime to be reflected in the information. The mere allegation of the fact that they have agreed and conspired and confederated to commit such an act is enough because it is only a means. But when it is a crime when the conspiracy itself is a crime, each and every detail that would constitute the conspiracy must be stated in the information, otherwise, the offender will be deprived of his right to be informed of the nature of the accusation against him. I don‘t know if you have understood that in the reading of your book. Araw -araw naman sana magbabasa kayo. Mukha yatang gusto niyo mag-recitation ha. Mahirap maglecture ba for four hours. Esp that I just came from a lecture in Mindanao, I arrived only this morning. For two days, I have been lecturing for more than 20 hours. I just form Iligan at about 10 am. Who is from Iligan here? Who is from Marawi? Who is from Cagayan de oro? Yun, yun. You‘re from Cagayan de Oro? Its about more than 1 hour and 40 mins by car to Iligan noh. But there are still so many tanks along the highway. There are so many checkpoints but what surprises me is that CRV, RAV4, Crosswind, common lang dun yun noh. Pampasahero lang nila yung mga Crosswind dun tsaka  Adventure. Dito sa atin luxury na, dun sa kanila hindi eh. Have you been going to Cagayan De Oro lately? —(addressed to Kathy P.) —―I have not been traveling to any

nearby town.‖ Well, its rather tiresome to travel for ab out two hours and wake up at about 3am. Go to Cagayan de Oro to catch the 7:40 flight form Manila by car…wow.

In the case of Jose ―Jinggoy‖ Estrada v. Sandiganbayan, there is what we call a ―wheel or a circle conspiracy or radial conspiracy‖. Are you fami liar with a wheel or a radial

conspiracy? Kasama ito sa bar ah, because the decision is Feb. 26, 2002. Baka biglang ibigay ito. It says here, in the American jurisdiction, the presence of several accused in multiple conspiracies commonly involves two structures. 1.) the wheel or circle conspiracy in which there is a single person or group known as the ―hub‖==yun bang

pinapasukan mo ng wheel tapos tinuturnilyuhan mo yun, yun ang hub==dealing individually with two or more persons or groups and these two or more persons or groups are disposed. And 2.) the chain conspiracy which is usual in drugs cases particularly in the distribution thereof. You might know each other, say, I am the distributor, you are my right hand woman, eto ang 50 kilos bahala ka na dyan…ik alat mo sa mga bata natin. So, what you are going to do is call all this people. Utos ni Big Boss ito, sayo itong 1 kilo…bahala na kayo sa mga bata natin then on a particular day

dalhin niyo dito ang napagbentahan niyo. Otherwise, alam na nyo ang mangyayari sa inyo. But if you will be able to bring all the money, you get your percentage. That is now the wheel and the chain conspiracy. Although you did not know who is the next person to you, there is still a chain conspiracy. IN the wheel conspiracy, it is different, one person is actually considered as a spaw (?) he will contribute but he does not know who the others are who will contribute in order to accumulate a certain amount of money. That is what happened in the case of Erap, it is quite questionable noh. Look at what happened to Serapio…kay Atty. Serapio. Ipagpalagay na na may kasalanan yun

pero hindi ganun kabigat. Siya ba kumita ng napakalaki dun? But then they have not decided his petition for bail kasi nagpahuli siya eh. You know having came from a Catholic University, it is in the back of his mind, I did something wrong…I should suffer

for it in the meantime. I think that is what Serapio is doing to himself, just like a flagellant. Parusahan ko muna ang sarili ko to cleanse myself for whatever wrong I have done before I go out and join the society where I belong. Probably that is what is in his mind at this point. But then there are how many lawyers and law firms who are guilty of such an act sometimes more than what Serapio did. But I said having came from a catholic University, sometimes it is always there at the back of his mind. Had he actually filed his petition ahead of Jinggoy, he will be out in a jiffy coz he is the less guilty. Was there any allegation that he accepted any money? It was the foundation which accepted the money. So…remember this particular case and remember the term —wheel or circle conspiracy and the chain conspiracy. As a matter of fact, if you

are going to look at this, you will note that the requirement for the indictment of conspiracy were even enumerated by the SC and there are 3 requirements for the indictment of a conspiracy. The SC said, that one of them is that there must be a specific allegation as the agreement; then the offense object meaning the crime, which is intended to be committed, towards which the agreement was directed; and the overt acts that were performed in furtherance of the agreement. These are the 3 so I suggest that you read this case as it would enhance your knowledge in the subject of conspiracy. That‘s 377 SCRA. So, conspiracy unless you have some questions…NO, questions?

 ARTICLE 10  All right, Article 10 says that the provisions of the RPC shall have suppletory effect to any and all special penal laws that may be existing or that may have been passed in the future unless such special law provides otherwise. The most recent cases that Article 10 was applied by the SC was in the cases of People v. Martin Simon, People v. Robin Padilla and People v. De Guzman. Because the provisions of the RPC and the indeterminate sentence law were applied to them and therefore because they are favorable to said persons thus the provisions of the RPC has a suppletory effect. DO you know how? Do you know that the provisions of the RPC is very clear that the penalties would be arresto menor, arresto mayor, prision correccional, prision mayor and so forth and so on. If that penalty id used in a special law, the privilege being given to those who may be convicted of that special law shall be the same privilege that were given to those who violated the RPC particularly in the application of the Indeterminate Sentence Law and if you apply the Indeterminate Sentence Law, or felonies committed under the RPC, the minimum penalty shall be one degree lower from the possible penalty after considering the presence or absence of mitigating or aggravating circumstances. But for a specific special law, the penalty that should be imposed cannot be lowered by one degree to get the minimum. Because the law says the minimum penalty shall be the penalty which has been fixed by law and the maximum cannot exceed the maximum fixed by law. Of course, the suppletory character of the RPC cannot be applicable if the accused is a habitual delinquent because a habitual delinquent is not entitled to the benefits of the Indeterminate Sentence Law. Neither are those who committed violations of the laws of the security of the state or laws against humanity or the law of nations. It‘s very easy if you would just be able to know

how to correlate all this there will be no problem in Criminal Law.

I don‘t see any other problem with respect to Art. 10 except 1.) sec.98 of RA 9165. If

you have a copy of the law. That is the Comprehensive Dangerous Drugs Act of 2002.  You will find there the provision that the provisions of the RPC shall have NO suppletory effect to the provisions of RA9165 or the provisions of the RPC is not applicable —what is the term that they u sed? No one has a copy of 9165? Yun ang nakalagay dun…Not applicable except to a minor who have been found to have committed a violation of a provision of RA 9165, instead of being sentenced to life imprisonment to death, he should be sentenced to reclusion perpetua to death. Is that provision correct? First, mali eh. Can you sentence a minor to death? Hindi nag- iisip eh…(heheheJ) ewan ko, baka magkamali din ako in the future but I don‘t intend to be a politician but there are so

many lawyers who were hired by them to draft the law. Barbers did not do it himself, he will never know how to do it. He needs the services of good lawyers. But this lawyers did not realize that under the Constitution and even under our statutes, it prohibited to sentence a minor to death. Minor yan eh. But the good thing about this is that it is an exception, in other words, the provisions of the RPC shall apply to minors. Meaning privilege mitigating circumstance, mitigating circumstance of plea of guilty, voluntary surrender, marami yan. Paghalo-haluin mo yun hindi aabot sa reclusion perpetua yun, hanggang reclusion temporal lang yun. Medyo pwede pang pumasok sa involuntary submission of a direct dependent to drug rehabilitation. Marami yan so that particular section, there is some thing only that is wrong there but it‘s purpose is good and laudable because it accepts the fact that minors should be treated differently from adults. As you all know, in the Admin Matter promulgated by the Supreme Court on  April 15, 2002, regarding Juveniles in Conflict with the Law and I know that you already have an idea regarding that particular Administrative matter. Have you read that? Siguro si Sedfrey, siya may gawa nun noh? Part…well, no comment tayo si Sedfrey kasi

eh. Pero lumabas lang yun ngayon lang. Kelan ninyo kinuha yan? Last sem? Elective? Sa amin kailan lang inilabas yan eh. I obtained a copy only two months ago. I never knew that there is such an animal. But then when I read it, I said this is good. Reading it, I was impressed. I said the one who did this must be somebody who knows. But the provisions in the Juveniles in Conflict with the Law (JICL) may ran counter with some provisions in RA 9165. That is what I am afraid. I have been trying to go around both laws, trying to find out on how I could reconcile them. Most probably in a week or so, I will be able to do it. I still need time. Okay. It‘s only about 15 mins to 8 but then I

would rather start justifying circumstances on Wednesday. Read please read. Do not wait until the exams befor e you read your book. Don‘ rely on me talking here for two hours. Mamya maliin ko pa yan eh…(ngek, oh no!) So, do not rely so much on the

lecture.

Disclaimer: The title of the cases mentioned may not appear to be the exact name so please be responsible in finding the correct one. Thanks J

DATE: JULY 2, 2003

 Article 11-Justifying Circumstance They are called justifying circumstances bec. the person performing the act did not violate any law and if he violated any norm of conduct, he is justified in doing so. There is no criminal in the justifying circumstance and also there is no crime that was committed. While it may be true that injuries or death even or destruction of property may have been caused by a person yet the person is justified in doing so except in pgh 4 of Article 11, that is, the avoidance of a greater evil or injury. The justifying circumstances is based on, sometimes, the right of a person to his life, property, honor, the right of his relatives to their life, honor or property. Also, the right of strangers to their lives. You will note that in defense of relatives and defense of strangers, they are not the same as that of self-defense.

I. SELF-DEFENSE

Self-defense actually emanated from the natural right of the person from selfpreservation. We all know that a person believes that his life is as important, if not more important than the lives of others. His right to existence, he believes is paramount to the right of the other to exist. But then if you are going to study the justifying circumstance of self-defense, you will note that there are 3 requisites, they are: (1) Unlawful aggression

Which must come from the victim. Meaning to say the person who has been injured or who may have suffered death or other misfortune by reason of another person having to defend himself; (2) Reasonable necessity of the means employed to prevent or repel the attack; (3) Lack of sufficient provocation on the part of the person defending himself.

(1) Unlawful aggression usually is an act which put another persons life in peril or in imminent danger or if not the honor of that person or his property, coupled with any danger to the life of the holder of the property. There are several theories in relation to unlawful aggression. But the fact is that unlawful aggression does not necessarily mean that the life of the person must be in peril bec. that is only applicable when the person is defending his life. There are instances where unlawful aggression may be committed against the other but the unlawful aggression is directed towards the property of another; towards the honor of another; towards the chastity of another and therefore that person to whom the unlawful aggression is directed has the right to repel that unlawful aggression by the means as aforestated in requisite no. 2. There have been some cases that some readers of law sometimes commit a mistake, particularly in regard to acts that may be considered as unlawful aggression under certain circumstances but in some circumstances may not. But definitely, certain acts are by themselves acts of unlawful aggression and there is no other condition that may be attached to it. Such as what? Well, if you slap the face of a person, naturally that is unlawful aggression. You spit at his face, that is unlawful aggression bec. the face of a person represents his dignity, his very being and therefore, it ought to be respected. Whether his face is that of a face which his mother could only love, that is not the point, the point is that you have to respect that particular person whether his face is not acceptable to you or not. One of the cited case in the book is about foot kicking.  You have the impression that foot kicking is not unlawful aggression. That is not alltogether correct. You kick the foot of your enemy, that is unlawful aggression. You kick the foot of a stranger, that would be unlawful aggression. What the decision of the SC said which was not emphasized very well is that ―if it is a matter of greeting bet. 2

persons, then it is not considered as unlawful aggression. a ggression. Most probably, they are horse trainers or jockeys. They deal with horses that is why they use their foot or feet to greet each other. That‘s only a joke. But some people could have some kind of greeting

that they usually adopt that would make the other know of his presence. For example, a person suddenly slapping your nape and when you turn around you see that it is your friend. But it is a way of greeting you which both of you has adopted throughout the

years. That is no unlawful aggression there. But you do it to an enemy or stranger, that is unlawful aggression.

Now, with respect to crimes of oral defamation or libel. The moment that in oral defamation, you uttered words that are supposed to put the person into a disrepute, to humiliate him, to put him in an embarrassing position to the public or to those who may be present, if it is oral, then that is already unlawful aggression and the person has the right to defend himself from that unlawful aggression. In libel, the case is supposed to be by publication by writing or through radio or television. You may even also write libelous article against the person who wrote imputing upon you the commission of a crime, vice or defect, that is libel. The problem is if you do not have a newspaper of your own or if you are not a columnist, how will you be able to defend yourself. You cannot but your own newspaper. And if you ask the people in the newspaper, would they allow you to print what you want to say —sometimes yes, sometimes no. SO, you are always at a disadvantage, that is why there is a crime of libel. The act of unlawful aggression may be manifested by the outward manifestation of the intention of the person, usually. It is sometimes shown by not only his acts but by previous or simultaneous acts that were committed by that person. There are instances however that this unlawful aggressions may be committed by a person in a spur of a moment which sometimes, although deliberate yet it is not as serious as those that were planned, those that the offender has or the person who ahs committed the same has concocted or devised. You will recall that there have h ave been unlawful aggressions that the SC has made the students of law realize that it can be committed at any case. For example, in the case of People v. Jaurigue, if you recall that case. She is a young lady who is the subject of amorous advances of a man. And that man has been pestering her, if not actually committing acts of lasciviousness against her if not vexing or annoying her. It is for that reason that she armed herself with a knife. So, she hid the knife in one of the pockets of her skirt and while in charge of the company of her father, this man seated beside her and in i n a few second the hands of the man started to travel until it reached the thigh of Jaurigue. And naturally, Jaurigue considered the same as unlawful aggression as it is already an act that would be offensive to her honor. She stabbed the man. The only issue which the SC resolved is whether the means employed is reasonable in order to repel or prevent the attack. But then, if we are going to consider that that is unlawful aggression, to my mind at this point, with the passage of RA 8353 and considering that the law provides about sexual assault and an opinion of a former Justice of the Court of Appeals, Justice Hilarion Aquino that even if what was inserted in the genitalia of a woman is the finger of the man, it is considered

as sexual assault. Although I have a dissenting opinion to that. Should Jaurigue still wait until the man would be able to do what he intended at the time. So, she would be then within her right to defend her honor and the least that she can do under the circumstances was to stab the person. Would she wait until such time as the man accomplished what he intended to do…no way. They said that the police is there, the brgy lieutenant is there, the father of Jaurigue is there, but that is not the point. If you will recall in some of the cases decide by the SC, regarding rape, the SC convicted a person who was accused of raping his victim just beside the road fronting the city hall near the Japanese Garden at 6:30 in the evening. According to the SC, lust is not a respecter of time nor place nor even people and therefore it could take place anywhere at any time. At this point, if that would be the thinking of the SC, the case of Jaurigue would be abandoned and that an acquittal would be proper in the event that the same incident occurred to a young woman.

(2) With respect to reasonable necessity of the means employed in order to repel or to prevent the attack. The leading case here is the case of Pp v. Jose Laurel Sr. That was the case of Exequel Castillo who has a girlfriend by the name of Concepcion Lat. They are from Batangas. As the Laurels are known for their mischievous conducts. In Batangas, they are called ―barako‖ or something to that effect. One time, Laurel, who is

not even courting the girlfriend of Exequel Castillo kissed Concepcion Lat. Furious, Castillo has been asking emissaries to tell Laurel that he wanted to talk to him. Probably, Castillo is smarting (?) from the fact that Laurel was even ahead of him from kissing Concepcion Lat. Despite so many emissaries and people trying to patch up their differences, Laurel never did talk nor honor the invitation of Castillo. Until, during a party Laurel was forced to do so because he would look not anymore "barako" but a coward if he will not talk to Castillo. But the Batangueños are known for carrying their balisongs. On the other hand, the landed gents of Batangas are usually, in the event that they go to certain functions, are with canes. Not bec they are old but it was a sign of nobility at that time that they own vast tracts of land, etc. When he and Laurel met, there was a little altercation and Castillo hit Laurel with the rounded end of the cane. Laurel naturally fell. You know what they used for a cane during those days? It is carved out of ironwood. You can find that near the sea. Or if not the iron wood, the kamagong. Eh, ang bigat nun, tamaan ka nun, sigurado. So, Laurel fell and when he is down, he pulled his Batangas knife and stabbed Exequel Castillo twice. Castillo was hospitalized. He survived. The only issue there is, of course, as it is given that the unlawful aggression at that time was perpetuated by Exequel Castillo is (1) whether there is reasonable necessity of the means employed to repel or prevent the attack and

(2) was there lack of sufficient provocation on the part of the person defending himself. Now, with respect to lack of sufficient provocation on the part of Laurel, it has been argued by the prosecution that the cause of all the incident was Laurel who provoked the incident by kissing Concepcion Lat, the girlfriend of Exequel Castillo. But the other side countered that if it is true that Laurel caused the provocation, it was a provocation that was employed to Concepcion Lat. He did not kiss Exequel Castillo but Concepcion Lat. The provocation was directed to Concepcion and therefore there is actually lack of sufficient provocation on the part of Laurel. Maybe it could have been a vindication of a grave offense but they are not related to each other. So, it is not even a mitigating circumstance. Then, the Sc went to say that there is a reasonable necessity employed by Laurel in repelling or preventing the attack. The Sc even went further that the use of a cane is as lethal as the use of a knife and therefore there is no disparity with respect to the weapons, there is, therefore, reasonable necessity of the means employed. But you know, there is one case that might be of interest to you. This is the case of a captain of a navy. He was the head of the intelligence dept of the navy. And they are having an operation before Xmas somewhere in Malate as there are informations as they received about some people smuggling goods or smuggling aliens and there are other crimes being committed. So, after briefing his men and it was already past 8 in the evening. This captain of the navy with the rank of colonel on the Armed Forces, drove his car and took Roxas Blvd. going towards the direction of the south. While traveling at Dewey Blvd. which is now Roxas Blvd. he was at the inner lane when he heard the sound of an explosion which he believes came from a gun but at that time it was December 19th so maybe some children or people are exploding some firearms etc. Out of instinct, he swerved his car to the right. He does not know that there is another car was traveling at the rear portion of his car and supposed to use the right portion of the road. This gave the impression to the driver of the car at the rear that the captain, they do not know him to be the captain of the navy, is asking for a drag race. Tempers get the better of them with each other trying to outdo each other in the road. Until they reached that aluminum tower in Baclaran. The captain slowed down and he was going towards that restaurant named Ling Nam. There is a Ling Nam restaurant there di ba on the left side if you are traveling towards the south. The problem is while he was on almost a stop position, the car that was following him suddenly blocked his path. Two young men went down from their car, opened his car and of course assaulted him. They rained blows on him until his eyebrow was hit and naturally he suffered a boxer‘s cut in the eyebrow. You know what is a boxer‘s cut.

Blood dripped to his shirt and he became furious. He tried to enter his car and get his 38 snub-nose (?) revolver. This two guys kept on delivering blows on him. When he was able to get his gun, he faced the two, shot one of them, dead. You know at that place during that time there are so many uziseros. The place was steaming with people

at that time. Police came he was arrested, investigated and charged with homicide. During the trial, he presented evidence in his behalf and the court found that there is actually an incomplete self-defense bec there is no reasonable necessity of the means employed in using a firearm on the young man. The reason of the Court was that he is a graduate of the Phil Military Academy. Trained in hand to hand combat that with the two young people, he can defend himself and a boxer‘s cut is not a serious injury that

would merit the use of a firearm. So, that was the decision. But he was sentenced only of up to 2 years and 4 months of imprisonment. Actually, the minimum is about 2 months and 1 day. He was not satisfied. He went to the CA, the judgment was affirmed. But he wanted to make a last hirit, he went to the S C under Rule 45. But he is not alone in the idea of going to the SC, the private complainant also went to the SC under Rule 65. But then the SC dismissed the petition of the private complainant under Rule 65 bec that was not the proper remedy. The SC decided the case and you know what happened? The SC said that the findings of facts of the lower court is not correct. That the lower court erred in appreciating the facts and totally reversed the decision. The aggressor is now the captain and the one who gave the provocation is the captain. It was in the decision. So, he was sentenced to an imprisonment ranging from 14 years 8 months and 1 day to 17 years and 4 months. He was then 60 years old at the time of sentenced. What I am trying to tell is this, that sometimes despite the time-honored principle that the SC is not supposed to disturb findings of facts by the lower court, yet under certain instances the SC do. There was no reason given by the SC in changing the facts as found by the lower court except that ―the lower court erred in appreciating the facts‖ that‘s all. They totally modified the decision of the lower court and sentenced

the guy. He is now serving sentence. So, even if you believe that there is actually unlawful aggression, it may turn out that there is none depending on the appreciation of the appellate courts but definitely the rule is still the same.

Included in self-defense is, if course, defense of honor. There is no problem with that. Defense of Chastity, well, any woman has that right whether she is a prostitute or married or whatever, she has that right. In defense of property, I was intrigued by a question that was asked of me about the case of Sonny Parsons. If you were the lawyer of Sonny Parsons and he asked your advice in connection with the incident regarding the killing of two alleged robbers who even cooked food in his house, eat his food and he claimed that they tried to rape his daughter etc. And stole some of his properties. Do you believe that self-defense is availing in the case of Sonny Parsons. The only problem there is Sonny Parsons talk too much without asking proper advice from a lawyer. He keep on saying that he followed the jeep and when he saw that these people was on

board the jeep and knowing that they are armed, he opened fire. If that will be his line of defense, he will be convicted. With only a mitigating circumstance of immediate vindication of a grave offence. There is no incomplete self-defense there, but if he is going to phrase his defense this way, ―that he tried to follow the offenders bec he

wanted to recover the properties stolen from him. It is not only an exercise of a duty but a right. If you were a victim of a robbery, you have the right to recover that property by all legal means available to you. So, if you have a gun, you can use your gun to recover that property but not shooting them in the meantime. You can bring your gun. So, when he followed this people, his contention should be that he followed them in order to recover his property. Also, if he has no idea as to how they look, so that he can positively identify them in the event that they are brought to court. There are so many things you can thing about eh. So, when he saw them, if it is true that he was the first one to fire the shot…he fired the shot to prevent the jeepney which they

are riding from leaving and that is what was actually happening at that time. And when these people tried to go down from the jeep and knowing that they are armed and seeing at their weapons, he fired at them. Does he have to wait? No more because they have committed already a crime in his residence and they tried to rape his daughter, they already by means of force, violence and intimidation, took his properties etc and now while he was trying to recover them, these people are again committing acts of aggression, then he has all the right. If you would meet a client, tell your client always not to go to media immediately, tell them what will be your defense, ah you have to formulate your defense carefully. Study very well bec that would mean your life, your liberty.

In defense of property, there must be really an unlawful aggression on the property aside from assault or attack on the person of the holder of the property or the possessor or owner and it is not however necessary that the life of that person be put in imminent danger or in grave peril. It is enough that there is an assault. Because the unlawful aggression that is the taking or the destruction of the property —it depends ha as to what is the crime being committed —is already an act of unlawful aggression, how much more if there will be an unlawful aggression towards the owner. In that way, we all agree that in cases of defense of property, there is no need that the life of the owner is placed in imminent danger. It is enough that there be unlawful aggression to the person of the owner or the possessor.

Do you have any questions about self- defense? (There‘s a question of Claire re Laurel case —its blurry but the answer of Judge is…) The lack of sufficient provocation must be present when the unlawful aggression is taking place and that the unlawful aggression there took place without any provocation from Laurel with respect to Exequel Castillo. If ever there was sufficient provocation, it was with respect to Concepcion Lat. It is personal to Concepcion. The provocation can never apply to Exequel Castillo even if they are already husband and wife. What would happen there only is that it would be an immediate vindication of a grave offense. Because the grave offense as provided for in Art. 13 in RPC in mitigating circumstance is not the grave offense provided for in Art. 9 of the RPC which carries with it an afflictive penalty. The grave offense would be with respect to the perception of the person who feels offended. Say for example, is acts of lasciviousness a grave offense? If you are going to consider the penalty, it is not a grave offense bec the penalty is only up to 6 years. On the other hand, when you consider a grave offense under Art. 9 it must be punished by an afflictive penalty which ranges from 6 years and 1 day going up. So, there is no provocation ever on the part of Laurel in his relation with Exequel Castillo. Despite the fact that Castillo is the bf of Concepcion Lat.

(Follow-up question with the substance that: What if the provocation to Concepcion happened long before she fought back?) It depends because kissing without the permission of a lady is unlawful aggression. It is directed towards her honor. That is also unlawful aggression and the lady has the right to defend himself esp. if she did not ask the fellow to kiss her or she did not provoke the person to do that. You know, as I said one time, the federal court of NY acquitted a person who raped a woman who one night left her apartment and went to the park with a see-through dress only, nothing underneath. She was raped. You know what the judge said, ―you asked for it, lady.‖

 You gave the provocation. That was really a very revealing case (heheheJ) meaning it is revealing in a way that the thinking of the people in NY is very much different from our thinking. There are so many these days. Even if a woman is a scant in a dress, that does not give you the right to rape her. Why there are some people there in Makati Ave and Malate or wherever wearing scanty dresses, you have already the right to rape her…? We have not already reached that stage. (heheheJ) But in the U.S. there was

that case, it was published in the newspaper.  Any more questions, we will have a break. ===break===

II. DEFENSE OF RELATIVES

The third requisite is that, the first, the relative defending his relative must not have taken any part in the provocation in the event that it was his relative who gave the provocation. This is actually a little bit confusing sometimes bec of some decisions of SC in connection with, sometimes, active attitude of the relative who undertook the defense of his relative. For example, a first cousin is in the verge of being shot by another bec he was the one who gave the provocation. And this relative, at the time when the provocation was being given by the relative he is gong to defend said ―sige na, sige na.‖ Would the words ―sige na‖ or ―patulan mo‖ or whatever, would that

constitute also a participation in the provocation of the relative? In some decisions of the SC, it said no. But there are also decisions of the SC that says that if the participation of the relative who was also defending the other is so active to the point that the provocation is almost equal to the provocation given by the relative, then that is not covered by the third requisite in defense of relatives. In other words, if ever there is any participation of the relative defending the other, it should be either passive or if active it would not tantamount to an active provocation.

