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Criminal Law Review Transcript 2003-2004 (Book II) Judge Oscar Pimentel

CRIM LECTURE AUGUST 25

BOOK II

Now, we can already start with Book II of the RPC. Book II is just mainly crimes, this is where you can find the different crimes under the RPC, their elements and the penalties that the law provides for their violation. The first article in Book II is art. 114, when the RPC was qualified, it is the impression of those who qualified that treason is the most heinous among all the crimes in the RPC, as it involves the loyalty of a citizen of the country and then he will wage or levies war against his own country to which he owes allegiance to the same. Or even if he is an alien or a foreigner, of which he owes temporary allegiance to the Philippines, he levies war against the Philippines or adheres to its enemies by giving its enemies aid and comfort, and it may be committed not only within the territorial jurisdiction of the Philippines but even elsewhere. So, the law says any person owing allegiance to the Philippines who levies war against the Philippines and who adheres to the enemy by giving the enemy aid and comfort shall be guilty of treason. The next paragraph involves a procedural provision, which is that ―no conviction can be had in the crime of treason unless on the testimony of the 2 witnesses to the same overt act or by voluntary confession of the accused given in open court. Now, from the very provision of the law you will know that the law speaks of Filipino citizens and foreigners as offenders. If he is a Filipino Citizen, there is no question of his owing allegiance to the Philippines, the only problem that we will encounter in this aspect is the new law that will grant dual citizenship to a Filipino at one given point in time and of course it will only be a matter of concern if the country to which he is also a citizen became an enemy country that there is war between the 2 nations. How will you treat therefore that Filipino, or that person who has already obtained citizenship from another country of which he also owes permanent allegiance in cases where that person adheres to its enemies, and never mind levying war or granting for the sake of argument that he levies war and that he loves more the other country, where he was born, that would be a big problem in regard to the crime of treason. And I hope there are certain paragraphs / provisions in the new law treating such problem. But the way how I perceived the present Congress of the Phil, they will never have thought of that when they crafted the law, not even I believe in the office of the President. We will be having a problem and I assure you that in case there would be a war with other nation, that would be a big problem. As most of us citizen whom they call modern-day heroes, when they try to escape their own country to work in other countries, is working in other countries an act of terrorism? Honestly, is it an act of terrorism to work in other countries? I

don‘t think so… To call them our modern-day heroes is a fallacy

I have more

respect to people who are in our own country, tilling our land producing basic

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necessities that we can buy in the market other than those who claim to be bringing dollars in our country. Why? Do we need dollars? We have our own

peso

foreigner owing temporary allegiance to the Philippines and when does a foreigner owes temporary allegiance to the government? It is only when he is granted a permit to permanently reside in the Philippines that he is considered to owe temporary allegiance to the government. The government institution that has the authority to grant such kind of permit is only the Bureau of Immigration and Deportation. Unlike however when the person is a Filipino Citizen, a foreigner may commit a crime of treason elsewhere but he will not incur criminal liability and that is only 1 instance that I believe that he may be exempted from prosecution. It is when he adheres to the enemy country of which he is a citizen of that enemy country, naturally you owe permanent allegiance to your own country and the moment that you adhere to the enemy country which is however your country, that is only a renunciation of your allegiance to the government and naturally you will not be prosecuted if you did commit the act outside the Phil territory but if you are not a citizen of the country where you committed the act of treason you will be liable even if you are an alien or a foreigner.

So, it‘s a matter of concern as there is a difference when the offender is a

The 2 ways of committing act of treason : 1) levying war and 2) by adhering to the enemy, by giving the enemy aid and comfort. But there is no problem about levying war, you take up arms against your own country, you join the enemy forces, that is already an act of levying war. However, in adhering to the enemy, it is not a simple adherence to the enemy or that you sympathize with the enemy that is required by law. You must provide aid and comfort aside from the fact that you are adhering to the principles of the enemy, you must give aid and comfort. The two must concur, otherwise there is no adherence to the enemy by giving them aid and comfort. You recall the case of Laurel, the same Jose P. Laurel in the case of self-defense, but this time there is no woman involve Laurel during the Japanese occupation and that we have been the subject of

actual hostilities from the family, they almost annihilated our guerrillas during

how come that

those times. …. I f you look at the records of the

here are so many guerillas already. And they even include the people who are espousing communism at that time. They are doing it not for the love of the Philippines but for the love of communism. And yet they were recognized as war veterans. And there are other Filipinos who were not able to properly register their name and were deprived of what is due to them because they are unlettered. Never were able to know how to write their names etc. yet they fought valiantly the Japanese. Those are the people that deserve to be paid. They are the persons who are supposed to be given benefits. They were not given benefits yet comfort

women. We don‘t know actually whether these women are comfort women. Why comfort? There must be a definition of comfort for purposes of them being able to get damages from the Japanese Government. But nevertheless, when it comes

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to treason, in levying war there must be at least two witnesses. How about if it is adhering to the enemy by giving the enemy aid and comfort. Is there a need for the two-witness rule? What is the opinion of your author of your book? In defense upon the author Reyes says with respect to giving the enemy aid and comfort, the two-witness rule does not apply. Is there however a decision by the Supreme Court to this effect? That the two-witness rule does not apply by giving the enemy aid and comfort. Is there? There is no decision it is simply an opinion. But if you will look at the provision of the law. Does it qualify whether it is levying war, or whether it is adherence to the enemy by giving the enemy aid and comfort? It does not. So who are we to distinguished and who are we to give our interpretation? There is a case already decide by the Supreme Court. I respect the opinion of the author of the book but at this point I must say that you have to answer according to the provision of the law. Even if you answer according to Reyes or according to the book you may be both right. But if there will be a difficulty as you need in order that the same matter may be clarified and that is catastrophic. Ok, two witness rule to the same covert act, no problem it is to the same act committed in by reason on the provision of the law of treason the two witness must testify own. If it is on the continuation of an act committed in another place or at another time even if the offender is the same even if no two witness rule there is none the law is very specific and should be interpreted

strictly against the state it cannot be strictly interpreted as against the accused. In other words, you must stick to the provision of the law, and there must be two witness of the same covert act committed at one point in time. How about voluntary confession in an open court, voluntary confession in an open court but

as for example in the information that was filed for the crime of treason

It was

alleged that there are two witnesses. But upon reading their affidavits it would appear that they witness two overt acts but it will lead to the commission to the crime of treason. Now, if the information of the accused is read, during the trial and the accused realizes that he may be convicted he will probably know what will happen to him he wouldn‘t want to throw himself at the mercy of the court. In order to avoid the penalty of death considering that the law provides for a penalty of reclusion perpetua to death, he pleads guilty. And ask mercy from the court. Despite the fact that the two witnesses are not witnesses to the same overt act, can the accused be convicted of the crime of treason? What do you think? Well applying the rule in regards to failure to object to any defect in the information at the proper time. As long as it does not involve the jurisdiction of the court, it does not involve prescription. And during those previous years, double jeopardy that there was a recent decision that if you do not object to be imprisoned then double jeopardy you may be convicted because they apply also the decisions of the Supreme Court in regard to the single information charging multiple offenses as against the accused and if the accused failed to object to the multiplicity of charges of one information the accused can be convicted for so many as the number of crimes alleged in the information. Yes, so if he failed to

object he voluntarily confessed, his guilt in open court he can still be convicted because it is a matter of procedural law. It is not a matter of substantive law. Procedural law lang yan eh, the 2-witness rule. why? In all other crimes, even a circumstantial evidence would be enough, how much more if that is a witness to the commission of the crime or saw the commission of the crime Alright, when the offender is a foreigner, the penalty is lower. Ok, do you have any question in regard to treason? What are the stages of treason? It does not follow the stages of a commission of a felony under the Revised Penal Code. It follows its own stages as defined under the RPC, and is considered a different crime. And these stages are: Proposal and conspiracy to commit treason. Naturally in order for that conspiracy may be committed, there must always be a proposal to commit the crime of treason. It‘s like a man courting a girl, the moment that a man likes a woman, he will propose, he will tell the girl of his feelings. And the moment the girl accepts his proposal then there is already conspiracy. Coz there is already an agreement between two parties. But be careful about the proposal, because in treason it is different. That the one proposing must already have decided to commit the crime. Unlike in ordinary proposal, we do not know whether he is serious or not. You do not know whether he has decided already to be true to his words. So be careful… In treason, ah, no…iba… He has decided that he is going to commit treason and he proposes it to another. And that consummates

the crime. And in conspiracy, that cannot be

between two persons who have already committed themselves to commit an act

If there is already an agreement

of treason and they have decided to commit it, then there is already conspiracy. And in relation to this, you have the misprision of treason. But before discussing misprision of treason, you have to remember that the proposal, the conspiracy, are separate and distinct crimes from treason in itself. They have

In other words, if for example you were not able

to prove the crime of treason itself but you were able to prove conspiracy, which is necessarily included in the crime of treason, you can convict the person of conspiracy to commit treason instead of treason itself. Or even proposal, although they are separate crimes but they are also considered as stages of the commission of the crime of treason. You have a misprision of treason when a person owing allegiance to the government of the Philippines, who is NOT a foreigner, come into personal knowledge of any conspiracy to commit treason and he failed to report the same within a reasonable period of time, to the governor of the province, to the city mayor of the city, or to the provincial fiscal now provincial prosecutor or the city fiscal/prosecutor. This is therefore, a crime by omission. But a foreigner is exempted from this even if they owe temporary allegiance to the government. It is very clear from the law. But where should the person owing permanent allegiance to the government of the Philippines report? Because he should report it to the governor, or mayor of his residence. Supposing he is from Sulu

separate and distinct elements

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province, while in manila he witnessed and has personal knowledge of the

conspiracy to commit treason. During times of war, should he go to sulu and

report to her governor or the provincial prosecutor there?

city mayor of manila is not a compliance to the provision of the law. Why? The

law says to the place of his residence. There is a purpose why the law provided

to protect the person who witnessed the conspiracy and actually to shield

him from any retaliation in case of his reporting the conspiracy. How does he

know that if he reports the same in Manila the people he is reporting are also in

Manila are also in conspiracy, eh di patay

province that the governor is not in conspiracy with the others or the city

prosecutor… that is why you have to be convinced first that these people whom you are going to report are also not part of the conspiracy. So it is in your own place of residence that you have to report. Alright, the period there is subject to the circumstances of each case. Each case would have to be treated differently for purposes of determining whether the period of time of which you have reported is reasonable or not. So

If the person has been sick, naturally it will

you have to use your common sense

take time. If that person is hiding from a c0-conspirator etc, it will really take

He can be assured in his own

this

Reporting to the

Yes

time… And sometimes he may also be exempted from being criminally liable by reason of insuperable causes or maybe by reason of uncontrollable fear, or by reason of the employment of irresistible force. So, that would be a good explanation of art 114, unless you have a question… Including art 115, 116.

Ok, art 117 Q: is it possible for a person already convicted of the crime of treason to be convicted also with the crime of conspiracy to commit treason?

Judge: No, because as I told you these are stages of the crime of treason

If a

person has been convicted with the crime of treason, he cannot anymore be charged of proposal or conspiracy to commit treason. The one who is in

conspiracy or the one who proposes must not have committed the crime of

treason himself. Because if they have committed already the crime of treason, naturally the crime of conspiracy and proposal to commit treason are already absorbed in the crime of treason itself. We have discussed already three articles… The next is what?

After misprision of treason, what would come next? Ahh

espionage

Any person who without any authority therefore shall enter a warship, a fort, any

military installations, etc for purposes of gathering any information, plan, etc relative to the defense of the Philippines shall be held guilty to the crime of espionage. It is aggravating to a public officer who in the performance of his official function is in custody of those plans and he delivers the same to the representative of the foreign country. That is espionage. This is a dead law. Have you heard or have you read any decision of the SC regarding the crime of espionage? May nakakasuhan ba nito? Kasi wala naman… May plano ba tayo

relative to the defense of our country? Eh kung coup d‘etat nga, nung nandyan na nga ang mga tao sa Oakwood hindi pa nila natiktikan eh? And they said it

Well, if that would be the case, butas- butas and

What are the people in our intelligence community doing

Or maybe these people are good. There are only two

Either these people are so good for our intelligence community

people that they cannot be detected or that our intelligence community are sleeping.

what plans do we have that is not known to

everyone? What fort do we have that keep our secret/confidential matters in relation to the defense of our country? Fort Bonifacio? Eh binenta na yun eh… Fort Santiago, ayun you can have your wedding there… Fort Magsaysay, there are so many squatters, they will know whatever is going on Camp Crame & Camp Aguinaldo, you can easily pass through and

through… All that you have to do is is just even at night blink your lights twice

.try me or try it for yourself. Who is a

member of the military here or the police It‘s a signal. The guards need subdivision, the guards need at night, they‘re just playing their lines three times. They will not even ask for your identification. That means to say you are a plenty

force. I should know because I know so many things. Try. Sigurado yan. Wag ka

lang makikipagtalo sa security guard. Pwede wala kang ano, you don‘t have even

pass etc

There is nothing much about espionage nowadays except for the fact that it can be committed during war time or during first time and remember it must only be the information, the plans, the data, the documents must be relative to the defense of the counsel. Nothing more nothing less. Now the Supreme Court came up with another decision in relation to this. In the case of Santiago vs Sandiganbayan, during that time, former Senator Santiago who was then a Commissioner granted Filipino citizen by way of administrative proceedings by way to 34 Indians. Ang hirap pala nito ng mga Bombay noh halos

isa lang pangalan. Do you know that we are being vested with the issuance of

clearances for several times I think about 30 to 40 times a dine almost all asking

for clearances is the same man

or trice the guarder will even salute

involves national security

national security natin prior to this? Nothing

things there

Just like in espionage

you.

No

just blink it three times.

it is still a man

Recently, I told Tony, will you please enter my chamber? What you have to do is this because we are being pestered with clearances we do not know whether we are actually giving a clearance to the offender or not there has been so many cases that were filed in our courts and in several courts. One is raped, the other one is homicide, the others are estafa and etcetera 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 it is a legitimate alien who is actually residing

in the Philippines who is 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 fault there if you are only a visitor and you will ask for a clearance. Why should

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we give you a clearance. So, As I was saying, Commissioner Santiago was charged of thirty four counts of violating section 3e of republicact3019. 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

crime. And there is only one criminal intent that will be

imputed against her in the event that indeed she caused due injury to the

government. The supreme agreed with her and offer the prosecutor to dismiss all the cases and refile only one information. Well, that‘s already the decision of the Supreme Court. But I was thinking, along the line of republic act 3019 being a special law, a law that is alum prohibited. If the law is mala prohibita, does

criminal intent had any business in

criminal intent or not. If it is mala prohibita criminal intent is not suppose to enter

into the picture therefore the filing of 34 informations are correct. But the Supreme Court said, there being only one criminal intent etcetera only one information should be filed against her. Now, as I had been saying already that what happened sometimes that it is debatable that certain special cause may require criminal intent and some are not but basically all offenses in violation of special laws do not require criminal intent. That is a general goal except when the special law uses the words knowingly because if there is a word that the offender knowingly causes due injury then there must be a then a criminal intent that if there is no such way simply put that it was a cause a due injury to another that is different…nevertheless we have honor in whatever decision that is that will shall we say that was promulgated by the supreme court there will be honor the decision of the supreme court.

determination of whether it has

is

continuing

-the

* I’m not so sure whether this is still included in judge P.’s discussion as regards Book 2 of RPC, parang Book 1 but then I couldn’t

if you

distinguish sa tape kasi dire-direcho naman so I just transcribed it think, we covered this in Book 1 then disregard na lang *

Continuous crime refers to crime that shall we call it that was promulgated by the Supreme Court because there would be chaos and horror unless we honor the decision of the Supreme Court. Ok continuous crime refers to crime that shall we call it at even committed only for the first time but the offender continues to commit unless he has already served the sentence, unless he has already been filed up, he has already launch his belief,

allegiance to a particular association or public whatever. Just like in the case

of

It is a continuing crime in the sense that you committed the same and you continued even if you have not actually in the active participation of the act

being committed by your friends. But it is a continuous crime. The moment you committed you call the state until the continuous crime in such a

struggle. Remember the case of

Actually rebellion is not what you call in a continuing crime.

and companion cases

These people

appear under the fight of the army as NPA regulars but they decided not to engage anymore in armed struggle somewhere in the southern part of Luzon. Instead they decided to become shall we call in engage in certain activities or well-employed as laborers or as workers in different establishment such as those who were arrested who are working in the factories. Some are working in certain construction sights in Las Pinas and other places in Metro Manila. Others are arrested without a warrant they claim that the arrest is illegal but as the Supreme Court stated that case. It said that you continue to commit the crime that you have previously committed yourself to commit until such time as you have renounce to live in that particular struggle. So it is a continuous crime, a transitory crime. A transitory crime is a crime where any of its elements or any of its ingredients will be committed in another place and there you can file the case of any places you can put its elements or in any of its ingredients of the one committed. An example of which is of course the violation of BP 22, illegal rules and illegal recruitment, syndicated estafa, etc. Even the syndicated estafa who is only one criminal intent there so you have the problem of which to be given estafa of this time because the little engage in a estafa already covered almost all parts of the

country. And their victims are coming from the different parts of the Philippines. There are already filed cases against these people. Some have only intending to file the places where they have been victimized. The problem there is how to go about in trying the cases because if it is

syndicated estafa, there is only one single criminal intent especially in that person by the use of direct contribution from the general public and the purpose to whom the people they collect the money or whatever. You have now several syndicated estafa cases. However there are those who file separate cases and if they are going for example, have them cost related. How about those others who did not file. What would happen? Under the

theory of

not able to participate and decide to participate later on? How about the others who were not able to participate decide only to participate later on. There are what we call decided by the Supreme Court. One element may have taken place in one place and other may have taken place in another place etcetera…, yes you can file here any case in any of the places where any of the essential elements or ingredients have been committed. Ok, any question? Now let‘s go to penalties. Penalties for Principal, accomplices, accessories penalties for consummated felonies, penalties for frustrated felonies and for attempted felonies.

and others are actually NPA regulars and they

,one

criminal offense. How about the others who were

I have adopted a meter system and most of you who were in my CRIM class are familiar with this, noh it is very easy how to do it and I will repeat so you will

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remember the simple rule. You have there a principal, the equivalent of the principal is already consummated. You have accomplice, you have accessory, you have frustrated and you have attempted. Alright, in the computation of the penalties, naturally if the crime that a penalty is reclusion temporal shall be equal for the person upon committing the crime of homicide, the law speaks of homicide being consummated. In that the person who will be sentenced to reclusion temporal will be sentenced to reclusion temporal is the minimal, that is given, that is what the law shall we call it make an arrangement in the provision of the law being interpreted. Now, so, let us say in the crime of homicide. The principal committed the same and it is consummated, no problem. The penalty is reclusion temporal. But supposing the crime committed is a frustrated homicide what then are the initial and the principal, the meted out or what is the penalty for the principal in a frustrated homicide?

The Penalty shall be one degree lower, so one degree lower would be reclusion mayor. Supposing that the offender is a principal in an attempted homicide, the penalty shall be 2 degrees lower which is reclusion correctional. Ok, very simple because all that you have to do is if it is a crime being consummated also one degree lower, one degree lower. Now if it is attempted 2 degrees lower in a principal. The principal naturally is a whole penalty. If it is an accomplice, 1 degree lower if he is an accessory 2 degree lower that is very simple. Alright, so in the previous discussion I said the principal and the crime committed is in the attempted state, the penalty that should be imposed to him is 2 degree lower from the penalty imposable or a principal in a consummated. In the case of the homicide, naturally, the penalty is physical reclusion because it is consummated. Now, let us say that the offender is an accomplice, he committed the crime of homicide consummated so the penalty is 1 degree lower from the penalty imposable in the crime of homicide that in reclusion mayor and that if he is an accomplice and committed at he same time a frustrated homicide the penalty is 2 degree lower from the penalty imposable by the law.

One and one is naturally 2 and so it is lower from the reclusion temporal that would be reclusion correctional. Now, if were the accomplice is also in the crime of the attempted homicide, the penalty 3 degree lower. So if he is an accomplice to the attempted homicide, the penalty shall be (how many degree lower?) it is 3 degree lowered for reclusion temporal is reclusion mayor. In the accessory, If the accessory commits consummated problem, let‘s say homicide, the penalty of the accessory is two degrees already only for the accessory if it is consummated from

a reclusion temporal it would be reclusion correction. Ngayon kung papasok siya doon, one, two at ginawa nya. Now, supposing that an accessory committed only

a frustrated homicide, the penalty shall be 2 degrees lower from and what is 3

degrees lower. And what is 2 degrees lower to reclusion temporal? It is reclusion mayor. Now, supposing it is an accessory of attempted felony…the penalty is

arresto menor. A person who might have committed an attempted homicide but he is an accessory he can be penalized with one to thirty days. He may be punished in 1 day if he pleaded guilty it is to be penalized with arresto menor.

In knowing the simple computation of penalties and if you know this simple computation it will help you out. Example, nahuli po ako ng pulis attorney dahil napasama lang po ako sa crime scene. Kaibigan ko ang pumatay at nagtago siya sa amin. Ano po ba ang sentensya ko kung mapatunayan na ako ay nagkasala? Naturally the man is worried who co-accused and he even do not know that he‘s an accessory, but because you are familiar with the participation of the offender, you will just tell him don‘t worry, I will take care of your case. Are you hiring me? Alright sign that I am your lawyer. So kung mayaman sumingil kana. And you will tell him he will just be sentenced for only 10 days just plead guilty. Now, if he‘s a minor, patay---libre! Because minority is a privilege mitigating circumstance of which he is entitled of one degree lower from arresto menor. And there is no lower like 1 degree. So this simple computation, I know that most of you here are those my former students. This is very simple that if you read the law in a week you will know how.

Do you have any questions? Of course, we are already in the penalties and we should know what could probably affect penalties. There are the modifying circumstances and you know we have discussed aggravating, mitigating, the specific, the special, the ordinary. You know that there is an aggravating circumstance that is by itself is inherent.

Say for example, what is inherent in certain crimes? Well, naturally in cases of estafa there is evident of pre meditation. In rape there is always present most of the time even if they are inherent in the commission of the crime it cannot be considered as aggravating even in a mitigating circumstance. There is in some cases that we have discovered that in inherent mitigating circumstances, although they are inherent mitigating circumstances. They are not considered as modifying circumstances. In a case of rape but the offender shall we call it a or he has a physical defect is inherent and is mitigating but would it be a modifying or mitigating circumstance in the crime of rape? If he is not. Naturally, it is not but it is aggravating if the person committing this is the crime committed during the time

August 27, 2003 (The day when its free cut in civ)

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alright… any person or any public officer or employee but that term is very generic… it should be any public officer or employee in charge of the enforcement of the law who detains another without any legal ground will be criminally liable for ARBITRARY DETENTION here, to differentiate it from kidnapping, in kidnapping the offender may also be a public officer or employee but he is acting in his private capacity. And his purpose is to deprive the person of his liberty and that the person is being detained in a place not devoted for detention of persons who have been arrested either lawfully or unlawfully. On the other hand, in arbitrary detention, a person is deprived of his liberty without any legal ground and he is being detained on a place for detention of persons who have been lawfully arrested in other words, the public officer or employee arrest a person or detains a person only without any justifiable cause or without any legal ground and the detention of that person is in a place of proper detention for those who violates the law in jail, in other words. If it is outside the jail or it is not in a detention cell, then that would not be arbitrary detention but that would be kidnapping or a serious illegal detention or illegal detention. There are times when a public officer may be the offender in kidnapping although in art 267, kidnapping may be committed only by a public individual, not by a public officer or employee. But a public officer or employee may be charged and found guilty of kidnapping if he acted in his personal capacity and not on his official capacity.

Now in arbitrary detention, the detention may have been caused by illegal arrest or unlawful arrest or by simple detention without a legal ground. The two are different from each other. When you say it might have been by reason of unlawful arrest, there must be an arrest effected by a public officer or employee but the same is unlawful and thereafter the victim is detained in a place of detention. On the other hand, there is only arbitrary detention when a person who may not have been arrested but has been arbitrarily detained.

One of the examples that you can find in a case which is appropriate to this wherein the person was not arrested is the case of GO v CA (I don‟t know why but the tapes I transcribe always have this case… favorite talaga „to ni Judge…) Mr Go went to the police station and inquired whether a certain Mr. Rolito Go is the person being suspected of having shot Mr. Maguan… and when the policeman said that they are really looking for Mr. Go, Rolito Go said that I am Rolito Go and the policeman said you just wait and he went to a cell, opened a cell and ordered Mr. Go to go inside. Mr. Go objected. The policeman didn‘t say that he is placing Mr. Go under arrest but he just ordered Mr. Go to go inside the jail… that is a classic example of a person being detained without having been arrested but there is arbitrary detention. Because he presented himself to the authorities. It just happened that they are going to put him in jail despite the fact that he presented himself to the authorities. But a twist of fate.

Now in arbitrary detention, you must have to remember that when the penalty would depend upon the period of which the person has been detained, it would become a serious one if the period is more than a certain period of time. Unlike in kidnapping, if the detention lasted for more than 3 days, it becomes or if in serious illegal detention if it is more than if the detention is more than 3 days, then it is serious illegal detention while in arbitrary detention, NO. how many days before it become serious arbitrary detention? More than 6 months. So it could even be the fault of the Executive Judge. You are not familiar with the workings if the courts probably but an Executive Judge of the RTC has control and supervision over all jails within his territorial jurisdiction. He has the power over visitation and ordering the release of the prisoners who have served the maximum of their sentence or who is being detained without any lawful ground and the desirable period of time wherein the executive time should visit the jails is weekly. In Makati, you only have one jail but there are other satellite jails. I call it satellite because they have a holding center in the station in the Makati police station aside from the holding center there you have the Makati City Jail. And you even have to contend with the temporary detention cells in barangays, etc so it is a problem. You would not know if a person is arbitrarily detained in a holding center of a barangay in that particular barangay. So the Executive Judge must ever be vigilant with the detention of prisoners who have been unlawfully arrested.

If they were lawfully arrested there would be no problem because there would only be a delay of the delivery of detained persons to the proper authorities. Meaning, a person has been unlawfully detained or unlawfully arrested and detained and the only problem is the periods which the case should have been presented to the proper judicial authority has not been presented within the hours specified by law such as: 12 hours for light offenses, 18 hours for offenses which are punishable with correccional penalties and for afflictive and capital punishment, 36 hours.

The judicial authorities mentioned are this article is actually not always the judges. The original concept of the rule is sourced from the provisions under the old rules of court regarding preliminary examinations by municipal judges then by judges of the peace or justices of the peace courts. You know that there are two stages of preliminary investigations in the municipal courts then justice of the peace courts. First is preliminary examination which would determine the existence of probable cause for the issuance of the warrant of arrest. But of course after determining whether a crime has been committed or not. It is more expeditious during those times to file a case with the municipal court or the justice of the peace court for purposes of issuance of the warrant of arrest. It is more expeditious eh. You don‘t have to wait for 10 days, you don‘t have to wait for a resolution, you don‘t have to wait for the filing of the information in the

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proper court before a warrant of arrest shall be issued. Sometimes it takes months, di ba? When you file a complaint with the justice of the peace court then, now the municipal court or municipal circuit court, you can easily obtain a warrant for the arrest of the accused because all the Judge has to do is schedule the preliminary examination of the witnesses, even when after the filing of the complaint and upon docketing of the same, and if the Judge is not doing anything and the witnesses are available he can conduct immediately the preliminary examination of the witnesses. And after conducting the preliminary examination of witnesses by searching questions, he can then determine whether the crime has been committed and whether a warrant for arrest should be issued against the accused and what is the amount of bail or whether the crime is bailable or not. So then, immediately, a warrant may be given. 1 day lang! Just one day long. That is why this is taken advantage of lawyers and complainants in the provinces. In Metro Manila and other places, when you go to the prosecutor‘s office it will take you months. Even in drugs cases, the preliminary examination in drugs cases should not exceed 30 days eh. Actually not even 30 days eh, I believe, it should not exceed, 7 days? In actual practice?

Ok. This is the instance when the peace officers who arrested the offender may ask the offender to execute a waiver to waive his right under this article. Waiver, under article 125. why? Well, if the offender waives his rights under article 125, even if he has been detained and no information has been filed against him, even for a period of more than 30 days, the arresting officers or the persons who has custody of him is not criminally liable for the delay of the delivery of said detained person in the proper judicial authorities or even arbitrary detention. But never because in arbitrary detention the detention is actually illegal and there is no legal ground for his detention.

Alright… what would be a proper waiver under art. 125? A waiver under article 125 by the respondent or the accused shall be considered as valid and binding to the accused and his property only when the waiver is with the assistance of counsel, whether a counsel of his own choice or the choice of the accused or the lawyer has been appointed by a or has been given by the law enforcement agencies to the offender and he accepted the services of that lawyer and in addition according to the SC, the lawyer must be a competent and independent counsel. The meaning thereof is that the lawyer must actively participate in the proceedings in the waiver. He will probably ask questions whether the accused understands the meaning of this waiver, etc, he will explain almost word for word the waiver that is being presented to the accused with his assistance and usually, it will be placed under oath. Without the assistance of a lawyer that waiver is considered null and void.

There are times when a person is under detention and there are orders or there is an order from the judicial officer or the executive officer for the release of that person. In the event that the execution of the order has been delayed, there is a delay in the release which us under article 126 of the RPC. If the notices or instruments that would be a basis for the release of a person under detention or as a convicted prisoner, the person who delays the service of that notice shall be held criminally liable for the delay in the release or if there is a proceedings for the release of that person, and that proceedings have been delayed by any public officer or employee, then it shall also be considered as a delay in the release. You have to remember that there are two branches of the government that can order the release of a person in jail. The executive department through the President or his authorized representative, in the event that the President grants pardon, amnesty, commutation of sentence or conditional pardon and would the person tasked to release the particular person delays with malice or bad faith or through gross or inexcusable negligence because if the delay in the release is done in good faith, there is no crime that is committed or by simple negligence, he cannot be held criminally liable. Naturally there would be a continuous incarceration of the person which is almost tantamount to arbitrary detention but it is being considered as delay in the release because there is a legal ground for his incarceration whether detention or serving sentence by virtue of a final judgment.

The judicial authorities (of course there are many instances when the judicial authorities can order the release of the person) first, if the court finds that there is no prima facie evidence or either there is no probable cause in the issuance of a warrant or further detention of the person charged of the commission of the crime and that the information is not valid, the judge will dismiss outright the case and order the release of the offender if he is under detention. Whatever be the belief of the warden is of no concern to the court and to the person who is detained. Because it is the responsibility of the Judge, actually, to see to it that his orders are correct in accordance with law and that it be obeyed by the person to whom that release is directed. In case when the accused post bail or is given the privilege of being placed under recognizance while under detention. You know that recognizance if the offender is arrested without a warrant but the offense carried with it a penalty which is less that 6 months, the court has a discretion although he may not exercise it but it may be exercised to allow that persons to be placed under the recognizance of another as long as he is not a recidivist, habitual delinquent, or suffering from reiteracion or even quasi-recidivism. It depends upon the discretion of the court.

If the accused post bail, no problem. His immediate release should be done. Now in connection with this, even during preliminary investigations if the offense is bailable, the accused can ask for bail. To whom are you going to file your petition? You are the lawyer of the person who is either in custody because he

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waived article 125 but the preliminary investigation will take little time but you want your client to be out from jail. Why? Because he is being mauled or he became the milking cow of the other prisoners and the wardens. So you want him out. What are you going to do? No information yet has been filed. What are you going to do? No bail has yet been fixed. Sabihin mo, tumakas ka na lang? Actually there is a remedy under the New Rules on Criminal Procedure. File a petition under the Executive Judge of the Regional Trial Court of the station where the crime has been committed. And allege in your petition that the accused or the respondent is being detained and that the case is still under preliminary investigation and that he might have waived his right under art 125 or even if he is out of or he is not in jail, there is a danger that he‘ll be immediately arrested upon filing of the information and in order to pre-empt that, you are asking that the court fix bail for his provisional liberty as the crime that he has committed is bailable. The Executive Judge has the authority to fix the bail and of course admit bail to be posted by the respondent and he will be released. He cannot be arrested anymore. unless after the filing of the information, the Judge to whom the information has been filed found that there is an insufficient bail, etc… but the Judge should not immediately order the arrest of the accused. That would be depriving the accused of due process. He will be the Court should issue an order requiring the accused to file additional bail even up to at least 48 hours after the issuance of the order. Otherwise, a warrant for his arrest shall be issued and his bail may be cancelled. So hindi pwede na basta na lang kakanselahin ng Judge yon. The Judge cannot immediately order a warrant of arrest. That is not only grave abuse of discretion but that is also oppression.

Pero if you know the Judge and you know that the Judge doesn‘t know his Rules, approach him. Do not immediately bad mouth him. Just ask for an audience with him and ask that the clerk of court be present and ask for a stenographer so they would not suspect that you are trying to influence the Judge. During your meeting you tell the Judge, you say ―Your Honor, with due respect, the order that you issued is questionable. Of course he would be taken aback. You say your Honor, with due respect that is why I did not ask that it be set for a hearing yet or I am not yet filing a Motion for Reconsideration. You can recall the order because you should first give an opportunity to the accused to file an additional bail. Otherwise it will be tantamount to oppression Your Honor. The Judge will appreciate that and he will recall the order. In that way you will be maintaining a good relationship with the Court. The Judge will remember you: Marunong ‗tong batang to ah!. Not only with the Rules but he knows how to approach a problem. Do not be aggressive. File ka agad, and ask that it be heard within three days but not more than 10 days from the filing of the motion and immediately you will announce to the general public while all lawyers are present the ignorance of the Judge. Patay ka. He will reconsider his order but markado ka na. Walanghiya to

ah, pinahiya pa ako. Alam mo naman may mga Judge na maninipis ang balat. We can take it in stride. That is a remedy that is available to you.

So delay in the release. Including the proceedings, there are instances when the proceedings are being delayed not because of negligence but because there is a malicious intention on the part of somebody to delay the proceedings for the

release of the offender. Acquittal, no problem, release kaagad yan. You know, do not always believe in the jailers. The moment that the Judge announce the acquittal of the accused if the accused is a detention prisoner and he has left or he does not have any thing of value or importance in the jail, the accused can go free already. There is no need for him to go back to the jail. Sasabihin nung jailer, di,

madami ka pang pipirmahan dun, etc

bakit may ibinigay ba sa iyo na kailangan I-account mo? Di kung andun, you were given a yellow shirt na ang nakalagay, CIDG, Makati City Jail, uso yan eh… hubarin mo, ibigay mo dun sa jailer. Because I have been objecting to this eh since the beginning. Although the policemen has sort of justification for it as they can easily spot a person who is escaping from their custody because of the yellow shirt or whatever shirt it is, that is to me not a sufficient reason. To me, allow him to dress up when he goes to court and lets see if this person is really of

good manners, etc or whatever. How are we going to determine if this person

really is a person who acts like a criminal. All that you know if you are the Judge

is that he‘s wearing a yellow shirt. Mukha ngang ano ito… di nag-aahit

din pinag-aahit doon eh. They are being allowed to shave, they are not allowed to freshen up, they bring them to the jail as they are and while they are in jail they will not even allow them to take a bath, by golly! so I object to that. I‘ve been telling the jailers, you don‘t bring a person here if the prisoner has not taken his bath. And that you are not supposed to give him that yellow uniform. Allow him to use the best clothes or his Sunday clothes. He can phone his house and let his relatives bring the best dress that he has or the best shirt and pants that he has and shoes. But the jailers will not allow that. Sabi din ng prisoners, ―Sir mahirap

yun.‖ Bakit? Eh pagka nagdamit kami dun, maganda, naka lacoste kami pagpasok naming dun wala na yon. Somebody will ask for that already. There will be asportation of your clothes by this people. Expulsion. The first kind of expulsion is when a person who is residing in the Philippines or any person who is a resident of this country is expelled from the Philippines not from his domicile or residence, ha! From the Philippines. Meaning to say, he was kicked out from the Philippine territory. Well had it been true that Marcos asked to be brought to Paoay and not Hawaii and that the rebellion did not succeed and that he was brought to Hawaii instead of Paoay, there is expulsion. But because the rebellion succeeded, they can bring him anywhere. But it is expulsion from the Philippines refusing the entry of a Filipino citizen returning to his own country? Is that also expulsion? In the case of Ver, and his family and descendants, they were denied entry to the Philippines. Do

eh hindi

you will have to account for this and that,

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you remember that case which has reached the SC? You do not recall? Ver and his family together with Erwin and the other one who were then Colonels in the AFP were denied entry were asking to be allowed to enter the Philippines after they have been expelled from the Philippines together with Marcos. The reason given by the SC in disallowing their entry in the Philippines is to avoid the breach of national security as expounded by the OSG and the DOJ. But those are different times. I cannot still accept that as a valid reason because if that is due to the grounds of national security what are the AFP doing? You can assign even probably a Battalion to guard this people, to guard their movements etc. and how can they create disturbances in the country? And if they are creating disturbances, arrest them, put them in jail! Well, that is a case-to-case basis only. What is know as pro hac vice. That case is only applicable to a particular person and a particular time. It is not different. You do not expel. The word expel is when the person is here in the Philippines and you expel him from the Philippines.

Expelling a person from his residence or from his place of domicile. The most celebrated case in this respect is the case of Villavicencio v. Lukban. But that is not an actual case of expulsion but that is a case of habeas corpus. (Lukban, Mayor of Manila, transported, according to Judge, ―all the girls that have been loved before‖ to Davao… poli case) the SC ordered Lukban to produce the body

of the girl

case in habeas corpus when the person subject of the petition is not detained or being deprived of his liberty but was only removed from his residence and the court granted the petition for habeas corpus. So if there is a problem in remedial law when the problem is ―Is there any instance where the writ of habeas corpus may be issued when the person is not being deprived of his liberty, this is the case also.‖ There are so many things that you will learn from the case of Villavicencio v. Lukban.

that is expulsion. In fact in your special proceedings, this is the only

Break….

Well, after expulsion we have violation of domicile. Any public officer or employee in charge of the enforcement of the law who searched the dwelling of another without the permission of the occupant or the owner and without any authority from the law. For articles, goods, effects, of the commission of the crime, for instruments in the commission of the crime shall be held criminally liable for violation of domicile and in the event that he surreptitiously entered such premises and was found by the owner and was asked to leave and he refused, it becomes an aggravating circumstance or if he has already taken or he has already obtained from the premises evidence or papers or documents or whatever and he refused to return the same to the owner or the possessor, the same is also an aggravating circumstance which would place the penalty to a much higher one than an ordinary violation of domicile. This particular provision

of the law has been discussed recently but they are not actually referring and they are not using the proper term. Do you recall the case of Cardenas? Some people claim that the authorities do not have a search warrant and they searched the premises of Cardenas or what appears to be another house but it is considered maybe a dependency because there is a gate and a point where you can enter the other house from the other house. So it would appear to be a dependency as the same is not inhabited at the time. If it is true, it is not an illegal search because there is no crime under the RPC of illegal search. Is there? Wala… none! It is violation of domicile. Yon ang proper term don. So everybody is talking illegal search but no. it is a violation of domicile. When you are invited in a forum, use the proper term so they will be impressed of your expertise in this respect.

If it is true, (no personal knowledge daw si Judge only speculations) then it is a crime. And any evidence obtained by reason of violation of domicile are inadmissible. So problema yan. Kasi in the case, they forgot to obey the law if it is true. So they have to prove that. Others said, anyway, it is in relation to rebellion or coup d‗etat. It is only rebellion that has been decided by the SC as a continuing crime. Is there any decision by the SC that coup d‗etat is a continuing offense? Wala ano? But the principle is the same, it is a crime against national security. So my opinion is that coup d‘etat is still a continuing offense. But it would be debatable as the elements of coup d‗etat and the elements of rebellion are two different things. They do not have the same elements. Actually before I said that they may be different, I already have some doubts that coup d‗etat is a continuing offense . it might not be a continuing offense because it is a swift attack accompanied by what? violence, intimidation, strategy or stealth for the purposes as enumerated and that the initiators are members of the AFP or the police or any persons employed in the government either with or without the assistance of the civilians. It is considered as coup d‘etat.it is different from rebellion. Well they were saying that if the search is in pursuit of an arrest in relation to rebellion, there is no need for a search warrant. NO! even if there is a declaration of a state of rebellion, there is still a need for them to resort to the judicial authorities to ask for an authority to search the premises of a person who might be suspected of having committed a crime. Or who might be keeping certain contrabands or evidence in relation to the commission of a crime. That is the problem now of the prosecutors. Well, it shall be a good exercise of knowledge of your criminal law if you will follow the moves of the prosecutors and the defense in this case… actually, the case of Cardenas and the Oakwood case will be consolidated… I am sure of that because it arose out of one incident. So if it is a coup d‘etat with the assistance of a civilian, then its coupd‘etat. If it is rebellion it does not matter if these people are members of the AFP or not or the leaders are civilians, it doesn‘t matter… so that would be the situation at this point but I am sure that the two cases will be consolidated as there is no point in not consolidating them.

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Even this pyramiding schemes ha? Yang mga multitel, mmg, isang kaso lang yan eh. That is syndicated estafa. Eh biniyak-biyak. Di mo na tuloy malaman kung ano gagawin mo… all the courts ha have the cases of Baladjay, Mateo, etc from Angeles City to somewhere else, from Muntinlupa even laguna, they have cases.

I think the better approach there is for the department of justice to first reexamine

all this cases and after reexamination give them 15 days and then create a task force and then if there is only one case, file only one case with several victims. Because using the case of Santiago v. Sandiganbayan, if there is only one intent, there is only one crime. even if there are several victims. So that is violation of domicile.

After violation of domicile it is actually the malicious obtention of a search

warrant and the abuse in its implementation. A search warrant is a writ issued by

a competent court directing or addressed to any peace officer commanding the

peace officer to search a particularly described premises and to seize those that are particularly described in the warrant and to bring them to the court upon the execution of the search warrant and a search warrant has a lifetime only of 10 days. Unlike a warrant of arrest, which has no lifetime unless the crime has already prescribed when the warrant of arrest was issued. Wala na yon. But when the warrant of arrest was issued, will the crime prescribe? No. The crime will not prescribe when no warrant of arrest has been issued. (PARANG CONTRADICTORY YATA…)

Another thing peculiar about a search warrant is that a search warrant may either be implemented at any time of the day or night. Or upon discretion of the court it may be implemented only during daytime. Or even night time only. The reason why there is a need for the court to specify why it should be implemented during the daytime is that there are instances when the search warrant is being used for extortion purposes. They can make use of this to harass others or to extort money from others and the courts are supposed to protect the interest of those living within the Philippines.

How do these law enforcement agents obtain a search warrant maliciously? There was a time in 1995, when I was a Judge of a Special Court, when some people from the CIS or CID? 1994? A police major at the time or a police chief superintendent applied for a search warrant in one of the houses here in the city of Makati for illegal possession of firearms. The respondent was a German. After the application was raffled to my court, the search warrants are still being raffled ha, you just cannot go to a particular Judge during ordinary days and ask for the particular Judge to take cognizance of your warrant application, no. you should go to the office of the clerk of court and it shall be raffled by the office of the Executive Judge to any of the Judges there and after the raffle here comes the

applicant and his deponent and they are asking for an immediate action for their application. Well it was about 3:00 pm and I said ok, where is your witness and he presented his witness. I asked them to raise their hands and asked them if they are swearing to the truthfulness of their statements, etc. after that, I asked searching questions recorded by the stenographer and after having been satisfied at that time that there is a good reason for the issuance of a search warrant, and of course after the deponent claimed to be a formal driver of the deponent and he knows even the serial number of the firearm that is supposed to be seized in the house of the respondent, I issued a search warrant. There was a return the next day, positive return that there was a .45 caliber pistol, which match the serial number indicate in the application and the German was incarcerated in jail. So the German got a lawyer and he was inquested, and after inquest, he immediately posted bail, the information was filed. In the meantime, he was already gathering evidence against the applicant and the deponent. It was established that the firearm that was allegedly taken from his house is a planted firearm. He was able to present to the court that the firearm is registered under the name of his business partner from whom he is collecting more than 10 M pesos as they had a falling out. And that the business partner of his has some police authorities for his friends. It was also established that the deponent who was claiming to be a former driver of his has never been a former driver but a peace officer, a policeman also, with a rank of PO1. we subpoenaed all this people and they never did appear. There was even a use of a fictitious name and although the Major used his real name he was assigned already in Bongao, Tawi-tawi, Sulu and he cannot be reached because he is in the jungles of Bongao. There is a problem as to whether he can be served with notice. when after all the evidence was presented I issued an order quashing the search warrant and declaring that there was a malicious obtention of the search warrant because all the statements there are not true. So you can go after the applicant, the deponent and if there are others who are in conspiracy with them go after them and file a case of malicious obtention of a search warrant. That is how they do it or just for the sake of harassment. You don‘t like your neighbor and you have a policeman who is an officer for a friend. You have some friends from the underworld (Si Mildz yon! a.k.a Grand Madame, Master Initiator, and according to Ryan, Bipolar Queen) ―pare, execute ka nga ng affidavit. Bakit? Sabihin mo may 3 kilo ng shabu don

nakita mo idineliver sa bahay nila

cannot be found inside that house, if the search warrant is implemented during the day or the night, this people will be embarrassed… (Hmmmm… which gives me an idea….) sir, ano ba yan? Hindi eh, meron daw 3 kilong shabu dito sa bahay na ito, dala-dala daw ng may-ari ng bahay na ito, naku kakalat na sa subdivision yon! kapitbahay ko pala pusher eh… wala nga nakuha but the impression that he is a pusher will always be there… you have already destroyed his name. So there is this provision under the RPC which punishes a person for maliciously obtaining a search warrant. Even the abuse of the implementation of

‖ even if the metamphetamine hydrochloride

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the writ or the search warrant is punishable. During the times when NARCOM was still the implementing arm of the Dangerous Drugs Law, I have had the experience of really wondering how it come to pass that these people can become so imaginative… they will ask for a search warrant… really some of this people may be engaged in a nefarious trait but during the implementation, these people from the NARCOM will say ―O, bago yang refrigerator mo ah! San mo ba kinuha yan? Tingnan mo nga? Ginagamit yan sa paggawa ng shabu para tumigas ang shabu. Kunin yan hakutin. Washing machine… yung mga damit nyo nilalagay nyo rito para yung mga traces ng shabu walang Makita, kunin mo din yan, ebidensya. Floor polisher pang alis ng ebidensya… bisikleta pang deliver… kotse pang transport… asawang babae tagadala daw kunin din!

An armored personal carrier with a cannon was used to break down the fence and the door. Reason: it was bolted by iron bars. Judge: you should only use necessary force. That is unnecessary. If they complain, police may be held liable for abuse in the implementation of a search warrant. Some even tie the respondent to a post! In the US, police officers ask first of there are children in the house. If there are children, they are removed first. An officer was even dismissed for disarranging the cabinet of a child. The exception only is when there is a possibility that the contraband may be hidden in the toys or the child‘s cabinet. But the cabinet must be returned to its arrangement. There is a hierarchy in who will be witnesses in the implementation of a search warrant. Now if the respondent in the search warrant is present in the house, he can be the only and sole witness to the search and that is valid. He should be the witness in all the stages of the search. He should always be present throughout the search in all the stages of the search otherwise could be a reason on the part of Mr. X to ask for the non-admission of the articles or documents that were seized during the implementation of the search if he was not present. So a respondent who was handcuffed to a post downstairs even if the peace officer gives out the reason that he is a dangerous person that he may be able to grab a gun from where he is hiding them, it is not a sufficient reason for him to be disallowed to witness the search. All that you have to do is to handcuff him also. You know, this peace officers, if they want to make it appear that the killing is legal, they will handcuff the offender with his hands in front. That should not be the case. The hands should always be at the back if a policeman will handcuff a person. So if you defend, if you become a private prosecutor in the killing of a person who you believe was a victim of salvage, pay attention to how he was handcuffed, with his hands at the front or with his hands at the back. If he was handcuffed with hands in front and he is under custody and he is being brought to the station, etc… there could be a doubt especially if he was shot there is prima facie evidence that he was salvaged. Because if you handcuffed him with his hands at his back, how could he possibly grab your gun? The guy cannot even

run for a number of meters if his hands is at the back because he will not have any balance…

If the respondent is not present, that is when any member of his family may be a witness to the search for as long as the member of his family is of sufficient age and discretion. That is the alternative. If the respondent or any member of his family is not present, then get 2 competent independent unbiased witnesses who are both residents of the same committee. Do not invite the drunkards in the community. Nor the neighbors that have a grudge against the owner of the house that is to be searched. The usual witnesses are those who must protect their name:

licensed engineer, a teacher or any professional, or any person known in the community for his honesty. So you ask among the residents. If the search has been conducted in violation of this article, the search will be treated as if there are no witnesses.

The next article is prohibition, interruption, and dissolution of peaceful meetings. Remember that peaceful meetings if done in public places may be regulated by the local government. It is not an absolute right to conduct a peaceful meeting in a public place. So you cannot say that well we will hold a meeting at the EDSA Shrine because it is a public place. Is it a public place? The EDSA Shrine? Has it been declared a church? (Di din alam ni Judge) how about the vicinity? If those that are well-dressed and are known to be sympathizers of the EDSA want to hold a peaceful meeting there, they can, di ba? Eh how about those that did not take a bath for 1 week? Will they be given any permit? Di ba they denied the permit? They shood them away? That could be considered as a violation of this or a violation of their rights. The problem is the peaceful meeting here may be with a permit or without a permit. If it is with a permit, it is done in a public place. If it is without a permit, it was done in a private place and that is legal. To prohibit the same, to interrupt the same or to dissolve the same is what is prohibited by law. You cannot just interrupt a peaceful meeting in a public place wherein they were given a permit. Or if it is done in a private place even if there is no permit you cannot also interrupt them or disrupt them unless of course the meeting would amount to a meeting of an illegal association or it would be a meeting for purposes of committing a crime. That is the rule. So if you say that the street is a public place for the use of the people, it can be regulated by the local authorities especially if it would affect public order or public safety then they can on that grounds prevent the holding of a peaceful meeting or disrupt or even dissolve a peaceful meeting.

Interruption of religious worship. It is only religious celebrations or religious ceremonies. The problem is we don‘t know this organizations which are claiming to be a religious group whether they can be considered as a religion. How about the group of Eli Soriano? Ang Dating Doon? Can we call it a religion? How

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about Brother Mike? Can we call El Shaddai a religion? Hindi eh. How about yung kay Ecleo, etc… can we call them a religion? There is a definition of religion which they have not met. Iglesia Ni Cristo and Aglipayans, they have been recognized by the Supreme Court as a religion. Jehova‘s Witnesses, in Ebralinag v. Superintendent of Cebu, has been considered as a religion. Is a Born Again or a Christian Religion can be considered as a religion? The SC said that it is not a religion but only a manifestation of one‘s religious belief. The SC did not say in People v. Veneracion that it is a religion, if you study the decision of the SC in this respect.

Sept. 1, 2003

Any public officer or employee who shall prohibit or interrupt the holding of a peaceful meeting shall be liable under Article 131. When you say peaceful meeting, it is actually allowed by law and that the purpose of the meeting is not any of those that would be in violation of the provision of the RPC or for any immoral purpose. We can prohibit peaceful meeting if it does not conform with the rules and regulations of the local governments because the local governments are allowed to regulate even peaceful meeting. Say for example, you went in the middle of EDSA, you want to hold a peaceful meeting there but then it would affect traffic, it would affect the flow the transportation, it would affect so many commuters, so it can be prohibited by the government. You cannot also hold a peaceful meeting in other places which would naturally affect also the rights of others. You are not only supposed to think only of your right but you have to take into consideration also the rights of other people. If the two rights clashes, usually the one who has a more important right than the other shall prevail. When, however, the meetings are in private places, there is no problem there, no one can regulate that except the owner of the establishment.