III. DEFENSE OF STRANGERS

The third among the justifying circumstances is the defense of strangers. You all know that the relatives are enumerated in paragraph 2 and they are the ascendants, descendants, the spouse, brothers and sisters and relatives by affinity within the same degree and relatives by consanguinity within the 4th civil degree. Now, beyond that, the defense of a person may be considered as defense of strangers. But defense of strangers does not only cover to those whom one personally knows. It may be that the stranger may not be personally known to the person defending said stranger. The only condition that must be present aside from unlawful aggression and reasonable necessity of the means employed is that the person defending a stranger must not be motivated by revenge, resentment or other evil motive. That is why suspicion is usually being cast upon some people who try to defend certain strangers especially if the person who may be a victim of the person defending the stranger is known to the person who is exercising defense of strangers. They usually impute evil motives or revenge, in order that it will not be covered by defense of strangers. There would be quite a problem, say for example, in a relationship bet two persons who are not

supposed to have that relationship meaning a paramour. Seeing that his paramour is being almost beaten to death by the husband, inflict fatal injuries to the husband. Naturally, the presumption is that the paramour who tried to defend the wife of the husband would be that he has been motivated by some evil motive that is to eliminate the husband so that he and his paramour would have no more hindrance to their relationship. But then it could be sometimes correct to say that under certain circumstances, it would be otherwise meaning that even if there is a relationship between the person defending the stranger and the latter it could be established that he is not actually motivated by any other motive other than defending the life of another. But of course, it would be very difficult to convince the court and the people sometimes that such is really your intention. The words, strangers can refer to even a kid, a person who is a minor or any other person.

I would just like to point out that when an unlawful aggression is the performance of a right or when the unlawful aggression is emanating from a legal duty, it could not be considered as an unlawful aggression. Say for example, you prevented a thief from stealing the property of another and you have to hit his hand with a hard object, that is not considered unlawful aggression. To the thief…yes. He will claim that there is unlawful aggression but under the law that is not unlawful aggression bec what is being performed by the one preventing the thief is a legal duty, an obligation or a lawful act. Just the same as when you are trying to prevent another from killing some persons particularly those persons in authority or their agents, then it would constitute as a performance of a legal duty.

IV. AVOIDANCE OF GREATER EVIL OR INJURY

The fourth is about avoidance of a greater evil or injury. But then this is usually being equated to the protection of one‘s life or property which one believed is more important

than the other or that the evil sought to be avoided which actually exists there is no less harmful means that can be employed in order to prevent the same other than what the person may be doing. The usual example that is being given by those who are teaching law and law students and even those who are knowledgeable of the law is that in times of conflagration or big fire and that the conflagration is not prevented from spreading towards other directions, the entire locality will be wiped out and there is only one remedy that can be done under the certain circumstance and that is to destroy

other houses that will create a vacant space in order that the fire will not be able to spread. That is exactly what is provided for under pgh. 4. However, the liability that the persons who benefited from the act shall share pro rata in the benefits that they derive in the payment of the properties that were destroyed. It is not necessary however that if you have, say for example, a house that is worth P500,000 that you have to contribute P500,000. It shall be pro rata that there is actually a formula adopted by assessors or those in the law in connection with how to compensate these victims of this kind of circumstance.

 V. PERFORMANCE OF A LEGAL DUTY

The fifth is performance of a legal duty or lawful exercise of a right. When you say performance of a legal duty this usually applies to public officers, employees or law enforcement agents bec to them we repose such duty to protect us from lawless elements. And when they perform their duty, the regularity in the performance of the duties of these officers is actually accepted, that is only in theory. In practice, we do not believe in that, we would rather believe that the public officer or employee did not regularly perform his duty. Despite that popular belief, still the law says that this people are regularly performing their duties. So, if in the event that in the regular performance of their duties they caused damage to another or they caused injuries, then they are  justified in doing so bec the law specifically provides that they are justified if their acts is in the legal performance of their duties. When a private citizen exercises his right, he cannot also be held liable and under the law he is justified. Say for example, you tried to prevent a person from stealing your property naturally you may commit an act of coercion, or other acts that may prevent the taking of your property. So, it is an exercise of a right, which right is to protect the property that you own. I ask one time about, say for example, exercise of a right, do you have a right in case where the branches of the tree of your neighbor encroaches upon your property to cut them? Do you have that right? You don‘t have that immediate right. Under the law, you have to

demand from him that he be the one to cut the branches of the tree. It is only when he refuse that you are allowed by law to cut the branches. As a matter of fact, if you will recall, you cannot even pick the fruits in the branches of that tree unless those fruits fall in your property. So, you have also to correlate the exercise of a right with civil l aws not only criminal laws bec if you are going to separate the civil laws form criminal law, you may not be able to arrive at a well-reasoned out conclusion in connection with the exercise of a right of an ordinary citizen. Like for example, you have the right to do with

what you like to do with your life, correct? So, if you want to smoke and die…(heheheJ)

that is your right. No, I am not joking. There is really a problem as to the constitutionality of this anti-smoking law. It has not been tested. Well, under the RPC do we punish those people who survive an attempt to commit suicide? No, so we do not punish them. But if you smoke, you are not yet attempting to commit suicide, you are already being punished up to a fine of I believe, P4,000. Now, if there would be a rule or a law that would prohibit smoking so that others may not be affected then there must also be a rule that those who are exercising their right to enjoy such pleasure as they believe it is, there must be a place which must be devoted or which must be available to them which will not affect others. But if you do not give them any space, that would be violative of their right. Well, I agree if you smoke on vehicles etc. in enclosed places, how about in public spaces wherein it is an open space. Even in open space, they are prohibiting smoking already, is that correct? I think that ought to be challenged. No, I don‘t smoke anymore, I quit. But, well I believe that there is really a

constitutional issue with respect to that particular law and that particular rule or ordinance. I believe there is a law eh, passed already by Congress, there is? Originally, there was a proposal but has it been signed already? (4B: YES Sir) Is it effective? (4B: Not yet) When will it be effective? (4B:15 days) After 15 days probably someone will challenge that. Because, look, if in the U.S. Phillip Morris is being assessed billions and billions of damages by smokers then if a person smokes in the Philippines, he will not be able to collect from this people anymore bec he is violating a law. Once you violate a law, you cannot anymore claim that you have a right to claim damages from the manufacturer. Just try to see my point there. What I mean is that, say for example, a person developed cancer bec he is a heavy smoker, he smokes Phillip Morris about ten packs a day. He is still a living example of a compulsive smoker. But it is against the law, can he now even if there is no sign in the pack of the cigarettes, because it is prohibited by law to smoke, can he now claim damages against Phillip Morris. This law is more of a protection to the manufacturers rather than a protection to the citizens. Can you get any damages if you are violating the law? You cannot. Eh, supposing you cross the expressway, you were run over by a bus, could you collect damages from the bus? No, you cannot because you are not supposed to be there. There is a law which prohibits you from being inside the expressway. In the same manner, as when there is a law prohibiting you from smoking but you smoke, you developed cancer, you cannot go after the manufacturer for damages. Did they ever think of that? Kaya tuwang tuwa ngayon ang mga manufacturer. Ah, dito sa Pilipinas okay, wala na tayong problema. Hayaan mo sila. If they want to smoke, they hide, its all right. They cannot claim anymore against us because they are violating the law in the first place. Is there any place where a citizen can still smoke? (Kathy L.: From my understanding of that one, it does not specifically prohibit smoking. It only prohibits it in certain places where there

are a lot of people but if for example in your residence, you can still continue to smoke.) Hmmm…I don‘t know. I don‘t know also the law. I have not seen the law. How

about say for example, in a restaurant, you cannot smoke? Definitely no? And they are not supposed to provide a space for smokers? I do not know. That would be a problem.

 VI. OBEDIENCE TO A LAWFUL ORDER

So, the last of the justifying circumstances is obedience to a lawful order issued by a superior for some lawful purpose and directed towards an inferior officer. The lesson that we had in the case of Pp. v. Oanes when they invoked this is that there is actually a lawful order but the lawful order is simply to get the person known as Balagtas and bring him to the station. The word ―dead or alive‖ is naturally the one that may be wrong but as they say if he resisted bring him dead. Look, they are now thinking of something again in our reach. Who is that guy who proposed that those confiscated drugs be mixed with cyanide? Who proposed that? Yes…its now a proposal. But if you do that, even if that person probably will take those drugs, that is still murder because that is with the use of poison knowing that it may be consumed by another and you were instrumental in placing a poison in that particular goods or whatever, you want to call it, drugs. Still the intention to kill is there. There is an intent to kill and if that person dies with the use of poison, which was placed by another then it falls under  Article 248 of the RPC, that is murder. This people sometimes do not know what they are saying. They are trying to make people believe that what they may be doing is the right thing. No, that is not the remedy. The remedy is simple…cut the source. We have

many law enforcement agents who should devote their time in catching all these people and that we should be strict in the implementation of the law. The problem is there are so many who are against it eh. But the requirement is that there must be an order…it must be lawful…coming from a superior officer…and directed towards the inferior

officer. It was the inferior officer who performed the lawful order, that is justifying. Just like the soldier. If the soldier was told, ―all right, you go and catch all the bandits, etc.‖

In trying to capture them, he has to kill some of them, that is obedience to a lawful order bec you know for a fact that if you are going to capture its either you or them who will naturally die. There was even a joke in Mindanao when a Muslim was asked,  ―what is the state of peace and order in Mindanao?‖ The Muslim answered, ―It is very bad.‖ ―Why?‖ according to the one who asked. ―Well, the army still refuses to surrender. So, it is very bad.‖ (heheheJ) No, it was just a joke among them but act ually

what I am trying to relay to you is that---in these times, when orders actually are

supposed to be obeyed by the inferior officers, there are instances where the inferior officers do not obey them. That is when even if the order is lawful in the event that any other act is committed by them other than what is included in the order, that particular act that they performed will not be within the ambit of the lawful order given by a superior. So, the act that was also performed by the inferior officer must be within the bounds and limits of the order given by the superior officer. It cannot go beyond it, it cannot be less than it, it must be exactly what it has been stated as an order from a superior officer. Otherwise, the inferior officer would be…what?   If he is a judicial or executive officer, would be charged of open disobedience, he will be violating the law.

EXEMPTING CIRCUMSTANCES In exempting circumstances, I‘ll just discuss one or two. Any person who is insane

unless he acted during a lucid interval is exempted from criminal liability. There are so many kinds of insanity.1.) the acquired insanity, 2.) the inherited insanity that is when it goes through your veins and you inherit it from your parents or grandparents or 3.) insanity which was derived from traumatic experience. These are the only insanities that are exempting. Because self-induced insanity or insanity caused by abuse of drugs is not an exempting circumstance. As a matter of fact in RA 9165, it is a special aggravating circumstance. Actually, any crime that a person commit while under the influence of drug, he is to suffer the maximum of penalty imposable under the law. Do you know that RA 9165 even devoted several pgh in connection with aggravating circumstances and a person who is under the influence of drugs may waive his right to self-incrimination? Are you aware of that? A person who is under the influence of drugs and who committed a crime… the penalty for that crime

would have for its at least maximum period not less than 6 years and 1 day, shall be forced to be subjected to a drug test at the instance of the public prosecutor. The moment that a person is charged before the office of the public prosecutor and the charge carries with it a penalty of at least the maximum of 6 years and 1 day that person can be mandatorily drug tested even if he refuses. In other words, he will be giving evidence to being a user of dangerous drugs. I do not know whether it could withstand the constitutional prohibition regarding self-incrimination. I do hope that somebody will try to find out whether it could be an area of study. RA 9165,really, there are some provisions there that are questionable. When a person is found to be insane at the time of the commission of the crime, he is exempted from criminal liability.

However, it is the duty of the court to send him to an asylum or to an institution for insane persons. He shall be released only after he has already recovered his sanity but upon recommendation only of the Secretary of Health approved by the court which ordered his confinement in such an asylum. The usual practice of some correctional institutions that after a person who was sent there by the court because he was insane and he committed a crime in releasing them without the consent of the court is an act of contempt. Therefore, the doctors etc will be liable for contempt. I personally believe that this law may be the subject to an amendment. Who is more knowledgeable than a doctor? The court do not have the capacity to determine whether the doctors findings is correct or not. So, we must have to rely. And I think that is enough. But then as long as the law is there, it is the court which has the power to release the accused. Not the Secretary of Health, not the head of the institution where the person is sent because of his insanity. We will meet on Monday in criminal law and I‘m hoping to go as far as I

can. ~~~end of tape~~~

DATE: JULY 7, 2003

Before going to exempting circumstances, I‘d like to go back to justifying. Almost

everybody knew about the decision of the SC regarding the battered wife syndrome that is being used by some women‘s group to be considered among the justifying

circumstances under self- defense. Well the decision of the SC in the battered wife syndrome was to the effect that it indeed recognizes the existence of such circumstance in a household or in any other place but there is no pronouncement yet by the SC that it is a justifying circumstance. What the SC did in that particular case which was handled by Katrina Legarda and company was to remand the case to the lower court for further proceedings to determine of course the circumstances which lead to the acts that were committed by the husband against the wife, the reasons probably, and then what would be the decision of the lower court in the event that it may be considered as a part of self-defense. Although in self-defense, as we all know, that the acts that were performed by the person defending himself must be immediately after the unlawful aggression was committed on him. The battered wife syndrome may take some time before the woman perform an act which she will now claim to be part of self-defense. So, we have to wait until such decision of the lower court will be promulgated and that

it has yet again to reach the SC. I hope that the case will reach the SC in order that we may be able to consider it as one of the justifying circumstances. Well, they should not only consider the victim as only the wife, the victim there may be the husband also. How about a battered husband syndrome? The women are always asking for equality. If they are asking for equality then let the husband be also a victim once in a while. Sometimes, husbands should also be battered once in a while. (heheheJ). But there is no decision yet ha. Although the decision of the SC, it recognizes the fact that such a circumstance happens in the household etc. but it has remanded the case for further proceedings meaning it gave due course to looking into whether a battered wife syndrome may be considered as a justifying circumstance but no decision yet is reached in regard to the issue of battered wife syndrome.

 ARTICLE 12. EXEMPTING CIRCUMSTANCES I. INSANITY Exempting circumstances. Well, when you look at your book, exempting circumstances start from insanity, imbecility etc. When we speak of insanity that its total loss of reason, total loss of intelligence at the time when the crime was committed or immediately before the crime was committed. In other words, this must be present immediately prior to the commission of the crime, during the commission of the crime and immediately thereafter. Otherwise, if say for example, it is not present at the time immediately prior to or during the commission of the crime it cannot be considered. Even if the person became insane immediately after the commission of the crime, most probably it is simply an after effect of a traumatic experience and therefore it cannot be considered as an exempting circumstance. On the other hand, differentiating it from imbecility. Well, a person who is imbecile does not usually crop up just like mushrooms. Imbecility is inborn or developed immediately after birth and stays forever to a particular person. Insanity may be inherited, acquired or be by reason of traumatic experience and some other causes but the one that is not an exempting circumstances with respect to insanity is self-induced insanity. When I say self-induced insanity, that is when by the abuse of the person of certain drugs, substances or whatever, he became insane, that is not the insanity being spoken of under Art 12 of RPC. You must recall that under RA 9165, if you have read 9165. Any person who at the time of the commission of ANY CRIME, any crime ha, is under the influence of dangerous drugs, whether he became insane or not ha, such state of a person or such being under the influence of dangerous drugs is a qualifying aggravating circumstance (blurred…then, it went blank…oh, no…low battery na!)

II. A PERSON OVER 9 YEARS OF AGE

III. PERSON OVER 9 YEARS AND UNDER 15, UNLESS HE HAS ACTED WITH DISCERNMENT, IN WHICH CASE, SUCH MINOR SHALL BE PROCEEDED AGAINST IN  ACCORDANCE WITH THE PROVISIONS IN ART. 80.

IV. PERSON, WHO, WHILE PERFORMING A LAWFUL ACT WITH DUE CARE, CAUSES AN INJURYBY MERE ACCIDENT WITHOUT THE FAULT OR INTENTION OF CAUSING IT.

==2nd tape==

 V. COMPULSION OF AN IRRESISTIBLE FORCE

Oh, The Abu Sayyaff, the people who actually are their captives, maybe they are not telling them to kill the other victims. But they will just say that, ―oh, we want him eliminated.‖ That‘s all. And these people knows already that if they do not, then they

will be the one to be eliminated without necessarily pointing a gun; without necessarily inflicting any force or violence upon them. But in irresistible force, there is present an actual force or violence or intimidation upon the person prior to the commission of the act. For example, the pointing of a gun, the pointing of a bolo or whatever, naturally that would constitute a resistible force.

 VI. IMPULSE OF AN UNCONTROLLABLE FEAR

 VII. a.) INSUPERABLE CAUSE Insuperable causes, these are simple events. Maybe it is a natural events which causes calamities, etc. or other causes that may be not included in uncontrollable fear or irresistible force yet they would constitute exempting circumstance. You were prevented

by a typhoon, you were prevented by a flood, or other natural calamities or sometimes you are prevented by specific circumstances that would cause you to fail in the performance of an act required of you by law. Usually, those that are being exempted here are those who failed to perform an act or a crime by omission. Like misprision of treason, if a person knows of the conspiracy to commit treason, his duty is to report to the authorities the fact of conspiracy that he has personal knowledge within reasonable time. And the authorities to whom he should report are the provincial governor, the provincial fiscal, the city mayor, the city prosecutor. But there is another provision there that will probably escape your attention. Where will he report the conspiracy that he came to know of his own personal knowledge? He should not report it to the prosecutor or fiscal of the place where he learned of the conspiracy, otherwise, he will be a ―sitting duck‖ there. How will he know that those people are not also co -conspirators? E, di

patay siya dun. Under the law, he should report it in the place of his residence. So, if he learned of the conspiracy in Davao, and he is a resident of Manila, he should report in the office of the city prosecutor of Manila or the city mayor. Remember that. If he fail to report it, bec, say for example, he was not able to leave Davao due to some circumstances not of his own fault and it is actually included among the insuperable causes, then he is exempted from criminal liability. There are other insuperable causes and they are all in your book. What I am just trying to explain is the factual application of these causes in order that you may be able to understand them without exerting so much effort.

b.) ABSOLUTORY CAUSES How about absolutory causes? What are the absolutory causes that you know which would constitute as exempting circumstances? Ah, there are so many. Let us go to the Rules of Court (RoC) first, not under the law, what are those that the Rules of Court that exempts a person from criminal liability. State witness. A person who has already been accused of a crime but he turned as a State Witness under the condition set forth under the RoC is exempted from criminal liability, so it is an absolutory cause. As long as he is not the MOST GUILTY. Sabi nung iba, even well known lawyers, ―he should be the LEAST GUILTY‖. Where did he get that? The Rules says, he should not be the most

guilty, yun yun tandaan nyo yun. Pag isinulat niyo sa akin, he should be the least guilty, patay ka. Kung ten points, minus ten points ka. I will not give you a credit of 1, even ½. (heheheJ) That is very important. Sometimes, I have been watching TV before I sleep and of course, watching some well-known lawyers and then, I am surprised sometimes when they say, ―well, he can be a State Witness, he is the least guilty‖. What? I said…how can that be. The Rules did not say that.

The laws…Art. 247 of the RPC, may absolutory cause dyan. If the spouse who surprises

the other in the act of sexual intercourse but only inflicts less serious or slight physical injuries, exempted yan. The father who caught his daughter who is less than 18 and living with him, etc. or his family and he surprises his daughter in the act of sexual intercourse with a man…a man ha. (heheheJ) And he inflicts less serious or slight

physical injuries, exempted din yan! Absolutory cause yan.

Sa Witness Protection Program, the same, Sec. of Justice can exempt any person who participated in the commission of the crime as long as he is not the most guilty and he is not a law enforcement agent and the Sec of Justice is satisfied that he is qualified under the witness protection program. That is the difference between State Witness and the Witness Protection Program. You should know the difference. If they are asked, my golly, you have to be sure that you can answer that. State Witness -- korte yan, Witness Protection Program -- Dept of Justice lang ang nakakaalam dyan, walang pakialam ang korte dyan. The court probably may only interfere if say for example, the person turned out to be a peace officer and he is being presented as a witness under the Witness Protection Program, when he was a asked of his occupation ―police officer, sir.‖ Naturally, that admission disqualifies him under the WPP, therefore, the court can

summarily dismiss him from the witness stand. Alam niyo ba yun? Hu h, importante yun. When you discuss State Witness under the Rules of Court, you should also discuss those who are witness under the Witness Protection Program.

What else? Ano pa ang mga absolutory causes diyan? Slight Physical Injuries which was inflicted during a tumultuous affray, may penalty ba yan? Wala, so it is an absolutory cause. Others…ano pa? Ano ba nakalista dyan sa libro niyo, wala na? Seduction?

Seduction of a Virgin? (sir: heheheJ)

In rape cases, marriage between an offender and an offended party are still absolutory cause. Even the forgiveness by the wife to her husband in marital rape is an absolutory cause. And there are laws wherein although the crime or offense has been defined as an offense or a crime but it fails to provide any penalty, it is also an absolutory cause. I‘ll give you an example. Maybe I have already said this, but if you are going to look at

your Inter-Country Adoption Law, RA 8043, there is such a provision there about

attempted acts in violation of the acts that are penalized under the Inter-Country  Adoption Law shall merit a penalty of 2 degrees lower than that which is fixed by law. But the penalty fixed by law is 6 years and 1 day to 12 years. No mention about prision mayor or prision correccional. Can there be a penalty of 2 degrees lower from that? Wala. So, absolutory cause din yun. Attempt ka na lang ng attempt, no penalty naman eh. Eh, kahit anong gawin ng fiscal dun, kahit anong gawin ng korte dun, there can be no penalty that can be imposed. It can be tried naturally but the court cannot impose any penalty. What will it do? Declare that the act is a crime? But there being no penalty, then he has to recommend to the President through the Sec. of Justice that the same be meted out with a penalty. That is actually included in Art. 5 of RPC although it is not exactly what the law contemplates but it is included. When an act is considered a crime but there is no penalty, how much more a crime which is supposed to be repressed but it has not been defined and it has not been named as a crime then it has to be subject to legislation. There are so many. Previously, before the passage of the 2002 Rules on Criminal Procedure, if a person post bail, he cannot anymore question his unlawful arrest or detention, di ba? Tapos na ang istorya because you posted bail. Binago na ngayon natin, we already changed it that it is not anymore a waiver of the right of the accused to question his unlawful arrest or illegal arrest and the succeeding preliminary investigation. So, there you are. There are still many that I can‘t remember. I have mentioned those which are not in the book because those that are in the book, ang dali dali nyan basahin mo lang andyan na.

MITIGATING CIRCUMSTANCE I. MINORITY (Art. 13 [2])  You know that we have the Privilege and the Ordinary. The Privilege mitigating circumstances are only two. With respect to minority and with respect to incomplete self-defense, defense of relatives and defense of strangers. They should be lumped only into 2. But then in minority, it should still be divided into 2 with respect to the degree for which it may be lowered. If a minor is over 9 but under 15 and he acted with discernment, the penalty that should be imposed should be less than 2 degrees or 2 degrees lower from that which the law imposes. If he is under 18 but over 15 at the time of the commission of the crime, he is entitled to a penalty which is one degree lower from that which is provided by law. Except when the crime committed is an offense and the penalty that was imposed is a specific penalty for special laws only. But if the penalty that was imposed even if it is a special law is a penalty under the RPC still the accused is entitled to a penalty lower by 1 degree. So, minority.

II. INCOMPLETE JUSTIFYING OR EXEMPTING (art. 13 [1]) Incomplete self-defense, the penalty should be lowered by one or two degrees depending upon the discretion of the court; and even defense of relatives and defense of relatives. However, it is actually an essential element that unlawful aggression in all the 3 instances should be present. If unlawful aggression is absent, an ordinary mitigating circumstance may only be present such as when there is sufficient provocation on the part of the offended party, that would be only an ordinary mitigating circumstance and it will not be a privileged one. How about the other justifying or exempting circumstances? Well, they may be the source of ordinary mitigating circumstance if majority of the requisites are present. Except incomplete self-defense, defense of relatives and defense of strangers. Minority except for special laws is always a privileged mitigating circumstance.

III. LACK OF INTENTION TO COMMIT SO GRAVE A WRONG (Art. 13 [3]) Lack of intention to commit so grave a wrong. That is no problem. Is there any problem?

IV. PLEA OF GUILTY / VOLUNTARY SURRENDER(Art. 13 [7]) The problem there is plea of guilty. Because under the rules even under the Rules of Criminal Procedure, the plea of guilt must be given or interposed before the presentation of evidence for the prosecution. But bec of the New Rules of CrimPro, we now have a problem. It is a fact that pre-trial in criminal cases is mandatory. But during the pre-trial, there can be a pre-trial agreement. You are familiar with a pre-trial agreement? It is a part of pre-trial which usually takes place after the marking of the exhibits for the prosecution and the defense. It is when the parties agreed to enter into stipulations and admissions esp., say for example, the first thing that a lawyer would usually do esp. if he is for the prosecution if there are documentary evidence is to ask the other party whether the other party will stipulate as to the due execution, existence and authenticity of the contents of the documents marked as exhibits. And if he does, it should be incorporated in the pre-trial agreement. Now, there may be facts that are not in writing but then it could be the subject of stipulations, etc. Now, after all these stipulations or admissions have already been the subject of agreement with the parties, then the court should order the issuance of the pre-trial agreement which pre-trial agreement must be signed by the parties (private complainant and accused) duly

assisted by their respective counsels and approved by the court. It should form part, however, of the pre-trial conference bec the pre-trial conference would still go to the aspect of determining the issues etc., the number of witnesses, the purposes for which exhibits will be presented etc. the number of persons who would testify, their names, the nature of their testimony, etc. All these must be taken up during the pre-trial. In other words, in pre-trial of cases, the parties have to lay their cards on the table. But, well, in my long year in the bench, I have developed also a sort of my own system of conducting a pre-trial. We cannot avoid sometimes that there are evidence which at the time of the pre-trial are not available. We cannot avoid also that during the trial a witness will surface and change his mind. And he may be a credible witness. And he may be a witness who actually is present at the time when the crime was committed. So, what will you do? What you are to do is reserve your right to present exhibits that are not available during the pre-trial. But I have developed a rule that if you reserved your exhibits at least 3 days prior to their presentation you must furnish the opposing counsel a clear copy thereof. If it is a photograph, a clear copy of the photograph. If it is a document, a clear copy of the document. So, that the other party will not be surprised and he can verify whether such document really exists or if it came from a public office, he can verify it there; if it came from a private office, he can verify it from them. In the reservation of witnesses, it is different, the court must know the name of the witness and the nature of the testimony that he is about to give. It shall be contained in a manifestation to be filed with the court at least 7 days prior to the presentation of that witness, copy furnish the opposing counsel, the name, not necessarily the address and the nature of the testimony that that witness will give at the course of the trial. Otherwise, I will not allow that witness to testify, neither would he be allowed to interfere during the proceedings. That is to prevent fake witnesses from testifying, bias witnesses, a witness who suddenly was plucked out of thin air. Meron nyan. I have heard of all those things happening. The problem there is if those evidence are already admitted, is a plea of the accused after the pre-trial but before any witness is presented by the prosecution to be considered as a mitigating circumstance? And all of you also know that a case may be submitted for decision after the pre-trial even in criminal cases supposing that the issue is a legal issue, all facts are admitted, all the events that transpired leading to the alleged commission of the crime are admitted. But what would be in issue is a legal issue. But supposing that accused said, ‗I will plead guilty na lang. I know that what I did was wrong.‘ But both parties

have already agreed that there will be no more presentation of evidence by the prosecution and that the court should decide the case based on the admissions, stipulations etc on the pre-trial agreement, what will you do? Will that be considered as a plea of guilty to mitigate the liability of the accused? In my opinion, it is still a mitigating circumstance. The intention of the law in considering that the plea of guilty is

a mitigating circumstance prior to the presentation of evidence by the prosecution is that the accused is saving efforts, time, money of the government in the prosecution of the case. And sometimes, it is a sign of admission really of guilt and remorse and therefore, he should be entitled to a mitigating circumstance.