Interruption of religious worship or manifestations of any religion. There is no problem with that. Remember the cases of Iglesia ni Cristo and another religion. But then in the case of Iglesia ni Cristo where the preacher was reading the bible then he delivered his sermon then they disturbed or interrupted the same, according to the SC, it is NOT in violation of Art 132 of RPC but it is in violation of Art. 131. But when say for example, 10 or 20 persons were inside a room or a building then they are having their prayers and the same is interrupted, it is covered by Art 132 of the RPC.

Offending the religious feelings of the faithful…naku! Actually, it is committed in a place of worship or while there is a marriage ceremony or a

manifestation of a religious worship that any act that would tend or that is offending to the feelings of the faithful but then the faithful actually are very much seriously affected by it…then that is the only time it would become a crime. It is not actually the feeling of the Church or anybody else but it is the

feeling of the faithful that is supposed to be the basis for the commission of the crime. If it is committed in the place of religious worship, it is not needed for the people to be present. Only when it is actually an offense to their belief and during

a manifestation of their religious belief that their presence is required. So, in one

case decided by the SC, the scattering of the human excreta in a church even without the faithful being present, it is considered offensive to the religious feelings of the faithful. Naturally, not only the smell is offensive but the act of the person who did it. Boxing a priest while the priest is saying a mass, that is offensive to the religious feelings of the faithful.

Q: Must the religious organizations claiming to be such, be registered before being liable under this provision? Judge: I cannot answer you that because not even the law says it has to be registered. But there was a case where they did not consider the same as offensive to the religious feelings because instead of the org being considered as

a religion, it is merely considered as an association of persons for purposes of

believing on something. Like the cults, they are not religions! Is the org of Ecleo of Surigao a religion? There are so many charges even in the North. How about the pyramid of Kibuloi? Don‘t you know that. Kibuloi is constructing a pyramid somewhere in Pangasinan going to Manaoag. What is he going to do with that? Eh, nanggaling lang kay Ernie Baron yang pyramid na yun eh. But so many people believed in it.

We go to Rebellion and Coup d’ etat. What is the difference between rebellion and coup d‘ etat? Rebellion is committed by any person who by means of public uprising or taking up of arms against the Government intends to take away the allegiance of the people from its government or take away the people‘s territory

or to take any military naval or other military installations or to take away the powers of the President of the Philippines. There must be 1.) a public uprising;

2.) taking up of arms against the government;

3.) and the purpose must

be to take away the allegiance of the people from their own government or to take any part of the territory of the Philippines or its military naval installations

or to deprive the President of her/his powers.

When you compare it to coup d‘ etat the comparison is about the means of committing the crime. In coup d‘ etat, the commission of the crime is accompanied with violence, stealth, strategy etc. committed by members of the AFP or the military or the police or any public officer or employee and their purpose is to take over the gov‘t itself or any of its military or naval installations

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or any means of telecommunications with or without the participation of the civilian population. It can be committed singly or collectively. You have had your own experience as an adult because in 1989…how many years ago? Ah, you are not yet adults. So, this is your first time to encounter such a tourist attraction. But then there is a lot of question that even the DOJ cannot make head or tails, they cannot determine whether it is coup d‘etat or it is rebellion. Of course, I have personal knowledge that the 1 st case that they filed is against Cardenas and it is for rebellion. For the same incident, they filed against the Magdalo group a case of coup d‘ etat. The two are different from each other arising from the same incident. I think that they have a lot of explaining to do and they have a lot of problem. It cannot be done because it would constitute as forum shopping. It would result to 2 judgments or orders to be issued by the courts which may be in conflict or contrary to each other. So, they have to put their act together and charge only these people of one crime and they should not file so many cases, only one case bec. it arise out of one criminal intent. This is a felony or a crime covered by the RPC and it requires a criminal intent and the case that should be filed should have only one criminal intent. There could be no multiple criminal intents here. The problem here that I can see is the participation of each and every offender…there are those who were not granted bail when they are mere followers. What is the penalty for a mere follower in rebellion or coup d‘ etat? Reclusion Temporal unless my recollection is not anymore to be trusted. And if its reclusion temporal, bail is a matter of right. It is only those who are considered leaders, financiers, organizers, though in case the leaders are unknownthose who speaks for the group, shall be considered as leaders. The problem of these people in the Magdalo group, idinawit ng idinawit ang mga kasama bec everybody wants to talk. The moment that you speak for the group, patay kano bail bec the penalty is reclusion perpetua. I think it is not planned so well but it may have been planned in order to divert the attention of the authorities into what crime really was committed by them. The other problem that I can see is whether the act of asking the President to step down is an act to deprive to deprive her or her powers. Now, let‘s try to analyze only for the purposes of academic discussions bec we do not know all the facts. Let us suppose that it is true that these people surreptitiously entered the Oakwood. If it is a coup d‘ etat, is it a swift attack on any of the gov‘t installations? What is in the crime of coup d‘ etat? Where is the swift attack to be directed?…eh, puro foreigners ang nandun eh. They said that the only important person there is the ambassador of Australia. Eh, you know he can jump easily bec he comes from the place of the kangaroos. Hehehe But did they seize any means of communication. What did they seize there? Would there be a complete presence of a coup d‘ etat there in your opinion? (4B-none) Based on their testimonies, we don‘t know yet bec we don‘t have actual facts.

How about rebellion? Rebellion is the rising publicly and taking up of arms against the gov‘t the purpose of which is to take away the allegiance of the people from the gov‘t or to take away any part of the territory of the Philippines from the gov‘t or naval, military or any other installations or to deprive the President of her executive powers and prerogatives. There is a legal question here. There is a public uprising, there‘s no question about that. There is a taking up of arms against the gov‘t…there were display of firearms and bomb…no problem. The problem there is proving their intention to take part of the territory of the Philippines. Ah, ―part‖…Oakwood. It‘s a part of the territory. Medyo we have to analyze. The place where Oakwood is is a part of the territory of the country so papasok dun yun. Another purpose maybe is to deprive the President of her powers and prerogatives so maybe it will be along the line of rebellion.

But then think about sedition. Because here the offenders are military officers so if the military officers are not performing their duties and they are acting in their civilian capacity, we can‘t consider that as within the ambit of rebellion. But they are military officers. Could they be in the actual performance of their duties? They are saying yes bec they are doing it in order to save the nation from these people. There are a lot of problem that we have to solve in this case.

Q: In coup d‘ etat, what does the term ―directed against duly constituted authorities of the Republic of the Philippines‖ entail? Judge: The act of taking over installations, means of communications etc is directed towards the authorities. Is there any provision about coup d‘ etat that a part of the territory of the Philippines is supposed to have been taken over by them and that it is directed towards the gov‘t authorities? The purpose of coup d‘ etat is very definite.

As of the moment, they authorities cannot make up their mind. Cardenas was charged of rebellion. Then they charged Trillanes and co. with coup d‘ etat. But there is only one incident. Can you divide a single incident to two or more crimes, you cannot, you have to choose which of the crimes they have committed, otherwise, if they are not informed of the nature and cause of the accusation against them, you violate their constitutional right to be informed. Q: Can the civilian be charged with coup d‘ etat even if it is said that it can only be committed by the military officers or employees? Judge: Yes, if he assisted. Look at a certain portion of the law on coup d‘ etat… ―with or without the assistance of civilians‖. So, the civilians there can be charged even as a financier, as an organizer but actually the civilian can only be a co-organizer together with a man in uniform or a gov‘t officer or employee. That is the whole problem about it eh. Really, I am still at a quandary at this point. Look at the penalty for rebellion and coup d‘ etat. Its only the leaders, the organizers, the financiers and those who speaks for them that are considered as

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leaders are punishable with reclusion perpetua. Those who are merely followers would suffer only a penalty of reclusion temporal and therefore they are entitled as a matter of right to bail. This is not a crime where the penalty is reclusion perpetua to death. The most severe penalty that could be imposed is reclusion perpetua. If the leaders etc are supposed to be punished by that penalty, the followers are supposed to be sentenced only for a penalty of reclusion temporal. You don‘t have to file a motion for them to be admitted to bail, no more. They are entitled to bail as a matter of right. It is the court that should fix the bail. You cannot deny them to their constitutional right to bail.

Now, let‘s go to Sedition. There must be a tumultuous uprising and the purpose are very definite 1.) to prevent the proclamation of any law or holding of a popular election = it‘s not that because there is no law that is being prevented from being proclaimed and there is no popular election that is sought to be prevented. Probably 2004, if they only said that their intention is to prevent the holding of a popular election, it might fall under sedition. Because when you say tumultuous uprising, it must be done by at least 4 persons who are provided with means of violence, that is the meaning of tumultuous. Under the law, however, on death due to tumultuous affray or physical injuries due to tumultuous affray, the movements of the offenders and the offended parties there are in a confused and disoriented manner, just like these instances where there are rumbles etc. that is where you consider it tumultuous. Just like the EDSA 3, it was tumultuous, there was no direction. Everybody comes from an alley, you don‘t know whether they take a bath or not. What is the next purpose…2.) prevent the National Gov‘t to freely exercise its function = so when you ask the president to step down or to leave the Office of the Presidency, that would mean that you are asking the President to abdicate and prevent the President from exercising her duties. The third is different…3.) to inflict an act of hate or revenge against any public officer or employee. And the fourth and the fifth, these are all for political and social ends.

We are really at a loss now. The problem further is exacerbated by the fact that there are those who were not at Oakwood. In order that a person may be held criminally liable for rebellion, he must have taken a direct participation in the commission of rebellion. There is no attempted rebellion or frustrated rebellion…none. The mere attempt or frustration is already a consummation of the crime of rebellion as long as you have taken part in the attempt. If you are successful, you cannot be punished. You don‘t violate any law, it is when you are unsuccessful in the rebellion that you get punished. Look what happened to Cory and company, if the rebellion then did not succeed in toppling down Marcos, they would have been charged of rebellion…tapos sila. But they succeeded that‘s why all their acts are legal including the mass resignations of public officers and employees, the substitution of old members of the SC, etc. We were all then

asked to resign. It was a directive that we submit our ―courtesy‖ resignation. Actually, it‘s a forced resignation bec at that time we have a rebel constitution.

The only stages of rebellion and coup d‘ etat are Proposal and Conspiracy. One area of concern that I have is supposing that you have already committed

conspiracy to commit rebellion

and that you agreed to the proposal and decided to commit rebellion. But when rebellion is already about to take place, you suddenly turned chicken, you do not want anymore to participate in the rebellion, you went to your home province. Now, question, can you still be held liable for conspiracy to commit rebellion?

Could there be a stage of spontaneous desistance in rebellion considering that it is

a crime against the provision of the RPC? They say, however, that there is none

meaning

that a proposal has been made to you

bec there could be only spontaneous desistance in the event of an attempt or an attempted felony. But as we know the nature of attempted of rebellion is in the nature of a proposal. And accdg to the law, you are only supposed to be liable if you take direct and active part in the crime of rebellion. So, this is an area which

is pregnant with meanings. You can defend your stand either way. There is no

jurisprudence. As I said, coup d‘ etat came out only as a law in 1991, I believe.

After their experiences during the times when Gringo, the great Mexican- American-Filipino, staged several attempts and he was not successful. Now, he is still not successful. When will he be successful? Hehehe I don‘t know…I can‘t tell you what crime is committed in Oakwood. Okay.

Disloyalty of public officers or employees. Any person who possesses all the means to resist a rebellion and failed to do the same shall be guilty of disloyalty. These are the cowards. But under the law, it speaks only of rebellion, it does not speak of sedition nor coup d‘ etat. So, you will ask probably ―sir, what would happen if these people failed to resist a coup d‘ etat but they have the necessary means? Can we punish them?‖ Eh, supposing that is a question in the bar. Meron…in CA 408, yes…I researched. heheheCA 408 as amended by RA 7055. And I‘ll point to you the exact provision of the law…its I think…in Art. 68. Here it is. ―Any officer or soldier, who being present at any mutiny or sedition…‖ the word mutiny here is actually coup d‘ etat. Before the law on coup d‘etat was passed, it is actually a mutiny. When your own soldiers turn against you, that is mutiny. This is what happened here. To continue ―…does not use his utmost endeavor to suppress the same or knowing or having reason to believe that a mutiny or sedition is to take place, does not without delay give information thereof to his commanding officer shall suffer death or such other punishment as the court may direct.‖ This has not been amended ha, and this is covered by Court Marshall bec RA 7055, although it strengthens the civilian supremacy over the military bec it was not included in disloyalty of public officers or employees then it falls under military law. The penalty of death. This is what we call ―cowardice‖ in military parlance. Eh tinakbuhan mo eh, alam mo. This law is

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important. I‘ll give you a copy of this including the ―Articles of War‖ which is CA 408. It‘s high time that you should be familiar with this bec of the question at Oakwood and other questions that may arise in the future.

and the purpose is almost the same. But then in rebellion, some of the purposes there are different from coup d‘ etat.

In regard to Inciting to rebellion/inciting to sedition, there is no problem with these. The only thing that you have to remember here is that the offender must not have committed an act of rebellion or conspiracy to commit an act of rebellion or conspiracy to commit sedition or sedition itself. Meaning he is still undecided, however, he incited others to commit any acts of sedition or rebellion by means of his speeches, banners, etc. these are the things that you should remember in connection with inciting to rebellion or inciting to sedition. There have been other instances where those who committed acts of inciting to sedition have been committing acts of rebellion already or sedition. However, the fact is that you have to prove that they have committed acts of rebellion or sedition. Remember that rebellion is a continuing offense. This puts into a serious question the act of effecting warrantless arrest against those who are in the act of or prior to the commission of rebellion. Would you consider conspiracy to commit rebellion as a continuing offense? No, it is only rebellion. Therefore, you cannot arrest a person who is committing only an act of conspiracy to commit rebellion. Neither could you arrest a person for conspiracy to commit coup d‘ etat. It is considered as continuing crime bec of the discussion in the Senate and in the House of Rep when these laws are being amended esp the passage of the law on coup d‘ etat. It was the position of the Congressmen then that the crime of rebellion is a prolonged struggle for the purpose of overthrowing the gov‘t that is why it is considered as continuing. If it is a crime that if committed right now, it ends there, it could not be a continuing crime. The moment that there is a public uprising, there is a taking up of arms, there is no result yet of the public uprising and the taking up of arms, it takes a long time in order to achieve their purpose then that is why it is considered as a continuing crime. So, that is the explanation why rebellion is a continuing crime and that the offender at any stage of the rebellion is eligible to become a candidate for warrantless arrest. That is the case of Umil v. Ramos and companion cases. Those cases, remember them. Cite them in the event that you are asked a question as to why rebellion is a continuing crime.

Rebellion cannot be complexed with any other crime. They are all absorbed if it is in furtherance of rebellion…you steal, you kill, you burn, etc. you rape. Although rape has been transferred to crime against persons, the fact is that it is still considered a private crime. It is only the fact of transfer for purposes of prosecuting the same de oficio without the need of participation by the offended party. The same rule applies to coup d‘ etat. They can prolong the same. It will start from a swift attack, then the employment of force, violence, intimidation

Q: What if the people who are committing rebellion managed to take hostage the President and the President has a daughter. These people threatened to rape her daughter if they would not transfer control of the gov‘t to them. So, its in furtherance of the… Judge: …actually, that was a question that I propounded about 5 years ago in an exam. Maybe you got hold of my exams question. (Thony: judge, I just thought of it now. ) Judge: There were so many answers different from each other. The rape there is NOT actually one that satisfies the lust of the offender. The purpose there is an assault upon the womanhood of the girl in order to achieve the purpose of the rebels. I think it is absorbed. That‘s the answer that I gave, bec I usually answer my exam questions but its just only in my databank which I am keeping in my computer. Are there any more questions?

Well, RA 8294 absorbs illegal possession of firearms explicitly and there is no consequence of having an illegally possessed firearm in crimes of rebellion, sedition and coup d‘ etat. It is simply absorbed, no aggravating circumstance. Let us see.

CRIMES AGAINST POPULAR REPRESENTATION After this, there are other provisions of the law to discuss. Article 143 is actually one of the crimes of popular representations. This usually happens when any person who by means of fraud or force shall prevent the meeting of the National Assembly or any of its committees or subcommittees or any of the constitutional commissions or committees or divisions thereof, or of any provincial board or city or municipal council or board. To be very clear about it, the legislative body that is supposed to be covered only by this provision is only up to the municipal board. The Sangguniang Brgy or S.K. are NOT covered by this. There have been instances when fraud may be employed in order to prevent a member of the National Assembly from attending. Say for example, the sec. of any committee or subcommittee is partial to one of those under investigations, so she called all the members telling them that the chairman of the committee has decided to postpone the meeting for the next month…you don‘t have to appear today. So, all the members did not appear and it came to the attention of the chairman that it was the sec. of the committee who made such misrepresentation, therefore, there is fraud. Force…you actually point a gun at them so that they cannot attend.

Disturbance or disruption of the proceedings. The disturbance must be with the intent to cast dishonor or not dishonor to actually show disrespect to the board itself or the body to interrupt its proceedings. There are instances where we

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believe that the act of certain individuals by reason of the behavior of those attending the same, even if it causes disruption as long as there is no criminal intent to disrupt the same would not be a violation of this article nor such acts that would impair the respect due to such body, it is not considered a violation of the law. You know how it is in the country, you have seen the tantrums of those in the Congress and those people in the gallery. There was a time when a Congressman from down in Mindanao, I think his name is Delangalen, he is actually a very articulate person but the problem is he is usually at the opposing side of what is popular that is why he is receiving all the interruptions, the impairment of his speeches. But then he does not react, he took them in stride. One who was not able to control her temper was Senator Santiago when she saw 2 women from the rich communities here, I think she recognizes them. She claimed that they are impairing the respect due to her. No…it must be due to the committee or the body itself…not to a particular Congressman or member of the committee or subcommittee.

Then we have violation of parliamentary immunity. Any person who violates the parliamentary immunity of any member of Congress whether the same was committed during a special or regular session and the member of Congress is going to and from attending the meeting in Congress by forcing him or threatening him not to attend the session or from the meeting of the Assembly or even preventing him from expressing his opinion or casting his votes or searching him or arresting him for any crime the penalty of which is 6 years or less shall be held criminally liable under this article. You have to change the last word in Article 145, instead of prision mayor, its supposed to be prision correccional. There is no problem in the prevention of the members of Congress from attending or from expressing his opinion or from casting his vote. The problem is arresting him or searching him. The word ―search‖ is actually a word that is very important to Congressman. Will it include violation of special laws? The parliamentary immunity of a member of Congress in regard to search and arrest are only for crimes punishable under the RPC and does not cover violations of special laws. If the Congressman is violating a special law even if the crime is punishable by less than 6 years, he is not immune. What will apply then is his constitutional right against illegal searches and seizure. And the evidence that may be obtained against him shall be disallowed form admission. So, if a congressman is seen playing cara y cruz in violation of PD 1602, you can arrest him even if he is going to and from Congress. He violated the law on firearms…pasok pa rin sya. What is prohibited only is of course, the search when the firearm is not in plain view, the firearm is inadmissible in evidence and you cannot convict him. You cannot kahit na dumaan pa yan ng lexxus o pegasus. However, if he commits acts of lasciviousness in Pegasus, you cannot arrest him bec it is punishable under RPC but the penalty is only prision correccional. Or estafa, wag lang lalaki. If you are going to look at Art. 315, if the amount is less

than P6,000 the penalty cannot exceed prision correccional. So, oorder sya less than P6,000, meron bang order dun na less than P6,000, siguro Coke lang noh tsaka mani. Remember ha, I will repeat, if the violation is against a special law, parliamentary immunity does not apply under the RPC. How about in the Constitution? That is the problem. What is the provision under the Consti in connection with the parliamentary immunity of a member of Congress. Does it involve all crimes or all offenses? All offenses yan eh. So, if you are going to invoke parliamentary immunity under the RPC, ito lang. But if you invoke parliamentary immunity under the Consti, wala nang maraming usapan…libre pa rin.

Q: (Following question #3 in Poli midterms) Congressman Cruz was convicted of slight physical injuries and sentenced for imprisonment for 15 days. The decision became final. The court ordered a decision for his imprisonment. He argued that he cannot be imprisoned since congress is in session. Is this argument tenable? Judge: Imprisoned…not searched or arrested. His argument is correct, he cannot be imprisoned bec he cannot be arrested. But if he is going voluntarily to serve his sentence, he could be imprisoned. The law did not distinguish whether the arrest should be made by reason of finality of judgment or by reason of having committed a crime even under the constitution. Who made this? (4B-Atty. Jimenez) Oh, si Jack pala eh. He‘s good. I don‘t know whether we have this already in a case. But you know, Jack knows ALL the cases in the SCRA (hehehe ).

Q: Sir, after tapos ka na maging Congressman, can he be imprisoned already. Judge: Ya. Q: Hindi magpreprescribe kunwari yung crime o yung penalty? Judge: That is the problem. Q: Or is it suspended. Judge: There is also no provision about suspension. A penalty for a light penalty prescribes in 2 years, naturally, the session will have to have an end for 2 years. 2 years yung prescription di ba? Granting that it is 1 year, the session will have a recess in one year, dun mo siya arestuhin. Any question re violation of parliamentary immunity.

Illegal Assemblies. Alam nyo naman yun eh, when people gather together for purposes of committing any of the crimes punishable under the RPC or any law for that matter, it shall be considered as illegal assembly. It is an illegal association, the mere fact that you are a member of an association the purpose of which is to commit any of the crimes under the RPC or any other law and or the purpose of the association is immoral, it is an illegal association. Is the Communist Party of the Phils an illegal association? If it is true that their purpose is to collect revolutionary taxes without trial or due process under our existing

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laws, it is an illegal association. But definitely the NPA at present is considered as an association that is illegal. It is actually the CPP that may be at one point a legal assoc. bec we already decriminalized RA 1700 that is outlawing membership in the CPP.

Direct Assault. There are two kinds of direct assault.

Q: Sir, what if the teachers are enforcing the RA 9165 and for example, these students have a grudge against the teacher and he physically assaulted the teacher within the school, would that be also direct assault? Judge: NO. Because the teacher must be ACTUALLY enforcing RA 9165, the reason that he must be assaulted is that he is enforcing 9165 or he has enforced 9165, that is when there is a direct assault.

1.)

direct assault when any person employs force or violence upon a person in authority or their agents when there is no public uprising but their purpose is to achieve the purposes of rebellion or sedition. Kasama ba ang coup d‘etat? Oh, ayan di na naman kasama ang coup d‘ etat. any person who shall attack and employ force, violence or intimidation shall

 

2.)

In connection with persons in authority, the degree of assault is rather lighter than the degree of assault in agents of persons in authority for purposes of direct assault. In person in authority, the mere laying of hands on a person in authority with intention to defy the authority of that person in authority, it is already direct assault. An agent of a person in authority, the assault must be serious that the agent of a person in authority may sustain even physical injuries in connection with the assault and that is the only time when there could be a possibility that there is a direct assault, not serious resistance or disobedience bec they are different from each other. Do you remember the case of a policeman who was serving a warrant of arrest against an accused and instead of surrendering himself to the police, the accused delivered a blow to the breast of the policeman. Sa ngayon, patay yun. But the policeman charged him only of direct assault, the SC said NO, the assault is not so serious as to consider it within the purview of direct assault. It is only serious resistance or disobedience. Kaya pag nanuntok ka ng police,wag mo lang gugulpihin ng masyado serious resistance lang…baka slight resistance pa nga eh. But the moment you do it to a person in authority such as brgy chairman, teachers etc. the mere laying of hands to these people with intent to defy their authority is already direct assault. Ang judge or mayor by reason of the performance of their official functions ah,…nakita mo sa Baguio. You are from Sulu. ―Ito yung walanghiyang judge na nagsentensya sa akin eh. Magulpi nga.‖ Direct Assault pa yun bec. it was by reason of the performance of the official function of the judge. Same is true with the mayor.

An agent of a person in authority is a person who is only in charge of the

seriously disobey, resist any person in authority or their agents and it shall become qualified when the assault is with a weapon or when there is a laying of hands against a person in authority or when the offender is a public officer or employee. But you have to first determine who are the persons in authority or their agents. Naturally, a person in authority is any person who by reason of appointment or election is in charge of the execution of the laws or he is vested with jurisdiction. Under those who are ―appointed‖ persons in authority are the judges, justices,

prosecutors. They are the first kinds of person in authority. The public officers who are elected and in charge of the execution of the laws and some of them are vested with jurisdictions are the mayors, governors, congressmen and other persons who by reason of their being elected are charged with the execution of the law. There are, by special provisions of law, persons in authority. A teacher in the public schools or those who are principals, directress, even the head of a department in the Bureaus are considered as persons in authority, ONLY, however, including those teachers in the private schools as long as the schools are recognized by the government they are considered as persons in authority, but only during the performance of their official duties…only in the performance of their official functions. They cannot be considered as persons in authority by reason or on occasion of the performance of their official functions but there is an exception to the exception. Under RA 9165 or the Comprehensive Dangerous Drugs Act of 2002, if it is in connection with the enforcement of RA 9165, a teacher or any member of the academe shall be considered a person in authority within 100-meter radius of the school (from the fence) where he is teaching. He can call the assistance of any person in order to enforce RA 9165. That is the only exception to the rule. This is the only time that teachers are considered as person in authority. Then you have lawyers who are considered as persons in authority but only in the actual performance of their official functions. So, hindi mo pwedeng batuk-batukan yung abugado dun esp if he is conferring with his witness.

enforcement of the laws. Yun yung mga police, brgy ―tagay‖, di mo na kasi alam

ngayon eh

MAPSA,

Brgy Tanod, Bantay Bayan. I think Congress should adopt

a law creating positions for these people so that it would be uniform. We do not know already who is an agent of a person in authority. There is a problem there…esp now, there is move to disenfranchise the people in the squatters area. I have been telling you since 1 st year, these people are not supposed to be voters of their locality bec they are not legally residing in these places.

 

SEPT. 3, 2003

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I think I have partially discussed Direct Assault already. Remember the importance between persons in authority and agents of a person in authority. The persons in authority who are assaulted while IN THE ACT OF the performance of their duties, direct assault. You assault them ON OCCASION thereof, direct assault. You assault them BY REASON of the performance of their duties, that is direct assault. But you have still to qualify direct assault in this respect bec one of the important elements of direct assault aside from the assault etc., this is the second form of direct assault bec the 1 st one is the purpose of these people are to achieve the purposes of the crime of sedition or rebellion. Coup d‘etat is not included ha so if a question is posited in a way that direct assault was committed against a person in authority to achieve the purpose of coup d‘ etat, that is not direct assault bec the law was not amended by Art 134-A. Be careful when they ask you a tricky question like that. In the 2 nd kind of direct assault, that is when there is assault, attack, etc upon a person in authority, there must be an intention to defy the authority of a person in authority without such an intention it will not be a direct assault. Let us suppose, in brgys the usual pacifiers of troubles whether it be serious or slight or any commotion in the community is always the brgy captain. They will always ask for the brgy captain, puntahan mo si kapitan. If you have lived in a place where there are so many people in the community esp in congested areas -- maybe you are an apartment dweller, you will not experience this if you are renting a condominium unit or in a subdivision,-- there are usual friction among people who lived in congested areas. Let us suppose that 2 women quarrel and they are disturbing the tranquility of the community so people send somebody to look for the brgy chairman then the brgy chairman came. The brgy chairman has been trying to pacify both and convincing them to enter their respective residences. While the brgy chairman is actually conducting one of the protagonist towards her apartment, here is the husbanda security guard, upon seeing that the brgy captain is holding the arms of his wife, the security guard immediately confronted the brgy captain… ―Chairman! Walang chairman chairman sa akin. Walang pwedeng humawak sa katawan o braso ng asawa ko! Ako lang may karapatan dyan. Alisin mo yang kamay mo.‖ But in doing so, he was able to lay his hands on the brgy chairman and you know that most of the brgy chairman are retired gov‘t employees, retired private employees, they are already passed their prime and a small push here and there will make them stumble, probably lose their balance and sustain injuries. The captain filed a case of direct assault against the security guard. You do not have any respect to a brgy captain and to an old man. The feelings of people like that esp when they are obsessed with jealousy and other things and they believe that the chairman is taking advantage of the situation…is there any intention to defy the authority of the brgy captain there? NONE. It must be shown that the purpose of the offender in assaulting or laying hands upon person in authority is to defy his authority. If there is none, there is no direct assault. Also, in direct assault against these people

who are vested with jurisdiction and who are in charge of the execution of the laws, even on occasion of the performance of their duties or by reason thereof and they are assaulted, then it is direct assault. You must note that even serious intimidation against persons in authority who belongs in this class are considered direct assault. Oh, yes, you look at the law, even serious intimidation is included. You don‘t even need to lay your hands on the person in authority. Intimidating, for example, going to the mayor and telling him that ―you have to do this, otherwise…‖, this is direct assault.

A judge who sentenced a person, they saw each other in Batanes, but the person

was sentenced in Makati, they met each other there, then the person who was sentenced assaulted the judge after having served his sentence, that is direct assault. There is no prescriptive period from the time of sentencing or from the time that the judge has committed any act that would cause any reprisal against him.

Indirect assaults. The only person or persons who may be a victim of indirect assault is a civilian but if he is an agent of a person in authority he must not be in the performance of his duties otherwise, if he is in the performance of his duties,

it would still be direct assault and not indirect assault. So, I don‘t know if there is

a case cited in your book that the offended party must be an agent of a person in

authority, that is not correct. Any person who comes to the aid of a person in authority or his agent and he himself was assaulted and the person who was assaulted has been known to the person who assaulted him as a person assisting a person in authority or giving any aid to a person in authority, there is an indirect assault. What is important in direct assault and indirect assault is that the victims must be known to be such by the offender. If the victims are not known to be such, there is no direct assault, it is as if you have assaulted a private person.

Now, direct assault can be complexed with other crimes. In crimes against

persons, it can be complexed. Ex. Serious physical injuries with direct assault, murder with direct assault, homicide with direct assault. How about carnapping with direct assault? NO. It cannot be complexed bec one is a special law and the other is felony under the RPC. And they can only be complexed with each other

if they are considered as special complex crime. I have explained already direct

assault, indirect assault. What else? Do you have any questions regarding these

assaults. I cannot remember anymore what are other areas that can be discussed here.

The next topic is the Disobedience to Summons issued by the National Assembly, by a Constitutional Commission or the Committees of the National Assembly. We all know that the only authority that the Nat‘l Assembly has to summon a person is in connection with any inquiry in aid of legislation. They

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don‘t have any authority to find the guilt or innocence of any party but that is what is happening now. The thrust of their questions most of the time is to find out whether the guy is guilty or not guilty. And whether the guy is telling a guy or not. Do they have that power to determine whether the person is telling a lie or not. They are only being asked to become resource persons. They are not being called as witnesses. It is not an impeachment proceedings. So, when you become Congressman or Senators, please ask questions only in order to get things out of the witness for the purpose of amending a law, passing a law or repealing a law. Do not tell a person who is testifying that ―you are lying!‖ Does he have that

any court of law or in any other proceeding that is a ground for you to invoke your right to self-incrimination and that is a legal excuse or a legal and valid reason. Now, if you answer all the questions, you may be asked also to produce papers, documents, books, and other written materials but never an article or goods. These may be subjects of a summon which tantamount to a subpoena duces tecum. So, in the event that you violate all these, then you have a problem. That us when you are supposed to be punished for violating the law. We are thru already who are persons in authority and their agents. We are thru with direct assaults and disobedience to summons.

power. That is an abuse of your parliamentary immunity. If you found him lying, would it aid you in passing a legislation? Hindi eh. Its just so frustrating to us who have studied the law on how these people can actually violate the law itself that they have sworn to protect. Like this, if you do not obey the summons of these people you may be sent to jail. Naturally, that is showing disrespect to a Constitutional body so you will be sent to jail. It is a crime aside from it is contemptuous to the dignity of the Senate and any of the body that is convened for that purpose. The Senate or Nat‘l Assembly can send two kinds of requests for a person to appear. One is an invitation. If it is an invitation, you may or may not appear and you don‘t incur any criminal liability. But if it is already a summon, that is different already, you have to appear. Now, when you are summoned and you appear, you still have an obligation if you are called to testify not as a witness but as a resource person. He has to be placed under oath. Oath means that he will have to take his oath by raising his right hand…right hand, not left hand. And I told you at one point that Pres ERAP when he took his oath, kaya nagkalokoloko siguro, he raised his left hand before Chief Justice Narvasa and nobody have the guts to tell Erap that that is wrong. Minsan natatawa ako sa husgado nga eh tinataas ang kaliwang kamay eh. Sinasabi ko, ―mukha atang si Satanas ang iyong Diyos ah.‖ (Hehehe ) kasi kaliwa eh. It must be the right

The next article involves crimes which are considered as Tumults or Public Disorder. Tumults and public disorder is actually any serious disturbance in a public place or in any gatherings or in any peaceful meetings and these tumults and public disturbances are considered as violation of Art. 153. Now, in these tumults and disturbances which include those that will involve public order, the law prohibits a person even in making an outcry in a peaceful meeting or gathering to incite people to commit rebellion or sedition. And the last of which is that burying the body of a person with pomp and that person was legally executed. In tumults and disturbances in public places or in peaceful gatherings, the same must be committed by at least 4 armed persons or 4 persons provided with means of violence in order that the same may be considered as tumultuous. We have had the occasion of discussing tumultuous uprising in sedition and this is the same. Just remember 4 or more armed persons or 4 or more persons who are provided with means of violence. You have to remember that bec. the 2 may be interchanged with each other but the word FOUR will always be there…more than 3. Those making an outcry in a peaceful meeting to incite others to commit rebellion or sedition by means of speeches, placard, etc. that is considered as in violation of Art. 153.

hand bec. you are going to swear before God. That is why when a person administer an oath to another you must tell him ―Do you swear to tell the truth

Unlawful use of means of publication. There are I think four.

the whole truth in this proceedings and whatever.‖ And that there must be an

1.)

The publication with malice of false news which is known to the

accompanying phrase of ―so help you God‖ that is why it is considered as an oath. Without that there is no oath, it would be only an affirmation bec. there are people who don‘t believe in God or an oath. So what you are going to do is ask him to stand properly, if he can stand, and ask him whether he solemnly affirms that what he is going to tell is the truth and nothing but the truth, no other. That is a solemn affirmation. You cannot say that ―I don‘t believe in God—no oath.‖ BU then there is a substitute, you will be asked to take a solemn affirmation and if you refuse that is when it becomes a crime without any justifiable reason. But how can you justify anymore not taking either an oath or affirmation. You can choose any one of the two. If you have been sworn and you are to testify, you have to answer the questions but naturally, there is a law that says that if the answer to the question would incriminate you and may be used against you in

2.)

offender that it is actually false. I said malicious bec. there must always be malice. If there is no malice, there is no violation. Even if you publish a million false news. You have had the experience of reading false news in newspapers or other articles, only to be corrected later on, so if it is corrected then there is no malice. Those who insists however then it is malicious if actually the very face of the news involves already what appears to be tainted with malice. The publication of resolutions, orders which are not yet authorized to be published or released. It is actually common. You will note that sometimes a resolution is not yet officially released but it is already published bec. some enterprising reporters are already equipped with a copy of the order. Its common to courts and even the Office of the

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President. There was one time, a decision of the SC which was not yet been supposed to be released but the same was released prematurely. Now, I don‘t know if the case of the Kuratong Baleleng will be prematurely released. There are so many enterprising people there eh. Gone were the days when you can trust your employees. Even in the SC. Look what happened, sa bagay may F4 naman eh, ngayon M4. (Sir,

And attempted homicide, you point the gun at the direction of the person with intent to kill either you hit him or did not hit him. If you hit him and the wound will not cause his death that is attempted homicide. So, when you are a poor shot, you can always say that is only illegal discharge. I don‘t have any intention to kill. Kung papatayin kita eh dapat tumba ka na dyan. Palusot yun ha. That is 1 of the defenses that you have in attempted homicide of which the bullet did not hit

3.)

sinong M4?) Si Mawanay, Mahusay, Mateo, Mike…apat yun na ―M‖…nareceive ko lang sa text yun ha. Those who by means of words or utterances shall encourage people to disobey the law and those who actually exhorts the commission of any

the victim. But you cannot take the defense of alarm and scandal bec. in the latter you did not point the gun at the direction of another person. Lets take a break. (Oh no, blank na other side of tape.) Majah‘s notes:

violation of any act.

Article 157. Evasion of Service of Sentence

4.)

About publication of articles, news etc that are authored by an

1.)

Ordinary prisoner escapes from jail while serving sentence

anonymous persons or who put their name as anonymous. That is already four. ―Don‘t pay your taxes etc. I will not. Follow me.‖ And that is already a violation of this article. Bec. that encourages other people to disobey the law. IN the U.S., you don‘t pay your taxes, you go to jail, dito I‘ve been telling you, look at the income taxes of the millionaires compared to fix earners whose income are recorded. The publication of these articles in connection with these crimes are considered as unlawful use of publication.

Alarms and Scandals. The first kind is by discharging a firearm in a town or a public place or by exploding any explosive device in a town or in a public place. The word ―town‖ here is misleading. Naturally, a town is up to its boundary. Eh supposing a town is composed of flat lands and mountainous ranges, eh you discharged your firearms on top of a mountain, its within a town. The town here is actually a translation of the word ―poblacion‖ where people actually in that town resides, it‘s the center of the town, that‘s why they said ―or in any other public place‖. If it is in any town eh di lahat na yan, anywhere. It would be anywhere in a town but they accompanied ―or in a public place‖. That means to say that the town is the poblacion or the center of the town, the place where the church, municipal hall, commercial and residential areas. If you will notice, the charge is always in front of the municipal hall in the old towns bec. the Presidente of the town at the time is always under the priest. During the Spanish times, they call the mayor, Presidente.

Alarm and scandal with the use of a firearm, differentiate it with illegal discharge of firearm and attempted homicide. You should know the differences by now. As I said, alarm and scandal is committed when the purpose of the offender is to cause alarm, scandal or fear when a person discharges a firearm in a town or a public place. However, it is a discharge of a firearm when a firearm is pointed to another without any intention to kill that person and then that firearm was discharged and it did not hit the person to whom it was pointed to. You must have to remember that this has been asked more than 10 times in the bar exams.

*Aggravating circumstanceswhen the escape shall have taken place by means of unlawful entry, breaking doors, windows, gates, walls, roofs or floors or by using picklocks, false keys, disguise, deceit, violence or intimidation or through connivance with other convicts or employees of the penal institution.

2.)

Mutiny here means ―riot‖. If convict who evade service of sentence gives

himself up within 48 hours following the issuance of a proclamation by the Chief Executive announcing the passing away of such calamity, he shall be awarded with 1/5 reduction of the penalty IMPOSED upon him. This award is not given to prisoners who participated in the mutiny or riot.

During calamities or disorder

3.)

Violation of Conditional Pardon

4.)

Violation of Conditions in Destierro (judge‘s addition to the list of kinds of evasion) now, required to post a bond to keep the peace for a period not exceeding 6 years. If he refuses, he will be sentenced to imprisonment not exceeding 6 months.

September 8, 2003

Article 160. Any person who shall commit a felony after having been convicted by final judgment, before beginning to serve such sentence, or while serving the same is considered a QUASI-RECIDIVIST. It must be a felony ha, so he must be a quasi recidivist if he commits the second crime while being tried or while serving sentence. That is why he is called a quasi-recidivist. To distinguish it from recidivism, habitual delinquency and reiteracion. Reiteracion, there must be at least 3 convictions and for what? Only two of the same or equal penalty. And if it is for a light penalty, there must be at least 2 convictions in order that he may suffer reiteracion. But all must be felonies. In recidivism, belonging to the same

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title of the Code. In habitual delinquency, you have robo, hurto, falsificacion, estafa, less serious or serious physical injuries within 10 years from his last release or date of his last conviction. Very easy to memorize them ha but almost every year they are being asked in the bar exams. Either any of the 4 or 5.

Forgeries. May I ask you…can you describe to me the Great Seal of the Republic of the Philippines? Because forging the Great Seal of the Republic of the Philippines or the stamp of the Chief Executive or the signature of the President is a crime that entails a penalty of reclusion temporal. But then we don‘t know the Great Seal of the Phils. If you will look at your book, I believe that you will not agree to the description of the Great Seal of the Rep of the Phils bec. it even includes a lion and an American eagle and we are not actually in America, we don‘t have any lion in the Phils except only in the zoos. Or an American eagle…I have not even seen an American eagle even in the zoo. Oh, how could it be that it is included in the description of the Great Seal of the Republic of the Phils. No way. This is a description of the Great Seal of the Commonwealth of the Phils. Even in your money, they made a mistake in printing it there. In P20, I believe it is there. There appears to be a Seal there, you can find an eagle and a lion. But that is not the Great seal…that is for the Commonwealth. And we are not anymore under America. So, they have to describe the Great Seal of the Republic of the Phils or as the historians to describe it bec up to now we still don‘t know. The stamp, there is no problem, it is the one being used by the person who are actually Heads of States. It is composed of a wooden handle of about more than 6 inches with a stamp beneath and it is always being placed in any communications which the President of the Republic of the Philippines is sending to other Heads of States or ministers or other dignitaries. That is the stamp. His signature, no problem. But it is not Jose Velarde…no. It must be the real name of the President. That is why…oh, this

is just making it a light moment ha. Estrada was elected in a fictitious name. Not

his real name. So, he has the right to use a fictitious name, he has been using a

fictitious name, so he can use another fictitious name. Ain't it so? He used the name of Joseph Estrada when his real name is Ejercito. Well, lets see what will happen. If one counterfeits the Great Seal of the Republic of the Phils. Or the stamp of chief executive or signature of the President or even use them knowing for a fact that they are falsified, all of these acts are punishable. I have had an experience of trying a woman who claims to be the niece of a former President using documents which gives her the power to assign units in the bliss condominium at Guadalupe Makati and was able to get more than a million bucks bec one unit is to cost an applicant P80,000. It turned out that the signature of the President there was falsified and she used that falsified document. She was not charged under Article 161 but charged under Article 162 of the RPCusing

a falsified signature of the president of the Republic. There was a lawyer who was found by Marcos during his time to be forging his signature but he never

dismissed that lawyer from malacañang and did not allow him to be employed in the govt during his time.

How about counterfeiting coins. And who will attempt to counterfeit our coins anyway esp. the one with a hole in the middle. It‘s more expensive to counterfeit our coins than to have it minted in another country then have it embossed in the minting shop of the Central Bank. Nevertheless, you have to remember that in counterfeiting of coins whether the coin is in circulation or not, if you counterfeit the same, it is punishable. The reason being that the danger that this counterfeiter causes to the economy of the nation is there. As if he can counterfeit a coin not in circulation how much more that he cannot counterfeit the ones in circulation. He can always counterfeit them. He knows that he has the expertise.

On the other hand, if it is a mutilation of coins, the coin that must have been mutilated must be of circulation, it must be current. The act of importing all these, uttering them is punishable. But do you know what is actual mutilation of coins? Mutilation of coins is the extraction of the precious metal from the coin itself. The mere punching of a hole, the mere defacing of a coin, the burning of a coin is not punishable under Article 164 of the RPC. These burning, punching and defacing of coins are punishable under PD 247 which was decreed by Marcos during Martial Law. It used to be that maybe you are riding on jeepneys and you have seen some drivers decorating their container of coins and bills with coins nailed to the wooden containers. This is then what is prohibited by Marcos even the making of pendants out of coins. They are prohibited, then, during the Martial Law, even up to today bec this has not been amended and this is a good law. Bec mutilation is not covered by 247 neither does 247 covers mutilation of coins as mutilation of coins is the extraction of the precious metals from the coin itself. As I said the coin that must be mutilated must be a currency that is circulating at the time when it was mutilated. Now, the selling of false or mutilated coins without connivance, which coins are of Phil currencies, they are considered as in violation of Art. 165 of the RPC.

We have forgeries. When you talk of forgery and counterfeiting, you will be reminded that the definition of forgery is making it appear that a particular document is a genuine document or to alter or intercalate or superimpose or to change the dates or figures or anything that can be found in said document, that is considered as forging. The counterfeiting is actually the one that is supposed to be making it appear that a particular document is a genuine one…a commercial document for that matter. It is the forging that includes intercalation, changing, superimposing, etc., that is what is known as forgery. However, they are being interchanged by the law and we should not distinguish when the law don‘t distinguish.

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Article 166 is the forging of treasury or bank notes that are payable to bearer or the importation or uttering of such false or forged notes and documents. When a commercial document is payable to bearer, it is payable to the holder of any commercial document or a negotiable instrument. In checks, if it is payable to cash, it is payable to bearer. Why? Do you have to identify yourself in order to encash the check? The general rule is that you don‘t have to except when the amount is so big that you have to identify yourself. Well, the practice now of the banks is that even if the amount is only P50, they will ask for one I.D. or if the amount is sizeable, they will ask for 2 Ids so that they will be able to determine who is the person who is actually bearing the check and to whom they are actually going to pay the check. In case, there is a mistake, they can go after you. But you can insist that you do not be identified whenever you are encashing a check payable to cash…you can insist unless it would violate the Anti-Money Laundering Law.

The other counterfeiting or the importation or such counterfeited commercial or negotiable instruments are those that are not payable to bearer but are payable to ORDER. Again, we go to checks. If a check is payable to a particular person, it is payable to order. Even other commercial documents, if it payable to the name of a particular person, then it is payable to order. IF it blank, its payable to bearer bec there are letters of credit and other commercial documents are blank in order that the bearer thereof if he presents the same, he can transact business in connection with the documents he has in his possession.

In connection with the illegal possession of all these, you have to remember that the person must know that they are counterfeits. If he does not know, then there is no crime. Knowledge, therefore, is important. If there is no knowledge, if he is actually unaware that what he has in his possession is a counterfeit, then no crime is committed. Even in the use of falsified signature or counterfeits or stamps or seal of the gov‘t, if the offender do not know that they are counterfeits or falsified, then he does not incur any criminal liability, even if he uses the same. You must remember KNOWINGLY USE…KNOWINGLY POSSESS. If there is no such word KNOWINGLY in the information, no crime and if you are for the accused, wag ka na mag-isip ng ibang depensa, maupo ka na lang and let the prosecution do his worst bec your client will surely be acquitted. Just like, for example, in qualified theft with abuse of confidence, if what was used in the information as the qualifying circumstance to make the crime fall under the qualified theft is only ABUSE OF TRUST AND CONFIDENCE, there is no qualified theft. What must be alleged…GRAVE ABUSE OF TRUST AND CONFIDENCE. If the word ―grave‖ is not there, do not teach the prosecutor anymore bec he will amend. If your client has already been arraigned, he can be convicted of theft only esp. of the amount is less than P22,000, it would be good for your defense.

We have already defined forgery. And I said that making a document appear to be genuine when in fact it is not and there is a superimposition, intercalation, change in dates, etc. when in fact those are not the real figures or the real numbers. The only problem here that you have to remember is when it can be deduced from the document itself that there is no intention to falsify or forge. Eh, dinala sayo, Phil peso kasing laki nito (bond paper size) is there a forgery or falsification? Wala. Can you encash this? Bec its very easy to discern that this is not the real one. But if you intercalate the words in a real document, it is falsification even if it is easily discernible bec it is in a genuine document.

Falsification of legislative documents. Those documents that are already approved or pending approval. Probably, they are bills or ordinances etc. provincial resolutions. If it is a bill, the same must either be pending approval or already approved. These are in connection with legislative documents. But if it is only a proposed bill, it is not yet a bill pending approval. You can change everything there if you wish. But the author, usually, will not like it. Then, we have Falsification by Public Officer, Ecclesiastical Minister and by a Notary Public. There are enumerations there under Art. 171, at least 10 enumerations. The offender here must be a public officer or employee or an ecclesiastical minister or a notary public. The public officer, in any of the falsifications, he may commit it. However, in falsification by a notary public, the falsification must be committed only in documents of which his participation in the document is needed such as when he has to administer a jurat or when he has to put an acknowledgment in the document by virtue of his commission as a notary public. You know the notary public are actually public officers bec they go to the process of being appointed by the courts in connection with documents that must be an authentication and needs the participation by a notary public. In connection with an ecclesiastical minister, it must only be in relation to the civil status of a person particularly in connection with any act in relation to the solemnization of marriage. So, it does not only cover a falsification of the marriage contract but also those that involve the preparation of a marriage contract, ex, marriage license, the affidavit request to solemnize the marriage outside of one‘s parish or in courts in relation to the celebration of a marriage or the solemnization thereof. If the priest falsified a marriage license which has already expired to make it appear that it is still current or it is still effective, that is falsification by an ecclesiastical minister in relation to the solemnization of marriage. Remember in altering true dates, bec the others are very easy to interpret noh, if one actually altered a document to reflect the true date, it is not falsification. That is the case of a priest of Allagan, Nueva Ecija who obtained his cedula/CTC and when he was already in his parish, noticed that his date of birth is erroneous.

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Without asking the permission of the local treasurer, he changed his date of birth, he was sued. He was convicted by the CFI that is why he appealed. Then, SC said, NO, if he changes the dates and indicated the true date that is not falsification. There are times when we are being misled or by an honest mistake, here there will be no falsification bec there must be an actual intention to falsify. If you can prove that there is no intention to falsify to distort the truth, there could be NO falsification. This is not a special law, this is a felony and it requires criminal intent.

But then, be careful when you become a notary public, wag ka namang maglagay dun ng karatulang para ka namang billboard. Tsaka wag kang maglalagay ng ―expert in marriage counseling‖. There is a new case decided by the SC that such is prohibited and fined the lawyer with I think P50,000 and any repetition of the same offense would merit a suspension of not less than 6 months. Whenever you notarize, be careful, and ask for his community tax certificate and his TIN number. Always ask, do not rely on a ‗say so‘. If he is a foreigner, only his passport number issued at and when. That would be sufficient.

Q: (blurred) Can the SC promulgate rules relating to notarization thru the E- Commerce (or something like that)

A: I think, the SC should not do that. Notarization thru electronic documents or E-commerce bec if you will look at the jurat, SUBSCRIBED AND SWORN TO

BEFORE ME THIS

EXHIBITING TO ME HIS CTC NUMBER AND TIN NUMBER. DONE IN THE CITY OF MAKATI, PHILS. Then, your name etc., you sign. In the acknowledgment, PERSONALLY APPEARED BEFORE ME,

, KNOWN TO ME AND BEFORE ME KNOWN TO BE THE SAME PERSON WHO EXECUTED THE FOREGOING DOCUMENT CONSISTING OF 2 PAGES. So, there must be a personal appearance, can you do that in the E- Commerce? I think they have to revise the rules. Actually, although I am for the use of these technologies, but we should always be careful that our profession is not put to test or maybe put into jeopardy by reason of our desire to use this I.T. or these technologies that we have at this point. I would have to disagree with that but of course, if that is already a mandate of the SC, what can you do?

DAY AT

WITH THE AFFIANT

Ok. How about Falsification by Private Individuals. Well, the private individuals, if he falsifies a public document, damage is not necessary. In all other falsifications of public documents enumerated in Art. 171, damage is not necessary. It is only that the falsification is in a private document that damage is essential or is necessary. There is no problem re falsification. Falsification may be a means of committing a crime and therefore can be complexed with other crimes such as malversation, estafa, and other crimes of which it‘s a necessary means of committing other crimes. In relation with all these falsifications, the use

and possession of all these falsified documents whether public or private, if there is an intent to use them and that the offender knows that it is falsified, he is liable. If he does not know that the doc is falsified, he is not liable for possession. If he does not intend to use the same even if he knows that the same is falsified, is he liable for possession? No, there must still be an INTENT TO USE. How do you know that he is using it as a souvenir? Have you seen that there are fake documents and they are even displaying it but they cannot be charged bec their intention is actually not to use the same but simply to demonstrate how the same was done.