 Voluntary Surrender. Very easy. Pag- voluntary surrender, all that you have to ask is ―At the time when you surrender, are you in fear already of being arrested by the authorities?‖ If his answer is yes, no voluntary surrender. If his answer is no, it is actually of my own volition. I would like to save the government of the expense etc. or the police, I would like to save them the efforts of arresting me…that is voluntary

surrender. Even if there is already a warrant for the arrest of the accused, voluntary surrender may still be considered as a mitigating circumstance. We will give you those cases maybe by Wednesday.

 V. PASSION OR OBFUSCATION (Art. 13 [6]) It must actually relate to a passion that arose out of legitimate relationship. If the passion comes from an illegitimate or immoral relationship then that is already not considered.

 VI. DEAF AND DUMB…(Art. 13[8])

The other mitigating circumstances are in relation to the physical condition of the accused at that time. He is deaf and dumb, or he is suffering from certain illnesses that restricts his movement or restricts his means of defense, that is mitigating. It will be aggravating, however, if he is the victim. That is the opposite. Deaf and dumb, those who are suffering from certain illnesses…these are mitigating circumstances that are considered

as ordinary and other similar conditions of the offender. Do you have any questions regarding mitigating circumstances? ~~~end of tape~~~

DATE: JULY 9, 2003

 ARTICLE 14. AGGRAVATING CIRCUMSTANCES  Aggravating circumstances have been classified into being an ordinary aggravating, inherent aggravating, special aggravating, specific aggravating and the 2 sometimes are being combined —the special and specific aggravating circumstances. We have qualified and qualifying circumstances. There is no issue in regard to ordinary aggravating circumstances bec they actually are circumstances which can be offset also by an ordinary mitigating circumstance. It affects the imposition of the penalty as in some other aggravating circumstances only by an increase in period, not by degrees. In Inherent aggravating circumstances sometimes it is not being considered to be a circumstance that would put the penalty in its maximum or in increase the penalty to a period or a degree bec this particular circumstance is inherent in the crime itself that the crime cannot be committed without its presence. Now, we have specific aggravating circumstances, these are only common to a particular crime or a particular violation of the law or a felony. In some special laws, there are specific aggravating circumstances that cannot be found in other special laws or in the RPC particularly in Art. 14. Say for example, in violation of RA 9165, if the act of sale, distribution, delivery took place within 100 meters from the vicinity of a school, then it is a specific aggravating circumstance bec. it refers only to violation of RA 9165. It cannot be applied to any other crime. Now, by law, we have a special aggravating circumstance bec. that is what the law says. In RA 8294, accdg. to the law, the use of illegally possessed firearm in the commission of homicide or murder, although said offense is absorbed in said crime or offense, the use of said firearms is considered as a special aggravating circumstance. What does this mean? If you say specific, it has almost the same nature as a special aggravating circumstance, it could even be mixed with each other. When an aggravating circumstance is specific, the presence of mitigating circumstances will not even affect the penalty that will be imposed in violation of the said offense. Bec. in specific aggravating circumstance, it is usually applicable only to violation of special laws so, how can you apply the mitigating circumstance. Can you tell me of any specific aggravating circumstance in any felony under the RPC. There is none bec. all the aggravating circumstances under the RPC are enumerated in Art. 14, therefore, they can apply to any of the crimes under the RPC. But then, in the RPC, you will note that there are some crimes wherein a particular aggravating circumstance may actually be applicable to certain crimes like abuse of public position. Abuse of public position may be an aggravating circumstance in the crime of murder, homicide, theft but not malversation or sometimes qualified theft. Bec. if one abused his public position, it would tantamount as grave abuse of confidence and therefore it may be considered as

a qualified aggravating circumstance. And in the event of malversation, it is inherent.  You have to abuse your public position in order that you may be able to commit an act of malversation being an accountable officer.

 As I said, in illegal possession of firearms, the special aggravating circumstance that you can find there is only the use of illegally possessed firearm in the crime of homicide or murder. I have been saying that the word ―homicide or murder‖ is being used in

their generic sense which could include only parricide and infanticide. All other killings are not included in the term of ―homicide or murder‖. Why? Say for example, a person

was killed during a tumultuous affray, your perception is that in death due to tumultuous affray, a crime of homicide is committed if a person dies, correct? NO, it is not correct. The crime there is the death due to tumultuous affray, it is not homicide. Just like death under exceptional circumstances under Art. 247. The crime there is death under exceptional circumstances and not homicide. How about giving assistance to suicide which shall be punished by the penalty for homicide? The crime there is the giving of assistance in the commission of suicide, it is not homicide although death may have resulted. In abortion etc., well, naturally there is also death but they are not covered. Reckless imprudence resulting to homicide, there is homicide but the crime is not homicide but it is reckless imprudence so they are not covered. What is the rule then? In those cases that I have mentioned there could be a separate prosecution of the special law and at the same time a separate prosecution for violation of the RPC. It is sometimes confusing in regard to the determination of whether actually a homicide is supposed to be considered as such for purposes of considering illegal possession as a special aggravating circumstance. There could be an instance where homicide may really be the result only of reckless imprudence but nevertheless the charge is homicide in itself. There have been many cases decided by the SC. Naturally, the SC not being a trier of facts which are usually addressed with the Court of Appeals. But sometimes the SC became trier of facts, not actually one that decides legal questions only.

QUALIFIED vs. QUALIFYING AGGRAVATING CIRCUMSTANCE When you say qualified or qualifying, the 2 are different from each other. A qualified aggravating circumstance is usually one that is an aggravating circumstance that raises penalty either by one or two degrees higher. Say for example, in theft, the condition of the offender or the condition of the circumstances at the time that it was committed will affect the imposition of the penalty. And that the penalty may either be raised to 2 degrees higher and the crime may be elevated to a more serious one. That is qualified

noh. But sometimes it is being mistaken also for qualifying. Let me put it this way. I will agree if it is qualifying always if it will raise the penalty to one or two degrees higher which is provided for by law but it will not increase the penalty only by a period. Let us suppose that at the time that the theft was committed, the person who committed the same is a domestic servant. So, if that is a situational issues that is actually a state of the offender at the time of the commission o f the crime…the position, the status of the person at the time. Now, it will also be qualified when, say for example, the property stolen has been specifically designated b y law as one that may only be committed through qualified theft such as theft of coconuts in a coconut plantation, the theft of fish in a fishpond. These are considered qualified thefts. The circumstances pertaining to the offenders are considered as qualifying circumstances. Like murder, from homicide it goes up to murder because of the presence of qualifying circumstances as enumerated in Art. 248 of the RPC. Qualified circumstances are the new kind of aggravating circumstance. These are the circumstances which involve only the imposition of the supreme penalty of death. In RA 8353, there are about 10 qualified aggravating circumstances which raises the penalty from reclusion perpetua to death. Meaning to say, that the penalty is reclusion perpetua to death but if any of the circumstances therein is present, the penalty SHALL be death. Also, in the case of kidnapping. Also, in the case of qualified piracy. There are qualified aggravating circumstances there in qualified piracy if there is when rape, homicide, etc is committed during the piracy, the penalty of death shall be imposed. In cases of kidnapping, the qualified circumstance there is when the victim is killed, when the victim dies on occasion or by reason of the kidnapping, when the victim is raped, when the victim is subjected to inhuman or if not inhuman, dehumanizing acts. So, they are qualified circumstances, meaning that although the penalty is reclusion perpetua to death, it will become an automatic penalty of death. Like in carnapping under RA 7659, the moment that the driver, the owner or any passenger or occupant of the vehicle is killed, the penalty of death SHALL be imposed. In the same manner as in arson, in the event that a person dies in cases of arson, irrespective of whether the person knew of the presence of the person who died on occasion or during the arson, the penalty of death SHALL be imposed. The fact of death is the qualified circumstance. So, you see, these are the classifications of the aggravating circumstances. So, pag nakita mo nang qualified, ah it only involves whether the penalty that will be imposed is death or not. Pag merong qualified, death na…tapos. That is why it is called qualified. But then, as

has been said, all these aggravating circumstances whether they be ordinary, specific or special or qualified or qualifying, esp. qualified ha, must be alleged in the information.  As a matter of fact, there is now a move that these qualified, qualifying and other circumstances that would increase the penalty either by one degree or if not, the penalty of death shall be imposed, the acts specifying what would constitute the

qualified aggravating circumstance must also be stated in the information. Not simply stating that where the victim is 7 years old; that the victim is an ascendant. As you see in the recent cases of rape, the offenders were not sentenced to death bec. the prosecution failed to allege the exact relationship between the offender and the offended party. All that was alleged by the prosecutor is that the offender is an ascendant and that the victim is a descendant who is less than 18 years of age. Is that enough…that the qualified aggravating circumstance of ascendancy and relationship be

considered as qualified aggravating? The SC said no, hindi pwede. Yes, there could still be conviction but the penalty of death cannot be imposed. Well…qualified…qualifying…you have to see actually their effects. Qualified…sa ano lang yan ah…theft, trespass to dwelling. Why is the latter qualified? When there is an

employment of force, violence, etc. in entering the dwelling of another. What else? Maybe, qualified seduction, bet there is no qualified abduction ha. But the qualified seduction involves only a woman who is less than 18 years of age, virgin and the offender is a priest --o, ayan na naman, pari na naman. Hindi, ascendant etc. These are qualified seduction.

I. THAT ADVANTAGE BE TAKEN BY THE OFFENDER OF HIS PUBLIC POSITION

I have already passed upon abuse of public position. You see, abuse of public position can either be also a qualified aggravating circumstance. In cases of rape, it is actually a means of committing a crime of rape. If there is abuse of public position, it makes the crime as qualified rape. It is one of those which are a means of committing rape and it will become qualified if there are circumstances that would be present in a qualified rape. But ordinarily, if there is an abuse of public position, it is inherent in the crime of rape bec. it was considered already as a means, just like fraudulent machination.

II. THAT THE CRIME BE COMMITTED IN CONTEMPT OF OR WITH INSULT TO THE PUBLIC AUTHORITIES.

Then we have contempt or insult to public authorities. When we say contempt or insult to public authorities, it is not the public authority who is a victim, the crime was committed in their presence to cause people to lose respect on them or sometimes to humiliate or put them in the bad light…according to the police. Usually, the police would

say, ―to put us in a bad light‖. What bad light? Is there such a thing as a bad light?

Pwede, yung medyo mainit noh. Eh, masakit nga naman yun. But actually, the crime is committed in the presence of these authorities to humiliate them, to make people lose respect on them. Say for example, the mayor is attending a function, eh may isang loko, ―nandito pala si Mayor. Akala mo siga yan ha, tignan nga natin.‖ So, what he d id was to stab a person right in the presence of the mayor. ―Tignan ko nga kung hindi mapahiya yang mayor na yan.‖ That is an aggravating circumstance. Well, it can be

proven by the simple fact that the offender will always admit that he knew of the presence of the mayor. Eh, who will not know the presence of the mayor in a municipality if you are from that place. Even if you are not from that place, people will tell you —―Pare, si mayor yan ha. Ingat ka dyan.‖ O kaya ―pare, respeto mo, si mayor yan.‖ Eh, usually that is the case. That is contempt or insult to public authorities

III. THAT THE ACT BE COMMITTED WITH INSULT OR IN DISREGARD OF THE RESPECT DUE TO THE OFFENDED PARTY ON ACCOUNT OF HIS RANK, AGE, OR SEX, OR THAT IT BE COMMITTEED IN THE DWELLING OF THE OFFENDED PARTY, IF THE LATTER HAS NOT GIVEN PROVOCATION.

How about disregard of rank, age, sex or dwelling of the offended party. Disregard of rank…well, only those who have a superior rank may be the offended party. Those who

have inferior ranks cannot be a party to this aggravating circumstance unless the one who has an inferior rank be the offender. So, you hit your manager or your superior, that is aggravating. In the office there are always aggravating circumstance because the employee sometimes would even disobey the superior. It is quite aggravating.

How about rank, age and sex. Age, extremes noh. It its because of old age or very young age. You did not respect the age of an old man. Say for example, the one who assaulted a man who is already 60 years old is only 20 years old, that is disrespect of age. Aside maybe of abuse of superior strength. The 2 can go together ha. One may not absorb the other bec the two are different from each other. The disrespect of a young age is, however, absorbed in treachery. Well, some may have believed that disrespect of old age is absorbed also in abuse of superior strength. But, you see, what I do believe is that if the old man is so old already that he was taken advantage of as the old man is defenseless…that is treachery. And the abuse of superior strength there is only a prelude to the treacherous act employed by the offender and that the

disrespect to age is actually being absorbed sometimes. But in some cases that I have read, the superior courts said that the two can go together without one absorbing the other because disrespect to age and abuse of superior strength may be different from each other. Because in abuse of superior strength, what happens? That is a great disparity of the strength between the offender and the offended party. Where a man may be an old man but sometimes he may be of equal strength than a young man. O sabi nila si Eddie Garcia di mo kayang patumbahin. Sa pelikula lang yun. He is how old, 80? And according to them he is taking about 21 vitamins a day.

Ok, Sex. Well, up to now its only women whose sex are being disregarded, not men. Even if the man chooses to be taken for a woman, there is no disregard of sex there. There is no abuse. There could be a mistake of fact but there could be no disregard of sex. But the woman must deserve that she be respected for her being a woman, for her sex. But because there are women who do not deserve the respect by reason of their sex. Eh nakita mo, may dala-dalang dalawang .45. Sabihin mo teka muna, hindi natin maano yan, babae yan eh. Oh, yun binabaril ka naman eh…ay naku. Hintayin na lang

natin na bitiwan yung baril. So, it depends upon the circumstances. It is not always that when a woman is a victim, that is a disregard of sex. Eh yung mag-asawa, ginulpi nung asawa yung asawa, is there a disregard of sex? Wala eh natural yun. Natural yun. (girls of 4B: violent reaction) Mangyayari yun. Sige na nga kung ayaw nyo e di wag. Sige, tignan natin ten years from today. Kaya nga battered wife syndrome pero nangyayari yun eh kahit na may battered wife syndrome even if it becomes an act of self-defense noh. You will always encounter this kind of problem in a family. There will always be disagreement between the husband and the wife…sometimes, it will result to v iolence. That is 100%. The more that they are in the upper strata of society, the more that these things are happening. Sometimes, mabubuti pa yung mga mahihirap coz sometimes these husbands do not raise his voice, in a small household, it is always the wife who raises her voice. I have seen people like that. If ever that there is a problem, the husband will not raise his voice but he will just leave the house. And if he believes that the temper of the wife has already simmered down, he will return.

Okay, disregard of dwelling of the offended party. Sometimes this is inherent. If you stole something from the house of the offended party, you have to disregard the sanctity of his or her dwelling. Akyat- bahay gang, robber gang…would you have any respect of the sanctity of the home of the person. Hindi. You trespass the dwelling of another- hindi. because the qualified trespass to dwelling is in itself a crime. There is an

aggravating circumstance. What is the aggravating circumstance in qualified trespass to dwelling? Its only when there is use of force or violence or intimidation in the entry. Or when being asked to leave etc. that is where force, violence and intimidation is employed. This may be applicable in crimes against persons which includes rape but not crime against property. There are other crimes that involve dwelling, that is, violation of domicile. But in violation of domicile, it is actually aggravated only when the police officer when asked to return the articles that he has taken without any search warrant refused to return the same, that is when there is an aggravating circumstance, it is the fact of failure to return.

IV. THAT THE ACT BE COMMITTED WITH ABUSE OF CONFIDENCE OR OBVIOUS UNGRATEFULNESS How about abuse of confidence and obvious ungratefulness. In other crimes, abuse of confidence, if grave in nature, becomes a qualified aggravating circumstance. Like in qulifed theft, what is one of the ways of committing qualified theft? Thru grave abuse of confidence but as an ordinary aggravating it is simply abuse of confidence. Remember ha, qualified theft, if the amount is more than P22,000, the crime is not bailable because the penalty that may be imposed is reclusion perpetua.

Obvious ungratefulness. Ah, you all know this. In tagalog, walang utang na loob. We always believe in the goodness of people that whenever we have done something for them that is good, they will reciprocate in doing something good for us. But there are people who does not have that kind of attitude. There are times that when you even literally feed a man from your hand he will still bite your hand. Just like some people, he asks for your hand, you give it to him. After giving your hand, he is not satisfied, he will still get your arm. And still not satisfied, he will swallow you whole. There are some people like that, they are never satisfied. So, abuse of confidence and obvious ungratefulness refers to the character of the person. Obvious ungratefulness…say for

example, during a rainy day or night, you saw a man or a woman drenched to the skin. He looks hungry, sick so you told him to come in your house. And then you called your wife, will you please heat the soup that is in the casserole and get some dried clothes from our drawers and arrange the bed so that this person can sleep tonight. After clothing him, feeding him, giving him a bed, when he even told you, ―Sir, thank you

very much. Tomorrow do not wake up early in the morning. I will be waking up early in the morning. I will clean the premises, sir as a sign of gratef ulness.‖ When you woke up, your place is very clean. (heheheJ) literally, clean. That is what we call an

aggravating circumstance of obvious ungratefulness. Pero yung mga sabing natulungan kita, nabigyan kita ng trabaho, well, speaking as an ordinary human …that is obvious ungratefulness but not in the commission of a crime. Because to be ungrateful is not in itself a crime. You must commit a crime which is accompanied with obvious ungratefulness, that is when there is an aggravating circumstance.

 V. THAT THE CRIME BE COMMITTED IN THE PALACE OF THE CHIEEF EXECUTIVE, OR IN HIS PRESENCE, OR WHERE PUBLIC AUTHORITIES ARE ENGAGED IN THE DISCHARGE OF THEIR DUTIES OR IN A PLACE DEDICATED TO RELIGIOUS WORSHIP.

When the crime is committed in the palace of the Chief Executive or in any place where public functions are being performed it is an aggravating circumstance. In the Phils., we have only one palace and of course, there are 2 satellites of the palace of the Chief Executive. The 2 satellites are the official residence of the President in Arlegui street and the vacation house of the President in Baguio City. They are included among the palaces of the President. But not the palace of the North, the palace of the sky or whatever. Actually, the palace of the North, what do you call that--palacio de amiana or whatever —in Ilocano. In Pawai, Ilocos Norte, I have seen the place about several times. It is simply a big house, it is not a palace, consists of only 4 or 5 rooms upstairs. Dun sa ibaba, there are I think 3 and then the sala. What is beautiful there, I think, is the scenery. When you go to the garden, it is overlooking the Pawai lake. Then, you can walk through the woods, you can walk through the grasses and there is no pollution. You can even gather mangoes and everything there if you are the tenant.

If a crime is committed in a place where public functions are being performed. Irrespective of whether at the time that it is committed, there are no public officers or employees there performing their public functions, it is still an aggravating circumstance bec. what is being considered as an aggravating circumstance there is lack of respect to the place where public functions are being performed, not of respect to the people. Because that would fall under contempt or insult to public authorities. You refer to contempt or insult to public authorities when the person who has an authority is present and yet to insult him or to put him to disrepute or just to make him lose respect in the face of the people, there is what you call contempt to public authorities. But when it is committed in the place, it is actually the place that is to be considered, not the persons who are performing their duties there. So, even if the place at the time

when it was committed was vacant, as long as it is being used in the performance of public functions, then it is an aggravating circumstance. Even if, say for example, supposing a crime of homicide is committed in the courthouse at night. There are no more people there but it is considered still as an aggravating circumstance because of the nature of the place.

 VI. THAT THE CRIME BE COMMITTED IN THE NIGHTTIME OR IN AN UNINHABITED PLACE, OR BY A BAND, WHENEVER SUCH CIRCUMSTANCES MAY FACILITATE THE COMMISSION OF THE OFFENSE. WHENEVER MORE THAN THREE ARMED MALEFACTORS SHALL HAVE ACTED TOGETHER IN THE COMMISSION OF AN OFFENSE, IT SHALL BE DEEMED TO HAVE BEEN COMMITTED BY A BAND.

The next aggravating circumstance is nighttime or uninhabited place or by a band. Nighttime becomes an aggravating circumstance only if 1.) it was purposefully sought to facilitate the commission of the crime; or to facilitate the escape of the offender; or in order that the offender may not be identified. They put a third one. What is the definition anyway of nighttime? It starts at the beginning of dusk and ends at the beginning of dawn. Hindi 6pm to 6am yan nor sunset to sunrise, that is wrong. It starts at the beginning of dusk and ends at the beginning of dawn because at the start of the beginning of dusk, there is already darkness and when there is a start of the beginning of dawn, there is still darkness. That is the period of nighttime. You have to be resourceful because you know, criminal law sometimes, although it is only 10%, is a killer subject. Four years ago it is a killer subject, I don‘t know this year, maybe in your year, I do not know also. The examiner now, I know the examiner, he will not be giving very difficult questions. I do not know next year, but supposing I become the examiner. Siguro pahirapan ano. Tignan natin…let‘s see how things develop. Iba na SC justices ngayon eh.The SC is always subject to barrage of comments. Even in the academe, but I was talking to Dean Villanueva, I was telling him, ―Oh, I did not try to put your 1 set

of work of opinion in connection with the appointments. I mean, the Ateneo people or people from other university, why are we not saying anything, it‘s alright. Two years ago nga…well, if you know the president cannot always be all knowledgeable. Lahat ng sabihin sa kanya mabubuti, ‗mabuting tao yan ma‘am, madaming sinulat na libro yan— di naman nya nakita kung ano yung sinulat, magaling yan ma‘am. The only problem is

that people perceive that the SC is now being politicize. Yun ang impression nila. Me, I don‘t still agree to that bec. people change their minds whenever they are already in

the SC. When he is already there seating in the bench, iba na eh justice na ko, I should act and behave like one.

Nighttime, uninhabited place. Oh, etong school pag walang tao, considered as uninhabited place yan. Its not that the place is permanently uninhabited. The place may be at that point in time uninhabited. What is important is that at the time of the commission of the crime where the possibly of help is remote. Kung sa bundok, sasabihing uninhabited. Eh bihira naman ang pumupunta sa bundok, sina Ka Roger na lang. Pero si Ka Roger, wala naman sa bundok yan eh, tignan mo yung sa likod nya, tsaka yung microphone nya at tsaka yung cellular na ginagamit. Cellular nya mas bago pa kaysa sa akin eh. There was a time when he was still recruiting young students in the place where I was a judge, talagang wala sya, nothing, poor.

 VII. THAT THE CRIME BE COMMITTED ON THE OCCASION OS A CONFLAGRATION, SHIPWRECK, EARTHQUAKE, EPIDEMIC, OT OTHER CALAMITY OR MISFORTUNE.

On occasion of calamity or misfortunes. Eto either qualified ito or ordinary. It becomes qualified when it comes to crimes to property and qualifying when it comes to crimes against persons. Bec. on occasion of calamity, if you killed a person, that is a qualifying aggravating circumstance under Article 248 of the RPC. When you stole a property, it qualified your offense to a more serious one and that is qualified theft. Even during accidents etc. it is also a qualifying aggravating circumstance bec a person stole any of those cargoes during a vehicular accident, the crime committed is qualified theft.

 VIII. THAT THE CRIME BE COMMITTED WITH THE AID OF ARMED MEN OR PERSONS WHO INSURE OR AFFORD IMPUNITY

 Aid of armed men. The armed men must not have participated. Their presence only embolden the offender to commit the offense bec of the presence of the armed men. Bec if the armed men have any participation at all in the commission of the crime, then there is conspiracy. So, there must be no conspiracy in order that aid of armed men may be considered as an aggravating circumstance.

IX. THAT THE ACCUSED IS A RECIDIVIST.  A RECIDIVIST IS ONE WHO, AT THE TIME OF HIS TRIAL FOR ONE CRIME, SHALL HAVE BEEN PREVIOUSLY CONVICTED BYT FINAL JUDGMENT OF ANOTHER CRIME EMBRACED IN THE SAME TITLE OF THIS CODE

Who is a recidivist? Any person who will in 10 years from the date of his last release from prison or last conviction, he commits any crime embraced in the same title of the code is a recidivist. Kelangan memoryahin nyo yan —habitual delinquency, recidivist, quasi-recidivist, habituality or reiteracion. Usually, tignan nyo ha, 3 points up to 4 points yan. Ang laking puntos nyan. So, I really want you to memorize. I want to, shall we call it, even if you are asleep and you were asked upon waking up, you can recite. Hopefully, even in your sleep you can recite. That is what I want. I don‘t want you to

 just be listening to me; always relying on my explanations. Sometimes, I am having the intention of misleading you sometimes so that you will study. Eh, papaano hindi na kayo nag-aaral. Balita ko, wala na kayong ginagawa diyan eh. Marami akong spy dyan ha. Tamo kahit si Mr. Leagogo, nagkikita kami kahit sa Iloilo. (heheheJ) Oh, spy ko yan. We even ride in the same plane. Naghiwalay lang kami para hindi mahalata. Dun siya sa unahan ako dun sa huli. You ask him, he will not admit it. Well, I don‘t know, but

maybe for a few years more, I could still do all the things that I am doing but there is a time of saturation eh. You‘ll feel that you have had enough but let‘s see when that time

comes.

X. THAT THE OFFENDER HAS BEEN PREVIOUSLY PUNISHED FOR AN OFFENSE TO WHICH THE LAW ATTACHES AN EQUAL OR GREATER PENALTY OR FOR TWO OR MORE CRIMES TO WHICH IT ATTACHES A LIGHTER PENALTY.

Reiteracion, kabisado niyo naman yan eh. Yung mga makukulit. Balik-balik. They are residents of balik-balik.

XI. THAT THE CRIME BE COMMITTED IN CONSIDERATION OF A PRICE, REWARD, OR PROMISE

 Alright, the price, reward or promise. These aggravating circumstances are not only applicable to the principal by direct participation. It is applicable to both the inducer and the principal by direct participation. Some have the idea that because he was induced and motivated by the price, he is supposed to be the one to suffer the aggravating circumstance of price, reward or promise…NO, that is not correct. The more that it

should apply to the one who offered the price. Eh, di na kaya gawin, kelangan bayaran pa niya, o yun dapat yun aggravating talaga.

Price, usually in monetary consideration, or material things. Reward, those which are not material but then to the advantage and of course, not only advantage but to the benefit of the principal of direct participation. Promise, any promise, as long as that promise is taken as such by the principal by direct participation. So, there are 2 principals here: principal by inducement and principal by direct participation. Both deserves the application of the aggravating ci rcumstances. Not only one ha. I don‘t  —no explanation at all? None. Kaya nga hindi mo know the explanation in your book  tuloy alam ngayon if you are going to allege that both are supposed to be the subject of an allegation of an aggravating circumstance of price, reward or promise.

XII. THAT THE CRIME BE COMMITTED BY MEANS OF INUNDATION, FIRE, POISON, EXPLOSION, STRANDING OF A VESSEL OR INTENTIONAL DAMAGE THERETO, DERAILMENT OF A LOCOMOTIVE, OR BY USE OF ANY OTHER ARTIFICE INVOLVING GREAT WASTE AND RUIN.

By means of inundation, fire, derailment of locomotive, stranding of a vessel, etc. Inundation involves liquid or semi-liquid form that is used in order to commit the crime. It is bec of the volume that caused the commission of the crime. Most of the time, this is an aggravating circumstance not only against crime against persons cut also crime against property. Para masira yung bahay nung kalaban mo, dun mo pinadaan yung lahar sa Pampanga. That is inundation, anong matitira dun? Matatabunan yun. But if you went to call somebody, the same. This in the olden times are being used by those who want to wipe out a tribe or whatever. They usually use inundation or similar acts in order that they may be able to achieve their purpose.

Well, fire. You want to kill a person, burn him…that is aggravating. The problem is say for example, you just don‘t want to kill the victim but you want him to suffer pain,

would cruelty be also considered or is cruelty absorbed if the killing is with the use of fire and explosion? Absorbed sa cruelty yan. By the very nature of the means that you used, it involves cruelty. Sinunog mo, syempre masakit yun. But then, it becomes also a qualified aggravating in the case of arson. IN arson, irrespective or whether you know or you do not know the existence of a person in the bldg that you have burned bec arson refers always to a bldg the penalty shall be death if death occurs on occasion or by reason of arson. It used to be that if death occurs, the only crime is arson that is the old concept. But the new concept now under RA 7659, is that if death occurs by reason of arson, the penalty shall be death whether you know or you do not know the existence of the person in the place which you burned. Kaya the best defense is that I want to kill him, it is my intention to kill him. Why? Bec. you will still have the chance of being sentenced to reclusion perpetua just voluntarily surrender or plead guilty. As the use of fire or explosion is a qualifying aggravating circumstance, you will be sentenced only to reclusion perpetua. But if you say, I burned the bldg bec I only want to see that bldg on fire, I don‘t like the owner but I did not intend to kill the person who was there at that time, death ka. So, this law ought to be amended…mali. Di mo nga alam   eh,

paano kung may nagnanakaw dun tsaka mo sinunog. Patay yung nagnanakaw, ikaw din patay ka din bec the law did not distinguish whether the person who was killed at the place which was burned is also committing a crime or not. The law did not distinguish, that is the problem.

Oh, derailment of locomotive. It is the means that was used. The stranding of a vessel. Pinasadsad mo yung barko para patayin lang yung tao, walang hiya naman noh…sa

bagay okay din noh. These are means of committing acts which are considered as aggravating circumstances.

XIII. THAT THE ACT BE COMMITTED WITH EVIDENT PREMEDITATION

Let‘s go to evident premeditation. Evident premeditation simply means that a person

has already decided to commit a crime and he has planned to that determination despite the lapse of the period for him to reflect upon the consequences of the acts he

intended to commit and he still committed the act that he has committed himself to perform. Maybe to kill. But evident premeditation is an inherent aggravating circumstance in robbery, even in rape, it is inherent. Paplanuhin mo ang rape eh. Ano aaksidentehin mo lang? (Joanne: What if walang intention? Nakita lang.) You know that is a real issue bec I would say that the decisions of the SC in some cases wherein it even said that there must be a lapse of sufficient time to reflect u pon the consequences of his acts, if a person saw a woman lying, even if it took him about 10 mins or 5 mins in deciding to rape her, I believe that that is already evident premeditation eh. Bec at the onset, he knows that what he is going to do is inherently wrong and he knows the consequences of what would happen to him if caught and that is death or if not, a long time of imprisonment, and yet he performed the act. You see in your book, 2 hours or 1 hour maybe but I think that the SC has not had the occasion of having to decide. (Joanne: Sir, what if may maniac and naghintay lang siya sa may kanto. He decides to rape the first woman who comes. Is that evident premeditation?) Maniac? You remember the case of murder that a group of persons in Tondo have agreed bec that is their way of life there at that time that the 1st man who will pass by them will be killed so they were just there just watching the flies go by etc. so when a man passed by, one of them suddenly stabbed the guy dead. The people around them knew about what they have agreed upon. The SC there considered evident premeditation as one of the qualifying aggravating circumstance. Even if the victim was not identified prior to the commission of the crime.

(Mane: Sir, can it be argued that the maniac is insane?) No, it depends upon what kind of insanity. The insanity that is supposed to be an exempting circumstance is one where the person has a total loss of reason and intelligence. If he is only a maniac from the decisions of the SC, look at the kleptomaniac, where does the kleptomaniac belong? Does the kleptomaniac belong to an exempting circumstance? Insuperable cause? They are even debating eh. Some authors say that a kleptomaniac should be placed under insuperable causes, some says that she knows what she is doing and yet there is that impulse in which it may be controlled. So, it is actually a matter of proof. But maniacs, sex maniacs, I will not agree.

(Thony: What if a couple is in the sexual act but within that period the girl wanted to stop. But the guy does not want to. Is that qualified rape?) Ang qualified rape iho…Those that belong to the 10 instances enumerated under RA 8353. One is when

the girl is less than 7. Second is when the offender is an ascendant and the defendant

is an ascendant etc and that the descendant is less than 18 years of age. Or when the offender is a common-law father of the victim and that the victim is less than 18 or step-father and the victim is less than 18. When there is actually certain relationships such as uncle. The other are when the offender is a member of the A.F.P. and he abused his public position or a policeman etc. When the victim is under custody or detained and she was raped under detention. When the victim is pregnant and her pregnancy is known to the offender, then the offender rapes her. When the offender is suffering from HIV or AIDS or other venereal diseases and rapes the victim and transmitted the virus to the victim. When the victim is a religious and the same is known to the offender and when at the time of the rape, the religious is in the actual performance of her vocation. When the victim is suffering from physical disability, psychological incapacity or disability etc. those are the qualified aggravating circumstances in the crime of rape. What you are asking is whether there is rape. Not qualified. Well, actually, if there is a complaint there would be an investigation for rape. But if say for example they have already performed initially the act and then the woman refused and then the man continued, my opinion is that there is no rape. Why in the 1st place would she consent when it is there already? You read the decisions of Justice Fernando in rape cases. He always says that the flesh is weak etc. He has developed a penchant for using better words to what is the feeling of a man in connection with his relations with a woman. Fernando is good at that ha. Not only in holding an umbrella. He is good at writing decisions. No offense meant pero pag yung iba lang diyan, ganun lang. Although he writes very long decisions, you will learn from him. The words that he use are so intertwined with each other that it would be easy for you to understand yet you have to look sometimes…

(Joanne: Is the method employed involved in evident premeditation. For example, I tried to kill someone by poison pero kulang…) Evident premeditation na yun basta poison. (…Sir, no, tapos hindi siya namatay. So, I grabbed the knife and then killed him.

Sir, does evident premeditation take into consideration the means employed) Yung dalawang yun those are the means in order to kill the person. Even if you initially used one weapon and then turned to another weapon in order to complete what you have started, the evident premeditation must start from the beginning. It must not actually be what you think it should be. Let me put it this way. I and my neighbor in the land that we are both tilling had a dispute over the boundaries. I believed that I am at the losing end. Magaling mandaya eh. Lahi ni Satanas (heheheJ) So, one day, I called my staff, uy umalis na ba si Sanaty? Umalis na, boss. I already started sharpening my bolo. From morning until 5pm, I was sharpening my bolo and I know that in the afternoon he

will pass by. So, I said, pagdaan nya mamaya… So, when my intended victim passed by, I suddenly hacked him with the intention of decapitating him pero dumaplis lang kalahati. Ayun, kumikisay pa so I got a big stone and dropped it on his head. Do you mean to tell me that my dropping of stone over his head would interrupt the evident premeditation that I have already employed? No, it will not. That is a simple explanation of how evident premeditation, even if it is interrupted by another act, but towards achieving the same results, that is still covered. So, any other question about evident premeditation? Usually, rape there is evident premeditation. But I remember a former Sec. of Justice who espoused the crime of reckless imprudence resulting to rape. (heheheJ) You went into a outing, you have your own rooms. Okay, but the men had a drinking spree at the beach. So, they went to their respective rooms drunk. He entered the wrong room. When he enter, of course, he wanted sex with his wife but it turned out that the woman there is not his wife. But it was dark. Sabi nya, uy, aayaw ayaw ka pa ha. (louder heheheJ) SO, that was actually the language used by the speaker at that time. So, he said, the man do not have any intention to commit voluntary rape but then it turned out that the woman with whom he had sex at that time by means of force or violence is not his wife. Today, it would not matter anymore bec there is marital rape. But before, sabi ko, there could be no rape through reckless imprudence. He should have known already who his wife is. Bakit kahit anong lasing mo kilala mo ang asawa mo. Wag mo kong lokohin (heheheJ) If I were the judge, I will convict him of voluntary rape.

XIV. THAT CRAFT, FRAUD, OR DISGUISE BE EMPLOYED

XV. THAT ADVANTAGE BE TAKEN OF SUPERIOR STRENGTH, OR MEANS BE EMPLOYED TO WEAKEN THE DEFENSE.

XVI. THAT THE ACT BE COMMITTED WITH TREACHERY. (aleviosa). THERE IS TREACHERY WHEN THE OFFENDER COMMITS ANY OF THE CRIMES  AGAINST 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.

XVII. THAT MEANS BE EMPLOYED OR CIRCUMSTANCES BROUGHT ABOUT WHICH ADD IGNOMINY TO THE NATURAL EFFECTS OF THE ACT.

XVIII. THAT THE CRIME BE COMMITTED AFTER AN UNLAWFUL ENTRY THERE IS AN UNLAWFUL ENTRY WHEN AN ENTRANCE IS EFFECTED BY A WAY NOT INTENDED FOR THE PURPOSE.

XIX. THAT AS A MEANS TO THE COMMISSION OF A CRIME A WALL, ROOF, FLOOR, DOOR, OR WINDOW BE BROKEN

XX. THAT THE CRIME BE COMMITTED WITH THE AID OF PERSONS UNDER 15 YEARS OF AGE, OR BY MEANS OF MOTOR VEHICLE, MOTORIZED WATERCRAFT, AIRSHIPS, OR OTHER SIMILAR MEANS

XXI. THAT THE WRONG DONE IN THE COMMISSION OF THE CRIME BE DELIBERATELY  AUGMENTED BY CAUSING OTHER WRONG NOT NECESSARY FOR ITS COMMISSION

 Aside from evident premeditation, naturally we have the employment of craft, fraud, or disguise. Abuse of superior strength etc. to weaken the defense. Treachery, ignominy and unlawful entry. Breaking the wall and cruelty and even use of motor vehicle. I‘ll just lump them into a single discussion.