Art. 173 is Falsification of Wireless Cables, Telegraph and Telephone Messages and the Use thereof. There is no problem about telegraph, as a matter of fact, do we still have telegraph offices? RCPI? PT&T? Meron pa ata eh. RCPI, phone na lang noh. I don‘t know if they are still engaged with telegraphs kasi itong cell phone eh, di mo na kailangang tumelegrama, I-dial mo lang ok na if there is a cell site. How about falsification of telephone messages? If you sent in your cell phone, a false message or one that is (***with a weird squeaking sound***)

The falsification that is being contemplated in this case is the one that was committed a long time ago. (**squeaks pa rin**) If the telephone operator changed the date or the hour that is the falsification of a telephone message. But you have to pay for the delivery of the message thru a messenger per kilometer. It used to be P2/km, now, I think its P10 or P5 or even more than that, it depends esp in those areas where there are no cell sites. Eh, eto namang ating mga kapatid, brothers or friends who are in the bundoks, they don‘t like the cell sites so they destroy them. That is wrong, eh sila din, they are actually using that to contact their superiors and friends so why do they have to destroy them…just to make a statement? I don‘t believe so. If its to make a statement, that is destructing.

Almost everybody have in one way or the other been in danger of or has actually has committed Falsification of Medical Certificates as a principal by inducement or Falsification of certificate of Merit or Certificate of Service. Medical certificate are usually being asked by students, lawyers from their doctors, etc., just to excuse themselves from appearing in a certain case or if they were not able to appear esp the lawyers, to be excused form appearing and to satisfy the courts order in asking them to explain. Actually, I have had the occasion of having to fine a lawyer and a doctor regarding this. One time, when I came from the airport and sent off my sister very early in the morning, I was already in the airport and I left the airport at 6:30am and while passing by at the Max‘s restaurant along Baclaran near Roxas Blvd. With the taxi cab taking the service road as there are so many vendors at the other side. While looking at the

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people crossing at the street, I saw the lawyer who is supposed to appear in my court that day. He was in Barong Tagalog and he has a companion in a red dress and red shoes. I let it pass. But when the case was called at 8:30 am he is not around. At 9, he still is not around. So, I asked my clerk of court to call his office. The clerk in the office said, ―Sir, he is in court‖ Where? ―Well, according to our schedule, Branch 148.‖ He is not here. So, the clerk of court asked upon my instruction, ―Can we contact him at home? He might be asleep or not feeling well.‖ Yes, sir. ―Please give me the number‖ So, we called him in his house, the wife answered, ―Oh, he left very early. He is in court.‖ We did not pursue the matter. So, what we did is for him to explain why he should not be cited for contempt as it was his first appearance in the trial. When he received the order of explanation, he filed an explanation together with a medical certificate attesting that he has been ill for quite some time and he was advised to take a bed rest. So, we just placed his explanation in record then we subpoenaed the doctor for the next hearing. Here comes the doctor. Where you the one who issued this medical certificate? ―Yes‖ Is he really sick? ―Oh, yes your honor‖. Order: Without explaining, you are hereby both fined P5,000 for not telling the truth. No explanation. So, they were asking, judge bakit naman P5,000, no explanation. Why? Our explanation is satisfactory. The doctor, under his oath, is claiming that I am sick. I am sick. ―No, you are not sick. Do you want me to call your wife?‖ No, your honor. If you want me to call your wife then you will know. ―Your honor, I think that is unfair and the court is abusing his power.‖ I said, Come here, the two of you. Counsel, do you want me to tell your wife that on the day you were supposed to appear in court you were with a woman at 7:30 in the morning. And the woman was wearing a red dress and a red shoes. ―No more, your honor, no more, please.‖ (hehehe ) ―I will pay the fine including that of the doctor but do not include that in the order.‖ Oh, he immediately paid the fine. But then, he has already committed a prevarication in court. The doctor has already issued a false medical certificate of which he is a principal by inducement and the doctor is also a principal by direct participation. Be careful ha, you might be seen by the judge. (hehehe ) Eh, huli. So, when he appears in my court, I usually ask him, ―Pañero?‖ ―Ah, your honor, no more.‖ The last him I told him, pañero, san ba yung nakapulang sapatos… ―no, your honor. Wala na ho iyon.‖

False certificate of merits or service…you can just go to Recto. They are experts there including your transcript of records. It would appear to be original. But it is those people who are guilty. But you, as an inducer, you are also guilty as a principal by inducement.

When using (false certificate) this, there must be an actual knowledge that they are false. If there is none, you cannot be held criminally liable.

The Manufacture and Use of the Instruments or Implements for Falsification, this is a dead law already. Bec you can buy them even at stores, the architects, they have all these even imported. It is already a dead law, during the olden times--yes, during the time when we are not importing yet these instruments that can be used for falsification. The manufacture thereof, dami dyan, they are manufacturing inks, instruments that can be used for falsification anywhere. These are dead laws.

Now, Usurpation of Authority, Rank and Title and Improper Use of Names, Uniforms and Insignia. Lets go to usurpation of authority or official functions. The only rule here that you must know is that in usurpation of authority, there must be an actual office which that person do not belong but he is usurping the authority of that office or that particular duty or functions of a person. You claim to be a general like Royet Padilla. Royet Padilla claims to be a Brig. Gen of H- World Army. Is there a usurpation of authority? No, bec there is no such thing as H-World Army. A person who claims to be a 6-Star Gen…oh, Mongcado…do you remember Gen. Mongcado during the Japanese occupation. He has his own regime and he promoted himself to 6-star general but nobody can charge him bec there is no such rank or office. His son who was my classmate has to quit school bec everyone was trying to get his goat (??) so he quit law school. He was my classmate and he was a shy type of person. It was bec of the adventurism of his father and making himself a 6-star general that caused his children some problem. Well, of course, we don‘t know how he got that idea. But of course, if you are supposed to be given a rank of a 6-Star General, you have to be dead already bec there are only 2 persons who were given such rank only after their death…McArthur and Eisenhower. It was a posthumous promotion. With respect to official functions, there must be an actual usurpation of official functions belonging to such person. If it does not belong to another person or if the function is not among those included in his job description, then there is no usurpation of official functions.

Illegal use of Uniforms or Insignia. The uniform must exist, so with the insignia and even the improper use of these uniforms. But the problem now is that you can wear a uniform of the Army even if you are a tricycle driver. There was a Presidential Decree which Marcos issued during the Martial Law period which prohibits the use of fatigue and camouflage uniforms but then they are not implementing it. I hope that they will as most of those who are in the bundoks are using also the uniforms of the military. You don‘t know anymore whether they are of the Phil Army, Scout Rangers or whatever. Te only thing that you can distinguish these people form the real army is that they are not wearing boots but Spartan slippers. So, that is what you may be able to find from these people.

Now, when you are Using a Fictitious Name, there must be at least 3 intentions.

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1.) Intention to conceal a crime or 2.) Intention of evading a judgment and the other one is 3.) to cause damage to another. While in concealing true name, the fact that you conceal your true name to hide your identity is enough. So, they are saying the use of the name ―Jose Velarde‖ is to conceal the commission of the crime…they have to prove it. Like the news of Jose Pidal. Eh kasi nung araw daw mabilis ang takbo kasi motorized noon eh ngayon mahina na, pidal na lang ang ginagamit. (hehehe ) Kaya mabilis daw nung ERAP eh. Do you know that one day I was reading the newspaper about a family who traveled until Albay on a ‗padyak-padyak‘ tricycle form Manila or QC. It took them…4 months. Pagkatapos nun, they featured Jose Pidal on the other side. (hahaha ) Tuwang tuwa ako eh. I was laughing hard when I was reading the story. Loko talaga ang Inquirer. But well, it is different from illegal use of alias. You can use an alias so long as it is in connection with the exercise of your profession such as acting, singing or even as a sportsman. But if you are an ordinary person, all you have to do is use your nickname or the name that you are known in your locality.

About False Testimonies. When those people who are not anymore in their chairs testify and whenever they say that they are present and they are testifying for a defendant in a criminal case, they will be held guilty of giving a false testimony against a defendant in a criminal case. The penalty is quite steep ha. Actually, these are the Bias witnesses, the Professional witnesses, the Paid witnesses that usually testify against a defendant. If it is in favor of the defendant, the penalty is not as steep as giving a false testimony against a defendant in a criminal case. But the false testimony must be material to the result of the case. If its not, then there is no false testimony. The testimony may be false but if it is not material to the case at hand, there is no crime that was committed. Even false testimony given in favor of an accused, then its also punishable even if it resulted in his acquittal. The time when you can file a case of giving false testimony is when the court has already rendered a decision. Bec it is the time for the court to state in its decision that indeed the accused was a victim of false testimonies given by the witnesses against him. The SC has not been recommending the prosecution of some people even when there is false testimonies, it is up for the person who has been affected to file the necessary charges against the witnesses. It is akin to planting evidence. Here you are planting oral testimonies. In planting of evidence, you plant the material, documentary or object evidence themselves.

False testimony in Civil Cases, the penalty here is actually dependent upon the amount of the controversy. In false testimony against a defendant, even the def himself who gave a false testimony in his favor may be charged of giving false testimony against a def. How about false testimony in favor of the accused given by the accused himself…can he be convicted for giving of false testimony in favor of an accused? Look at your book. In an opinion of an author, he said YES.

Bec if he can get away with it, he is acquitted, so it‘s as if you are condoning the fact that he has prevaricated in court. So, he should be liable.

How about False testimony in Other Cases and Perjury in Solemn Affirmation. False testimony in other cases, these are administrative, quasi- judicial or other proceeding such as in Congress and it is not anymore considered as false testimony in other cases but simply perjury. Just the same as when you make a false narration of facts in a sworn statement which facts are material and required in the statement. So, if you made a false narration of facts in a statement but such false narration of facts is not material to what is being asked of you, then is it perjury? NO. How about in your bio-data? Lets go into falsification and into perjury. If in your bio-date, you made a false statement, could that be a falsification of private document? If it is officially required, YES. If simply you submit that for purposes of uprising somebody of your qualifications, and they did not believe it, you are not liable. Well, if however, you put the same under oath and it is material to your application, then it is perjury. How about recantations? We have Mahusay…Mawanay…Medel. Puro ―M‖ yan eh. They are actually exhibiting for the public that it pays to perjure one‘s self. To my mind, these people deserve a high penalty. As children would be thinking that, well, these people are not put to jail despite the fact that they are lying to their teeth and the people know that they are lying. That is why these affidavit of desistance in criminal cases are being looked upon with caution by the Court. If the court finds this affidavit is a prevarication, the court should not only cite the person who executed the same for contempt but also ask the public prosecutor to file a case of perjury against them. And if it‘s offered as an evidence then, offering false testimony in an evidence or if not, they are liable for perjury. We have had an experience re this false testimonies of witnesses contained in their affidavits of whatever, these are being received with caution. As a matter of fact, the SC, in most cases, considers them merely as a scrap of paper. But there are affidavit of desistance that are done in good faith. Like for example, in one case of estafa, wherein an offended party claims that what was sold to him is an unregistered land of which the accused claims to be around 250 sq.m. it turned out that when it‘s surveyed, its only 150 sqm., he sued the guy for estafa. I only asked him one question, ―When he sold you that property, did he tell you that it has been surveyed?‖ NO, he did not tell me. So, I said ―That‘s all. Sit down.‖ Bec if its not surveyed, that person does not even know the metes and bounds of that property that he is selling, how can you charge him of estafa of pretending to possess property. No way. If the offended party executes an affidavit of desistance, there is a reason for him to execute such bec of his misinterpretation of the facts of the case and an injustice would be committed to an accused. There are times when you should honor affidavits of desistance but most of the time, ginagawa ka lang collection agency.

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Now, how about Offering False Testimonies. It is the party who is involved. Maybe the defendant or the plaintiff who entices others to offer a false testimony or to offer a testimony of a false witness. It is different from subornation of perjury. You tell the prospective witness to become your witness and to testify

falsely. In offering false testimony, you know that this guy is not telling the truth although you are not the one who told him not to tell the truth, but you still offered his testimony in evidence, that is when it is a crime of offering false testimony. Do not sue the lawyer for offering false testimony unless you know that he consented to it and he is a party to it bec it is the lawyer who always offer not only the oral testimony of the witness but also the documentary evidence, it is his job. So, you always say and I hope that you won‘t mind. Most of you are committing a mistake whenever you formally offer the testimony of the witness bec you are only saying, ―If your honor please, the witness will testify etc.‖ That

is not a formal offer. I am only actually trying to go on

commenting later…but the way how to formally offer the testimony of the witness is by saying ―If your honor please, we are formally offering the testimony of Mr. Juan Dela Cruz to prove the ff…xxx‖ But do not enumerate to the smallest detail the testimony that he is going to give. Only in general. If it‘s only to establish the allegation in your information—―to establish your honor the

allegation in the information‖ That is all. But if you say, we are offering this witness your honor. I will tell you, I will not accept the witness esp if she is a woman…eh, magalit pa ang asawa ko sa akin. (hehehe ) So, be careful in your formal offer.

bec I will be

Machinations, Monopolies and Combinations. Machinations in public auction, well, if you ask any gift or consideration so that you will stay away from a public auction, you employ force, violence or intimidation so that others will not attend etc., then there is a machination of a public auction. The public auction here is either the sale of properties by an auctioneer who may either be a public officer or employee or a private person. Or in public biddings. The difference in auction and in bidding is that in auction what is usually being sold are those that are supposed to be sold with the consent of the or without the consent (if it is an order of a court or an order of a quasi-judicial body). When it is, however, a private auction then it is always with the consent of the owner. I don‘t know if we have in the Phils a private auctioneer licensed by the gov‘t. None noh unlike Kristy‘s of New York. In the Phils, you have auctions being conducted by the customs regarding confiscated articles or DENR or other auctions done by sheriffs on properties that are levied on execution. All these are considered as auctions. Well, public biddings are regarding projects. Either private or public contract or property. Example, you want to build your house at the lowest price, you can publish that there will be a public bidding in connection with the construction of a house etc. Well, these people will naturally present to you their bids and it could be a closed or open bid. One lesson that you have to learn in

auctions or foreclosure, if there will be a foreclosure sale of properties, in the event that there will be a writ of execution, the first thing that you have to do if you are the sheriff is write a demand letter to the losing party for him to pay the amount. If he doesn‘t pay the amount within the period you gave him, you levy on his personal property muna. Then if there are no personal properties or they are insufficient, levy on the real properties. But if you are able to levy several real properties, you have to sell them one by one and not in bulk bec then the sale would be invalid.

Monopolies and Combination in Restraint of Trade. Wala namang problema dito eh. Yung mga cartel lang ito, yung mga monopolies. How about the Importation and Disposition of Falsely Marked Articles or Merchandise made up of Gold, Silver or other Precious Metals. The rule is this, very simpleIf you are a seller, etc. or importer, you have to either place in the precious metal itself the karat or the contents of the precious metal in the article itself. Or if not, you can place a mark or marker which shows the contents of the precious metal or karats. Otherwise, if there are no such indication, you are violating Art. 187.

Trademarks and trade names or Service Marks. Trademarks and trade names are actually being used interchangeably. But in the Phils, we try to differentiate them. For example, in a shirt of which the trade name is Lacoste, the trademark there is the figure of an alligator on the left side of the shirt. However, under the RPC, they are interchangeable. Now, substituting the trademark actually moron ng trademark yung is, ipinapalit mo lang eh which is different from unfair competition. In Unfair Competition, you make a colorable imitation of the product. Eto, talagang there is a different product but you substitute the trade name of another or the trademark of another. That is the difference between the two. Service mark, walang problema yan, kagaya ng DHL and others engaged in services. In unfair competition it is different ha, look at the cases of Beer na Beer or San Miguel Corp v. Asia Beer wherein the latter won the case bec according to the SC, it is not a colorable imitation of San Miguel Pale Pilsen. But to me, it can be mistaken for the other eh. But the word ―Beer na Beer‖ actually is very big noh and according to the SC, you cannot just appropriate the word ‗Beer‘ bec it is actually known all over the world since time immemorial that any concoction which involve malt is considered a beer—it‘s a common name. How about the case of Bali about an Indian who is manufacturing Bali socks…he was sued by Bali corporation of Switzerland and the courts are being asked to issue an injunction. The SC said NO INJUNCTION. Why? You are not manufacturing socks, you declare that you only manufacture leather products. But if you are going to look at Sony Corp of America v. a certain Sony who put up a restaurant in New York. The Sony Corp of America was able to obtain a permanent injunction against that lady whose name is Sony who puts up a restaurant not

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competing with the business of Sony Corp of America. But bec according to them, it‘s a well-known name so they cannot use or they cannot utilize the same. Mang Donald‘s and McDonald‘s, biro mo ba namang taluhin pa ng McDonalds si Mang Donald, cheap naman. Itong isa eh arrozcaldo lang. Eh, Donaldo ang pangalan kaya Mang Donald naman. Bakit ikaw na lang ba ang Donald?

Sept. 10, 2003

The law on opium is now RA 9165. This will be more lengthily discussed in Special Penal Laws class bec it will take us at least 2 days eh, 4 hours or more. It is a matter of great concern for us esp in your class bec I am sure that in criminal law RA 9165 will be included in the bar exams. Who would have thought that outer space will be included in the bar exams? (hehehe ) (Nagkwento na si Judge tungkol sa bar exams and the fact that his name is mentioned in the Crim Exam this year when he do not even know who the examiner is.)

CRIMES AGAINST PUBLIC MORALS

About gambling forget all about it bec we are going to discuss that also in our special laws as it is covered by a comprehensive anti-gambling law known as PD

1602.

Grave Scandal. If you were asked a question, would the act of Mayor Benjamin Abalos of Mandaluyong in charging an actress who bared her assets at EDSA of grave scandal enough to convict her for such a crime? What is there in grave scandal that is supposed to have been committed by the offender? Any highly scandalous conducts which offends decency or good customs. Would wearing a bikini in the middle of a street a highly scandalous conduct? To my mind, NO, eh there are even others who are running the streets during Oblation Day in U.P., you can go there and watch them and they are not committing a crime of grave scandal. It is something which is worse than that, it is an exhibition of an act which is highly immoral and scandalous, how much more if it is illegal. If it is illegal, it should be a crime. Here, it is highly immoral. It offends the decency, the sensibilities of man with respect to decency and good conduct. I remember an incident featured in a newspaper and this is in outer space ha. When on board a 747 plane going to another country, a man and a woman in front of all the passengers had sex in full view of all the passengers. Ah, that is already grave scandal. If they did that in full view of the public, that is grave scandal. Even if you go to Luneta, these people are exhibiting what is not normal anymore, it constitute an offense to decency and good customs, that is already considered as grave scandal. At night, you may have passed thru several places here in Metro

Manila and you will see in some sleazy and whatever kind of joints there are, even in the streets, you will see these ladies dressed in skimpy clothes and performing acts which are not only provocative but also would constitute as lewd in the eyes of some people, they are not being arrested for grave scandal as the people there are not affected by their acts. So, there is still an element that the people should be affected by the conduct of the offender. Just like in offending religious feelings, it‘s the faithful. Here in grave scandal, it‘s the public that are offended not a simple prude or whoever he is but it is the general public who is affected. If the public will accept it, there is no grave scandal. And remember that what may be moral today, may be immoral tomorrow depending upon times. It‘s the time, the generation and the people that dictates what is decent and not to them and what is highly scandalous and what is not. But in general terms, there are acts that are really highly scandalous. Those that should be done in private, should be done in private and if done in public that would be highly scandalous.

About Immoral Doctrines, Obscene Publications and Exhibitions, and Indecent Shows. It is not only publications in magazines and in other forms of literatures that this article covers. It involves also those that are being shown in cinemas, theaters or in some other public places that people are allowed to enter. You don‘t have to look for obscene magazines or literatures, you can see them even in bookstores, in the streetsat the sidewalks or at the newsstandand the gov‘t is actually not doing anything about it. Its only ningas kugon esp when they would like to catch the attention of the people as it is nearing election time. But after that, no more. Shows…that would even include the CDs or anything that would be an instrument in the exhibition of lewd shows or shows that are obscene, they are considered as in violation of this article. That is why in some theaters, they have been closing them down bec they exhibits lewd shows. This has a counterpart in a law or decree passed by Marcos which is PD 969 in relation to selling obscene literatures, distributing, handling out, that is covered by PD 969. In immoral doctrines ha, publications lang ito while in PD 969, it‘s the selling or distributing.

Then you have Vagrants and Prostitutes. Vagrants…well, any person who is able bodied who fails to bring himself to a lawful calling and he has no means of subsistence shall be considered as a vagrant. Any person who loiters or frequents houses of ill-repute as a pimp or otherwise, and even if he has a means of subsistence, he is also considered as a vagrant. Then, those who loiters or inhabits uninhabited buildings without any means of subsistence or those who are wandering about the country without any means of subsistence, they are considered as vagrants. You should distinguish vagrants from mendicants. Bec mendicants are not necessarily vagrants but they are those who are asking for alms. When I was a student in one of the universities, every morning, I usually see a man who is about more than 60 years old already at the gate of the school

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asking for alms. He stays there up to 8pm then goes home. One time, somebody asked me bec I said ―Ang tiyaga naman nitong matandang ito. Kilala mo ba yan?‖ Sabi ng kaibigan ko, ―Oo, mayaman pa sa ating lahat yan. Eh may apat na pintong apartment yan dito sa P. Noval eh. At meron pang dalawa sa Piy Margal.‖ He earns more than P500 everyday during those times. But then he is into mendicancy which is prohibited under a presidential decree issued by Marcos not in vagrancy under Art. 202 of the RPC. He is not a vagrant but he is a mendicant bec he has a means of livelihood or subsistence. These are the vagrants. When you see people who are at the corner stores doing nothing the whole day, in tagalog you call them Bagamundo or if not, Katupas. You know what is Katupas…bec their occupation is Kain, Tulog, Pasyal. (hehehe ) They are able bodied but they don‘t want to devote themselves to any lawful calling or occupation but then they have means of subsistence that is why we cannot consider them as vagrants, they eat 2x or 3x a day. They can buy gin or beer and that is their preoccupation the whole day. That means to say that they have a means of subsistence whether it came from an illegal source, legal source or dole out, that is still a means of subsistence. You remember Sec. Mike Defensor when he was involved in an incident at Padi‘s Point in QC where he interceded 2 young girls who were arrested allegedly for vagrancy. The policemen there can be sued for unlawful arrest. Why? The girls were paying for their drinks. They have ordered food. Even if they were there everyday, it is not your business to inquire where there are getting their money. What is only wrong there is that according to Sec. Mike Defensor, they are his friends. He did not say the legal reason. The legal reason is that these people have a means of subsistence. How can they be vagrants. So, they cannot be arrested. The policemen there are overacting and unlawfully arresting the 2 girls. So, that is a good example. And maybe if they are going to ask a question in the bar, most probably, it is that question if they still remember that incident bec it is still not settled eh. But the only good reason that you can give there is that if these people can patronize Padi‘s Point and pay for their drinks and food, then they have a means of subsistence and they are therefore, not vagrants.

Now, Prostitutes only refers to women who habitually engage in sexual intercourse or in lascivious conduct for profit or gain. There is no law which makes it illegal for a male to engage habitually in a sexual intercourse or in lascivious conduct for profit or gain…NONE. You cannot charge him also of vagrancy bec maybe he has also a means of subsistence. The usual scenario that you will see in the streets whenever you will see a policeman arresting a person who might be looking suspicious—bagancia (I don‘t know the spelling ) Anong bagancia? You look only suspicious, bagancia na. Even if you do not have any money in your pocket, you cannot be considered a vagrant. Eh, supposing you have plenty of money at home which is enough to support your subsistence for 2 or 3 days, you are not a vagrant. Or even for the day. So, it is

wrong for the police to just arrest people left and right bec they say that this man does not have any money and he looks like a poor manah, NO. They should run after the big ones, not after the small price.

In prostitutions, the only prostitutes now that can be punished under the law are those who are already 18 years and above. Prostitutes who are less than 18 years of age are considered as victims rather than offenders under RA 7610, the Child Abuse Law. If these people are being exploited and they are still less than 18, they are victims. And remember that any person who will have sexual intercourse even with these young prostitutes are criminally liable under RA 7610. Kaya wala nag ―daisy‖ ngayon—daisy sais, daisy siete.

Thony: What if the guy is in good faith bec he thought that the prostitute is already of age? Judge: Good faith ha. Remember that it is a special law…can you invoke good faith in special law? Ah, tapos ka, Mr. Ty. (hehehe ) Convicted ka. Good faith is not a defense in special laws unless the special law partakes of a nature of a felony wherein it is stated therein the word ―knowingly‖. If there is a word, ―who shall knowingly‖ ah, good faith can be a defense. But if its straight without the word ‗knowingly‘, you cannot invoke good faith. That is how to interpret the law.

Well, in the case of Jalosjos, the girl is a prostitute even before she reaches the age of 12. It is considered as statutory rape. But in some recent decisions of the SC, if the charge is for rape not under RA 7610, if it can be established that there is a doubt as to the real age of the girl, it should be interpreted in favor of the accused esp if she said, I consented. That is only in cases of rape. But if it‘s a charge under 7610, whether she consented or not, she will be considered as a victim and it will be a violation of RA 7610 and you are liable. But the problem is, of course I understand the position that is being taken by Mr. Ty, are you going to ask the birth certificate of the girl? Are you going to ask the manager or

promoter about the birth certificate? Whose gonna do that and will these people exhibit their birth certificate bec they will not tell you their real names. There was

a case that was filed in Makati about a violation of RA 7610 bec the victim is less

than 18, I think she was 16. That was the trouble, the woman was claiming to be so-and-so but when her birth certificate was presented, she goes by another name.

It is only the perception of the court which will naturally determine if the accused

is guilty or not bec probably she looks older than her age. The court acquitted the accused. Not bec of honest belief that she is more than 18 years old, they are claiming it to be a mistake of fact which I said, mistake of fact is not available

here. Nevertheless, they acquitted the accused but there is no complaint to the judgment of the court.