Treachery there is no problem. That is employment of means or methods in order to assure that the person will not be able to put up a defense from the assault or attack to be employed by the offender. And those who are actually are in a state of defenseless condition, there is always treachery. Say for example, one who is sleeping; one who is under the influence of liquor…

~~~end of tape~~~

Date: 14 July 2003 Transcribed by: Ria Berbano

 ALTERNATIVE CIRCUMSTANCES The very description of the circumstances would already put you on guard in relation to what kind these circumstances are. Alternative simply means that it can be considered as either mitigating or aggravating; and in some instances it can be considered as exempting or qualifying/qualified circumstance --- qualifying aggravating and qualified aggravating circumstance.

Now, we have for the first alternative circumstance: RELATIONSHIP. We start with exempting circumstances in relation to relationship. Those who commit theft, swindling, falsification, malicious mischief to their parents, descendants, ascendants (as the case may be), brothers and sisters as long as they are living together shall be exempted from criminal liability. So, you put away such particular relationship under exempting circumstance.

 Accessories who concealed or harbored offenders --- except for those that are provided for by law punishable under special laws in relation to the relationship to the offender such as being the spouse, ascendant, descendant, relative by affinity within 3rd civil degree or by consanguinity within 4th civil degree are exempted from criminal liability when it comes to being an accessory under the RPC. But the same may not be true with respect to special laws such as obstruction of justice like anti-fencing with respect to par 1 and also as protector of coddlers under R.A. #9165; they cannot be considered as exempting circumstances.

Now in relation to ascendants, if a parent catches his/her daughter in the act of sexual intercourse with a man, and their daughter is less than 18 years of age and living with them and the injuries inflicted upon the daughter is only less serious or slight physical

injuries, the parent cannot be held criminally liable for the injuries because they are presumed to be exempted by law. You will find this true also under Article 247 under RPC. The relationship between the spouses are considered as an exempting circumstance under the said article.

There are others that are considered to exempting circumstances. As a matter of fact, I am still entertaining the idea that infliction of corporal punishment by parents to their children, particularly under Article 263 of the RPC (serious physical injuries), may exempt them still from criminal liability. Although we have R.A. #7610 (The Child Abuse Law). There is a conflict between the said law and the provisions of the RPC. But there is no express repeal or modification in R.A. #7610 of the provision of Art. 263 and other laws that are existing before the passage of R.A. #7610. So, you have it then.

There are circumstances, however, that may aggravate either as an ordinary or qualified/qualifying circumstance with respect to relationship may be committed only if the crime is against person or property. There is now a qualified aggravating circumstance in case of crime against persons which used to be crimes against chastity --- that is rape. The other private crimes that are seduction, abd uction, etc. …they are inherent circumstances. They could not even be aggravating. They are supposed to be inherent in the commission of a crime because such crime would not be even be committed unless their relationship are present --- the relationship of a priest and a member of his flock; or the offender is a priest in qualified seduction of other relatives by affinity or by consanguinity or even ascendants or descendants.

Now, in infliction of physical injuries or in attempted homicide (but not frustrated murder, attempted murder), if the offender is of higher degree by blood, then it would me mitigating circumstance. But if the offender has a lower degree by blood or by affinity, usually, it is an aggravating circumstance.

Now, you have noted from several decisions of the SC, particularly in cases of rape that these aggravating circumstances must be particularly alleged in the information. In the event that the exact relationship between the offender and the offended party is not alleged in the information, including the age of the offended party, the qualified aggravating circumstance of relationship cannot be taken into consideration, which

would merit the imposition of the maximum penalty of death. The usual penalty that the SC imposes is reclusion perpetua because according to the SC the accused at the time is being deprived of his right to be informed of the nature and cause of the accusation against him. If you have read the several cases of Echegaray, probably you have come across the findings of the court as the exact relationship between Echegaray and Baby. It was alleged that Baby was his stepdaughter. But during the trial, it was established that Baby is his own daughter. But then the SC sentenced him to death. That was the time when the Court‘ s attention had not been called by a young lawyer from the PAO that the accused in those kinds of cases are not being informed of the nature and the cause of accusation against them and therefore they cannot be considered as qualified aggravating circumstance. Thus the SC laid down a specific ru le:  All aggravating circumstances whether ordinary or specific, qualified or qualifying must be alleged in the information. Failure to allege an aggravating circumstance of any nature in the information, even if proven during the trial cannot be considered as aggravating for purposes of putting the penalty in its maximum or for offsetting the felony.

The aggravating circumstance of relationship, you will recall, is mitigating is some respects. But exempting in some respects is inherent. In regard to theft and crimes against property, relationship is always mitigating if the relative do not belong to those who are exempted. With respect to crimes against persons, etc., where all of us know, that the moment that the person has a high degree of blood relationship or affinity, it is aggravating in the event that that person who has a high degree of blood relationship or affinity is the victim. If he is the offender, there is simply mitigating circumstance; except for rape which has already become a crime against persons.

There are other instances where relationship may be considered as qualifying aggravating. Relationship between a master and a servant/domestic servant, that is a relationship not by blood or affinity, but by work and it becomes a qualifying circumstance which could make the crime of theft a qualified one.

Even in the case of killing of a person, in the event that the person killed is less than 3 days, the relationship (although it is not a factor), the crime committed is infanticide, the penalty that should be imposed is that of Parricide is simply the killing of the spouse, an ascendant, or a descendant.

a child of that was parricide. But then,

the crime of parricide is akin to murder irrespective of the presence of any of the aggravating circumstances in Art. 14 or in Art 248 of the RPC. It is the fact of relationship that makes the crime committed by a spouse, ascendant of descendant to an ascendant or a descendant or a spouse that aggravates the killing. These particular areas of concerns that we have actually are not very complicated.

The other alternative circumstance is drunkenness. When drunkenness is habitual or purposely sought to embolden the offender in the crime he intended to commit, then it is aggravating. When it is simply accidental or incidental when the crime is committed, it is simply mitigating. However, supposing that the offender is a habitual drunkard, but he is not looking for trouble/any violation of any law, when suddenly there is a heated argument aroused out of a habitual drunkard and another person, then the habitual drunkard, armed with a knife stabbed the other one. Do you think that being a habitual drunkard or habitual drunkenness should be considered as an aggravating circumstance? Well, you see, I have an idea about this. A drunkard or habitual drunkenness should only be considered an aggravating when on occasion of that habitual drunkenness, the person is always committing also a violation of law or a rule or regulation. But even if he is a habitual drunkard, if he is not violating any law, would you consider his habitual drunkenness an aggravating circumstance? Supposing in that case, he was the one challenged, would his being a habitual drunkard be considered an aggravating circumstance? I am definitely going to disagree. So, my own opinion, aside from being a habitual drunkard, that person at the time when he is under the control of intoxicating liquor or beverages, he usually commit violations of the law, rules, or regulation in order that habitual drunkenness be considered an aggravating circumstance as against him. Unfair eh! Drunkenness sometimes occurs when a person who doesn‘t usually engage drinking habitually or regularly or on occasion, but he loses

control of himself to the point that he cannot distinguish right or wrong/he cannot remember what he has done before. Under the law/jurisprudence, that is considered as habitual drunkenness. There are times when men/women sometimes drink and sometimes do not remember what happened before, do you mean to tell me that that person is a habitual drunkard? Supposing he does it only once a month or every two weeks? That is why the SC abandoned the theory of regularity in drinking. It only adopted the theory that if the person has been frequently taking intoxicating liquors and that when he took those, he already loss his reason or control of himself and he cannot anymore remember what he has done at the time when he is under the influence of liquor etc. then he is a habitual drunkard.

 Anyone who purposely sought drunkenness to embolden himself to commit the crime would naturally be considered as an aggravating circumstance of drunkenness. However, if he does not purposely sought so, it becomes mitigating circumstance. They say usually in southern tagalong and other places in the are, ―Ikaw nga ang malasing.‖ Meaning, ―you try what you are going to do when you are drunk.‖ Not only in the

southern tagalong, even in the Visayan region and in Mindanao. Usually a person who is drunk would not do something that is not acceptable to all those who are present. He may create a little problem or trouble by reason of his being drunk. If it is not habitual, that is when it is considered as a mitigating circumstance.

Lack of degree of education, etc., it is always aggravating when the person has taken advantage of his high degree of education; unless also it is inherent in the commission of the crime. Like for example, a doctor in cases of reckless imprudence resulting to homicide (which is also a case of malpractice), he must be a doctor in order to commit that crime. Say the operation was successful, but the patient died. But in certain cases, some people argue that illiteracy is a mitigating circumstance according to the SC. Not always, because there are some people who are illiterate but really possess a talented mind. There are some illiterates who are better than those who are able to read and write. They use their common sense most of the time. Illiteracy by itself is not a mitigating circumstance. It must be coupled with lack of understanding of what is wrong and what is right. But when it comes to mala in se, lack of degree of education is not anymore accepted as a mitigating circumstance. You remember the case of the Muslims or the moros, who claim that they should be given the mitigating circumstance of lack of degree of education. They never stepped inside the classroom in their elementary days, and it is but natural for them to kill their enemy so they won‘t have an

enemy later on. It is very common to them to resort to that kind of argument. But it is mala in se. The problem is it is very wrong to kill without any justifiable reason. Being an enemy of another tribe, group, etc., is not a justification to kill the other group or members of the other group.

 After Article 15, we go to Article 16: Who are those criminally liable? Those who are criminally liable for grave felonies are the principals, accomplices and accessories. Those who are criminally liable for light felonies are only the principals and accomplices. Do you agree? You have to agree because that is the law. But using your common sense, do you agree? If a light felony is committed by an offender and he is an accomplice, what penalty should be imposed to him? An accomplice is entitled to a

penalty lower by one degree. So if it is a light penalty, it is supposed to be punished by a light penalty. And what is one degree lower from a light penalty? For example, slight physical injuries, the penalty is naturally arresto menor up to imprisonment of 30 days? What is one degree lower than this? Wala rin eh!‖ So, do you agree with the law? I don‘t agree with the law! Even in theft, hindi rin eh. Although if you were asked in the

bar exam, for purposes of passing or becoming a top-notcher, you should answer according to the law. But if you are asked your honest belief, you should use your common sense. It is actually a matter of concern.

 Article 17 is about Principals. There are three kinds of principals. One is a principal by direct participation, the other is by inducement, and the last is by indispensable cooperation. You are very familiar by principals by direct participation --- they must be the main actor. They are the ones who actually did the commission of the crime. For example, in killing, they are the ones who actually killed the victim. Principal by direct inducement are the people who employ promises, rewards, and prizes to induce another to commit a crime. Even in the exempting circumstances, there are principals by inducement. The one who employed uncontrollable fear or irresistible force are not exempted from criminal liability; they are liable for being principals by inducement. These principals by direct participation, may only be exempted if there are principals by inducement. There is such a thing as instigation in the commission of a crime --- that is Entrapment. This is participated by two or more persons. One is the one entrapping the other, and in instigation, one who is instigating the other. The one instigating the other is a principal by inducement. The one instigated or entrapped is the person who may be prosecuted for the crime prosecuted. In crimes where instigation was an act which resulted in the commission of the crime, the person instigated is exempt from the criminal liability. The instigator is the principal by inducement. In entrapment, that is a legal method employed by the law enforcers to catch a person violating the law in the act of committing the same. The distinction between instigation and entrapment has been asked three or four times in the bar.

One of the difficult thing to interpret is the principal by indispensable participation. Meaning to say, without his participation in the act of the crime, it would not have been accomplished. Such is a very generic description of a principal by indispensable cooperation. One case decided by the SC: One man grabbed and delivered a girl to his friend whom the latter wanted to have sex with. The latter raped the girl. What is the liability of the man who grabbed the girl? If not for him, the crime of rape would not

have been accomplished; therefore he is a principal by indispensable cooperation. Other example is an owner of a motor banca in the middle of night who was approached by a group of men to transport them to their enemy, and the said owner agreed to do so, not necessarily to participate in the killing. But then, upon arrival at the place where the enemy will be killed, the owner of the banca told them, ―shall I wait for you or not?‖

Such is an indication of intention to conspire with the others; such can be considered an exhibition to an agreement to the commission of the crime. Without him, then the crime would not have been committed. But, supposing he knew the purpose of the men, brought them there (as he is the only boat owner at the place and no other transportation may be utilized by the men) and told them, ―bahala na kayo!‖ after that.

Could he be considered a person who has incurred criminal liability and as what? That person by prior or simultaneous act has participated in the crime without necessarily being a principal shall be considered only as an accomplice.

It is important to distinguish a principal by indispensable cooperation and an accomplice.

 An accomplice is not a principal whatsoever, but performed simultaneous or prior to the commission of the crime and such participation is not indispensable.

*Questions of Faye regarding conspiracy… cannot be heard very well.

**Answer of Judge Pimentel: Persons who were challenged, even without prior agreement to commit a crime, but their purpose in committing an act and helping each other in the same purpose, such is considered conspiracy. Planning prior is not the controlling factor. There is always conspiracy whenever a person induces another to commit a crime. The moment one agrees with the inducer, there is conspiracy.

**Between/amongst principals, you do not distinguish WON there is conspiracy, it is already given. You only distinguish the acts of the principals to know if they are inducers, cooperators, etc.

**The one who is not most guilty is the principal by indispensable cooperation because he only cooperated and not the one wielded the weapon for killing. The most guilty is the principal by inducement. If the latter poses more danger to society; if he can always try to get away with his crimes by paying his way out or give rewards.

**The testimony of the principal by indispensable participation (as a state witness) would convict the other principals because with the corroboration of other evidence, evidence against the others will be very strong.

There are three kinds of Accessories: first, the one who profits from the commission of the crime (a corresponding special law, P.D. 1612: Anti-Fencing Law, punishes so whereby said accessory becomes the principal).

In the Anti-Fencing Law, relationship is not an exempting circumstance. If the property stolen belongs to the son of the one who profited from the commission of the crime and he becomes the dealer of the property stolen from the other son, naturally, the son who stole if from the other son who is living with him is exempted…what happens to

the father under the Anti-fencing Law? That is a ticklish issue. My contention is that he is still liable despite the fact that he is the parent of one of the parties. The fact that they are related to one another exempts him to criminal liability should not extend to the one who becomes a fence. (arg, putol yung discussion due to tape reversion)

The other two: 1) harboring, concealing, etc. the offender 2) concealing, destroying the effects of the crime. These are acts of accessories under Art 19. There are two laws that may be involved. If it is in connection with drugs, he may become a protector or a coddler under R.A. #9165. If it is in connection with any other crime, it might fall under the law on obstruction of justice.

There are so many who are exempted from being accessories. I have already enumerated those who are exempted, particularly those accessories who are exempted from criminal liability under Art. 20 of the RPC (yun lang #2 and #3; yung #1 is not exempted from criminal liability). But then, if they are charged under a special law, I believe they can be successfully prosecuted and later on convicted for violation of the

special law because that would not require criminal intent; while as an accessory under  Art 19, if would require criminal intent.

How about penalties that may be imposed? The penalties that may be imposed are only those that are provided by law. You cannot impose any penalties that is not provided by law. Excessive, unusual, harsh, and cruel cannot be imposed by the courts.

I remember one time when a police general conducted traffic somewhere at Ayala and EDSA. He caught several jaywalkers. After catching them, he l ined them up and ordered them to give him 20 push-ups. The Jaywalking Law provides for a penalty of fine of up to P1,000 only. No other penalty can be imposed!!! You know, he can be administratively charged for what he imposed, he committed a misconduct! Imposing a penalty that is not provided for by law is grave coercion! (jokes omitted)

Everybody knows Art. 22 of the RPC. The cases involved are the cases of Robin Padilla, Congressman De Guzman, and Martin Simon. All penal laws shall have prospective effect; it shall only have retroactive effect if it is favorable to the accused. R.A. #8294 carries a much lower penalty than what is provided in P.D. #1866. When Robin Padilla, De Guzman, etc. and this law was passed, it is beneficial to them, they are entitled to a retroactive effect of the penal law.

How about the provision in R.A. #9165, which states that the provision of the RPC shall not have suppletory effect? Would that include Art. 22 of the RPC? No, it would not. It shall only be confined in Art. 10 of the RPC.

*Question of Edcel re the Lacson case….(hard to distinguish).

**Judge groans and cracks jokes. In the interpretation/construing penal laws, it shall be strictly be construed against the State and in favor of the accused. That has been a time-honored principle. It has never been changed. It is enshrined in the Constitution here and all over the world. If you are going to ask me whether we should balance the

interest of the State or not, I don‘t think that is a matter to be balanced! If the SC states that just because an accused is menace to the society, then I disagree . … Just like Alan Paguia, he is becoming a character (laughter). Judge recounts Paguia‘s

goodness to him. I will defend his right to say what he does/believes in is right; but whether he is wrong or not, I cannot defend him. If not one will do so, where will we go? Pulutin tayo sa kangkungan nyan eh. If it turns out he is wrong, that is his problem.

*Talk about Fornier being a debater.

*Read the article of Dean Bocobo in the PDI.

*More regarding Paguia‘s actuations and his reliance to God Almighty; othe r

considerations or right cause.

*Jo-anne‘s comment that Paguia flunked half the class and passed after appeal.

Some people have their own way of doing things; I have my own way of doing things…

In Article 22 of the RPC, you just remember the case of People vs. Martin Simon in relation to R.A. #7659, R.A. #6425, R.A. #8294, P.D. #1866, the cases of Robin Padilla and Congressman De Guzman.

 Article 23 of the RPC actually involves pardon by the offended party, not by the State. Pardon by the offended party may be given in order to be effective in cases of private crimes that cannot be prosecuted de officio prior to the institution of the criminal action in the proper court. So if the pardon was given during the preliminary investigation, whether in the MTC or the prosecutor‘s office, that would constitute a valid ground for pardon. Private Crimes: Acts of lasciviousness, simple seduction, qualified seduction, etc, etc. But there is a condition put down by the SC in jurisprudence: in the event that

the offended party is a minor, the pardon given by the minor cannot be effective unless it is in conformity with her parents. But, another case came to mind, before rape became a crime against persons. In this case, the father rape his daughter. The first rape occurred when the daughter was less than 18 years of age. At that time, the daughter said, ―tang, if you are going to do that again, I am going to file a case against you. I forgive you now.‖ Such forgiveness was without the consent of the mother. After

reaching the age of 18, she was raped again. She filed two cases of rape against her father. This time it is not qualified anymore. The lower court convicted the father. The SC acquitted the father with respect to the first rape because although the mother did not conform to the pardon, when the girl reached the age of 18 and she did not retract the pardon, such becomes an effective grant of pardon considering that no criminal case yet has been filed against the father in any proper court. But, with the case of the second rape, convicted. When she filed the case, she was already of age. Her nonwithdrawal of the prior pardon makes so still effective and valid (remember that ha)

*Kathy Lo‘s question, was the pardon conditional?

**Judge: conditional nga!!! But she did not retract so when she became 18, thus, it became a reality before she filed the criminal case. In other words, the withdrawal of the pardon must be immediately made after she turned 18 years of age. Her pardon was initially invalid, but it became valid after she became 18 and prior to the institution of the case.

For crimes that can be prosecuted de officio, there are only two instance where pardon is allowed, in no other case can it occur. One, in cases of marital rape, the forgiveness given by the wife may be given any time even if the offender is serving sentence.

How about what is really happening in the court, so many are submitting affidavits of desistance. Are they valid? Such affidavits are not valid to dismiss an information. But some people insist, ―kami ang nag-reklamo, mas marunong pa kayo?‖ There ought to be a law that when the private complainant withdrew by reason of monetary or other considerations (not because there was no crime committed), they should be penalized. Before, I cite these people to contempt and fined them up to P5,000. Pero nagdahan-

dahan na ko kasi mareklamo dito ang tao sa Maynila. I know I am right because what they do is contemptuous.

 A long story about accounting in a company… if the boss executes an affidavit of

desistance, I will dismiss the case. So, it is really a case-to-case basis.

Pardon by the offended party in multiple rape by several persons. If the accused agreed to marry the victim and the latter agrees as long as she can end off with the goodlooking one. The problem here is if the marriage takes place, would the other accused be benefited by the pardon? No! It used to be the others would benefit because rape was a private crime before. Now, since rape is a crime against persons which can be prosecuted de oficio, the other accused cannot be benefited by the marriage.

In cases of rape with multiple homicide, according to the SC, the other rapes cannot be aggravating circumstance. There is only one rape with homicide and the others are considered independent rapes because rape is not amongst those aggravating circumstance enumerated in Art 14 of the RPC.

Measures adopted which are not considered as penalties: Preventive imprisonment, confinement in an asylum or a rehabilitation center.

In preventive imprisonment, the period, in the event of conviction, shall be considered for purposes of computing the length of service still to be served by the offender, that is the only benefit the felon can derive. The purpose here is reformation. The other confinements are not considered to be like so. ~~~end of tape~~~

DATE: July 16, 2003 By: Katherine Faye Darvin

FINE (A fine) is afflictive when the fine is more than P 6,000.00 and it is correccional when it is P 6,000.00 but more than P 200.00 and it is light when it is P 200 and below.

That is up to P 200 is light fine, more than P 200 but does not exceed P 6000.00 is correccional fine but more than P 6000.00 is afflictive fine.

(I‘m not kidding, guys, he just repeated what he said! In the reverse order!)

do not confuse the correccional fines with jurisdictional fines because there is a difference between the two. Naturally, if the fines are within the jurisdiction of the MTC, it is either light or correccional but a part of the correccional fine is already within the  jurisdiction of the RTC. Why? Because under BP 129, as amended by several laws and the Rules of Court, rule on the jurisdiction of the RTC and MTC with respect to fines hasn‘t been changed. It remains to be that the jurisdiction of the first level courts that is the MTC, MCTC and MeTC shall be up to a fine of P 4,000.00. so it is when the correccional fine and we are familiar with the pronouncements of the Supreme Court in so many cases that when the penalty is correccional in nature, it is within the  jurisdiction of the MCTC, MTC and MeTC EXCEPT when the penalty is solely a fine. The exclusive jurisdiction of the MCTC, MTC and MeTC is only up to a fine of P 4,000.00, beyond that it is already with the RTC. Do not confuse the jurisdictional fine and the fine as a penalty because the fine as a penalty would start from up to P200.00 light penalty, from P200.00 to P6,000.00 correccional penalty and more than P 6,000.00 is an afflictive. Do not confuse the jurisdictional fine for purposes of acquisition of  jurisdiction by the 1st level courts and the 2nd level courts. (ok?!)

 Article 27 speaks of duration and effects of penalties. RA 7659 only amended the duration of life imprisonment and reclusion perpetua because the duration of the penalty of reclusion perpetua has been increased from 20 years and 1 day to 40 years from 30 years. Same is true with life imprisonment although in some cases the Supreme Court has pronounced that there is no maximum duration of the penalty of life imprisonment but in RA 7659, it specifically provided that the maximum of duration of life imprisonment of life imprisonment is 40 years (did it not say so?) yes it did.

Now, there was a problem also when a penalty of death is commuted to reclusion perpetua. When the duration of reclusion perpetua is only up to a maximum of 30 years of imprisonment, if the death penalty then and up to now is reduced or is commuted to reclusion perpetua, the duration of the penalty should be up to 40 years, actually that is more on accessory penalties and even civil interdiction should be up to 40 years. The problem now of course is if you are going to look at the accessory penalties of reclusion perpetua, the accessory penalties of reclusion perpetua is perpetual in nature. It‘s not

only up to 40 years but the accused shall suffer a perpetual accessory penalty or perpetual accessory penalties. This has bee our problem because the law has not yet been amended. It should have been amended a long time ago and the appropriate durations should have been fixed by RA 7659. But RA 7659 did not fix the durations of accessory penalties. It should have fixed it in order that there should be no more confusion.

Despite the duration of the penalties of reclusion perpetua, life imprisonment, etc, they still remain indivisible and for purposes of indeterminate sentence law and for other purposes, including of that of parole or commutation of sentence sometimes. But the penalty of reclusion perpetua carries with it all the accessory penalties that may be found under the RPC. On the other hand, the penalty of life imprisonment do not carry with it accessory penalties. The reason being that it is a special law and special laws do not provide for accessory penalties except in one law that I have come across and that is RA 9165.

So, even the penalty of reclusion temporal, which has a duration of from 12 years and 1 day up to 20 years, its accessory penalties or some of its accessory penalties may reach up to perpetual accessory penalties, meaning to say that it has a perpetual effect. Say for example, civil interdiction, a person who may have been convicted of within the range of reclusion temporal shall suffer perpetual absolute disqualification from any of those enumerations provided for by the law. The penalty of prision mayor, etc, although prision mayor is, actually an afflictive penalty, the general rule is that the accessory penalty is only up to the duration of the actual penalty imposed which is within the range of prision mayor. The same is true in prision correccional and arresto mayor. But, are there accessory penalties on destierro, suspension and light penalties? Are there? Destierro? There is none. Suspension? There is none. Arresto mayor? Well, only up to the duration of the penalty imposed by the court. The same is true with respect to

arresto menor. Why? Because the one cannot exercise some of his rights while he is actually incarcerated in jail. Even if he is serving his sentence in his own residence, still he cannot exercise certain rights because at that time, he is prevented from doing so because he is serving sentence.

There are instances where naturally the penalties are to be computed. For purposes of computing the penalty for those who are already under detention or preventive imprisonment, when do you start computing the penalty that should be served by the offender? It shall be computed from the day of final judgment. If he is already under detention or he is already a detention prisoner. If he is not a detention prisoner, the penalty shall or the duration of the penalty shall be computed from the time that he is placed at the disposal of the authorities and when does a person convicted of a crime is placed under the disposal of the authorities? When? Meaning to say that the judgment has become final and executory and he is already at the disposal of the authorities. The two must concur. He is already at the disposal of the … that the judgment has already

been final and executory and that he is at the disposal of the authorities. Well he is the disposal of the authorities when actually there is already a return of the warrant of arrest or a return showing that the accused was already arrested and already confined in jail or when the accused has already voluntarily surrendered to the court. He would then be at the disposal of the authorities. What are the evidence that would prove that he is already at the disposal of the authorities? When the court issues a commitment order on final sentence. Usually, what is the term being used by the prison authorities for that commitment on final sentence? That is called MITTIMUS. If you are asked a question what is the meaning of mittimus? It is a commitment order issued by the court for the accused to serve his sentence by virtue of a final judgment.

There are several kinds of commitment orders which are not exactly a mittimus. 1) commitment during the pendency of the trial. The records of the case must be complete if a person has been arrested, the duty of the court is to issue a commitment order during the pendency of the case. If the accused has been sentenced and the  judgment has become final and executory, that is already the mittimus or a commitment by virtue of a final judgment, how about those who appealed and they are still in prison, they cannot post bail? Or that the court prohibits the posting of bail? That is a commitment during the pendency of appeal.

 Are you familiar now with these several commitments? They are evidence that the accused is already at the hands of the authorities. The authorities cannot anymore claim: ―di, wala sa amin yan eh!‖)

It is important. When you are a private prosecutor, never mind if you are for the accused, do not assert the issuance of that commitment order. If you are a private prosecutor you must ask a judge to issue a commitment order during the pendency of the case. Why? Well, you will xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx authorities

How about preventive imprisonments? Preventive imprisonments have some effects especially in computing the penalties in the event that the accused is convicted. In the event that the accused is convicted, it has also some effect in the government because if the accused is convicted and upon being committed to a detention center, he agreed with the jail warded that he is to be treated as a convicted prisoner, he shall be entitled to a full credit of the period of his detention. Naturally if the detention prisoner is amenable to being treated as a convicted prisoner, he will be performing duties which are supposed to be performed only by convicted prisoners.

But those who do not agree to be treated as convicted prisoners can sleep whole day. They won‘t be assigned any duties. The only effect, the only advantage of agreeing to

be treated as a convicted prisoner is that in the event that the person is convicted, his period of detention shall be credited to him in whole. If however he is not amenable to be treated as a convicted prisoner, he shall be entitled only to 4/5 of the period his preventive imprisonment. Ex. if it is 5 years as a detention prisoner, what would be credited to him is only a period of 4 years. He will not be given the entire years.

How about all those people who were not convicted but they suffered preventive imprisonment? It depends upon the reason for their acquittal. If the reason for their acquittal was that they are innocent, they did not commit any wrong or any crime, they shall be entitled to be paid a sort of ―disturbance payment‖ in the form of P 10,000/year

of imprisonment.

(here Judge told the story of the 2 innocent people who were sent to jail just because they ran side by side in the direction where the accused is also running)

(Judge ordered for the two innocent people that were convicted to be paid P 10,000.00/ year for their 10-year incarceration.)

…it first should be coursed through the department of justice, etc and that it would

depend upon the availability of funds and that they would have to follow it up with the DBM.

(continuation of story) but when they were about to leave, farinas transit refused to accommodate them despite the fact that they already have the passes from the bureau of prisons. So I called them up to accommodate this people. Otherwise I said, if they complain, at the instance of the court, it will institute a case of indirect contempt against the manager of the corporation. So they were forced.

Effects of penalties: perpetual, temporary, absolute disqualifications from holding office from being elected to any office or to vote and be voted upon, suspension from public office or civil interdiction and bond to keep the peace. What is important here is the perpetual absolute disqualification of suffrage. Under Book One of the RPC, if a person is sentenced to a penalty of more than 18 months, he shall suffer perpetual absolute disqualification to vote and be voted upon. That is when he served his sentence. If however, he is accepted for probation, then the moment that the probation is terminated, he shall also be restored to all his civil rights. That is the benefit of one who will be undergoing probation. He will be restored to all his civil rights and that includes his political rights. Do you recall a newspaper article that a mayor is being asked to be disqualified to sit as a mayor on the ground that he is under probation when he ran for public office? But he won despite the fact that he is under probation. But the guy said, when he won the election, they terminated my probation before I assumed office. And therefore I am already restored to all my civil and political rights. The matter is now with the Supreme Court I believe will determine if that person is eligible to become the mayor of that town or not. It is actually not really a big issue if the person has been

given a pardon by the President. No problem. But here, what we only know in probation is that when the probation is terminated by the court, the offender is restored to all his civil rights. But let‘s see what is the decision of the SC in that case.

In RA 9165, irrespective of the penalty imposed, the offender shall suffer only certain portions of civil interdiction. He will not have parental authority. He cannot dispose of his property nor manage the same. But the law did not say that he will suffer the loss of marital authority if he violates any of the provisions of RA 9156. maybe it was an oversight but maybe it was purposely omitted by the one whoa authored the law and the researcher. And as I have already said to my students in special proceeding, when a person is suffering from civil interdiction, xxx (tape screeches then stops)

SIDE B (I think this is the story of rolito go) xxxxx When he was sentenced with finality to serve a penalty of reclusion perpetua, when he failed to appeal because he choose to jump bail and resort to hiding because he escaped…

There could be valid reasons for his escape because if you read the case of Go v. CA, who will not be afraid? The arrest of Go is illegal. The preliminary investigation is illegal.  All struck against him. The pre-trial is illegal. The trial, which occurred is illegal and the SC has declared all of it as illegal but the SC said: Go, you have to undergo preliminary investigation and directed the provincial prosecutor of Rizal to conduct preliminary investigation but meanwhile the SC said Mr. Go, before you can be released, post a bail. There is no preliminary investigation yet and yet he is asked to post a bail. What I understand in criminal procedure is that it should be the accused who should request to post a bail before undergoing preliminary investigation . Isn‘t that correct in your crim pro? Not the prosecutor, not the court! That is again a first in the history of preliminary investigations that the court is the one already ordering the accused to post bail without the accused asking for it.

Pardon by the President. Naturally, before the President of the Philippines could grant pardon, the decision convicting the accused must have become final and executory. During the tome of Pres. Ramos they made a boo-boo when the office of the President granted a pardon to a person whose judgment has not yet attained finality, I mean, whose conviction has not yet attained finality. And somebody went to the SC questioning and the SC has to dress-down the chairman of the board of pardons and parole, etc and all others concerned that they should first determine whether the  judgment has become final and executory before they recommend to the President that a person be granted pardon. So Erap should be found guilty be first and not appeal and  just ask pardon and let‘s be done with it… para tapos na, wala nang maraming gulo. If

he will do that probably he will be disqualified from running for public office. that is his  ―the end.‖ And also, atty. Paguia will not have a problem anymore.

Important: this is the part where Judge impliedly states that it‘s not his style to fail students: (Judge is telling the story about the ―flunking‖ of students –   ½, or even ¾ of the class… ‗we will be creating a good image‘.. I said: (Judge said) do you think that you

will be creating a good image? That means that you have accepted poor students, mean, students who don‘t deserve to be in the college of law and we have to flunk

them? Well I was telling them, your selection of the students who goes to your school is very poor if we are going to do that. We should teach them, we should not threaten them by flunking them or by not allowing them to graduate or whatever… you see those are things that are not supposed to be done… I don‘t know if that‘s alright with them. To me it‘s not alright with me. I have my own way of doing things. Let‘s see.. ok)

How about pardons that were extended by the President? Can they be recalled or revoked? How about if it is absolute pardon? Can the President recall? Hindi na. It is an act of liberality on the part of the President that has already been extended to another person and therefore the president is bound by his acts. You can just imagine, if I am the President, no matter what the public will say I already said my piece, I already gave him my pardon, that is all there is to it. are you going to argue with me? Then argue with some other people not me. I am nit the right person to argue with. But then during the time of Erap in the case of Manero, maybe because afraid of bad publicity or afraid of adverse comments, etc. or the comments already being made by several people, Erap withdraw the pardon to the guy. And now he will suffer about 22 or 20 years more years of imprisonment. Despite the fact that he has already been in jail for

the last 17 years or more or 23 y ears… to my mind when a President extends pardon, if it is absolute, no recall even if there is fraud. Because the office of the President has all the means to discover if there is fraud. Are you going to tell me that those people who screen those people who will be granted pardon did not do their job? Sila ang wag mong bigyan ng pardon. We should not give them any privilege at all. That is my idea. Conditional there should be no problem because anytime if the President is displeased with the acts being committed by the grantee, all that he has to do is revoke because that is a contract between the President and the person given a conditional pardon. And if one violates any provisions of that contract, the contract becomes ineffective. And therefore the President has all the right to revoke it. that is the principle there that has to be understood.

That would include costs. Fees, indemnities, whether fixed or alternative in nature, are considered as costs. Well it is only in this country that costs are at its minimum. In other countries, the costs are prohibitive in litigation. As I told you the costs that were…

Where is OJ Simpson tried? New York? Or California? California no? They billed OJ, because he was acquitted on grounds of reasonable doubt and he was also found liable civilly, they billed OJ in the criminal case ½ I believe of the costs which would amounts to $25.5 million and whole amount in the civil case of about $3 million. Sa Philippines magkano lang costs? P2,000.00, P 2,500.00, etc.. and whoever pays costs? Hudas not pay? Most of those convicted do not pay. Despite the fact that they have the capacity to pay.

We are in cost and now we will go to pecuniary liabilities. Pecuniary liabilities will consist of reparation of the damage caused, indemnification of damages, indemnification of consequential damages including costs and others. Alright, now, subsidiary penalties. Do not confuse subsidiary penalties from preventive imprisonment. Subsidiary penalties are only available when the penalty includes a fine in itself and the penalty is not beyond prision correccional. But if it is prision correccional, it depends if in computing the subsidiary penalty it will reach the maximum of prision correccional. In the event that the penalty is imprisonment and fine and the imprisonment is correccional in nature, what would be the severest penalty that can be imposed as a correccional penalty which shall include fine? How many months? How many years? Did the law say so? What did the law says? In such an event, the subsidiary penalty shall not increase 1/3 of the penalty that was imposed. Say for example, the penalty imposed is up to 3 years, the subsidiary penalty in case there is a fine paid cannot

exceed 1 year because it is within the range of 1/3. Now, in the event that it is solely a fine, what should be the subsidiary penalty? In case it is solely a fine, the subsidiary penalty irrespective of the amount even if it is a Billion peso or what you see in (RA) 9165 up to 550 million pesos, it shall not exceed 6 months. And you know of course that subsidiary imprisonment or penalty shall be computed at P8/day of imprisonment. But that was since 1968. if you look at your book, that particular provision fixing the amount of subsidiary penalty etc or subsidiary imprisonment was actually an amended to the minimum wage then of P4 which was increased to P8 in 1968. from then on, the law was not anymore amended. The people in Congress forgot amount subsidiary imprisonment because they could all pay the fine. Kayang-kaya magbayad ng fine eh. From their own beef barrels, pork barrels, dog barrels or whatever, they can pay. But in no case in the event that the only penalty is a fine, the subsidiary imprisonment cannot, irrespective of the amount cannot exceed 6 months. It is high time now that they amend it. how much is the minimum wage now in Metro Manila? P 250? Ang laki non from P8. somebody should write your Congressman to amend the law. Ako if I write our Congresswoman, she might not take it as a good advice. She might not take it as a good advice, she might take it as a political gimmick of which I am never engaged in such an activity. Dapat everybody should write their Congressman not just because for the heck of it or you want to tell your Congressman that you know the law. It‘s actually for not only practical but for the benefit of those people who may be imprisoned because of poverty.

Well, the penalties were, the accessory penalties are only inherent to those with respect to death, reclusion perpetua, death which has been commuted to reclusion perpetua not life imprisonment ha!, reclusion temporal, prision mayor and prision correccional.  Arresto mayor, No. Arresto menor, no. but then with respect to accessory penalties of civil interdiction, the penalties that carry with it civil interdiction are only those that have been commuted from death to reclusion perpetua or penalty of reclusion perpetua or reclusion temporal. Other than those penalties, civil interdiction do not attach. Remember that. You should remember that.

Now, the accessory penalties in cases of prision mayor, prision correccional and arresto, are only supposed to attach to the penalties during the duration of the actual penalties imposed in the maximum. So if what was imposed is prision mayor minimum, that is from 6 years and 1 day to 8 years, the period of the accessory penalty is only up to 8 years only. Not the entire range of prision mayor. Same is true with prision correccional,

same is true with arresto mayor, and never mind arresto menor because arresto menor is so temporary, just wait for 10 days, 20 days up to 30 days. After getting out, it is automatic that he is restored to all his civil, political and other rights.

Now, forfeiture and confiscation or confiscation and forfeiture. We are aware that instruments used in the commission of the crime are subject to forfeitures. Question: If an instrument is used in the commission of the crime but it belongs to a third person, can it be subject to a forfeiture? No? But then if the property is only possessed by the owner by reason of a permit or a privilege, can it be forfeited in favor of the government of the Republic of the Philippines? Such as a gun, a firearm, naturally, the possession of a firearm is a mere privilege because you are being issued a license. If the firearm is used in the commission of a crime, is it automatic that it shall be forfeited in favor of the government even if it belongs to a third person? No. it must be shown that the offender, even if he uses a firearm belonging to another must actually have used the same with the knowledge of the owner. If the owner knew that that particular licensed property will be used by the offender in the commission of the crime, then it shall be forfeited in favor of the government of the Philippines. If it is a contraband, no problem. Whether it belongs to anyone, it shall be forfeited in favor of the government of the Republic of the Philippines but it cannot be destroyed if such property can still be the subject of usage of the citizen of that country if it is still within the commerce of man. But if it is beyond the commerce of man, then it shall be destroyed. Save for example, even if it could be used but it is beyond the commerce of man, it could be destroyed. For example, fake CD‘s. if those f ake CDs have been confiscated, can you claim that you bought it with your own money and you earned that money from a legitimate source. Can your argument hold? No. it is still to be forfeited even if it can still be the subject of commerce. But then that word commerce is rather confusing. It must be lawful commerce. Because there is an unlawful commerce such as the sale of this CDs, VCDs, tapes, whathaveyou.

Even this uka-ukay. I was made to understand from those who know that it came from the Salvation Army and it is the Salvation Army who‘s selling them. And the Salvation  Army is a non-governmental institution? Charitable institution? Where are the money going? (this is the ukay-ukay story) so are they contrabands? Can they be forfeited in favor of the government of the republic? There was a time that it was prohibited. Now you can‘t control it anymore.

There are properties that maybe subject to forfeiture which is different from escheat proceedings under the special proceedings. Escheats, when the deceased left no will, left no heir, the office of the Solicitor General should file, an escheat proceeding with the proper court so that the property will be privately owned by the government. Private yon non public. It shall be owned by the government in its private capacity. And that well, any person who have an interest over the property such as an heir, has a period of 5 years within which to bring an action to recover that property which was given to the government within 5 years from the date of its delivery to the government. Remember that. But it is not forfeiture. What Reversions in spec pro. You have a property in Makati. A Taiwanese went to see you. without asking for his citizenship, you sold him your property. It turns out that he is actually a Taiwan citizen and he cannot own any real property in the Philippines. What happens to the property that you sold? It will also be subject of escheat in the manner of reversion proceedings. The property shall revert back to the estate. That is reversion. Since the time of Krivenko, a Russian who acquired properties in the Philippines.

Properties that were used as a greenhouse or property where plant sources of dangerous drugs are cultured. These shall be forfeited in favor of the government of the Republic of the Philippines. The proceedings may be impliedly instituted in the criminal case. But if it is not established in the criminal action, then you can fine a separate action for escheat proceedings against the owner. There are so many kinds of forfeiture proceedings. As a matter of fact, I now have a problem. Actually two problems regarding properties belonging to private individuals. A case of violation of RA 8484, the access device law. A Taiwanese was caught manufacturing fictitious cards or embossing with an embossing machine, fictitious credit cards. You name it, he has it. what did them in is that they bought several appliances from several stores almost daily. And they sell those appliances at a very very low price. They were caught with a 48 inch flat TV. The problem is, after the guy was convicted, the order being final and executory, we tried to return the TV to the store where they allegedly bought it. but the store refused to accept it saying that it was not bought in that store. So we asked the manufacturer to determine to which establishment that TV was delivered but the manufacturer refused. The TV set is there, we cannot use it, we cannot dispose of it and its occupying a lot of space. Can we forfeit it in favor of the government? Hindi because it belongs to a private individual who is not in conspiracy with the people in the use of a falsified or a forged credit card. So it is a dilemma for us. Another dilemma for us is a PNP police officer who was using his big bike for extortion activities. He has his own lawyers who revealed the secret of the peace officer….

~~~end of tape~~~

DATE: 21 July 2003 By: Mildred Joy Que

COMPLEX CRIMES The complex crime proper is actually the commission of a crime which is a necessary means of committing another and a compound crime is a commission of a single act that results into two or more grave or less grave felonies. A special complex crime is one that has been specifically designated by law as such.

 You will note that the complex crime proper only says that an act may be or is a necessary means of committing another such as what falsification etc which is a means to commit estafa thus the crime committed is estafa through falsification of commercial or private documents. Even sometimes other crimes can be complex with another as long as it is a necessary means of committing the other unless that particular act which is also a crime is already absorbed in the commission of the crime.

Such as what? Do you know of any crime or offense that has been already absorbed in another crime despite the fact that it is actually a separate crime in itself and it is not even sometimes a necessary means of committing the other.

Well, illegal possession of firearms as we know has been absorbed in the commission of the crime of murder or homicide. It shall only serve as a special aggravating circumstance. But there are crimes that are absorbed in several crimes of which their absorption to those crimes do not even affect either modify or whatever the crime that has been committed such as rebellion, carnapping may be absorbed in rebellion because these rebels must have to use transportation in order that they can move from one place to another. Even piracy may be absorbed in the crime of rebellion.

Definitely illegal possession of firearms is absolutely absorbed in the crime of rebellion but that was since the time of People v. Hernandez, Enrile v. Salazar and such other cases.

Rebellion being a continuous crime it may absorb so many crimes such as theft etc. Now the only crimes that cannot be absorbed in the crime of rebellion are naturally private crimes or those crimes that involve chastity which may however been transferred to crime against persons but by the very nature of the crime itself it cannot be absorbed in the crime of rebellion.

There are other crimes necessary in order to commit other crimes. But, in crimes of treason, naturally the possession of firearms etc and everything maybe also absorbed in the crime of treason. The reason being that during actual hostilities or in times of war one must have to possess firearms or other similar instruments in order that they maybe able to succeed in their purpose but definitely in some crimes you cannot consider them as absorbed in the crime of treason.

Now, this absorption theory only goes as far as the crime that was committed is a necessary means also of committing the other. That is as far as it can go. Now in compound crime it is simply a single act resulting into two or more less grave or grave felonies. Say for example, a person shot another and then of course it resulted into double homicide, it resulted into homicide and serious physical injuries. That is actually a compound crime but the problem here is does a complex crime proper follows the principle in compound crime? Meaning, must the act that is a necessary means, must the crime that is a necessary means of committing the other crime must also be a less grave or a grave felony? Does it follow? Because only the compound crime specifically provides that the single act must have resulted into two or more less grave or grave felonies but in complex crime proper did the law state that the crime that was committed which is a necessary means of committing another crime must also be a less grave or grave felony and that the resulting crime must also be a less grave or a grave felony? There is no such provision. There is no jurisprudence that will explain whether it adopts the principle of compound crime.

However, by simple understanding of the laws on complex crime, it woul d appear to me that the same principle will apply in compound crime. Well, in complex crime which is actually a compound crime the Supreme Court in disposing of a case involving a reckless imprudence which is a single act and it resulted to so many things- multiple homicide, multiple serious physical injuries, damage to property, less serious physical injuries and slight physical injuries because one of the victim was able to jump from the vehicle while it was about to plunge into a deep ravine. He was able to jump, he suffered only slight physical injuries. What was the decision of the Supreme Court there? The Supreme Court said that the crime of reckless imprudence resulting to slight physical injuries cannot be included in the complex crimes of reckless imprudence resulting to homicide etc up to the serious physical injuries. The Supreme Court ordered that the crime of reckless imprudence resulting to slight physical injuries which resulted out of that particular compound crime should be instituted separately and prosecuted separately and decided separately from the rest. The reason being that the single act resulted into shall we call it, one of the resulting acts or one of the acts that was the result of a single act or one of the crimes that resulted out of a single act is a light felony. Although it may seem impractical, because the prosecutor will have to prepare another information or complaint, then, the accused there will have to be arraigned again, the presentation of evidence in the other case will be the same presentation of evidence in this slight physical injury case especially the testimonies of witnesses, the testimony of the police officer etc.. My gosh, the government will be spending so much effort and money in prosecuting only a reckless imprudence resulting only to a slight physical injury case. And there will be multiplicity of suits. Although the accused will not be placed in double jeopardy yet it would result to multiplicity of suits which is being avoided actually by the rules of court yet the Supreme Court said file a slight physical injury case. So, that is the present situation now in relation to compound crimes.

The third complex crime is the special complex crime. But then, this special complex crime only refers to specific victims and specific offenders and specific acts. I will give you an example of which probably you did not realize that it applies only to specific persons. In that it cannot apply to any other persons other than those mentioned by the law. You all know that under republic act 7659 amending the law on carnapping that is 6958 or something like that, there could be a carnapping with homicide. A special complex crime of carnapping with homicide. But then, the law provides only for specific victims, that on occasion of the carnapping, in order that there could be a special complex crime of carnapping with homicide, the victim must either be the following: the driver, the owner or any occupant of the vehicle. If say for example the

victim during the carnapping is a person who is a bystander or one who was just trying the help the victim or even a policeman who was trying to prevent the carnapping, there could be no carnapping with homicide. The carnapping will be separately prosecuted from the crime of homicide or murder or homicide with direct assault or murder with direct assault. So you see, that is a particular complex crime of which the victims have already been predetermined by law. Any other victim that is not within those enumerated by law cannot be considered to be complex with the crime of carnapping. In all the other cases, let us say for example, robbery with homicide, in robbery with homicide, what happens? Any victim whether it is committed as a means to commit the robbery or on occasion thereof , or by reason thereof, the crime of robbery with homicide is committed. Now, in the crime of robbery with rape, the rape is only incidental to the crime of robbery, the main purpose of the offender is to commit robbery, rape was actually only an after thought during the commission of the robbery unless of course you will note that if the offender has already determined that aside from the robbery that he is going to commit, he will commit rape, the two shall be separately prosecuted from each other. The crime of robbery should be an independent crime to be prosecuted separately and the rape should be an independent crime to be separately prosecuted and they cannot be complexed with each other because the offender has already decided prior to the commission of both, that he will commit both crimes.

There are times when an offender aside from having decided to rob a woman, said I‘m

going to rape that woman after I have robbed her, now is that a complex crime of robbery with rape? No, that is not a complex crime of robbery with rape. It is a separate crime of robbery and a separate crime of rape because there are two criminal intents already present in the mind of the offender. I think this is the first time that this matter has been brought to your attention. There are other principles that you have to know in relation to this. But, let us discuss first other kinds of complex crimes. Let us go to arson before I go to robbery with homicide etc. and of course certain developments in these particular crimes, special complex crimes.

In arson, it used to be that there is no complex crime of arson with homicide. There was none. If you burn a building and a person dies, you do not know that that person is present only the crime of arson is committed. If you burn a building in order to kill a person, then that is murder with the use of fire. But with the passage of RA 7659, it has changed the complex crime principle in regard to arson because in the old rule, there is

no complex crime in regard to arson. Now, there is one. Even if the offender does not know the presence of a person but he burned a building resulting to the death of that person, there is a complex crime of arson with homicide. And the worst part of it is that the penalty is worse than murder, because the law says that the penalty shall be death, Shall! On the other hand, if your intention is to kill your victim, you burn his house to kill him, that is murder. The penalty is reclusion perpetua to death. So, if you are the lawyer of a person accused of arson with homicide, ask him to plea bargain and enter a plea of guilty to murder. Why, the moment he pleads guilty, he will be already out of being sentenced to death. The only penalty that can be imposed upon him is reclusion perpetua, you saved his life. SO this law was passed without actually the congress realizing the gravity of their mistake. But it was actually a mistake.

The crime of robbery with homicide, has different phases. I mean, the participants in the crime of robbery with homicide, may depend upon first, the conspiracy and second, it may depend upon the place where the crime is to committed. Let me put it this way, supposing that three persons agreed to commit the crime of robbery, it was explained by their leader that the place where the robbery will take place is the residence of their former employer. I mean the employer of two of them. One is not familiar with the place. The two are familiar with the place. They were the house painters of the place to be robbed. They discussed that usually the owner of the house leaves before 8 am to go to his work and the only person being left behind is the maid. So, what would happen? Naturally if there would be a conspiracy, there is a possibility that there will be an employment of force or violence which may even result to the death of the maid or any other person who may be present at the house of the offended party. Supposing further that in the agreement, one of them who is not familiar with the place was designated as a lookout and the lookout will only give a signal while he is in a sari-sari store probably smoking a pack of cigarettes or drinking a bottle of coke or whatever, that if ever a patrol car or a mobile car or barangay tanods or other law enforcement agents or suspicious looking persons pass by, he will give the signal to his cohorts or to his friends. But during the entry of the two men after they knock at the front gate, it was the maid who opened the gate and knowing the two as they were the former painters of the house, she said, what are you doing here? Well, we left some tools or equipments and we want to get them. Some of them are on the roof, we forget them on the roof. So the maid believed them, asked them to enter, allowed them to enter. But after the maid closed the gate, the two armed with screwdrivers and an ice peak stabbed the maid more than 15 times, she died on the spot. It so happens that another person was then present in the vicinity, he was a newly hired houseboy. While he was

about to help the girl, the two assaulted him also and stabbed him several times, he died. So, the robbery went on smoothly etc. the things that they want to get were carted away by them and the one who was appointed as lookout called a taxi cab and they placed the goods inside the taxi cab of course they were able to get money,  jewelry and appliances. But while on their way to Tondo passing by Del Pan bridge, the police officers noted that there are wires dangling from the compartment so they became suspicious, accosted the three and after hearing from the radio that a robbery took place in Makati, they arrested the three. The two after trial were convicted sentenced to reclusion perpetua, they did not appeal. Only one appealed, the lookout. He claims, ―I did not participate in the killing. I agreed that there be a robber y in a place that is inhabited but I never said that I agreed that they should kill the maid. All that I know is that there is a maid that is being left behind and therefore, the maid would probably be tied only or whatever, I did not even agreed to have her killed so I should be sentenced only for the crime of robbery, nothing more, nothing less.‖ His

appeal went to the Supreme Court but the Supreme Court said, the moment that you agree to commit a robbery on a place where there is a possibility that you have to or your companions have to employ force, violence or intimidation, then in the event that death occurs during the robbery by the employment of force or violence, even if you are only a lookout, you are equally liable with the rest of your companions. So he was actually also meted out the penalty of reclusion perpetua. But this may change if the circumstances would be different. Say for example, the house that they robbers agreed to rob is an uninhabited house, meaning to say an abandoned house, may be the owner has left for the United States or has left for other places, he left antiques or other valuable goods inside after locking them with the intention of returning later maybe about a year or two. So, knowing that the owner will not return in a year or two, three of those persons decided to rob the house, one was designated as a lookout, the two are designated to rob, the same circumstances however took place. Let us say for example that the robbers were able to enter, suddenly they saw a scavenger or if not maybe a vagrant who usually inhabits abandoned buildings or uninhabited buildings and because the two do not want any witness to what they are going to do or to what they have done, they killed the vagrant. The problem now is naturally all of them will have to be charged of robbery with homicide. If the lookout can establish that their agreement is simply that they will rob an uninhabited house and it was established that that person who was present at the place which was robbed is a vagrant and no one knows that such person is present thereat, would you impose the same penalty to those who actually killed the vagrant in a case of robbery with homicide or would you impose only a penalty for the crime of robbery against the one who is a lookout? The answer is yes because the lookout has agreed only to commit robbery with force upon things and not with force, violence or intimidation upon persons. So, ladies and gentlemen, in the

event that such a scenario is brought to your attention in a question in the bar examinations, such would be the answer.

 You have to be careful whether the facts actually are very clear enough that you may be able to understand whether the agreement actually is about robbery with force upon things or robbery with force, violence or intimidation upon persons because the liabilities of the offenders there who may have participated differently from each other are also different from each other. Yes, that is the rule even in complex crimes. You know of course that in complex crimes especially if it is a means of committing another or it is a compound crime, the penalty shall be for the more serious crime of the two or all of them. However, in special complex crimes the law fixes already a specific penalty for that special complex crime.

There are other complex crimes, well we actually have plenty of them such as abduction with rape. But you see there are instances where after the woman has been abducted, she will be raped several times by the abductor. The prosecutor sometimes charges only one crime- abduction with multiple rape. Would that charge be correct? The charge is actually incorrect. The prosecutor did not study his criminal law as there could only be one abduction with rape. That is the first rape. The succeeding rapes are different crimes of rape and neither can the other rapes be considered as other aggravating circumstances or as an aggravating circumstance as held in previous cases. The Supreme Court in its recent cases, in its recent decisions came to realize that rape is not among the aggravating circumstances enumerated in article 14. So it did not aggravate the first abduction with rape or the abduction with rape. The other rapes for every sexual intercourse that the offender had with the victim, it is a separate and distinct crime of rape.

So you see now the difference. You have to be careful now because you are in your fourth year in trying to understand criminal law because this is one of the more difficult subjects. Although it is very interesting, very, very interesting, the only problem is that there could be so many side issues, there could be so many things that may be asked in criminal law. If the examiner is an imaginative examiner, he could propound questions that probably even himself may not be able to answer the question. Oh yeah, we have had that experience. Sometimes we doubt even the answer that we prepared. Yes, even during the times when we attend the meeting after the bar examinations in order

to answer the questions, most of us do not agree to the question that should be adopted by the examiner. So you would see that there is a correct answer, there is an alternative answer and there is a second alternative answer. But usually the alternative answer would have a lesser percentage than the correct answer and then the second alternative answer will have a lesser also percentage but then you still get some points.  Yes, Mr. Ty?

There are 3 individuals they entered into a conspiracy to rob an inhabited place. They agreed that to beat up and tie the persons in the house. But then when the robbing incident took place, they saw the maid and the house boy. First they tied them up but the two decided to kill the maid and the houseboy. They succeeded in killing the maid which was vehemently opposed by one of the robbers so when they were about to kill the houseboy, one said that the agreement was only to tie them up so he decided to let the houseboy escape. So, judge in imposing the penalty should it be the penalty for robbery with homicide?

 Yes, for the first homicide.

Even though he attempted to prevent the killing of the maid but he was not successful?

Well if there is already an attempt on his part and he exerted all efforts in order to prevent the commission of homicide, nevertheless the crime of homicide was committed by the others, he will only be held guilty of the crime of robbery because that would be considered as almost akin to spontaneous desistance which is an absolutory cause under article 12 of RPC.

Sir, in that example can you not say that there was conspiracy on that part between them?

Even if there is conspiracy, if at the time that they are going to execute what has been decided in the conspiracy but one desisted, then he cannot be held criminally liable for

the crime through which he desisted. Why? Because conspiracy by itself is not punishable by law. You can agree to rape, you can agree to murder, you can agree to whatever and you can even go to the place where you are going to do it but then at the last moment you desisted when you are still in the subjective phase wherein you have still control over your actions and that you desisted at the final moment, then you are exempted from criminal liability. That is an absolutory cause. Even if you prepared already all the instruments, you alrea dy went there inside etc…but at the last moment, hindi pwede yan, hindi ako papayag but then you have to resist or if not resist you have to raise your objection in such a manner that it is not a token objection. It must be a serious objection or a resistance to the commission of the act that you have conspired to commit otherwise you are still criminally liable.

Let‘s take a break and then we will go to continuing crimes or delito continuado, the

continuous crimes and then you have the transitory crimes and thereafter we will go to computation of penalties etc… just a simple computation in order that you may be able

to have a working knowledge on how to compute penalties.

When you say continuing crimes you have to differentiate it from continuous crimes because a continuing crime as held by the Supreme Court in some cases requires only one criminal intent. The first case that was cited in a law book about a continuing crime or a delito continuado is the case of a thief who stole five fighting cocks that were tied at the side of the street belonging to different owners and the thief was charged of five separate crimes of theft. So you see, during those times, those fighting cocks are not so expensive as the fighting cocks of today but yet it reached the Supreme Court on a legal issue of whether the accused maybe convicted of five separate thefts or only one theft. One single theft. The Supreme Court there in deciding the case used the concept of one criminal intent. The Supreme Court said that although the owners of the fighting cocks are five different people but there being only one criminal intent in the commission of a felony, then there is only one crime of theft and therefore the accused should be sentenced only for one single crime of theft. Now the Supreme Court however came up with another decision in relation to this. In the case of Santiago v. Sandiganbayan or Garchitorena, you remember that? Former senator Santiago who was then a BID commissioner, granted Filipino citizenship by way of administrative proceedings to 34 Indians, these Indians, bombays. Ang hirap pa naman nitong mga Bombay noh, halos isa lang pangalan eh. Do you know that we are being pestered with the issuance of clearances for several times, I think about 30 to 40 times. The name of

all those who are asking for clearances is the same. Manhitching. (I‘m not sure of the spelling but it sounds like that) Recently, I told my branch clerk Tony, will you please enter my chambers, do not issue any clearance. What you have to do is this, because we are being pestered with clearances, we do not know whether actually we are giving a clearance to the offender or not, because there had been so many cases that were filed in our courts and in several courts. One is rape, the other one is homicide, the others are estafa etc.. And I said, look the better position to take is simple, ask him to get a certification from the Bureau of Immigration and Deportation that he is a legitimate alien who is actually either residing in the Philippines and given a permanent residency status. Otherwise if he has been only given a visitor‘s visa, why should we

give him a clearance? There is no point eh if you are only a visitor, you will ask for a clearance, why should we give you a clearance? So, as I was saying, Commissioner Santiago then was charged of 34 counts of violating section 3e of RA 3019. Before she could be arraigned, she went to the Supreme Court and challenged the filing of 34 informations against her contending that the act if ever that she committed is a delito continuado or a continuing crime and there is only one criminal intent that may be imputed against her in the event that indeed she caused undue injury to the government. The SC agreed with her and ordered the prosecutor to dismiss all the cases and refile only one information. Well that is already a decision of the SC. But I was thinking along the line of RA 3019 being a special law. A law that is malum prohibitum. IF a law is mala prohibita, does criminal intent have any business in the determination of whether you have criminal intent or not? So, if it is mala prohibita, criminal intent is not suppose to enter into the picture and therefore the filing of 34 informations are correct. But the Supreme Court said that being on ly one criminal intent etc..ah only one information should be filed against her. Now, maybe I have been saying it already but it could happen that it is debatable sometimes that certain special laws may require criminal intent and some may not. But basically, all offenses in violation of special laws do not require criminal intent. That is a general rule, except when the special law uses the word knowingly. Ok? Because if there is a word that the offender knowingly causes undue injury, then there must be there a criminal intent. But if there is no such word, simply put it was stated therein that one caused undue injury to another etc. that is different. Nevertheless, we have to h onor whatever decisions that was promulgated by the SC, because there would be chaos unless we honor their decisions.

Continuous crimes refer to crimes that are even committed only for the first time but then the offender continues to commit the same unless he has already served the

sentence, unless he has already been given amnesty, pardon or unless he has already renounced his belief for his allegiance to a particular association or party or whatever. Just like in the case of rebellion. Actually rebellion is not what you call continuing crime. While it is a continuing crime in a sense that the moment you committed the same, you continue to commit the same even if you have not actually been in the active participation of the acts being committed by your friends in the movement. But it is a continuous crime. The moment you commit it, you still continue to commit it up to the time that you have renounced your belief in such struggle. You remember the case of Umil v. Ramos and companion cases. Well, these people, Umil and others are actually NPA regulars. And they have been identified by the army and the police as NPA regulars but then they decided not to engage anymore in arm struggle somewhere in a certain part of Luzon. Instead they decided to become engaged in certain activities while employed as laborers or workers in different establishments such as those who were arrested are working in factories in Muntinlupa, some are working as laborers in certain construction sites in Las Pinas and other places in Metro Manila. When they were arrested without a warrant, they claimed that the arrest was illegal. But then as the SC has stated in that case, it said that you continue to commit the crime that you have previously committed yourselves to commit until such time as you have renounced your belief in that particular struggle of yours. So, actually it is a continuous crime which is different from a transitory crime.

 A transitory crime is a crime where any of its elements or any of its ingredients may have been committed in another place and that you can file the case in any of the places where any of its elements or any of its ingredients was committed. An example of which is violation of BP22, illegal recruitment in a large scale, syndicated estafa etc. Look, even in syndicated estafa, there is only one criminal intent there. So you have a problem with syndicated estafa this time because the people engaged in syndicated estafa has already covered almost all parts of the country and that their victims are from different parts of the Philippines. Some of them have never filed cases against this people. Some are only intending to file their cases in the places where they have been victimized. The problem there is how to go about trying these cases because if it is a syndicated estafa, there is only a single criminal intent especially if that person by the use of a corporation collects contributions from the general public and actually their purpose is defraud the people from whom they collect money or whatever. You have now several syndicated estafa cases, the problem is there are others who file separate cases against them. If we are going to have them consolidated, how about the others who did not file but chose to file later on, what would happen? Under the theory of

delito continuado, there is only one criminal intent. How about the others who were not able to participate, then who decided only to participate later on? This is the problem. Kagaya nitong mga… sina Baladjay, sina ano? They are a problem eh. There are cases

in Manila of syndicated estafa. There are cases in Makati of syndicated estafa. There are even cases of simple estafa; there are cases in Paranaque etc. I think the Secretary of Justice should take a hand on this to consolidate all these cases only in one court. Because using the theory of delito continuado, there is only one crime that was committed and that is syndicated estafa. That is the problem in delito continuado in relation to one criminal intent. Even if the others may have been committed in different places, you have to file only one single criminal action in any of the places that the syndicated estafa was committed. So if you are the defense counsel for, say for example any of those kinds of accused, you have to move to quash or to dismiss the other cases in order that the same will be consolidated only in one court. And that there will be no different resolutions from the other courts, kasi, there is one that is one that is filed in Cebu- syndicated estafa. There is one filed in Makati. The accused will naturally file a motion or a petition to bail in both courts so that she can enjoy temporary liberty while she is being tried. There could be tw o different rulings. Let‘s say the Cebu court granted the petition for bail but the court in Makati denied. Pano ka ngayon? There are two. Then it would result to forum shopping. It would result to an accused being placed in double jeopardy or it is really a mess. So, we have to study how are these particular continuing crimes or delito continuado may be resolved because it would greatly affect our citizens in the event that such kinds of crimes are committed.

 Alright transitory crimes, well BP22. Example, a check was issued in Hongkong payable in Singapore. But the parties went to the Philippines, had a good time. They played golf at Wack-wack. That is where the check was delivered to the other party. If the check bounced, can ….

(CUT…NEXT SIDE OF THE TAP E)

 Yes, there is already one case decided by the Supreme Court. These are what we call transitory crimes that well, one element may have taken place in one place, others may have taken place in another place etc. Here you can file the case in any of those places where any of its essential elements or ingredients have been committed.

Ok, any questions?

Now, let‘s go to penalties. Penalties for principals, accomplices, accessories. Penalties

for consummated felony. Penalties for frustrated felony. Penalties for attempted felony. I have adopted a little system and most of you who were my students in Crim 1 are familiar with this. It is very easy how to do it and I will repeat so that you will remember the simple rules.