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Judge Oscar Pimentel

MajArvin

We go to Public Officers. Who are Public Officers? Those who by reason of their appointment or by reason of direct provision of the law or by reason of popular election are tasked of performing official functions or those actually are delegated with the performance of their public functions are considered as public officers or employees irrespective of their ranks or positions. So, a janitor may be considered a public officer; a person whom you belittled while performing his duties as a traffic aide or whatever, he is a public officer bec he is performing a public function And you are more familiar with de jure and de facto public officers. The only problem in public officer or employees is actually those who are de jure public officers and de facto public officer, whether a de facto public officer may be considered as such in connection with applications of the penal provisions of the RPC. Yes, they are. As offended parties, there is a question in connection with direct assaults. As long as the de facto public officer is actually in the performance of his duties in the honest belief that he is indeed a public officer or employee and that his appointment is valid when later it was voided, still he is considered as a public officer and a person, sometimes, in authority or an agent of a person in authority.

Then we have Art 204. Knowingly rendering Unjust Judgment. And then Judgment rendered through Negligence. Next, Unjust Interlocutory Order. And then Malicious Delay in the Administration of Justice. Now, these four articles are committed by judges. The justices of the SC and the appellate justices are not included. They are not. In knowingly rendering an unjust judgment, you must have to recall that there are 2 ways of determining whether a judge may be held liable for this1.) application of res ipsa loquitor or when the thing speaks for itself, when the judgment really is unjust and 2.) the offended party can establish that indeed there is malice or bad faith in the rendition of an unjust judgment. But then, it is a matter of evidence. The same is true with rendering an unjust judgment thru negligence. When you say thru negligenceit is GROSS and INEXCUSABLE negligence. One of those gross and inexcusable negligence that the SC has considered is ignorance of the law and the rules. It is considered as gross negligence. The SC said that even if the law has not been applied for 15 years as long as it is still existing, the judge must know that law. It would seem unfair bec you cannot know all the laws but according to the SC, a judge SHOULD know the laws. I don‘t know if anyone in the judiciary can claim 100% of all laws that are existing. Can you? That is why there is a litigation and that there are always 2 sides to an argument in court. But can you proceed immediately by filing a case in the prosecutor‘s office or in the Ombudsman against a judge for knowingly rendering an unjust judgment or rendering an unjust judgment thru negligence even knowingly rendering an unjust interlocutory order? This has been already decided by the SC in several cases that in cases committed by members of the

bench in violation of any provisions of the RPC or any special law, the offended party cannot got directly to the office of the prosecutor or the ombudsman. It is the SC who shall determine whether the judgment is unjust by way of an administrative proceedings and whether there exists sufficient reason for the judge to be the subject of an accusation before the office of the ombudsman or any proper forum. If therefore the case is directly filed with the ombudsman then it is a wrong venue. The SC is tasked with administrative and all other such supervision over all its judges and therefore you cannot judge unless it is through the SC. Well, that is the protection that they have given all the judges, that the case should first pass thru them and then it should be endorsed by the SC to the Ombudsman. Don‘t commit a mistake if you are going to file a case against a judge by filing it directly with the Ombudsman bec either the Ombudsman will dismiss the case or that the same shall only be referred to the Office of the Court Administrator for referral to the Honorable SC. This is in all cases, in the 4 cases that I have mentioned.

In the delay in the administration of justice, in order for the judge to be held criminally liable, it should malicious. A mere delay would only require administrative sanction from the SC even in simple negligence in connection with rendition of a judgment or an interlocutory order. The SC in several cases did not even consider a long period of time of delay in the disposition of the case bec the SC understands the present predicament of the courts. If you only know how many cases are there pending in one sala in the MeTC. Do you know? 6- 7,000 cases in one sala. How will you be able to finish those cases. Those cases will finish you. (hehehe ). in such a short time, if you try to finish them. As a matter of fact, I have seen some of my juniors whenever I go to the Office on Saturdays, if I have time to make decisions, I see the Metropolitan Trial judges really working their butts out, trying to resolve incidents, trying to make decisions. I said you will die easily by doing that. But they said that they are afraid. Look at several decisions of the SC understanding your plight so don‘t kill yourself. So, malicious delay in the administration of justice must be purposely done to cause damage to a party-litigant. *TAPE ENDS

The people who tolerate or refuse to prosecute cases are also liable, the prosecutor or any public officer or employee in charge with the enforcement of the laws. If he is a prosecutor and he refuses to file any case against an offender, he is liable under Art. 208 of the RPC. And those who are tolerating the commission of crimes in their area of jurisdiction particularly law enforcement agents can be liable for Tolerance. If it can be shown that you have been tolerating the existence of gambling den etc. you can be held criminally liable although the penalty is not so much yet it is still in violation of the law.

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Betrayal of Trust by an Attorney or Solicitor. Oh, you know all these. You have taken your legal ethics. But the Solicitor here is actually the judiciaries procuradores of old times, now we have substitute for them those who are being allowed student practice of law under the control and supervision of the head of the legal aid unit or department of a school of law. So, the qualification in order to be allowed to appear in court is to have finished your 2 nd year even in the RTC as long as you are with the head of the legal aid unit of the law school. Do we have here a legal aid dept? Yes? Who is the head? (Mane: Atty. Gilbert Sembrano). That‘s good if they have it here esp to help the indigents. Now, in Metro Manila if you are earning less than P14,000 per month, you are considered an indigent person for purposes of being able to ask the assistance of a public attorney or a counsel de oficio.

You all know that a lawyer and client have that fiduciary relationship that the secrets of your client, you cannot reveal it to anyone not even to your wife or children. The most is that you‘d tell it to your wife, she might ‗accidentally‘ tell it to your friend and that‘s the whole thing that would become wrong. The young gentlemen here, before you get married tell your future bride, this is the limitations that I have to follow and if you cannot follow these limitations then we are not for each other. The same with the ladies, you have to tell them frankly that you have your own limitations. You should not hide it from them. Another violation here is when a lawyer who has already been discharged or has already withdrawn from the case becomes the lawyer of the opposing party without asking permission from his former client.

Then, we have briberies and you know what is bribery. You have DIRECT, QUALIFIED, INDIRECT. When you say Direct Bribery, this is when the public officer or employee demands or agreed to perform an illegal act or even an act which is not illegal in connection with the performance of his duties for a consideration or a promise or reward. If the offender and the person who is corrupting him have agreed, it is already consummated on any price or on any reward or on any promise. If what they have agreed upon is to perform an illegal act, the penalty is higher. If what they have agreed to perform is not an illegal act, the penalty is lower yet both are still direct bribery. So, the mere agreement even without receiving yet the consideration, it is already consummated. Now, in Indirect Bribery, the mere acceptance of any gift by reason of ones office is indirect bribery. But not all gifts. Token gifts are allowed. These are gifts which are inconsequential depending upon the social and financial status of the person who is giving and the person to whom the gift is being given. Supposing Sultan Bolkiah as a token of appreciation for a good deed done by one of the department secretaries who is also a multi-millionaire gave a Rolex watch to remember him by. Everybody will say, it is indirect bribery, but to Bolkia and to the person who received it who can buy a hundred watches like that without his bankbook being

affected by that, is it indirect bribery? It might be considered as a token. A gift in indirect bribery is being given in the hope that in the future favorable actions on matters that may be brought by that person to that public officer or employee may be done with dispatch only and not necessarily with favor. Binigyan mo lang ng isang bilaong pancit, mauubos ba niya yun. Ang masama nun kung araw araw na yan pero baka galit ka naman. Bakit? Eh, papatayin mo yun eh sa high blood at diabetes.

Alright. Qualified Bribery is when a person in charge of law enforcement demands a gift or a reward for not prosecuting or for allowing a person not to be prosecuted for any crime that is punishable by reclusion perpetua to death or death, the penalty that shall be imposed upon that person is death. In the event that the person only accepted the gift and did not demand but for purposes of not prosecuting or preventing the prosecution of that person, he is also guilty of qualified bribery but the penalty is only reclusion perpetua. Eh di wag ka na lang manghingi para hindi death, accept ka na lang. There will be no briberies if there is no person who is guilty of corruption of public officer or employees. In order to eradicate corruption, people should be educated that they themselves should cooperate in order that these crimes will not thrive and there will be no graft and corruption. As long as people believe that they can get away with giving gifts, rewards, etc., to public officers or employees you cannot eradicate or stop corruption bec if it will be the public officers or employees, if you are a good citizen, even if he demanded, you are not going to accede to his demand. This corruption starts even at home eh, in school, etc. Look in the house, sige, pag nakakuha ka ng mataas na grades, punta tayo HongKong. Eh, its his duty to make good in school, bakit mo reregaluhan yan. If you are going to give him a reward for doing his duty, that is the start of corruption. He must do something which is beyond the call of his duty or beyond of what is required of him then, it is not corruption. Even the gov‘t is encouraging corruption eh. You remember a person who returned about P3M plus money to a passenger of an airline. He was lavishly given gifts, given a lot and house, he was given a taxicab…when it is his duty to return that, otherwise, he is a thief. (hehehe ) Is that not corruption? Its his duty, why give him a lot and house. So, ladies and gentlemen, you will be the ones running the gov‘t maybe ten years from today or in some future dates, the education in regard to corruption starts at home, in school bec if you can start it there naturally it will become a habit for these people already to do the right thing.

Frauds and Illegal Exactions and Transactions. Frauds against public treasury, there are 2 bec the 1 st one is in connection with any fraud that actually are being committed by those who are engaged in the delivering of supplies or in executing contracts or in the adjustments or settlements of taxes or funds or accounts. Now, this involves only when that person in his official capacity and he deals with

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other person regarding all this and he actually become interested either in any investment or speculation for purposes of defrauding the gov‘t. There are instances wherein the furnishing of supplies or in the execution of contracts or agreements, a public officer or employee may enter into such agreement but then they have already mastered the scheme in order to defraud the gov‘t such as in public schoolsfurnishing of books, what would be the scheme in order to defraud the govt.? The papers that are used in the publishing of books are the 4 th class papers when in fact it is supposed to be a 1 st class or a 2 nd class paper, that would be defrauding the govt. bec the price there could be adjusted or the ink that were used is of inferior quality.

The second one is those in charge of the collection of taxes. When you collect less or more than what is provided for by law or when you don‘t issue any receipt when it is required or when you collected other things which is not the one specified under the law, then you are guilty of frauds against public treasury. Even if there is no damage ha. You felt pity to a person who is paying his taxes, so you adjust, that is frauds against public treasury. But it is not applicable to those in the Bureau if Internal revenue and the Bureau of Customs bec they have their own laws. They have the Internal Revenue Code and the Customs Code. They are not included here. Eto yung mga municipal or provincial treasurer, assessors. Eto problema, ngayon, building permit lang…gagapang ka para makakuha. Eh, how about occupancy permit fee…dun patay ka lalo na kung mga condominium unit.

Ok, Failing to Issue Receipts. It is not the mere fact that you failed to issue a reciept that is punishable. If you voluntarily failed to issue a receipt as long as you have a legal excuse, then you cannot be held criminally liable. Example, if you have lived in some provinces wherein at times, even the treasurer or those who have to collect fees have to go to far-flung brgys in order to serve the people there to pay their real property taxes, their licenses and everything bec they don‘t have the time and sometimes they forget also to go to their municipal hall, then it is the officers who goes to them. Sometimes there are miscalculations as to the number of those who are going to pay their taxes so there will be lack of receipts. There was actually a case wherein the person charged issued only a temporary receipt in a piece of paper. But the next day, after arrival from their office, he actually issued a receipt and sent it by mail. Yet somebody learned about it and charged him. But it has been said that that is substantial compliance. There could be no crime under this article against fraud against the public treasury.

Well, Other Frauds. This only involves about the accessory penalties that will be suffered by the offender if he is a public officer or employee who takes advantage of his public position or shall commit any of the frauds or deceits enumerated in the preceding provisions.

Prohibited Transactions. Remember the offender here must be an appointive public officer or employee. And he became interested directly or indirectly during his incumbency in any transaction involving exchange or speculation within the territory subject to his jurisdiction. You know, one time there is a problem here about stock exchange when a public officer or employee became interested in speculations in the B.W. etc. But then, it became a dead issue. Eh, ito ring mga imbestigasyon dito, wala ring nangyayari.

Then we have Possession of Prohibited Interest by Public Officers or Employees. This is in connection with any contract or business of which it is the official duty of the public officer or employee to intervene and then he actually intervened in such transaction whether directly or indirectly. This provision also applies to experts, even arbitrators and private accountants when they take part in the execution of the contract or transaction connected with the estate or property of another person in their appraisal or distribution or adjudication. Now, you see, this prohibited interest by public officer, it is only supposed to be prohibited bec it is your duty to intervene in that transaction and yet you become interested in it. Example, you are the prov. eng then in the construction of a bridge, you became interested, you will supply the materials even if the goods that you are supposed to deliver is of good quality and the price is alright, still it is prohibited.

Malversation of Public Funds or Property. Here, who is an accountable officer anyway? Bec the only person who may be held criminally liable is an accountable officer. An accountable officer is a person who is not necessarily the treasurer, the account officer, the finance officer as long as that person receives as property in his official capacity and that at anytime, he is required to account for it, he has to account for it, he is an accountable officer. Like what, a policeman with respect to his gun, badge, and to any other equipment that was issued to him for which he signed a receipt of property which belongs to the govt. But those that are consumables, he is not anymore accountable for that such as bullets. Bullets are consumables that is why there is a problem now in Mindanao regarding charges that the generals are selling the bullets to the enemy. They said it is treasonthat is NOT treason, that is MALVERSATION. But it is also a violation of CA 408 or the Articles of War and the penalty there is death by firing squad. The least that you can get is imprisonment for life on a hard labor. When you talk of malversation, you talk of misappropriation, appropriation, abandonment in order that the property or money may be misappropriated. You talk about allowing others to appropriate it or abandonment. These are acts of misappropriation. And there is a presumption of misappropriation if the accountable officer is ordered to account for the properties in his possession and he failed to account for it within a reasonable period of time. Supposing you are given a problem: A policeman was charged of malversation of public property

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bec he went on AWOL and brought along with him his firearm. When he was charged and arrested, he immediately surrendered the gun to the property custodian, is there still malversation? YES. There is still malversation if he used that firearm while he is on AWOL. Bec when you say USE, that is appropriation. However, if he left it in the armory but he was not able to account for it but it is there, ah, there is NO malversation bec he was not able to use it. Bec that is now the custom and tradition for those who goes on AWOL. Pag dinemanda na, eto na isasauli ang baril. The return of the property that is supposed to have been malversed is only a mitigating circumstance. But usually there are judges who are considering the same as an excuse to dismiss the case. Remember the penalty for malversation of funds or properties are actually higher than that of theft depending upon the amount.

*TAPE ENDS

Sept. 15, 2003 By: Mildz

…or failure of a public officer to devote an appropriation to any project or any …service that may have been the subject of that appropriation. And if you will recall, during the last meeting that we had, we have discussed technical malversation. Now, when we have discussed malversation actually and technical malversation is actually only an illegal use of funds or property. There is no need for any damage to be caused to the government or any private individual as long as the funds were diverted to another project or another purpose other than what was stated in the object for which such fund was devoted, then there is technical malversation. Technical malversation actually maybe the subject of a defense of good faith and exigencies of the service and even on occasion of calamities or on occasions of misfortunes. Usually it is illegal for any public officer or employee to apply any public fund or property under his administration to any public purpose other than which it is suppose to be applied without asking from the appropriate body which has the authority to appropriate such fund. But when exigencies of the service is already involved, when good faith is involved, when calamities or misfortunes occurred in a certain place, funds which maybe devoted for a particular purpose maybe diverted for that particular purpose without anymore asking the consent of the appropriating body. Now, in failure of an account officer or any accountable officer to render accounts, these particular accountable officers must have been separated in the service by reason of resignation or by reason of any other cause and that it is required by law or regulation for him to make such rendering of an account either to the insular auditor or the provincial auditor within a period of 60 days or for 2 months at the most. Within a period of 2 months after such accounts should have been

rendered and he failed to do so, now, only when it is required by law or by regulation. If it is not required by law or regulation, even if he is an accountable officer, he cannot be held criminally liable under Art. 218. These are therefore crimes wherein there must be an actual necessity or if not necessity, it is required by law or regulation for that public officer or employee to render accounts. Now, the same is true to any public officer or employee who before leaving the country failed to render an account. But what is required is that he unlawfully leaves or tries to leave or attempts to leave the country unlawfully. What would you mean by unlawfully? Meaning to say that he will go to another country for purposes of hiding there or to work there as a TNT? We have no law against a Filipino who leaves the country to work thereat but he will be without a working permit, without any job abroad. There is no law so the prohibited acts before leaving the country probably is that the offender is leaving the country to evade consequences of the commission of the crime or to conceal a crime or to evade any judgment that maybe rendered against him or to cause damage to another person, that is what is meant by unlawfully leaving the country or attempting to leave the country unlawfully. Ok, we are through with illegal use of funds or property so we have to go to failure to make a delivery of public funds or property. Now, there are two acts here which are punishable. The first one is failure to make a payment by a public officer who is under obligation to make such payment from the government funds in his possession. Look, it is simply a failure of the public officer to make payment and it is his obligation to make such payment. On the other hand in failure to deliver a property, he must be ordered to deliver the property which is in his custody or under his administration. So, if it is delivery of funds, it must be his obligation. If it is delivery of property, there must be an order from a superior officer, that is when this crime is committed, article 221 of the RPC. Remember what I said because they may interchange it in a question. They will say that there is an order from a superior etc… to deliver funds or

property etc

because the law only says that he must be under a legal obligation, it is his obligation, because that order may not be actually legal or may not be his duty. Oooee… he is being asked to deliver money, he is being ordered to deliver money but it is not his duty to deliver that money, he is not criminally liable if he refuses. But if he is an inferior officer, he was asked by a superior officer to deliver a property which is under his administration, or under his custody, that is when he violates this particular article. Alright, even private individuals who in their capacity whatever have charged of any national or provincial property are also included in this article. We go to infidelity in the custody of prisoners. Actually the first article in relation to this is conniving or consenting to evasion. There are 2 kinds of prisoners. One prisoner is actually a convicted prisoner by virtue of a final judgment and he is serving sentence. Now if any public officer or employee

and yet that person refuses to deliver. He is not committing a crime

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connives or consents with the escape of the prisoner who is in his custody or charge and that prisoner is a convicted prisoner, the penalty is actually higher which is prision correccional in its medium and maximum periods. But when the prisoner is simply a detention prisoner, the penalty is lower. The penalty shall be prision correccional in its minimum period and only temporary special disqualification in case the offender is simply a detention prisoner. The detention of the accused need not be for any violation of a penal law, it may even be a violation of an ordinance, violation of an ordinance is included. Now, evasion through negligence, if the evasion takes place through the negligence of a public officer or employee who is charged with the conveyance of the custody of the prisoner and that said officer actually has been established to have been negligent in the performance of his duties then such person in-charged of the prisoner shall be held criminally liable for evasion through negligence. The negligence here must be inexcusable. Not necessarily gross but inexcusable. Even private persons may be held criminally liable for the escape of prisoners if such private person has been entrusted with the custody of a prisoner. He may either have actually connived with others or with the prisoner in order that the prisoner may escape or he is guilty of negligence, therefore he is actually covered by Article 223 and 224 of RPC. Well the penalty shall only be the penalty which is next lower in degree than that which is prescribed by the law. In infidelity in the custody of documents, the mere removal, concealment or destruction of documents by any public officer or employee which documents were officially entrusted to him is already in violation of Art. 226. The penalty would depend upon whether there is a serious damage that has been caused to a third party or to public interest. If there is a serious damage, the penalty is afflictive, prision mayor and a fine not exceeding 1,000. If the removal, destruction or concealment of those documents has caused only damages which are not serious in nature either to a private person or to public interest, then the penalty actually is prision correccional in its min. and med. Periods. You will note that there is malice on the part of the offender to cause damage to another or to public interest that is why the word remove, destroy or conceal, it must be maliciously remove or maliciously destroy or conceal the documents. If such concealment, destruction or removal is without any malice or without any evil purpose, no such crime has been committed. Official breaking seal, well, what are those documents or things that are supposed to be sealed? Ballot boxes, aside from the violation of election laws, they may violate also the provisions of Art. 227. There are instances where certain documents have to be sealed on orders of the court. These are the documents that should not be revealed etc when the same is in the possession of the court. In probation law, there is such a provision there about confidentiality of the post-sentence investigation report. What is actually being done is to close the document involving the post investigation report. We seal them but it simply be closed. The seal that we are talking about here are official seals, like the seal

of Comelec, like other seals of different departments either paper or seals consisting of metals or other objects, they are called official seals. When you break that without any authority from the law or public authority or proper authority, then you violate Art. 227. Now, opening of closed documents, naturally if documents are sent to your office, you open them. But there are instances when you cannot open a closed document even if it is sent to your office. Like deposition of witnesses which came from a notary public in another province or a deposition coming from a municipal judge or deposition coming from a consul of the Philippines assigned in another country. You cannot just open the deposition, even the judge cannot open that. If the judge or the clerk of court opens the envelope containing the deposition, he violates Art. 228 of RPC. Why? Under the rules, the court should schedule the opening of those documents in the presence of both parties and their counsels or in the presence of their counsels on a particular date and hour. If you do not appear, you waive. But then there shall be an actual day for the opening of the same and a particular hour fixed by the court. If not, you violate this particular provision of the law. So be careful about oral depositions. You can open your copy because you will be furnished a copy but then the official copy of the court cannot be opened without the same having been scheduled for opening in the presence of the parties and their counsels. There are other documents that are supposed to be opened by the persons who are authorized to open the same. Even the permitting of the opening of these documents by other persons is also prohibited. We go to revelation of secrets. Public officers or employees sometimes learn secrets by reason of his official capacity. What secret it is? It should be a secret in relation to his office or when he wrongfully delivers any papers or copies of papers of which he may have charged and which should not be published, that is a violation of Art. 229. If the secret belongs to a private individual, it is in another article that the public officer may be punished, that is Art. 230. The revelation of secrets of private individuals, these secrets of private individuals have also become known to the public officer or employee by reason of his office. But he cannot keep his mouth shut or he cannot keep it to himself. This is the most common crime being committed by public officers or employees. Because right now, everybody is talking about everybody. (Aw, you know or baka, sir gusto mo malaman yun sekreto ni sir, uhm, alam mo kalaban sa promotion ito.) Those are in violation of the law if they are public officers or employees. Well, the ones who are revealing secrets of other people are not public officers, they come from the private sector. Alright! You can reveal the secret of a person if it is authorized by law or if it is for a justifiable reason. Say for example, it is for a commission of the crime, you can reveal it. But if it is not the commission of a crime nor it is justifiable, you cannot reveal it, you have to keep it to yourself and if you cannot keep it to yourself, brace for being sued under Art 230 of RPC.