Now you there a principal, the equivalent of the principal is naturally consummated. Now you have accomplice, you have accessory, you have frustrated, and you have attempted. In the computation of penalties, naturally if the law says that the penalty of reclusion temporal shall be imposed upon a person who shall be found guilty of the crime of homicide. The law speaks of homicide being consummated and that the person who will be sentenced to reclusion temporal is the principal. That is given. That is what the law intends or the provision of the law should be interpreted. Now, so let us say that in the crime of homicide, the principal committed the same so it is consummated, the penalty is reclusion temporal. No problem. But supposing that the crime committed is a frustrated homicide, what penalty shall the principal be meted out? Or what is the penalty for the principal in a frustrated homicide? The penalty shall be one degree lower. One degree. So one degree lower would be prision mayor. Alright! Supposing that the offender is a principal in an attempted homicide, the penalty shall be 2 degrees lower which is prision correccional. Ok? Very simple because all that you have to do isif the crime is frustrated, one degree lower. If it is attempted, two degrees lower. Now, the principal naturally gets the full penalty. If he is an accomplice, one degree lower. If he is an accessory, 2 degrees lower. Ok? That is very simple. So, if he is I said the principal and the crime he committed is in the attempted stage, the penalty that should be imposed upon him is 2 degrees lower from the penalty imposable on the principal in a consummated felony. In the case of homicide, naturally the penalty is prision correccional, because it is 2 degrees lower from reclusion temporal. Now let us say that the offender is an accomplice, he committed the crime of homicide, it is consummated. So the penalty will be one degree lower from the penalty imposable in the crime of homicide. That is prision mayor. If he is an accomplice but the homicide is committed in its frustrated stage, the penalty shall be 2 degrees lower from the penalty imposable by law. So 1 and 1 is naturally 2. 2 degrees lower from reclusion temporal would be prision correccional. Now, if the accomplice in the crime of attempted homicide is to be

punished, the penalty shall be 3 degrees lower. So, if he is an accomplice to an attempted homicide, the penalty shall be arresto mayor. Ok? If the accessory committed a consummated felony let‘s say homicide, how many degrees lower would

be the penalty to the accessory? 2 degrees lower already because he is an accessory. From reclusion temporal it would be only prision correccional. Supposing that the accessory committed only frustrated homicide, the penalty shall be 3 degrees lower.  And what is 3 degrees lower from the penalty of reclusion temporal? Arresto mayor. Now supposing he is an accessory to an attempted felony, the penalty is arresto menor. So a person who might have committed an attempted homicide but he is only an accessory may be punished only by a penalty from 1-30 days of imprisonment. He may even be punished by only one day if he pleaded guilty because it is to be the minimum of arresto menor. In knowing this simple computation of penalties, if you know this computation it will help you a lot in the event that a client would come and see you.  Atty. Ako ho ang nagtago ng balisong eh atty. Hinuhuli ho ako ng pulis, hindi naman ho ako kasama dun sa patayan eh kaibigan ko ho yung pumunta sa bahay. Tinago ko nahuli ho ako. Ano ho ba ang kasalanan ko atty? Kung sakali ho at mapatunayan ako na may kasalanan, anong sentensya ho ang maibibigay sa akin? Naturally, the man would be worried, he might be thinking ay taon ito, years. Huli ako accessory. Or he may not even know that he is an accessory. But because you are familiar with the participation of the offenders, you will just tell him don‘t worry I‘ll take care of your

case. Are you hiring me? Alright, sign an agreement that I am your lawyer. How much is the fee sir? Eh, kung mayaman sumingil ka na. Then all that you have to do is just tell him, ako na ang bahala sayo. You will be sentenced up to only 10 days of imprisonment, probation ka pa. Sigurado ka ba atty? Just plead guilty. If he is a minor, patay libre. Because minority is a privileged mitigating circumstance of which he is entitled to a reduction of one degree lower and there is no one degree lower for arresto menor. Masayang-masaya ngayon yun. Ang galing ni atty talaga.

The illustration on the board is as follows:

Homicide Principal

Consummated Reclusion Temporal  Accomplice Frustrated Prision Mayor  Accessory  Attempted Prision Correccional

So, this simple computation, I know that most of those who are here were my former students in Crim 1, some I do not know whether there are some who were not my former students. This is the way how to compute. It‘s very simple but if you read the law, I don‘t know if in a week‘s time you will be able to know how to go about

computing these penalties. Can you? Within a week? Within 10 to 15 minutes by this simple explanation you know already what you are going to do even if they ask you in the bar exams, this is simply the formula and you will never get lost. In any other penalty, you will never get lost. That is how simple it is. Papahirapan kayo ng iba. Paiikutin kayo but eto lang yun eh. Do you have any questions? No questions? Alright.

Well, of course, we are already in penalties. That is why we have to know what probably could possibly affect penalties. They are the modifying circumstances. And you know that we have discussed already aggravating, mitigating circumstances, mitigating privileged and ordinary. Aggravating you have the qualifying, the qualified, the specific, the special, inherent, the ordinary. You will note that there are certain crimes of which an aggravating circumstance is in by itself is inherent. Say for example, what is inherent in certain crimes? Well, naturally in cases of estafa, there is always evident premeditation. Well, in certain crimes such as rape there is always treachery most of the time. So they are inherent in the commission of the crime. Even if they are present, they cannot be considered as aggravating. Even in mitigating circumstances, there are in some cases that we have discovered inherent mitigating circumstances. But although they are inherent mitigating circumstances, they may not be considered as modifying circumstances. In the case of rape, the offender is physically or he has a physical

defect. A physical defect by itself is inherent mitigating. But would it be a modifying or mitigating circumstance in the crime of rape if he is the offender? Naturally it is not. But it will be aggravating if the person who is raped is suffering from physical defect. It is actually even a qualified aggravating circumstance. So you see there are instances where the determination of modifying circumstances are very, very important. That is why the rule now, under the rules of criminal procedures, with respect to aggravating circumstances is that they must be alleged in the information. Failure to allege that you cannot prove it. And even if you were able to prove it, it will not be taken as a modifying circumstance to aggravate the penalty that may be imposed or even to qualify the crime to a more serious one. There are usual mistakes that are being committed by lawyers, even prosecutors, even some judges. It has been my experience in the bench say for example in the crime of estafa or in qualified theft, both may be committed by abused of confidence. But is mere abuse of confidence enough in the crime of qualified theft? No, it is not. So it becomes an inherent aggravating circumstance in qualified theft if it is grave abuse of confidence. It even qualifies a mere crime of simple theft to that of qualified theft. There are so many ah remember that ..qualified theft always grave abuse of confidence. Pag wala kang nakitang grave sa information sa qualified theft, huwag mo ng turuan yung prosecutor. Do not call the attention of the prosecutor or even the judge, do not call his attention. Pabayaan mo, let your client be arraigned. Can the judge convict him of qualified theft? No, because there is no allegation of grave abuse of confidence. Wala, so he can be only found guilty to a more lesser offense of theft. But then, delikado pa. So, look ladies and gentlemen, you have to be familiar with all these, because if you are very familiar with the aggravating circumstances, the qualified circumstances, the qualifying aggravating circumstances, the ordinary, the inherent aggravating circumstances, that would be a lot of use to you. Even in the bar exams, we do not know eh what would be in the mind of the examiner, although in my experience, it is very rare as the rains in May when they are going to ask you to compute penalties. But there was a time when they asked examinees to compute penalties and the percentage given is 15%. 15! So, if you do not penalties, bye bye baby. Your only chance of getting a passing grade is to know everything aside from the question regarding penalties. You might probably get about 80, 75 but definitely the chances are you will be having a difficult time.

 Alright by Wednesday, I will discuss further- penalties, etc. and those which I have not discussed which are still a part of Book 1. Going into penalties, we will discuss the indeterminate sentence law and how to compute the penalties that should be imposed applying Indeterminate Sentence law. Then we will go to probation law and then we

will go to other special laws that have connections with Book 1 of the RPC. Remember, that PD603 has already been amended and not only amended but actually overtaken already by even a new circular of the SC. That is a memorandum circular of the SC regarding juveniles in conflict with the law. These memorandums actually are in the nature of laws but then, well, the SC will apply them whether you like it or not.

If I discuss penalties fur ther, it will take me more than 30 minutes so it‘s useless because I want to start from the very beginning in order that you may be able to understand fully what I am saying especially those that involve the application of the indeterminate sentence law. Those that I have missed, I am going to discuss so that you will be well-rounded after we finish book 1 of RPC. Let us then meet on Wednesday.

~~~end of tape~~~

DATE: JULY 23, 2003 By: Charmane Kanahashi While MANE‘s eating a bag of CHEETOS…

The FINES may be a part of the penalty either and or a fine which accompanied an imprisonment or that the fine is the sole penalty that was imposed by the court. The rule is if the penalty of imprisonment is already afflictive or more than 6 years, and there is also a fine imposed in the same penalty to the accused, no subsidiary imprisonment if the fine is not paid by the accused, that is the rule.

 You will note that there are so many laws which imposed the fine despite the fact that the principal penalty of imprisonment is already afflictive in nature. When however, the penalty consisting of imprisonment is correctional in nature or that it is a light penalty, the accused, if every there is an accompanying fine, must have to serve a subsidiary imprisonment in the event he fails to pay the fine.

In the case where the fine is not made or is not paid, and the penalty is correctional in nature, or even arresto as the case may be, the subsidiary imprisonment shall not be more than 1/3 of the principal penalty of imprisonment but it cannot exceed 1 year. Say for example the accused was sentenced to an imprisonment of up to 4 years and 2 months of prision correccional that is the maximum, and a fine of P6,000, if the accused failed to pay the fine, he will serve subsidiary imprisonment but the latter shall be 1/3 of the penalty imposed in the maximum which if you compute the same, the subsidiary imprisonment for P6,000 will be more than a year, so the subsidiary imprisonment even if computing the same to reach up to 1/3 only, the same will still exceed 1 year. Thus, the subsidiary imprisonment to be imposed upon the accused should only be up to 1 year and it cannot exceed the same even if it is less than 1/3 of the maximum of the penalty to be imposed.

 Alright. In connection with the principal penalty of fine, if the principal penalty of fine is imposed, according to the law, the maximum subsidiary imprisonment that the accused should serve, cannot exceed 6 months. So even if the fine is P1M, you will compute probably the subsidiary imprisonment at P8/day, that would be how many years huh? P1M? P8/day? Patay ka d‘on, ha. But then the law only says that if the sole penalty if a fine, the subsidiary imprisonment cannot exceed 6 months. 6 months lang ‗yon?! This is

important because although the SC have toned down a little in cases of BP 22, when the SC issued a circular, even to the judges after deciding 2 or 3 cases, in connection with violation of BP 22, wherein the SC categorically stated that if the offender in BP 22 is a first timer, the penalty that should be imposed should only be fine equal to the value of the check that bounced. People were expecting subsidiary imprisonment d‘yan

if they cannot pay the fine, and that it should be at P8/day if they do not know the rules regarding subsidiary imprisonment, then they will say ah P1M at P8/day, how many days will P1M be at P8/day? It will be about more than maybe 10,000 or even 40,000 days, how many days are there in a year? How many? 125,000 days and if you convert that into years, (background: 342.4 years). HAHAHA! Do you expect him to live that long?! So, well, the law is, shall we call it, correct in saying that well, if it is simply a fine, it cannot exceed, the subsidiary imprisonment cannot exceed 6 months. I will repeat. If the penalty is already afflictive, and it involves an imprisonment even if the offender failed to pay the fine or refused to pay the fine, he cannot suffer for any subsidiary imprisonment in the event that he refused or fails pay the fine. He cannot because that is the law. OK!

There is actually no problem regarding subsidiary imprisonment as long as the penalty that was imposed are correctional or light penalties because there is a specific rule. It shall be at least 1/3, cannot exceed 1/3 of the principal penalty of imprisonment but even if it does not exceed 1 year, it still cannot exceed 1/3 if the subsidiary imprisonment consists of 1/3, the 1/3 cannot still exceed 1 year. ALRIGHT!

Then, we discuss the death penalty before we go to the Indeterminate Sentence. The death penalty law which is covered by RA 7659 amending the provisions of the RPC, is actually only almost a repetition of the old law. There are only very few, shall we call it, amendments.

The law says that the death penalty cannot be imposed upon a person who at the time of the commission of the crime is less than 18 years old and to those who at the time of the promulgation of the sentence is already 70 years old or over. The reason being that a person who less than 18 years of age has not yet reached physical and mental maturity to make him suffer the supreme penalty of death. On the other hand, a person who is 70 or over is only a few steps from the grave. So, you can wait for only about 5 years, 10 years and that will be his ―the end.‖ And because, you know, this people are

already old. We consider them actually as people who deserve not condemnation but sometimes compassion. We have had occasions of seeing already old people who still commit certain crimes. ALRIGHT!

How about suspension of the implementation of death sentence? According to the law, a woman who is pregnant and w/n a period of 1 year from date of her delivery, she cannot be executed. And the execution shall be suspended. Another one that was enumerated under the law is that when the offender has reached the age of 70 or more. The last portion of the article is not only confusing but is wrong! When you speak of suspension, naturally you speak of, shall we call it, executing the offender in the future. Because that is suspension eh! There will come a time when you will execute him but if he is an old man already, you cannot even impose the death penalty to a person who is 70 or over, how much more execute him? So that provision of the law, I think, has been misunderstood. Not suspension huh? But, would rather be that, it should be that the person who has reached the age of 70 cannot be executed. Alright!

There are only 2 instances where the execution of the death sentence can be suspended. The first is about the woman and the second is when the person becomes insane after the finality of the judgment huh? And if he became insane after the finality of judgment, you have to wait until he regains his sanity or when he regains a lucid interval. But if he did not regain his lucid interval eh he stays in the mental institution.  Alright.

 According to the law on death penalty, the moment that a lower court, that is the 2nd level court, the RTC or SB imposes the death penalty, the accused need not appeal because the law provides for an automatic appeal. Well, for record purposes, the accused files a notice of appeal but even if he does not file any notice of appeal, the records of the case shall be transmitted and forwarded to the Honorable SC w/n 20 days from the promulgation of judgment. And that if the records of the case is not complete, particularly, those that are lacking in TSNs from the date of transmittal to the SC, the steno reporter should see to it that the transcript of steno notes be completed and submitted to the SC w/n 15 days. You all know that when the records of the case are already complete in the SC, the SC will issue a resolution directing the parties to submit their respective memorandum. Well, usually, the government is represented by the SolGen and the accused will be represented by his counsel on record. If the memorandum and all other papers are already complete, the period w/ w/c the SC shall render judgment must be a period w/n 1 year from the completion of the record of the case. But that is already an impossible task! At the present, it cannot be accomplished. The SC will not be able to decide a case where the penalty imposed is death w/n a period of 1 year. That is impossible. There are how many death convicts who are waiting for the final decision of the SC? There are more than 1,000 death convicts in the death row. So if, say for example, all of them are submitted, considered submitted for decision, the SC has to decide at least 3 cases everyday including Sundays and holidays. 3 cases a day?! That would be an impossible task! It is the, those who passed the law did not realize that it will come to a point where the SC will be deluged of this kind of cases. They should have passed a law that is more realistic. The SC cannot ask for an extension, can it?? I t‘s the law. So, they can ask an extension to God. That‘s the only thing that they can do probably. But then when the lower courts are the ones who are supposed to resolve pending incidents, they are very strict. Okay. If the SC finally decides the case and it has attained finality, it is the duty of the SC, under the law, to forward the records of the case to the Office of the President w/n 20 days for review purposes in relation to the exercise of the power of the President to grant pardon or commutation of sentence or you know, conditional pardon or whatever hmm.. And the

Office of the President has also 1 year to decide whether the President shall grant pardon or not so the accused will have to wait for 2 years. But that is, shall we call it, a long time. Alright!

If the President does (sic) not decide to grant pardon or any of the clemencies that the President has in his powers, the Office of the President is required to return the records to the SC and that the SC upon receipt of the records has also, not only the authority but the obligation to remand the records of the case to the court of origin, the 2nd level trial court. Why is it that the records of the case has to be forwarded to the 2nd level courts, to the RTC or SB? Actually, the old law has provided for certain rules and regulations in connection with the execution of the death convict. Under the old system, it is the lower court who upon receipt of the records of the case that will fix the date of execution. Now, no more. I don‘t know what is happening but what I‘ve read from the

rules and regulations of the Bureau of Corrections is that the Director of Prisons that schedule the execution of the convict. Although I believe that it is wrong because it should be the court which should schedule. It should actually determine the date of the execution of the convict. Now, the convict must be only informed of his execution before sunrise of the day of his execution and execution shall not take place until 8 hrs. thereafter giving way to the accused to, shall we call it, call his family, to call the minister of his faith or his priest or whatever, call his lawyer to assist him in the disposition of his properties, call his physician for him to know whether he is still healthy or not, he might migh t be insane already or whatever and he actually has the privilege of even calling for his friends and family those whom he wants to confer. The conference shall take place in his chambers or in the place where he is confined. And he can actually make use of the 8 hrs. that is allotted to him. It used to be that the Bureau of Corrections has a practice then before the new law has been passed that prisoners to be executed may ask for their last meal and they have the choice of their last meal. The usually ask, during th ose times, Maxx‘s Fried Chicken, isang buo, Maxx‘s noong unang panahon pa ‗yang Maxx, Maxx na ‗yan! Wala naman noong KFC, Kenny Rogers, wala namang Inasal noon or whatever. So Max parati ‗yan and others will ask

for a little caviar here and there etc. but now, the prisoners, the convicts who are supposed to die by lethal injection are not being given that privilege anymore. Their last meal shall consist of the same meal that other prisoners are taking. Sabi nga nung Bureau Director, ―bakit pa pakakainin ng masarap ‗yan eh papatayin din naman?‖ But it

was then during the time of Pineda, Canal, or that one from Bacolod, they were even asked what food they want etc. even if they ordered the best in town, they will be given to them. Now, no more. ALRIGHT!

During the execution of the convict, his relatives may be present his wife etc., those who may want to watch his execution but then the number of persons who shall witness the execution should be limited by the Director of Prisons. You know of course that the PRESS are the ones who are most interested in covering the execution of a death convict. Piyesta nga daw ‗dun ‗pagka may execution eh. Unlike in the US where it

is actually not an event that would be carried all over the radios, TV, etc. Hindi eh. They do it as a matter of course. Dito, it is a sarswela. And that, well, the usual procedure in connection with the PRESS is that they cannot all be accommodated during the execution so what they are going to do is draw lots. ‗Pag nabunot mo ikaw ngayon, ikaw, ikalawa ikaw, alright, ‗yung mga iba, wait na lang kayo. You have to wait for your

turn. OK..

There will be 2 physicians who will attend to the death convict and they shall also be the ones who should declare him dead. When a death convict has been declared dead, what? His body may be claimed by his relatives. By his family. If the family claims his body, then it shall be given to them with instructions from the Director that the body of the death convict cannot be buried with pomp. If no relative/s claim the body of the death convict, any medical or scientific institution or school may ask the Director of Prisons that the body of the death convict be given to them for scientific or medical studies and the body shall stay with them for not more than 1 year. And after such period, the scientific institution or school shall cause the burial of the death convict in one of the public cemeteries and the burial shall be that of a pauper‘s burial. In the

event that nobody would want the body anymore, no relatives, no institution etc. is interested in the body of the death convict, then the Bureau Director shall see to it that the body of the convict which has been executed shall be buried in the public cemetery inside the Bureau of Corrections in a pauper‘s burial. So,  that ends the, shall we call it, the procedure in connection with the execution of the death convict etc. and the disposition of his body. OK! Do you have any questions? No questions? Alright, let us proceed to the Indeterminate Sentence Law.

The Indeterminate Sentence Law is actually, an application of the Positivist Theory. You will recall that the purpose of imposing a penalty under the Positivist Theory is to reform, to rehabilitate or to correct the errors of the ways of the offender. Yes.. (background question: In the case of lethal injection, what will happen if the dosage was inadequate to kill the person? Can the procedure be performed again? Yes. How

many times? Until he dies!) There was a case, actually, there was an incident that happened in the Phils. When the method being used then in executing a death convict is through electrocution. 5,000 volts of electricity was set through the body of the death convict but he did not die! He did not, 5,000 volts ha. They increased the same to 7,500, hindi pa rin. They increased it already to 10,000, ‗ayun patay. So the same is true in lethal injection. But they will remember or recall the case of Echegaray, that his lawyer, Atty. Teodoro Te, on a question of law, filed a case for the SC in connection with the implementation of the mode of execution of Leo Echegaray. It is being argued by Atty. Te at that time, that when the crime was committed by accused Echegaray, the mode of putting a person to death at that time is through gas chambers. But during the interregnum, while his appeal is being reviewed by the SC, the Congress passed another law changing the mode of execution from gas chambers to lethal injection.  According to Atty. Theodore Te, the accused should be executed by the mode of execution at the time of commission of the crime. So the SC, well, the only why a person is being executed after he has been sentenced to death is to put him to death. The manner with which a person may be put to death is not anymore a legal issue. It could be by any other means which the law has permitted. If it is lethal injection, even if that is not the means of putting to death the convict on the day of the commission of the crime, it shall still be through lethal injection that he has to di e. There is no problem anymore in connection with the means and methods with which the accused may be put to death. OK! Any other question? (background: Judge, what does it mean when a person is sentenced with 3 death penalties?) Actually it is only a, shall we call it, a description of the penalties that the court has to impose but there can only be one execution because he only has 1 life. The court usually, for purposes of, shall we call it, informing the world that such person has committed 3 crimes of which the penalties are death. So they will impose 3 separate penalties of death but he can only be executed once. Some even have been sentenced to as many as 12 death penalties but the SC said that well, there is only one life that can be executed and if the same has been executed, that is the end. ALRIGHT! Yes.. (background: What if the imposable penalty is death penalty, can the government not impose it, for example the case of extradition of a foreigner to the US, the SC has condition for the extradition, there is a condition that death penalty will not be imposed?) Actually, that is an interference to the independence of the Phils. Why?! Why should they impose that condition? I know what you‘re talking about, sa Atong Ang? The court in the US has agreed to hear the petition

for extradition and then set their conditions which the Phils. has to follow otherwise, they will not hear the extradition case. They look upon the Phils. as a subordinate, huh? huh ? Na dapat sumunod na lang tayo sa utos nila. I mean if they are encroaching upon the independence of our country, they should not impose such a condition. Maybe they can, shall we call it, on the side, just make ―bulong‖, ―sige I will help dito, I will help dito

pero you tell your President, you tell your people there that he should not be sentenced to death.‖ Because Atong Ang has already informed the authorities of the US that if he

is deported to the Phils. or if he is extradited to the Phils., he will be sentenced to death. He will not get even an inch of favor from the government. I thin k that is wrong; that is not supposed to be flaunted by the US that they can dictate upon us on what to do with a certain person who has been accused of a crime? Di pu- pwede ‗yon. Can we impose that also? If we want a person to be extradited to their country? Sabihin natin  ―a di pwede, we will only extradite this person to your country coun try if you will not sentence him to death.‖ Oh, are they not going to cry foul? Are they not going to howl etc?

Sasabihin nila terrorist na tayo so that they can declare war against us. Any other question? ALRIGHT, let‘s take a break then I will continue with the Indeterminate

Sentence Law.

Sneeze! (Bless you, Judge!) The SC has come up with a decision lately that all penalties to be imposed by the Court when the maximum exceeds 1 year, except on one instance, shall have a minimum and a maximum. In other words, there is no more straight penalty when the maximum of the penalty has exceeded 1 year, except for one. It used to be a practice of the courts to impose straight penalties if they do not like the accused. Because, if a straight penalty is imposed, the accused must have to undergo imprisonment up to the last day of the penalty imposed upon him. But according to the SC, this violates the right of the accused to enjoy the privileges under the indeterminate sentence as the ISL encourages good behavior while a person is serving sentence. You will note that even under several provisions of the RPC, reduction of penalties are allowed when one escaped during or on occasion of calamities, well, for good behavior, they are being _____ allowances for good behavior up to 15 days a month if they have already exceeded serving sentence of more than 10 years. So this actually encourages good behavior to the accused. Now, the ISL does not apply to the following, does NOT apply ha! It does not apply to those who had been sentenced to indivisible penalties such as death, reclusion perpertua and life imprisonment. You cannot apply the ISL because there is no, shall we call it, periods that the same may be lowered to and that although there is a range of the penalty of reclusion perpetua and life imprisonment, such penalties still remain indivisible. There was one time when the SC considered reclusion perpetua as a divisible penalty and that was when they decided the case of People vs. Lucas. The SC then committed an error when the SC declared that reclusion perpetua having a range of from, 20 years and 1 day to 30 years then, is a divisible penalty. But when the OSG asked for a clarification, the SC, in a one-page resolution, said that reclusion perpetua is NOT a divisible penalty and it shall remain as

such. Now, the provisions of the ISL shall not also apply to penalties which does not involve imprisonment. These penalties are destierro and suspensi on. I don‘t know whether it‘s included in your book but definitely you cannot apply the ISL the penalties

which does not involve imprisonment. It should always be a straight penalty or a penalty of which the time is fixed. Also, the indeterminate sentence do not apply to penalties the maximum of which do not exceed 1 year. Aside from that, the ISL do not apply to crimes of treason and others which are included in crimes against national security. Also, it does not apply to crimes against humanity or against the law of nations such as piracy, mutiny and even hijacking. These are the instances where the ISL does not apply. ALRIGHT!

There is a difference when the law says that the BENEFITS of the ISL shall not apply because the benefits of the ISL for felonies ha, for felonies, hmm, as you will find out hmm, except those which are enumerated ha, under the law such as treason etc. piracy, the accused shall enjoy a certain benefit if the crime he committed falls under the category of a felony or even if it does not fall under the category of a felony if it is a special law but it uses the penalties common to felonies under the RPC. Now, the benefits of the ISL do not apply to crimes of treason etc. to piracy etc. ha and also to those who are habitual delinquents. What is the meaning of the same? Well, the benefits of the ISL for crimes considered as felonies or for those offenses which uses the penalty common only to the penalties provided under the RPC, would simply mean that the minimum shall be 1 degree lower and the maximum cannot exceed the maximum fixed by law after considering the modifying circumstances. On the other hand, the ISL if applied to special laws or those which the benefits of the ISL do not apply, the minimum shall be the minimum fixed by the law and the maximum cannot exceed the maximum fixed by the law. Although the sentence is still indeterminate.  ALRIGHT!

Let us say for example that a person is charged of a crime which is punishable under the RPC and that let us supposed that the penalty provided for by the law is prision mayor. Alright..If you are going to the explanation of the SC in some cases, you will note that the SC says that you should first, determine the penalty to be imposed upon the accused without and then apply the ISL and after applying the ISL, you determine the modifying circumstances. That is what the SC has ruled in several cases. But, the most practical and easiest way of determining the penalty which will arrive in the same, shall we call it, penalty and which would be more easier for the courts and the students

of law to understand is, and I think the SC will change his mind later, is for the court to determine first what are the modifying circumstances present, apply the modifying circumstances present, and after applying the modifying circumstances, then, apply the ISL by getting the minimum of the penalty by, shall we call it, going down 1 degree within the period as provided for under the law. Say for example, the penalty is prision mayor, naturally prision mayor has 3 periods: minimum, medium and maximum. Let us say there is an aggravating circumstance and no mitigating circumstance, if such be the case and the accused is not a habitual delinquent, then he is entitled to the benefits of the ISL, the minimum penalty that shall be imposed upon him should be 1 degree lower from prision mayor maximum because you had already considered the modifying circumstance. Hence, the minimum thereof, is prision correccional in its minimum period. So it is easy. Now, you just get the range of prision correccional in its minimum period, get the range of prision correccional in its maximum period and prision mayor in its maximum period. The range of prision correccional in its maximum period is an imprisonment of from 4 years, 2 months and 1 day to 6 years while prision mayor in its maximum period is an imprisonment of from 10 years and 1 day to 12 years. Now, this is where the discretion of the judge will come in. Actually, it is not sometimes the discretion eh. Well, I will say it is still the discretion when there are no outside factors which will affect the decision of the judge in the computation of the sentence. My usual practice whenever I decide a case is to leave out the computation of the penalty for the morning prior to the promulgation. The reason being that although, I can trust some of my employees, but kasi some of them cannot help sometimes but to open their mouths eh. Di ba? Titingnan ‗yung kaso, ―Uy, hanggang 20 years pala ‗to. Eh kung ma impormahan ‗yong, if the accused suddenly gets _____ of the fact that the maximum of the penalty that will be imposed upon himself is 20 years, you cannot expect him to be present the next day during promulgation! Yes! So what I usually do is, well, I go to the office early in the morning, ve ry early in the morning. Maybe about 6:30, I‘m there already. And, I prepare the computation and of course after finishing the computation if the stenographer who knows how to type or how to encode the decision in the computer, then she will be the one to finish it. By 8:30, the whole decision is already complete and that what I have to do is just sign it. Well, as I said, it depends upon the time when the judge prepared the computation. Eh, supposing the judge is having a bad day that day. The judge probably woke up on the wrong side of the bed and maybe when he was trying to start his car, it wouldn‘t start and well, he has to go to

the repair shop to ask his auto mechanic to remedy the situation. Mainit ang ulo niya. That would be his start of the day. When he arrives in court, the accused did not even greet him ―good morning.‖ The accused has been there early but he has 2 -3 bodyguards with him as if he is going to a place where he is going to fight other people. So, that would be etched in the mind of the  judge. ―Eh, dadala-dala pa ng bodyguard

 ‗to, ano ba ‗to?‖ ALRIGHT! So let us say for example that the judge will now compute the penalty, the judge will naturally take that into consideration. ―Salbahe ‗yan ah. Di man lang bumati.‖ Mainit ang ulo. ALRIGHT . He will sentence the accused to an

indeterminate sentence of from 6 years of prision correccional as minimum to 12 years of prision mayor as maximum. ‗Yun lang, di lang siya binati no‘n. Medyo ayaw lang umistart ‗yung kanyang kotse. Is his decision correct? Yes, his decision is correct. It‘s

still within the range of the penalty. Oh, pero dumating si judge, maagang-maaga. Nakita niya ‗yung akusado maayos ang bihis even if his clothes has seen better days

etc. but it is still neat, it is, shall we call it, freshly pressed even if his shoes is almost a rundown one, it is still clean, you saw his children, they are very, very respectful of elders. You see the wife, looking very sad. They knew, they knew that the accused will be sentenced, but then, they are there. The whole family are there. In other words, these people, maybe you know, maybe, have strong family ties. Which is what is needed. So the judge will consider that, ―eto naman pala mabuti mag pamilia.‖ ―kasama pa mga anak.‖ etc. ―Siguro napilitan lang ito.‖ Well, we always think of the better way

how to deal with these people. So what would be written by the judge there, computing the penalty. ―the accused is here by sentenced to an indeterminate penalty of from four years, two months, and one day of p rision correccional…‖ 

~~~end of tape~~~ MAJAH‘S NOTES:

Computing the minimum, medium and maximum in ISL Example: Penalty is prision mayor in minimum and medium (6 years and 1 day to 10 years)= 10 years difference 1.) convert 4 years into days = 1460 2.) divide into 3 3.) add the 1st 1/3 to 6 years and 1 day, it will be the minimum 4.) add 1 day to the maximum in the result in #3, it will be the medium 5.) add 1 day to the maximum in the medium period until 10 years, it will be the maximum period.