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Now, open disobedience. This can only be committed by any judicial or executive officer. Legislative officers are not involved in open disobedience. So any judicial or executive officer who openly refuse to execute the judgment or decision or order of any superior authority made within the scope of their jurisdiction and issued with all the legal formalities in accordance with law shall suffer the penalties of arresto mayor etc to prision correccional etc. Now, open disobedience as I said is only applicable to executive and judicial officers and that the disobedience is with regard to a lawful order of a superior with all the formalities required by law. If it is not given by a superior, if it does not contain the legal formalities required by law, there is no open disobedience and they refer only to judgments, orders etc., the decisions of any superior authority and of course that is only to execute those orders and if they do not want to execute it, then that is when they are liable. Art. 232 is quite, shall we call it, confusing. To explain this, you have to be familiar with regard to usual practice in offices. Now, in order that a person maybe liable in this particular article, of course we have been talking about public officers here. First, there must be a superior officer. This superior officer actually issued an order. He issued an order directed towards an inferior officer but then this inferior officer suspended the implementation of that order. Under such case, there is no crime yet that has been committed. The superior officer after learning that the inferior officer suspended the implementation of his order, he must declare such suspension by the inferior officer as illegal or invalid and demand from the inferior officer the implementation of the order. If again the inferior officer suspended the implementation or refused the implementation of that order then that is when he is liable under Art. 232. So dalawa yan. The superior officer must issue an order, it is countermanded and rendered ineffective and not being implemented by the inferior officer, no crime yet. Then the superior officer must declare that the suspension made by the inferior officer is actually invalid or void or illegal and command again the inferior officer to implement the order but he refuses, then that is when the inferior officer shall be held liable. So there must be two acts that will be performed by the superior officer and there must be two acts to be performed by the inferior officer in order that there will be a violation of Art. 232. Now, refusal of assistance. Actually, any public officer may be held criminally liable in this article because any person who refused to give an assistance upon demand by competent authority to said public officer in relation to administration of justice or if not in relation to the administration of justice, it is in relation to other public service and that it resulted to damage to another party whether to the government or to a third party, then the person shall be liable for refusal of assistance. So let us say you are a mayor and you asked the assistance of say for example a doctor in your community, you said that “doc, we have to go to a particular barangay because there are so many people who are sick there, we will deliver medicines etc” The doctor said, I do not like to go

there. Now, there is a demand from a competent authority because he is the head of the municipality under the devolvement of powers in the LGC, the municipal health doctor‟s assistance may be sought by the head of that political unit, if he refuses and it is in connection with public service then he is liable for refusal of assistance. In the courts, it is true that policemen are not supposed to be process servers. They are not supposed to be subpoena servers or barangay official or barangay captains or barangay chairmen, they are not, under the law, they are not. But why is it that they are being compelled to serve the subpoenas. The moment that the court referred to them by way of endorsement subpoenas to be served by them in their locality because they are more familiar in their locality than our process server in court. Eh, pumunta ka sa Tondo, will our process server be able to find in the dimly lit areas in Tondo the person whom he is suppose to serve the subpoena? Uuwi yun, sasabihin lang nun, cannot be located. That is what he is going to do, make a return, cannot be located but indorse it to the barangay chairman, that is already a demand from a competent authority and the barangay captain or chairman cannot refuse or even if kagawad or purok leader or the head of the bantay bayan because it is in relation to the administration of justice, they cannot refuse. Even you, if you requested that a subpoena be served and that you will be asking that it be the barangay chairman who shall serve the same and the courts grant your request, it is a demand from a competent authority to perform a particular public function which involves administration of justice. So you can actually sue them. You can file a criminal case against them for refusal of assistance. Alright! Well have you ever heard of any person who had been elected to public office who refused to discharge the same? Eh, hindi pa nga lang nanalo, he wants already to assume the office of which he became the candidate. How much more if he wins? But there was one case when I was still a judge somewhere else, not here, when a councilor who was elected refused to discharge his elective office because when he runs for councilor he was thinking that the salary is more than what he is receiving that he will have several perks and of course several, you know, other income out of being a councilor. When he realized that the pay is only one half of what he is receiving from a big corporation, he refused now to discharge his public office. He is being sued under this article for refusal to discharge a public office. Well, we just advised him, why don‟t you resign officially? Resign! (judge said it with a stress) Because if you resign and it is accepted, there is no problem but if you refuse to discharge your public office then you will be held criminally liable and you know, very few people are refusing to discharge their public office. If you are elected as the President of the Philippines, are you going to refuse? Even with all the problems, with the headaches that a President will have, you will naturally try to do your best to discharge your public office. Then we go to maltreatment of prisoners. Well, these are actually being committed only by those who are in-charge of the correction or handling of the

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prisoners. Any person who is in-charge of handling the prisoners or handling their corrections, handling their well-being etc. and in addition to the crime of physical injuries or whatever that they may be committing, if they shall overdo themselves in the handling of a prisoner or whether the prisoner is a convicted prisoner or not, or by inflicting such kind of punishments in a cruel and humiliating manner then there is maltreatment of prisoners. I hope that they pass the bill that is authored by a certain Metro Manila congressman that prohibits the wearing of prison clothes in court and in public while they are being presented before the public. And also in that bill, it is being proposed that they should not be presented in person. Their caricatures or whatever you may want to call them may be the subject of publication but not their real selves. Just like what they are doing in the States, d ba? Yung drawing lang etc. The sketches, those are the only things that they can publish but here in the country, they are going to call a press conference. They are going to handcuff you, they are going to ask you to wear this orange uniform etc with the word you know PNP, NBI and everything, then with a word detainee. That is an insult, he is already being pictured as a person guilty of having committed a crime. It is cruel and that is overdoing themselves in the treatment of a prisoner and let us try if the same will succeed in the event that you file a case against such officers. I think, try once. For once, let‟s try if you have the guts. Let‟s try. To me, my opinion, that is overdoing oneself in the treatment of a detention prisoner because it is humiliating eh. The law specifically provides that by inflicting such punishment in a cruel and humiliating manner, that is a punishment. Presenting him before the entire nation, that is already a punishment to this people and that is humiliating if not cruel. So my idea is let us test this, why not? So that the Supreme Court in the long run maybe able to rule whether it is valid. But if that bill will be passed, then we have a specific law already. Ok? Well, if the purpose of the maltreatment is to extort a confession, eh that is different. Actually, it is also covered by RA 7438. In the event that a person has been invited, has been under custodial interrogation, has been under custodial investigation and there is a maltreatment of that person in order to obtain a confession, that is also in violation of RA 7438 known as the violation of the Miranda doctrine and the Escobedo doctrine in the United States. So he can be charged under the RPC and at the same time he can be charged under a special law. Alright. Anticipation of Public office. Anticipation of the duties of public office. These are the adelantados, they call them in Spanish, because they cannot wait, they are in the heat, they could not even wait until such time as they be qualified and that they have already been sworn to duty. Marami namang ganyan talaga eh noh. Those who anticipate performance of their public function. Eto naman yung mga those who prolong the performance of their public functions and duties and powers, hold-over naman to yung ayaw umalis sa pwesto. Even if they have already been removed or they have already their job term expired, then they still continue to perform the duties in that office then they are considered as

violating Art. 237 of RPC. The words “has already expired” include resignation, removal from office and it is when they prolong their duties. Abandonment of public office. Well, any public officer or employee who before the acceptance of their resignation, shall abandon their office to the

detriment of the public service shall be held criminally liable. Now, if such office has been abandoned for purposes of not prosecuting an offender or evading the prosecution of an offender or from punishing such an offender, then the penalty

is higher than that which is provided for in paragraph 1. Now, if you abandon

your office and of course you did not file a resignation then that is not in violation of Art. 238. Art. 238 can be violated only if you file a resignation and

before your resignation is accepted, you abandon it. You abandon your position. Well, to me, you can abandon your position even if you file your resignation, that

is alright, good riddance. Well, in every office if such person is not fit in the

office, then why not. You can abandon your office even if you file your resignation without even accepting your resignation, pls. Do not show your face anymore. It‟s alright! But if actually it will cause damage, then that is the problem there. Ok. Usurpation of legislative functions. It involves the executive department or even a judicial officer. Eh kung minsan maraming executive officers tsaka judicial officers gustong maging myembro ng Senado at Congress eh, so they perform acts that pertain only to the legislative arms of the government by making general rules or regulations beyond the scope of their authority or they attempt to repeal or suspend the execution of the law. This is only true if it is not within their powers. Eh, supposing the court is being asked to suspend a law which they believe is unconstitutional then that is within the powers of the judicial authorities. Or to consider the law as repealed, that is within the powers of the Supreme Court and we can interpret also even in the courts of original jurisdiction they can interpret a law and say that the law is already repealed. Let us say for example, the act of Madam Cory in repealing RA 1700. There was a question there whether it was legal or not. But because at a time when she

repealed that particular law, the Constitution that we were using at that time was

a rebel constitution. Do you recall that? What do you call that? Freedom! But

that is actually a rebel Constitution. So if it is a rebel Constitution, there is no

problem. You can repeal any law because you won the rebellion. You can even abolish Congress if you want. There is no problem with that because all your acts thereafter will be considered as legal until somebody again dislodge you from your position. That is why there were several coup attempts at the time. There were I think 9 or 8 coup attempts during the time of Cory. Ngayon ilan palang coup attempts? Iisa palang. Eh malapit naman ang election so there is no more problem. I don‟t think there will be further coup attempts unless may projection

is wrong, especially if Bush will be coming. But I am very suspicious eh. The

carriers are in Subic and nearby oceans. Something is brewing. That means to

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say that the United States were able to gather information that something is amissed.

Side B

… now, the typical example of this is those who accepts position in the peace and order council. If you accept a position in the peace and order council, you are actually performing an executive function and therefore you may be held criminally liable for usurpation of executive function because that particular council is supposed to be a council that belongs only to the executive department. Usurpation of judicial functions. Well, ayaw naman ng mga mayors na mag- judge eh. Gusto nila they are forever mayor eh or Congressman. Kung wala na, there is no choice, that is when they will go to the judiciary. But there was a time when mayors perform judicial functions. Do you remember those times? When the rules of court of 1950-1964 was still in effect, if you will recall that, because the new rules of court took effect sometime, I believe, July of 1964, then there were amendments thereafter. In 1964 and before, municipal mayors have the power to conduct preliminary examination of witnesses for purposes of issuing a warrant of arrest in the absence of the municipal judge or the justice of the peace at that time. He shall only turn over the records of the case upon arrival or upon reporting by the justice of the peace to his position. So the mayor then had that power of issuing a warrant and even asking searching questions only for the purpose of issuing a warrant. But then the Supreme Court realized that they are violating the provisions of RPC by giving that power to the Mayor so they removed that in the amendment in 1964, that is in the new rules of court, they removed that. Disobeying request for disqualification. Before the question of jurisdiction has been finally decided, well, any public officer or employee who has been ordered to refrain from proceeding with any action in regard to any request for disqualification shall be held criminally liable under this. So the issue must be jurisdiction meaning to say he has no jurisdiction, instead if there is an order, a TRO or an injunction that was issued or a prohibition, he still continued, then he is liable. These are simple crimes, very easy to understand. That is why we can go as fast as we can without of course prejudicing your interest and understanding of the law. Now, 243, ah, this has been violated and most often this is being violated. These are executive officers who actually address an order or a request or a suggestion to any judicial authority in connection with any case pending in said court or any case or business within the exclusive jurisdiction of the court of justice. It is a crime ha a mere suggestion ha or a mere request or any order as long as it came from an executive officer. So if you are the presidential legal officer, you call the judge, “judge, huwag mong I-issue ang TRO ha.” Pwedeng mag-reklamo ang judge. I-charge nya yun under this Article. Convicted yun.

Pero sa buhay na ito, in this life, you have to play ball otherwise they don‟t give you the ball. This is a common practice. I have to admit that this has been done so many times, a million times and yet no one is being prosecuted. Actually there are some people who even admit to having called judges. The members of the executive departments, governors, mayors, etc bawal yan. Ok. Unlawful appointments, the mere nomination or the appointment of a person who does not possess the qualifications provided for by law shall be liable under Art. 244. 245 is abuses against chastity. Well, any person who shall solicit or make immoral or indecent advances to a woman interested in matters pending before a public officer or employee for decision or with respect to which he is required to submit a report to or consult with a superior officer shall be liable under this article and any warden or other public officer who directly offer, directly charged with the care and custody of a prisoner or persons under arrest who shall solicit or make immoral advances to a woman under his custody and if the person solicited be the wife, hmm, remember, the daughter, the sisters or relatives within the same degree by affinity of any person in custody of such warden or officer, the penalty shall be prision correccional in its min. and med. Periods. Now, it is actually in the first paragraph, second portion thereof that there is sexual harassment. This is those that make immoral or indecent advances with respect to the submission of a report or to consult with a superior officer, meaning to say it is in a working place and you know that sexual harassment can only be committed in two places. A place of learning or in an educational institution and the other one is a place of work. So, in the first, there could be sexual harassment but in the second portion of paragraph 1. Now, how about in number 2, now supposing the person to whom the warden made or solicited immoral advances is the grandmother of the prisoner, oh, there could be a grandmother who is only about 39, 40. Oh yes! D ba nyo alam yun? Before the passage of the Family Code, a woman who is only 14 years old can already get married and have a child even before reaching the age of 15 hmph so say for example she got married at 14, had a child before reaching the age of 15 and then, her child also got married in the same age as she has, she would be then how old only? 28 lang yun, add another 14, that would be 42. Eh ang dami dami dyan sexy, 42 pala. Sabi ni warden, hindi ayaw ko dun, bakit? eh libre ako eh. Binasa ko yung libro eh. If I solicit any advances, immoral advances to a woman who is a grandmother, it is not a crime because the law has enumerated. Who are those? The person himself who is in jail, the wife of the person in jail, if not the wife, the daughter or if not the daughter, the sister or relative within the same degree of affinity. Eh, sister within the same degree, ano yun? Eh, sister-in-law. Eh, grandmother, wala eh. Sinabi bang ascendant? Hindi eh. Eh, supposing lalaki ang sinolicit? Hindi rin! It is not a crime so they have to change this.

Break!

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…Parricide, Murder, Homicide, well, simply put parricide is any person who shall kill his father, his mother, his spouse or child, whether legitimate or illegitimate ha, pagdating sa child yun. Kailangan sa spouse, the spouse must be legitimate. Merong illegitimate spouse but that is not a problem of ours. The penalty shall be reclusion perpetua to death. An adopted son or adoptive father is not included in the crime of parricide. There ought to be a law but then there being no law at this point, if an adopted son kills his adoptive father or mother, that is not parricide. It is simply either murder or homicide as the case maybe. Remember that in parricide, irrespective of whether there are evident premeditation or whatever, it is not a concern in the crime of parricide, it is the fact of relationship. That is why in parricide, self-defense is available unlike in murder if murder is actually proven or if the charge is murder if you try to inject the defense of self-defense, it would be very hard. Actually very few maybe able to cause the overturn of the charge of murder by injecting self-defense. It is a homicide no problem Eh infanticide, can you inject self-defense? Hindi rin pwede, less than 3 days old yun eh. These are matters that should be very, very clear to you. Question: Sir how about mistaken identity in the sense na hindi cya inintend mong patayin pero napatay mo? Mistake in identity in the person whom you killed is your brother or mother. The same. Parricide, because mistake in identity is never a defense. It is never a defense even under ordinary circumstances. It is the mistake of fact that is a defense. It is not a mistake in identity. That is People v. Oanes case. When Oanes and company were ordered by their superior to arrest a certain Balagtas dead or alive and they were told that Balagtas in a hut or is in a house then they were given the description of Balagtas and when they saw a person who was lying asleep on the floor of the house, they shot him full of force and when they turn his body, they were able to know that he is not Balagtas but a farmer. They claim mistake in identity, noooh, according to the Supreme Court that could not be a defense. The same is true in parricide. Now even if there is no treachery, no evident premeditation as long as there is the relationship between the offender and the offended party as the case may be, or the victim, then that is parricide. Art. 247 is actually a well known article in the circles of people who are familiar with the ongoing between families. This is death under exceptional circumstances or physical injuries under exceptional circumstances. Any spouse who kills his spouse or the paramour of his spouse. If he catches them or surprises them actually in the act of sexual intercourse, shall be sentenced only to destierro or if he inflicts serious physical injuries. If he does inflict only less serious or slight physical injuries, he is exempted from criminal liability. That is the killing must take place immediately after catching the two by surprise. You can kill both of them or one of them as the case may be. Penalty is only destierro. Question: (inaudible)

Now, there is a case Mr. Ty. You read the case of People v. Abarca. It happened in Tacloban. The principal actors there are Abarca, who took the bar exams in Manila. He left his wife in Tacloban and there is a Chinaman by the name of Kingsley Co. While Mr. Abarca was reviewing for the bar, he was already hearing things from his friends that his wife is two timing him. Meaning to say that his wife is committing arson. Well, he did not mind, he was telling his friends who have been saying that to him that he is only being distracted by those dirty rumors that are being spread by those who do not want him to pass the bar. He said that he believes in the fidelity of his wife and everything so he just went on with his review until he finished taking the bar examinations. After finishing his bar examinations, he left for home. He arrived there and while in their house he rested a little as he has already exhausted most of their savings. He told his wife, I will go to the next town, I have a friend there, I have had a conversation with him that we can go into a little business of which I am going to earn. I will take the bus just about an hour from now. So he rested for awhile and after an hour he left. When he arrived at the bus station, he was informed that the bus he was going to take has already left, the next trip would be 2:00pm so he went home, ate and slept and woke up at 1:00pm and left for the bus station. When he arrived at the bus station after telling his wife that he will be already arriving in the evening because the place is a little bit far and he will still have to take some other buses that are coming from other far provinces. When he arrived at the bus station, he was again disappointed because the dispatcher told him that the bus he is taking for the next town or so, has developed engine trouble. But he was asked to wait for awhile if the bus would be fixed by the mechanic. But after an hour, well, there is no way that this bus can leave so he said I am going home. He went home and you know being the husband of the wife, he knows his way around. He opened the door, the front door, he was able to enter their house and then he went direct to their bedroom so that he can rest. He was too tired. He was too exhausted already of taking the bar examinations. And when he opened their masters bedroom, he saw his wife having sex with Kingsley Co, a Chinaman. But when he was about to approach Kingsley Co and his wife, Co drew a 38 caliber revolver and probably told Abarca, make it my day. Because of fear of being shot, he left and of course he was fuming mad. While outside of their house, he tried to think. He was then suffering from obfuscation, passion and everything. His testimony is that he was blinded by rage and everything so the only thing that he was able to think at that time is his friend, a member of the CAFGU who has an armalite rifle. He hired a vehicle or he rode a passenger vehicle. He was able to arrive at the destination of the CAFGU, he borrowed the armalite rifle of the CAFGU, he went back to their house, he did not find his wife and Kingsley Co. He again tried to think, where could I find this people. He knew that Kingsley Co is addicted to playing mahjong and he knows the places where Kingsley Co usually plays mahjong to pass away his time. When he went to a mahjong parlor, he saw Co playing mahjong. He shifted the armalite mahjong

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from a single fire to automatic fire and of course, chak chak, hmph, and he told those who were present at the time in Waray, those who are not concerned here, in Waray, please leave. That was the wording in the decision of the Supreme Court. He started firing at Co and most of the bullets hit Co but there were other bullets, because he shifted it to automatic fire, the others who did not leave because it is the Filipino way of life that they want to be always the eyewitness. Ayaw umalis mga usyusero. Ayun dalawa tinamaan. Malubha. They suffered serious injuries that almost cost their lives. He was charged with Murder and Double Frustrated Murder. He was convicted in the lower court. The law says that he surprises his spouse etc in sexual intercourse etc and immediately thereafter either killed his spouse or any one of them or inflicted serious physical injuries etc, he should be sentenced to destierro. But it took him more than an hour and in a different place to kill the one who actually put a shit in his head. When the case reached the Supreme Court, the SC said it is still within the purview of Art. 247, reasoning out that had Abarca tried to protect his honor, defend his honor, etc at that point when he discovered his wife having sex with Co and he actually tried to inflict injuries on anyone of them, he would be dead because Co had a firearm. The period of one hour can be considered under the circumstances of the case as within a reasonable period of time or shall be considered as immediately thereafter. With respect to the place where Kingsley Co was found, the Supreme Court did not discuss that anymore. What happened is that with those reasoning of the SC, Abarca was convicted of death, under exceptional circumstances, sentenced to destierro and with respect to the two usyuseros, two witnesses, the SC said Abarca, you should have been careful in firing the armalite rifle. You committed reckless imprudence and that you are hereby sentenced to 2 months of imprisonment for the compound crime of serious physical injuries or reckless imprudence resulting to serious physical injuries. Two months imprisonment. Then after that he was released because he had been in jail for the last 6 years and he has already passed the bar exams. He was not recommended to be charged of illegal possession of firearms, he was not. You know for a fact that destierro do not have any accessory penalty. It has none. The same is true with reckless imprudence resulting to serious physical injuries. No accessory penalty. So all that he has to do is leave Tacloban City for another place not more than 200 km away from Tacloban City nor less than 25 km from Tacloban City. I was made to understand that he became a prosecutor. He was allowed to take his oath. But you see more than an hour has passed in that

particular case. More than an hour, hmph

that is the case of People v Abarca.

There is another case but then it is almost the same as the other cases. But the most intriguing case is the case of People v. Abarca. Probably the SC has taken into consideration the fact that Abarca was trying to improve their life and yet

the wife, instead of being appreciative of what Abarca was doing for the family, even had the temerity of being unfaithful to Abarca. That is why the SC considered even a period of more than an hour as immediately thereafter. You

know the SC can extend all these because they are the SC. But that is the case of People v Abarca under Art. 247 of RPC. Murder, no problem! Actually, there is no problem about murder because if you are going to look at murder under Art. 248, what was changed only is the penalty because the previous penalty under the old law is reclusion temporal in its max period to death. Now, no more, reclusion perpetua to death. They removed the reclusion temporal portion. Ok, there are still 6 but actually there are so many if you are going to look at it and enumerate them one by one. But they only lump them into 6 qualifying aggravating circumstances. Now, supposing that it is the purpose of the offenders to kill the victim but then they cannot just kill the victim, so they kidnapped him first and killed the victim. What crime is committed? Murder? No! According to the SC, it is kidnapping with murder. That is the case of People v. Ramos, 297 SCRA 618,640,641 1998 citing the case of Parulan. Question: In Art. 247, it says engaged in sexual intercourse, what if they are just undressing? There is a dissenting opinion of Justice Laurel. That he is not in favor that the law should not extend to those circumstances which will prove actually that they had sexual intercourse, that it is not only during the act that the spouse must surprise the other. That is the dissenting opinion of Justice Laurel. Actually there are some smart Alex who will say oh what are they going to do when they are on bed, both naked? Read the bible? Or tell stories to each other? That is not what they are going to do so what should we have in mind then? Either they have done it or they are going to do it and do you have to wait? Eh, supposing the one who is going to wait is suffering from hypertension, heart disease, mauna pang mamatay yun. He will not even be able to exercise his right under Art. 247 because actually it is a right eh, the penalty of destierro there is not a penalty. It is to prevent the relatives of the victim, the friends of the victim from retaliating or committing acts of vengeance or revenge against the spouse. That is the idea there. Ok. Homicide, there is no problem except when you have to correlate with RA 8294 conviction of illegal possession of firearms is not allowed under 8294 if the crime committed is homicide or murder because illegal possession of firearms is absorbed in the crime of homicide or murder with illegal possession of firearms being only a special aggravating circumstance. Is there a crime of rape with murder? No! there is none. It is People v. Nestorio Kwatson.(sounds like Kwatson, just search for the real case name) There is such a crime which is special complex crime of rape with homicide but there is no such crime as rape with murder. There is none. Well according to the SC, in criminal cases, the entire case is always open for review and giving the appellate court an opportunity to evaluate once more the totality of all the evidence including the proper designation of the offense. And the proper designation of the offense is rape with homicide and homicide should be interpreted in its generic sense. That

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would be even including murder and there is no such crime as rape with murder. Ok?

Well penalty for frustrated parricide, murder or homicide, there is no problem here. Now, the next article is death due to tumultuous affray. You know tumultuous, it must be composed of four or more armed persons provided with means of violence and there must be at least two groups who were not organized for purposes of assaulting or attacking each other. The penalty is higher if a person dies on occasion or during the tumultuous affray, if the person who actually inflicted the fatal injury can be identified. The penalty is lesser in the event that the person who actually inflicted the fatal injury cannot be identified and only those who inflicted serious injuries can be identified and they are all liable in death due to tumultuous affray. When you say tumultuous here, there is no direction etc. there are two groups of four or more ha because when you say tumultuous, apat yan pataas provided with means of violence. It‟s not gangs, it‟s not whatever basta any means of violence and that is what the law requires only. Physical injuries, well the same application. If the person who inflicted the serious physical injuries can be identified, the penalty is prision mayor or even lesser than that if they cannot be identified but definitely those persons who inflicted the injuries maybe identified. Well there is no such crime as slight physical injuries due to tumultuous affray because there is no penalty that can be imposed. That is an absolutory cause. You know this is what we call in the street language. Rumble. Two groups they just meet each other, they are not organized for purposes of attacking each other and then suddenly, a tumultuous affray erupts, ah, that is when there is tumultuous affray. It is most common in Tondo, Sampaloc, Pasay, in other areas etc where there are so many gangs. This is their preoccupation. Who wants to give assistance to another to commit suicide and who wants to commit suicide? Alright. Anyone who shall assist another to commit suicide shall suffer the penalty of prision mayor if such person lends his assistance. His assistance must be active and invaluable in the commission of suicide. So if it is not active, it is not invaluable to the commission of suicide, the person who lends the assistance shall not be held criminally liable. If he did the killing himself, the offender is liable for the crime of homicide or the penalty of homicide shall be imposed upon him. Now, let me see, supposing you have a roommate. Your roommate told you, uy, pakibili mo nga ako ng nylon rope sa hardware pag-uwi mo. Bakit, anong gagawin mo? Mag-su-suicide ako. Loko to. Let‟s humor this fellow. This guy bought a rope made of nylon. In the morning when he woke up, patay. Is he liable? The roommate is already hanging in the beam of their house. You must have to remember, lending his assistance in the commission of suicide. Is buying a rope lending assistance, No! because he can buy also a rope of his own if he wants. He can also ask somebody. But supposing Pare, pakitali mo nga yun rope na yan, mag-sui-suicide ako. O cge, bahala ka. Pare pakilagyan mo nga ng stool dyan sa ibaba, I will have to step on the stool

and when the stool is already there and I am already on top of the stool, kick the stool. His participation therefore is active, invaluable, then he is lending his assistance. Well, if say for example, pare I am going to commit suicide, will you pull the trigger because I cannot pull the trigger, I am nervous, I don‟t want to hear the sound of the gun. You pull the trigger, ah as if you did the killing yourself…

Tape ends.