DATE: July 30, 2003 (Azenith Viojan) THREE-FOLD RULE --xxx---

DATE: August 4, 2003 By: MajArvin

EXTINCTION OF CRIMINAL LIABILITY Criminal Liability may be extinguished by the death of the offender but when it is the offended party who dies, the criminal liability of the offender is not extinguished. The death however of the offender also extinguishes his pecuniary liabilities or personal liabilities. But then, the offended party has still a recourse in order to recover the civil liability that the offender may have incurred by reason of having committed a crime. The claim of the offended party may be lodged against the estate of the offender as long as the offender dies prior to the entry of final judgment of conviction and of course, on the civil aspect of the case. Now, when the offender dies after the entry of final judgment, the rule is different. Although the court sometimes issues a writ of execution, that writ of execution cannot be implemented as against the estate but that writ of execution may still be of some use to the offended party. How? When delivery to the administrator as a claim against the estate but the same shall not be enforced. It is one of the preferred credits or it is one of the liabilities which must be paid by the estate in the event that the administrator or the executor has already gathered and determined all the properties of the deceased including the debts, expenses in relation to the administration of the properties including of course some of the preferred expenses such as burial and funeral expenses and sometimes an order from the court to pay attorney‘s fees which may be a part of the expenses. Only after all these

liabilities that the estate may be distributed among the heirs, legatees and devisees etc and that would be the end of the settlement of the estate of the deceased person. But in respect to these contingent claims wherein there is no judgment yet as to the civil liability of the offender. What happens? Can it be tried in the intestate proceedings? File a separate action against the estate. Of which the administrator upon authority of the court may be allowed to defend the interest of the estate as against the claimant. It is

only when there is a finality that the interest of the claimant may become a reality; that when there is a contingent claim what would be the natural reaction of the administrator or the executor. When there is a contingent claim, the heirs must be ordered to post a bond when the property is already distributed to them. Bec the administrator or executor cannot forever hold on to the properties of the heirs as it may dissipate and later on his bond will answer for those losses that may be incurred by the properties. So, this will become contingent claims. Then if the heirs are given already their respective shares, they will be asked to post a bond to answer to any or all contingent claims that may be adjudged against the estate by virtue of a final  judgment. And it is against that bond that that contingent claim may be enforced.  Actually, not against the estate eh. Although theoretically, you sue the estate di ba in a separate action. You cannot claim that damages in the intestate or estate proceedings of the deceased. Did you get me? (4B:YES) Kung walang claim there is no problem eh. If there are already final judgment, you lay a claim against the estate. And all of this will be paid before the residue will be distributed to the heirs. But if there is a contingent claim still it is the duty of the executor or administrator to see to it that the all these properties are all ready after the payment of all the liabilities etc. the estate are distributed. But this is the time when the heirs will be asked to post a bond bec there are contingent claims here amounting to maybe 10 million. If ever there will be a final judgment against the estate, naturally the easiest way of being able to recover your claim is against the bond, not anymore against the estate. The claim must be made within 2 years from when? From the final settlement of the estate? YES, from the final settlement of the estate of the deceased person.

Well, there are others, pardon, amnesty, marriage by the offended party with the offender and well, forgiveness by the wife on the offending husband in cases of marital rape. And there are others, say for example, pardon by the offended party given to the offender in private crimes prior to the institution of the criminal action. There could be other grounds, say for example, in relation to civil liabilities, the pardon by the offended party on the offender extinguishes, totally extinguishes the civil liability but the criminal aspect is not actually a concern in connection with the pardon to be given by the private offended party or by the heirs in the event that there is already a pending criminal action. And of course, when there is a complete and absolute repeal of the law wherein in the accused may have been charged that totally extinguishes. But that repeal shall be subject to the condition that that repeal favors the accused. If the repeal will not favor the accused, it is useless. The accused will still be tried and accorded a sentence and he must be able to serve the sentence which the court has imposed upon

him. There is nothing much about extinction of criminal liability and if you want to ask some questions, ask them now before I proceed to prescription of crimes and prescription of penalties.

CIVIL LIABILITY

RESTITUTION We can go also to how civil liability is satisfied. You want the way on how civil liability will be satisfied to be discussed first? Well, civil liability may be satisfied only by restitution of the thing that has been lost, destroyed or taken if it is already in the hands of a third person. Even if it has been lawfully acquired by the third person without prejudice on the part of that 3rd person to claim whatever damages he may have sustained by reason of having bought or received such property from another as against the one who gave it to him or sold it to him. But that property must be returned to the actual owner. Of course, this is only subject to the usual wear and tear of any property of that kind bec the wear and tear of a property would depend on what kind of a property it is and for what it is being used. If that property is being used, say for example, as a passenger jeepney, naturally the wear and tear would be different from a passenger jeepney that is not being used for passenger purposes, I mean, when the  jeepney is not a passenger jeepney, it is different from a passenger jeepney.

REPARATION  And you have reparation which includes, of course, the sentimental value that a person attaches to a thing. Reparation is the payment of the actual value of the property at the time it was lost. Which may be, of course, subject to an increase in its value by reason of the sentimental value that the owner attaches to it. A sentimental value may be proven by establishing the reason for that property being in possession of the owner, the occasion with which that property was given, the efforts that he has exerted in order to preserve the same and of course, the importance which he attaches to the property and his life or in the life of the family. Those are the things that you have to consider in sentimental values. Others do not know how to prove the sentimental value. Just remember —who gave that to you? How it was given? When? For what reason? Etc. What were the things that you have to perform in order that it may be preserved etc. and then of course, the importance that you attaches to that property are supposed to

be established. Remember that when you allege sentimental value you must present evidence in relation to the sentimental value that you attaches to it. Failure on the part of the offended party to present evidence in connection with the sentimental value that one attaches to the property, no sentimental value in any amount can be adjudged in favor of the owner even if there would be an adjudged reparation of damages.

INDEMNIFICATION FOR CONSEQUENTIAL DAMAGES Consequential damages, no problem. The only problem there is in regard to moral damages. Previously, before the new case of 2003 was released, you have to prove even in cases of frustrated homicide, murder even in rape cases, about moral damages but now in a recent decision of the SC, what we have to prove is merely the fact of the commission of the crime of frustrated murder and the court may already adjudge moral damages as against the offender. There is no need of proving what were the feelings suffered by the offended party in order to prove moral damages. I don‘t know if you have come across that decision of the SC. Dati-dati you have to prove. What was not changed however is about attorney‘s fees which however should have been changed a long time ago. Accdg to the SC, you have to prove your entitlement to attorney ‘s fees

before the court should award. Look, if you are the private prosecutor, you have prepared memorandum, everything, you have signed so many pleadings before the lower court, before the SC —are you are still going to prove that you are entitled to attorney‘s fees? But then the SC has not yet changed its mind, you have to prove attorney‘s fees by competent evidence. What they want now is the billing, about

contracts, etc, agreements. Well, anyway, it will not take you 5 mins. if you are the one who is proving it. All that you have to do is to ask the witness — Mr. Witness, you said that you secured the services of a counsel, is that correct? ―Yes, sir.‖  Then, who is the lawyer that you hired to assist you in this case? ―He is the one, sir.‖ 

Will you please announce his name. He announced.  All right, in connection, with this hiring of a lawyer, do you have an agreement? ―Yes, sir.‖  Was that agreement reduced into writing? ―Yes, this is it, sir‖. All right, mark it.

 Aside from this, what are your agreements? Okay, sabihin mo na, per appearance, per disappearance (heheheJ) tapos na. You were able to prove. Because the others, they

 just assume that is what the SC do not want, do not assume. But then when it comes to the victims, the SC said that it can be taken judicial notice of that when a person is stabbed and he nearly died, do you have to prove moral damages? Not anymore. The court may take judicial notice that indeed that person suffered moral damages. And it is up to the court, based in the evidence presented, to determine how much bec the person then will announce what is his profession or what is his occupation. Whether he is a family man, who is he in his community, etc. etc. So, from there you can already make your own computation of the moral damages that you are going to award in favor of that person. Maybe even exemplary damages may not even be the subject of proof bec if moral damages is awarded, naturally, you can expect that exemplary damages may be awarded. But when you don‘t award moral damages, you cannot award exemplary damages. How can you award exemplary damages when there is no moral damages.

PRESCRIPTION OF CRIMES / PRESCRIPTION OF PENALTIES Okay, prescription of crimes and prescription of penalties. It is very easy. You just try to compare one from the other and remember the numbers. Oh, prescription of crimes, 20, 15, 10, 5, 1, 6, 2. prescription of penalties, 20, 15, 10, 5, 1. So, if you know the sequence, ah prescription of crimes —yung una tatlo yun. There are 3. itong prescription of penalties, yung una dalawa lang. Why? In prescription of crimes, the penalties of reclusion temporal, reclusion perpetua and death shall prescribe in 20 years. On the other hand, in prescription of penalties, only reclusion perpetua and death prescribes in 20 years. The penalty of reclusion temporal and prision mayor prescribes in 15 years. The same is true with prescription of crimes, only prision mayor prescribes in 15 years. That is the only afflictive penalty that prescribes in 15 years. Now, correctional crimes punishable by correctional penalties, except for arresto mayor, prescribes in 10 years.  Arresto mayor prescribes in 5 years. Then you have 1 year —libel. Then you have oral defamation —6 months and you have light felonies —2 months. I remember libel, now we are having a problem bec of the case of the firm v. Ninas Cacho Olivares. Villaraza &  Villaraza charged Olivares of 19 counts of libel. It was raffled last Friday when I did not go to the office. Napunta sa akin tatlo. Pagdating nitong umaga, kinukulit na ko ng mga former Ateneans. Judge issue mo naman na yung warrant. We promise that we will be able to secure a warrant of… I have to study whether there is a valid information,

whether there is a probable cause for the issuance of a warrant of arrest. I should be satisfied then I should know all the facts that are contained in the records of the case. Otherwise, if somebody asks me what was your basis, then I will not be able to answer them. I will look stupid…according to Jaworski when he said, ―we will all look stupid

here in this hearing.‖ That is the language of Jaworski whenever he butt in any

investigation (heheheJ) napapansin ko yun. Parati sinasabi niya, we will all look stupid. Jaworski kasi can get away with it eh. And Joker doe sn‘t even say anything. He will just be arranging his disarranged hair.

So, you will know, that is how easy it is. Just remember, if you can remember the numbers, it is very easy. If your examiner in the bar examination is prone to giving questions regarding definitions and enumerations, these are the usual enumerations that they give. Justice Vitug, now is the examiner, is fond of enumeration or give the meaning of. Look at the, if you are helping in the bar operations, previous questions last year ha. Let all the bar examinees look at the bar questions last year and see how the questions were framed bec he was the one who framed them. So, you will know his style. Your friends that you are going to help will know the style. And then read the answers that were given in the U.P. Law Center. In that way, I can assure you that would be an added bonus to the examinees if they will be able to familiarize themselves with the style of Justice Vitug bec he is the one actually handling all the preparation of the questions. He will of course allow you to prepare your own questions but he will revise it. Your question will still be your question but the way how it is framed, he will be the one to frame it. So you tell your examinees. Well, I‘ll just drop by but I‘m not the reviewee. Most probably I will just be lecturing on updates in crim law for 2-4 hours as the case maybe. I won‘t have the luxury of time to give instructions but you will be able

to help them in that way.

Prescriptions. When are prescription of crimes suspended? Well, let us say before suspension when shall prescription of the crimes commence? It shall commence upon the discovery of the crime. By whom? By the offended party or by any person or by the authorities. And it shall be interrupted when? It shall be interrupted when the person has been brought for preliminary investigations etc and is arrested, the prescription of the crime will not continue. It shall be suspended until such time as the case has been filed etc. suspended pa rin yun. Or if he went to a country of which we have extradition treaty, will the prescription of the crime be suspended? No, it will not. How about if he goes to a country which we do not have any extradition treaty? The more that it will not be suspended. Hindi rin, No…so, all that the person has to do is go to a country which the Philippines does not have extradition treaty so that the prescription of the crime will be suspended  –NO. Actually, there are some debates regarding that. They are saying

that it will be suspended etc bec he went to a country and well, he should be given the benefit of having the prescription of crime suspended.

It is different when it is prescription of penalty. If he goes to a country that we have extradition treaty, will the prescription of the penalty be suspended? —Hindi. It will not be suspended. Kasi we can always get him and serve his sentence. Now, when should the prescription of penalties commence? Ah very easy, it shall commence only from the time that the offender while not under detention, the judgment of the court became final and executory. The moment it became final and executory and he has not been arrested not brought before judicial authorities for proper disposition then the prescription of penalties will already commence. Eh di ma gtago ka lang…magtago ka ng magtago. The moment that you‘re caught, suspended na naman. You escape, you hide,

suspended na naman. Once, however, the suspension for the running of the period for the prescription of penalties has been earned by the offender, can it be remitted? Meaning to say, will the same be considered as ineffective in the moment that he has been arrested? No. once he has earned it, it will continue. Then, it will continue if again he will be able to evade the service of his sentence. To those who are in prison, the penalty shall only prescribe when you are able to escape from the institution where you are serving you sentence. As a matter of fact, even if you are serving your sentence in your home, it will take you one year if you became liable for evasion of sentence before that particular crime of your prescribe. But then, how about the evasion of service of sentence? Ah, that is you problem again. The crime for which you have been convicted, the penalty for which you are supposed to serve will prescribe in one year. But how about the evasion of service of sentence? Kulong ka pa rin. So, no way, ganun yun eh. The only thing that will actually totally extinguish whatever criminal liability or whatever penalty may be extinguished is when you are out and not serving your sentence. Bec if you are serving your sentence, the moment you escape from prison, you commit another crime. So, patong ng patong yan. It‘s only when you are outside and you don‘t commit a crime etc. ayun…ayos na. But if you c ommit a crime, be sure that the crime

you committed must be an offense so that you will not become a quasi-recidivist. If you commit a felony, quasi-recidivist ka.

Okay. How about prescription of penalties in regard to penalties that involves a compound one. An imprisonment and a fine. Kasi if it is a penalty of imprisonment or a fine, I am sure that you are going to tell me that the principal penalty is the imprisonment, is that correct? Lets say for example, the penalty is a correccional one —6

years —so, that would expire in 10 years. But then, there is a tail in the penalty…the tail is the fine. The word is ―OR‖ but it is P30,000. From which of the 2 are you going to

base the prescription of the penalty. One is a correctional penalty, that is prision correccional, and the other is an afflictive penalty bec it is more than P6,000 as a fine. What is the rule given by Reyes? And will you agree? Even if say for example, it is  ―AND‖ a fine, which will you consider as the principal penalty— is it the imprisonment or the fine? For purposes of prescription, which will be the basis of prescription, the imprisonment of the fine? According to Reyes, the fine, when there is a compound penalty…you look. My contention however despite that opinion is that the principal

penalty shall be the imprisonment in a compound penalty. Why? If you are going to ask me, why did I say that? Because if it is purely a fine, what would be the subsidiary imprisonment to be served by the accused? 6 months! What is 6 months? Correccional. Oh, tapos sasabihin mo what would be the basis is the fine. When the subsidiary imprisonment for the fine is simply a correccional penalty. I will not agree even if they have a decision pa in that particular question. Well, if you are asked probably in the bar exams, just follow what is in the book. (heheheJ) But if you are asked your opinion and the reason why you are disagreeing…it is because all fines, irrespective of the amounts

if the same would exceed a subsidiary imprisonment of 6 months, shall be fixed at 6 months. No more no less. It cannot go beyond 6 months. 6 months is a correccional penalty. Now, in prescription of penalties, when the penalty is simply a fine…wala

tayong problema. Bec the law specifically provides that the fine should be afflictive if it is more that P6, 000 but still I would like to disagree with that bec of the subsidiary imprisonment that attaches to a fine. Kasi hindi mo mapalampas ng 6 months yan eh…it‘s a good issue to be resolved bec if he cannot pay the fine, how long will he  stay in jail? —6months even if it is P1M even if it is P30M —6 months pa rin. You cannot increase it. We have a P50M fine in RA 9165 ha, still he has to serve subsidiary imprisonment only for 6 months.

SUBSIDIARY LIABILITY OF INNKEEPERS, TAVERNKEEPERS, AND PROPRIETORS OF ESTABLISHMENTS Okay. We should go now to subsidiary liability of innkeepers, tavernkeepers, etc. There is no problem regarding that bec if say for example, the principal himself…the one who

committed the theft or the robbery, he was caught, there is no problem. But the problem is kung walang pambayad. Ayun na. There are rules that must have to be followed. There is a rule that if, say for example, the owner, the operator etc violated rules and regulations etc of the city or municipality or the ordinance of the municipality or the rules and regulations promulgated by the police etc…liable yan. IN this

connection, may I ask you, would this affect the rule that you have to declare your valuables in the establishment and that you abide the rules and regulations before you can recover from them subsidiarily if there is a violation of an ordinance by the owner of the establishment? Remember that the 2 are separate from each other. So, even if you did not declare but they violated certain rules and regulations or ordinance, liable sila. It is only when they did not violate any rules and regulations or ordinance and you did not declare…ah, that is when they are not liable. Kagaya ng pumunta ka…alam ko

madalas kayo, you go to resorts etc wherein it is a resort and at the same time a restaurant…you attend a reception of weddings or baptismal parties, whatever. There is

even a guard but there is no notice there. Have you seen these resorts if they have any notice? WALA. IF they have no notice, you did not declare, nawalan ka, but then you lost it bec they do not have a double lock and there is an ordinance that their doors must have a double lock, can you go after them? YES, you can go after them and make them liable. It is only when there is a notice that you should inform them etc and they have not violated any rules and regulations that they are not subsidiarily liable. When the crime committed is robbery with force, violence or intimidation upon persons…ayan,

they are not liable EXCEPT when the ones who perpetrated it are their own employees. Even in theft cases, they are liable.

SUBSIDIARY LIABILITY OF OTHER PERSONS How about parents, teachers? Who are primarily liable for the damages resulting out of a crime incurred by their ward or by their children? Parents muna. Itong children, even if they have their own properties, it is only when the parents cannot pay that their properties may be held liable. Yun ang masakit eh. Your children are the one committing it bec you cannot discipline them anymore, the teachers cannot discipline them, the teacher cannot even hit them with a small stick, yet the primary liability is on the teacher. Those who did a research of RA 7610 or those who sponsored it, you belong to the Human Rights group or the rights of children …did you ever look at this provision of the law. Hindi eh. You will become parents, maybe you will become teachers someday, we do not know. Ano mangyayari diyan? Only sa minors lang yan ha —pupils, secondary. Pag medyo college na, hindi na kasali yan. Oh, 1st level and 2nd level education lang ito. The property of the parents are the 1st that are supposed to answer for the liability incurred by their children and the teachers incurred by their pupils or by their students. Its when they do not have any property or the property has been exhausted that they will go after the property of the pupil or the ward. These are very simple.

EXTINCTION OF CIVIL LIABILITY Well, extinction of civil liability…ah, wala namang problema yan eh. Just read Art. 2170 or 2176 of the Civil Code? Yan na yun —lost of the thing due, payment, etc. then you have of course, others such as novation —these would extinguish the civil liability or it would be considered as already closed. Do you have any questions? In Book One…? We have already discussed ISL, Probation? Wala ah…(heheheJ)…tignan natin. Joanne:

Computation of Indeterminate Sentence?

Computation? Napakadali lang naman nun eh. Anong gusto mo, yung more complicated, or the simple one? Madali lang naman ang Indeterminate Sentence eh. Judge wrote this on the board.

[Facts: Homicide – Reclusion Temporal Offender: 17 years old Plea: guilty Under the ISL, one degree lower for the minimum Maximum should not exceed the maximum fixed by law ]

This is a simple example of the computation of the benefits of the ISL that an accused may enjoy bec it is a crime punishable under the RPC known as a felony. Its only when the crime is a felony or when an offense carries with it a penalty common to violations of the RPC that he shall enjoy the benefits of the ISL. And that benefit is that the minimum penalty shall be lowered by one degree from the penalty —imposed or imposable? (judge: hahaha J) If you say imposed, that is a different matter when you say imposable. Let us just clear that up.

If the offender is a 17 year old boy. He committed homicide, he pleaded guilty. What are you going to do in order to arrive at the penalty which is imposable under the law?  Are you now going to lower the penalty by one degree immediately bec the offender is entitled to a privileged mitigating circumstance of minority? After lowering it to 1 degree, are you going to fix the penalty to be imposed upon the accused to the minimum because there is present one mitigating circu mstance…so that the penalty

that should be imposed upon the accused is prision mayor in its minimum period? OR should you first apply the ISL by lowering the minimum to one degree lower then you apply already the privileged mitigating circumstance and then the modifying circumstance of plea of guilty. If you did the 2nd that will be very confusing. Do it the easier way. The easier way is that considering that homicide is punishable by reclusion temporal and the offender is only 17, lower the penalty by one degree. Then, go to the application of the modifying circumstances. So, after applying the modified circumstance of guilty, the penalty that will be imposed is PRISION MAYOR  —MINIMUM. Then, you apply the ISL. What does the ISL says? The minimum shall be one degree lower from the penalty to be imposed by the law. To be IMPOSED. So, one degree lower from the penalty to be imposed by the law is PRISION CORRECCIONAL  – MINIMUM. You know the range already, prision mayor in its minimum period which is 6 years and 1 day to 8 years and prision correccional in its minimum would be 6 months and 1 day to 2 years and 4 months. So, the judge can impose an IS of from 6 months and 1 day of prision correccional as minimum to 6 years and 1 day of prision mayor as maximum.

[Illustration: MINIMUM= Prision Correccional in its minimum (6 months & 1 day to 2 years & 4 months) MAXIMUM= Prision Mayor in its minimum (6 years & 1 day to 8 years) ]

Now, I have been telling you that it depends upon the temper of the judge when he arrives at the office as to the computation of the penalty. The penalty will be announced by judge in open court or it will be read. The accused is hereby sentenced an Indeterminate Penalty of from 2 years and 4 months of prision correccional…tignan nyo, dalawang taon agad ang layo… to 8 years of prision mayor as maximum. Is he correct? Yes. Supposing the judge said ―maginoong bastos naman ito eh.‖ Well, I will

sentence you of an Indeterminate Penalty of from 6 months and 1 day of prision correctional as minimum to 8 years of prision mayor as maximum. Will the judge be right? Yes, bec it is still within the range. Kaya nga maginoong bastos eh. Maginoo dun sa minimum, bastos na pagdating dun sa maximum. (heheheJ) Eto na yung pinakamadali eh. Hindi na yung maghahanap ka ng kung anu-ano pa, uumpisahan mo kaagad  – homicide, penalty: reclusion temporal, then 1 degree lower would be prision mayor then tsaka ka pa lang mag- aaply etc…magulo yun eh. Hahaba ang proceso. The process will be long and tedious and sometimes it will result toy confusion. Then there will be an error in the computation. Here, there is no error, its as a simple as that and