Sept. 17, 2003 By: Mildz

…what is important in infanticide is that the child was born alive whether the child is premature or whatever as long as the child is alive, that is what‟s important to constitute infanticide. It is not correct to say that if …o…here is Mr. Sia and Ms. Salva…I told you I am going to announce their entrance so Sia is actually angry at you because probably you were the one who suggested that their entrance be announced. The only modifying circumstances in infanticide is actually when the killing of the child is to conceal the honor of the mother and it was the mother who killed the child or when it is the maternal grandparents in order to conceal the honor of the daughter of the maternal grandparents. But the paternal grandparents, there is no way that they can be given any modifying circumstances that is mitigating when I say modify. They were saying that if a child is born alive but it has no chance of living, if the child is killed, it is actually infanticide. That was the decision of the supreme court way back in the early 20‟s…as a matter of fact it was still a decision of the supreme court when it was still being published in the Philippine reports. But there is another opinion that was floated wherein even if the child has no chance of living, as long as the child is born alive and the child is killed, then it is infanticide. What would then be the crime that will be committed if somebody killed a child who has no chance of living for about maybe 20 or 40 hours or 48 hours. There is no difference. What is actually not infanticide is when the child is born dead. Abortions…well there are how many kinds of abortions? We have intentional abortion, unintentional abortion…we have actually the abortion practiced by the woman herself and then the abortion practiced by a physician, by a midwife, and of course the dispensing of abortives by pharmacies. When you say intentional abortion, that is the employment of force or violence or intimidation upon a woman whom the offender knows to be pregnant and the purpose in employing such violence is actually to cause an abortion. If that is not the purpose and there is an abortion, that is unintentional abortion. The determination of whether intentional or unintentional abortion is actually the acts prior to or simultaneous with the employment of force or violence upon the woman. There could also be

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intentional abortion in the event that the abortion was employed without any violence upon the woman…hmph, maybe abortives or some other kind of means were employed upon the woman that is considered as an abortion without force or violence or intimidation being employed upon the woman but it is still intentional. It may not be with the consent of the woman. Now, if it is with the consent of the woman, it may be with force or violence or it may be without force or violence but the woman consented in the abortion. The law on abortion is actually a very ticklish issue at this point because there are those who believe that the mother has the right to consider an abortion if it will be warranted under the circumstances. But there are those who are pro-life saying that the mother has no choice but to bear the child considering that it is not the fault of the child that the child became a fetus and therefore that child has the right to live. The right to be born. Well it is a long running debate of which I do not believe that it can be settled even at this point, as long as we have the Catholic religion among our midst, they will object. Naturally, it is the teaching of the Catholic religion that an unborn child has the right to live, on the other hand, there are even Catholics who think that their very persons would probably demand an abortion in case where it is necessary. But up to the present, we cannot settle the issue and the only issue that has been settled is that there is a law on abortion and that it is against the law to perform an abortion, whether it is intentional or whether it is unintentional. The unintentional abortion may actually be with employment of force, violence or intimidation upon a person without knowing either that the woman is pregnant or if even if the woman is pregnant, the person does not have an intention to cause her abortion. There is even abortion which may be committed through reckless imprudence and that is reckless imprudence resulting to unintentional abortion. You remember the case, as cited in your book, about the operator of a calesa or caritella or whatever they want to call it, when the horse went wild and there was a woman who was crossing the street and the calesa, the wheel of the calesa hit the woman causing her to have an abortion, the operator of the calesa was charged with reckless imprudence resulting to unintentional abortion and he was convicted, but look, there is a debate there, who is at fault, is it the operator of the calesa or the horse? Well, maybe it is the fault of the operator of the calesa but then even if you are very kind to your animals etc. there are times when they won‟t be kind to you and you would not be able to control them. Would that be considered as an insuperable cause? Maybe. We do not know. But it is included among those who may be held criminally liable for the crime of intentional abortion thru negligence or even imprudence. When a woman practices abortion upon herself or even consents that the same be performed upon her, she shall be held criminally liable for such act of hers and the penalty is only prision correccional in its med and max period. In the event that this woman commits this offense to conceal her dishonor, she will suffer the penalty of prision correccional in its min and med periods. Oh well the penalty is not actually the same to the maternal grandparents but then the penalty

should be prision correccional in its med and max period. Just like when the abortion was practiced by the woman herself. Now, remember that the abortion here must be committed to conceal the dishonor of the mother of the child not to conceal the dishonor of the family, not to conceal the dishonor of the grandparents, no! to conceal the dishonor of the woman who got pregnant. Some have the impression that it is the dishonor of the family that was brought by the pregnancy of the woman and that there is a need for abortion and the maternal grandparents were the one who practiced the same, it would fall under intentional abortion and not abortion practiced by the woman herself or by grandparents. In abortion, when do we consider a woman to be pregnant? That is the problem that has been a legal issue to most of those who are in the courts because even the physicians at times do not know when a woman is pregnant. When is there pregnancy to speak of? Who is a doctor? Who is a nurse? Do you know when is there pregnancy? Do you know? Yes, Kanahashi, ― a woman is said to be pregnant when a fertilized ovum is already deposited inside the uterus of the mother.‖ That is according to the medical terms but would it be considered for all legal intents and purposes as pregnancy? When I asked a doctor, he said well, who is a lawyer? He said that my belief, legally, that is not yet pregnancy because to him pregnancy is the presence of the fetus. Is that already a fetus? No, so that is the problem. The law should define when a woman is pregnant. There is no definition of pregnancy. None whatsoever. In cases of concealment of dishonor, the woman actually must have a good reputation only. It is not necessary that the woman is actually of an unsullied reputation. All that is required is that she must have a good reputation. Maybe she is a good woman but she has bad habits. That is what they are saying, but it is the reputation of the woman that counts whether she maybe entitled to conceal her dishonor or not. Now, abortion practiced by a physician or by a midwife, there is no problem with that because these people are supposed to help in the delivery of babies and instead they are the ones who are killing the babies. In other words, these people are supposed to be punished with a more severe penalty than that of the others. But then as you will note from the provisions of the law, the penalty would be based under Art. 259 of RPC. That would be actually a very, very serious penalty considering that Art. 259 is a serious offense. The dispensation of abortives without any prescription by a competent physician and it is a pharmacist who dispensed the same, it is also a crime but the penalty is simply arresto mayor. Now, our problem is supposing the person who dispensed the abortives is not a pharmacist. Well, if it is with the consent of the woman it will fall under the intentional abortion with the consent of the woman. If it is without her consent, it is intentional abortion without the consent of the woman and without force or violence. How about those who are supposed to be known to almost everyone? How about those practicing their trade at the side of the Quiapo church? Have you been there? Have you had the occasion of just taking a walk near Quiapo church? They will even ask you, o anong kailangan

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mo boss? Pampalaglag or whatever. O pahuhula ka. Nandun lahat ng racket eh. Well, I do not know why the church is actually tolerating all these people when they are against abortion yet the people there beside the church are the ones who are practicing abortion or giving abortives. Actually, the abortives are made of either herbs or herb or whatever, roots, plants, or what has been discovered by the old folks during their times and it is still effective as it is proven by people thereat.

Is there a difference between a pharmacologist and a pharmacist? There is. What I understand of a pharmacist is actually the old pharmacists are the ones who are mixing drugs in order that it may be dispensed with to any patient but the pharmacologists are those who just read the prescription of the doctor. I do not know whether it is the reverse but it is my understanding that the two are not the same. As of now, are there still drugs that have to be mixed in order that they maybe given to a patient? Distilled Water? Not only that, I think there are still drugs, at least two or three drugs that are being mixed before they are administered and we do not know how they are doing it but still there are. Pero sa mercury wala ata eh. No, there is, there is one but then it is quite expensive because it will take you how many hours? Before you can get it? Raffy: Judge it depends on the medicine that you will get. Topical applications madali yan yun pero yun medicines na iba, matagal yun. Yes because we got one and it took us two days or 48 hours to get it. That is their job. Duel, this is a formal combat between two persons with all the formalities of any combat as done during the olden days. When you say duel, there must be an agreement between two parties and that it is a concerted combat between two persons in the presence of at least two persons who are supposed to be the seconds. There may be others like a doctor and then these people who are present must be of lawful age. If they are not of lawful age, it is not a duel, and then there is a selection of arms, there is a fixing of time. There are the fixing of weapons and such other agreements that the combatants may agree on. They may agree that if there is already a mortal wound suffered by one then the duel should be stopped. If they agreed that it is a duel to the death, ok, duel to death no problem. Use of pistols, use of sabers, use of swords, well, it is use of knives, just the same as long as the formalities of a concerted combat is present with all the conditions that maybe set forth in the agreement between the two. In the event that no person suffers any injury, actually the parties who participated in the duel are still liable. Why are they liable? It is because of the social danger that they poses as the same would be if tolerated, be committed again by other persons. Mere challenging to a fight or a fight to the death, which is made against another person is not challenging to a duel. The challenge must be that it is actually a formal one either thru intermediary or thru letters etc and actually the challenge must contain all the conditions set forth in an actual combat.

Can an instigator in challenging to a duel be also punished? Yes. Even the instigators are liable in challenging to a duel. Ok! We go to physical injuries. There is no problem with respect to mutilation. When you say mutilation that is actually the removal or if not removal, who shall intentionally mutilate another person by depriving him of a part or the whole of an essential organ of reproduction. We have had the occasion of having to read everyday, almost everyday mutilations in the newspapers. It all started with Lorena Bobbit. Just like the F4 here, everybody is talking about F4. After a month or two, wala na yang F4 na yan. It is simply a, shall we call it, it is like the rainy season or yes, that is a fact that we have to contend with. Well, it is mutilation, actually even if the essential organ of reproduction is not totally damaged or mutilated, but as long as it is partially damaged, then there is mutilation. I told you that Filipinos are fond of imitating other people in the world when that Lorena Bobbit case was published in the newspapers almost every week, you will see in the newspapers, the wife got a razor, got a scissor, got a knife etc but what is worse is what happened in Batangas. When the husband became jealous and suspected that his wife is having an affair with a very young man, who is even less than 18 years of age, so what he did was to abduct the young man, bring the young man to their house, got a chopping board and a bolo and cut the organ of the young man and the worst part of it is that he got a bottle, fill it with formalin and placed the portion that he cut in the formalin and displayed it in the sala. Well, the court actually was very nice to him because the court sentenced him to reclusion perpetua, because they considered ignominy there. Ignominy, the display of the part that was cut in the sala of the offender is ignominious to the victim, he was sentenced to reclusion perpetua. I don‘t know if you can do it but let‘s see. Let us just take physical injuries as a rule because physical injuries, there are so many kinds of physical injuries. The way of committing physical injuries is by assaulting, beating, wounding another. It depends upon what kind of injury is suffered by the offended party. If the offended party became insane, became an imbecile, or impotent or blind, or under similar circumstances, it is the first kind of serious physical injuries and the penalty there is prision mayor. Now, if there is only a loss of one eye, or the person became deaf or he lost the sense of smell, he cannot anymore smell the scent of flowers, then that is the second kind. Now, when it comes to determining whether a person suffered physical injuries which is serious or not serious, this is the rule. If the person has an occupation, a legal occupation, to determine whether the injury that he suffered is serious or not, aside from his hospitalization or attendance by a physician you should also consider the period within which he failed to engage himself to his usual occupation. That is if he has an occupation. If he has no occupation, the period that will decide whether the injury is serious, less serious or slight, is only the medical attendance or the period of his hospitalization that is all. You will say sir, that is very unfair. Well, that is not unfair because he does not want to devote

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himself to a lawful occupation. So, if that person who is not devoting himself to a lawful calling is injured by others, being beaten, wounded, assaulted, etc, it is only the period of medical attendance or hospitalization that should be the basis of whether the physical injuries should be slight, less serious or serious. But if he is working, ah, you include his incapacity to engage himself to his lawful occupation together with the actual hospitalization or medical attendance. That is the rule. It is different with permanent physical disability because permanent physical disability is different. You wounded a person in any visible part of his body which would show permanent physical disability or permanent injury then it is actually serious physical injuries, like wounding a person on his face which will leave a scar forever. That is serious physical injuries even if he stayed in the hospital for only two or three days. If you hit a person on his mouth but he lost two of his front teeth, that is serious physical injuries even if he has to be attended by a dentist for only one day. But if the teeth is located in an area which it is not visible to the public, if the offended party opens his mouth, then it is not serious physical injuries because it is not, the permanent physical disability is not evident to the general public. That is the way how to determine whether an injury is serious, less serious or slight. If the victim is a minor, the offender shall be prosecuted under RA 7610. In slight physical injuries, the same penalty as that which is provided for under Art. 266 of RPC. If it is serious physical injuries, the same penalty, there is no change. The only change is actually the fact that the case shall become within the jurisdiction of the Family court. Well, physical injuries may also be committed thru reckless imprudence or the case would be reckless imprudence resulting to serious, less serious or slight physical injuries. Now, supposing a person was stabbed by an ice peak on his chin, after his chin got well, he looks like Michael Douglas already, it improved his appearance. Now, are you going to consider that as serious physical injuries? Is that a deformity? That is what I am trying to ask. No, it is not a deformity because it did not change his appearance to one that is disagreeable. No, my statement is correct because when you say deformity, it must be a disagreeable appearance to the one who possesses that appearance. Eh kung gumwapo lalo, eh ok to. He will not complain anymore probably or if he complains that would be only up to the extent of either the period of medical attendance or hospitalization or actually the period with which the same healed but if say for example, he does not want his appearance, he will say, ah no, I don‘t like this. But well, there are those who even wanted to have a scar on their cheeks. Macho daw ang dating. Well, I don‘t know it depends upon how you look at yourself. Administration of injurious substances refers to actual taking or if not taking of the substances, the introduction of the substance in the body of the offended party. Throwing an acid to the face of the victim or to the body of the victim is not serious physical injuries under Art. 264, it will be serious physical injuries under the preceding articles, either 262 or 261. So the administration of

injurious substance is the injection, administration, the taking as long as it is ingested to the body of the victim, that is, well, administration of injurious substances. If there is intent to kill, attempted or frustrated murder or homicide. If it is poison, it is murder. If there is an ineffectual or ineffective means, or inadequate means, then that is impossible crime. Well, we have discussed less serious physical injuries, there is no problem. Slight physical injuries which includes maltreatment, yes. Question: What about judge those people who inflict other people with aids? Sa mga moviehouses, contaminated with aids? Ah, what do you think? That is attempted murder. Hindi naman contagion of cattle yun eh. You are not spreading any disease of a cattle, you are spreading a deadly disease of humans. That is attempted murder at the start when the virus actually was transmitted, that is when it becomes frustrated murder. But then during the pendency of the case and the person dies, you are going to amend the information to murder because of supervening event. Yes. Aggravating pati yun ha, tantamount to use of poison. Question: Judge, what if for example the patient was still alive when the trial ended, and then subsequently he dies 5 years after the judgment? Ah, tapos na. wala na, no remedy. Because the criminal liability is only available when it comes to attempted and frustrated up to the time that the person is alive and that the supervening event cannot surpass after the death of the victim, if there is already a judgment. So the judgment must come prior to the death and the judgment must not yet have been final and executory because if it already final and executory and there is already a long period of time that had lapsed, then you cannot anymore consider any supervening event. The reason there is that the supervening event must be closely related to the events that transpired, if not, you cannot consider it. Well, actually supposing that a person was a victim of such a situation, after the accused was sentenced by the courts of frustrated murder, if the accused dies within 15 days, that the judgment has not yet become final and executory, it maybe amended. I mean not the accused but if the victim dies. But if the victim dies after the judgment has become final, no more. It may appear to be unjust but they should amend the law and they should amend the jurisprudence. They should. Me, I would rather that it be included and considered as a supervening event despite the fact that the judgment has already become final and executory due to the fact that the development of Aids comes in years and not in months or a year. It develops in about 5 or 10 years. That is why I do not like the provision in RA 8353 that if the offender in rape cases is afflicted with aids and knowing that he is thus inflicted, he raped a woman, it is still necessary that he transmits the virus to the woman in order that the same may be considered qualified rape. If I may say so, that provision of the law is unfair to women. Is it necessary to consider the transmittal as an element? I don‘t think so because the detection of whether there is a transmittal of the virus or not to the woman would

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naturally be in about how many years. 2 or 3. I do not know now, maybe with modern medicine, but it used to be 5 years. They said that incubation period of the virus of aids…

Side B

…I have not studied the subject matter. But we do not know eh. Do we have any machine that would probably be of use to the Filipinos in connection with detection of aids at an early stage? Wala yata noh, because it is very expensive. Question: What if the woman raped and the baby gets aids as well, would it be considered as two crimes? No, only one crime. Because it is a continuous eh, a single act. It is not even a complex crime eh, it is only a single act. Because the aids of the baby came from the mother, d ba? Alright, rape. We are already in rape. Is there any problem in rape? Everybody has read rape. If you have read the case of People v Campuhan and if you have read the case in connection with what we call the limb syndrome case, then you know already how to determine whether the rape is attempted and consummated and of course if you have read the other cases in connection with what is qualified rape then you are ok. The only problem is actually how to determine whether rape was committed thru fraudulent machination or abuse of authority and about sexual assault because we have a different view in connection with sexual assault. There are how many kinds of rape at present? Qualified rape is the most serious. Hindi susunod pa dun, statutory, then ordinary rape and you have the marital rape and you have the sexual assault. They are all termed as rape although it is actually sexual assault. The qualified rape are supposed to be composed of 10 enumerations. But you know that rape maybe committed by any person, actually it is not by any person, by a man, but it should be by any person eh because a woman also maybe a co- conspirator also eh. That is why I have been saying all along that by a man only. Noh! Eh supposing it was a woman who induced a man to rape a woman, so she will be exempted because the law did not say any person. So, it could be any person but in the law, any man who shall have carnal knowledge of a woman, talagang woman ha, not an artificial one. Kasi meron eh. Only recently, an artificial woman was trying to get a marriage license in Makati, she was refused by the local civil registrar. She went to the prosecutor‘s office and asked for a legal opinion. The prosecutor said I do not know anything about it. I have had no experience regarding that matter. So, he said, you can ask some of the judges and most of the judges pointed to me, my golly I said, I only asked her, ok, what are you? She said, I am a woman. Are you sure? Well, I have had a sex change. Ah you are a man. No problem. You‘re still a man. Even if you can get, I said, a declaration from the Court that you are a woman, for all legal intents and purposes, you are still a man, and you cannot get married. Eh, she said, somebody allowed the marriage between a man who had a sex change and a man

at Quezon City. That is there problem there, here no! You go there, I said. The

purpose of marriage actually, under our family code is to raise a family. Can they raise a family? A family of their own, coming from them? No way, they can raise only an artificial family so everything is artificial. They should also raise artificial flowers and trees. Question: Judge, meron daw d bang ano, pinayagan sa birth certificate, chi-nange yun sex nya eh someone who had a sex change, tapos chi-nange yun sa birth certificate nya and it was allowed from male to female. Well the judge in another station allowed that. But if I am going to be the judge, I will not allow that. That is the sex that god gave you and you have no right to alter it. Now, if you want to alter it, don‘t ask me to stamp my approval in that alteration. You ask maybe somebody else‘s approval but not me. Because what I know of a woman is a natural woman and that is it. Naku, eh nag-bibiruan nga eh. We were 3 judges, we were joking. Sabi nung isang judge: Eh san mo itinago yung binawas sayo? Kasi, sigurado may binawas sayo san mo dinala yun? Ewan ko, hindi ko alam. I was not interested in the answer. (he was laughing giggly)

Eh, kung biglang bumaba yun. Ano na naman yung mangyayari dun? Hmph, eh di malaking usapin na naman yun. Hehehe. I will not be a party to that. Ok.

Well, when a man had carnal knowledge of a woman under the following circumstances here, well, thru force, violence or intimidation when the woman is unconscious or otherwise deprived of reason, and by means of fraudulent machination or abuse of authority. Grave abuse of authority or when the offended party is under 12 years of age or is demented even though none of the circumstances mentioned above are present. By any person who under any of the circumstances are mentioned above, paragraph one, shall commit an act of sexual assault by inserting his penis into the mouth of another person or in the

ang

anal orifice of another or by inserting an instrument or object

pinagtatalunan eh, is a finger an instrument? Yes, it is an instrument for a guitar,

for a piano. But, look, heh, object, object means it is not part of the body of the

offender. If it is part of the body of the offender, it is not an object anymore. It is

a part of human body. Putulin mo ok areglado. So, although the opinion of

Justice Hilarion Aquino, the one who is teaching at the PJA, the father of Fr. Rannie, the JD, who is not a lawyer and who teaches at the Philippine Judicial Academy in relation to Arbitration including Negotiable Instruments. No offense

meant ha. Nagtaka ako dun. Why is it that the Supreme Court is allowing a non- lawyer to teach judges of existing laws and existing rules. Mabuti kung practitioner, ako papayag. Pero judges, mukha yatang mali eh. Mali. There opinion is that a finger is to be interpreted as an object. While I was

attending a seminar at the PJA, I said I will agree with you justice and fr. Rannie

if we cut the finger of the man or anybody else and then use it. That is already an

object. But if it is still a part of the body of the person, it is still, it is not an object

eto

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or instrument as referred to under the law. Anyway, there was a decision of SC, I do not know whether it is current. There was a case here which we digested wherein it was stated that the use of a finger is an act of lasciviousness. I cannot only find it right now, because I have not yet arranged all this eh. Statement: Judge you said it was people v. Dy. And it was actually after the passage of 8353. We tried to verify it. Question: Judge, can you use also that argument to cover other parts of the body? Eh, ikaw naman oh, you are asking for so many things. Eh supposing, you are Pinocchio, hahahaha, you want to me to explain further. (giggles from the class) Eh, kinakain sa Chinese restaurant yun eh, chicken feet. Ha? Nevermind. Because somebody might run after me if I say, who has the hardest tongue in the Philippines. So somebody might run after me, nevermind. When there is a relationship between the offender and the offended party and that the offended party is a minor, the moral ascendancy takes place over intimidation. So, even if there is no actual intimidation, when there is a relationship between the offender and the offended party which is so close like an ascendant and a descendant, a common-law father to common-law daughter, a stepfather to a stepdaughter etc then that moral ascendancy substitutes for intimidation. You don‘t have to prove intimidation. All that you have to prove is moral ascendancy and that there was no consent. That is all that you have to establish and then there will be rape. Of course, we are expanding the same too much but that is the ruling of the SC. But sometimes there was even a case of which I was surprised that the court considered, the statement of a daughter to be a statement that would actually excuse the father from criminal liability in a case of rape. Now, this daughter while she was still young was already the subject of sexual assault from the father. When she reached the age of 17, etc and 18, then the same continued. When she testified in court, her testimony is to the effect that she learned to love her father as a lover. As her lover. You know by that simple statement of the daughter, the SC acquitted the father. It was not a sweetheart defense ha. In other words, according to the SC there, even if there is a relationship that is illicit, illegitimate and incestuous, if the offended party consented and she is already of age to give her consent, then there is no rape. Now, the prosecution is arguing, as the SC has enunciated in several cases that moral ascendancy substitutes for intimidation but then according to the argument of the accused, that was when the woman said, she did not consent. But here the woman admitted that her father is her lover. So, SC said, no way we cannot find the accused guilty and naturally, he has to be acquitted. That‘s a case and it‘s in my book, it is in the book that I am preparing. Question: Since a crime was committed when she was still a minor, couldn‘t the father be liable of rape? Alright, this is what has happened in another case. A case again of father and daughter. The girl was raped, actually raped. And she was 16. After having

been raped, she didn‘t file a complain…she told her father that if you rape me again, I am going to file a case against you….when she reached the age of more than 18, she was again raped by her father…so she filed two cases of rape against the father…naturally trial ensued etc. One question there that was very interesting in the transcript that was quoted by the SC is ―when you reach the age of 18, was the pardon given by you to your father still effective?‖ She said ―yes‖. The pardon stopped only after your father raped you again. Yes! Only that is the end. You know the SC acquitted the father for the rape when she was 16 years old, but convicted the father for the rape when she was already past 18 yrs old, considering that when the pardon given when she was still a minor at that time continued with the effectivity of the pardon up to the time when she was past 18 yrs old and that was valid according to the SC. Well you know the Sc sometimes do not want penalties which would usually be death in cases of rape. They will find ways and means not to impose the death penalty when it comes to rape. They are so strict in the implementation of the rules of procedure and rules on evidence in connection with crimes of rape. Sir that is considered when rape was still a crime against chastity? O yes, that is correct. Sir if that case happens now? I don‘t think so but then if she says that say for example, she has already considered the same as an experience and she didn‘t say that she neither consented nor did she refuse or did she protest etc…that would be a thing to work on in connection with the acquittal of the accused because the idea now is actually to cause acquittals. And if ever the accused will be sentenced, it only is only up to reclusion perpetua. Coz you know why? It is the fact, that if it is an automatic review it takes so long and there are how many cases of rape which were punished by death under automatic review before the SC…more than 800 cases. Do you think that the SC would be able to decide that in 3years? No, hindi ano? Very, very difficult eh with all the transcripts and everything you are going to look at it now it will be very difficult. Ok, yung otherwise unconscious it would even include while the woman is asleep pa. There are instances when the woman when she lives in the brgy far from a hospital and she was not assisted by a physician when she gave birth etc…and that of course because of their work in the fields they are too tired etc and they would not know even who was the person who had sex with her the night before, then that would be considered that the woman is unconscious. But there are other cases of which the SC didn‘t believe the woman when of course the woman admitted that the woman already had a suspicion that the person on top of her is not her husband. And still she continued. The man was acquitted. And then you have of course fraudulent machinations and these are simple, a twin identical, one is married, the other one is not…the other one is you know a son of a something, when his brother left for hongkong maybe or for a nearby country, he went to the house of his brother and slept with the wife of his brother. That is fraudulent machination. And for the example of Roco when he was a senator when they were discussing this is about the practice of some psychiatrist and psychologist in the united states

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telling their patients that if the patient will have sex with tem, the ailments of those patients will be cured etc, etc…and this gullible patient usually accedes to the opportunist of this physicians thus sexual intercourse occurs and that is considered rape. By means of fraudulent machination. But a mere a [promise to marry is not a fraudulent machination…even if you are promised marriage by a person are you going to submit yourself to the one who promised you marriage? That does not follow eh…it stands against reason so it cant be considered as such. Now abuse of authority, this were the cases of Jalosjos, Alonte, Davides of Quezon, Sanchez, mayors, etc…because they actually use their authority and abuse it in order to commit rape. That is why even if the girls consent, it is still considered as rape. Like for example, I will not mention the name…this politician recruits young girls from the brgys to be his scholars in diff schools in their province etc…but then well of course he is convincing them that they will still continue to be protected by me, you will continue to study in college if you are going to submit yourself to me. So this people actually because of therir desire to improve their lives as they came from poor families submits themselves that is accdg to the discussion in the passage of RA 8353 is abuse of authority even if there is consent that is considered as rape. O 12 yrs old, less than 12 yrs old, no problem but then the decision in thte Jalosjos case, I was reading it, and the decision in another case maybe studied with minute scrutiny. Because in the case of Jalosjos the SC despite the fact that the certificate of live birth of the girl was issued one yr after her birth allegedly by Fabella hospital they believed in the age of the girl that she is less than 12. Despite the face that she is almost 5‘3‖ 5‘4‖ at the time when the alleged intercourse took place. And they said that she was 12. but then in another case where the SC has to decide on the age of the girl because there is no birth certificate, then its only the testimony of the mother and later on there was a late registration, the SC said the fact that there is a late registration and the fact that even the mother could not be presented to testify as to age of the girl, there is a doubt as to her exact age and the doubt should be resolved in favor of the accused. If she gave her consent and she is past 12, there is no rape. So the accuse was acquitted. So it depends upon time maybe, if Jalosjos would have been tried in times when they are not actually so popular, when the people who are trying to have him convicted are not so active, maybe the decision would have been a diff one. But from the very beginning he had no chance eh, everybody was against him. And it is at that time more popular to convict rather than to acquit. Just like even in drugs cases, there was a time when it was more popular to convict than to acquit. If you acquitted at that time the perception is that you were bought, if not bought you were threatened. They cant understand sometimes that a person knows his law and his rules. That they cant understand., even now they will not assign you in the drugs court unless your perception of drugs is that it is a heinous crime and that the person who may have been charged of violation thereof should be convicted. And that if it is only blatant that the

person cant be convicted that you have to acquit, then you have to. And in case of reasonable doubt, convict. That is in case of reasonable doubt convict ha…that is the practice now which to my mind is disservice to the judiciary. Now the Campuhan case and the Limb Syndrome, you know all that…you know that? Then there is no problem with that. That all aggravating circumstances whether a qualified qualifying or ordinary aggravating circumstances should be alleged in the information. If not alleged in the info they cant be proven and even if they are proven they cant affect the penalty that is to be imposed upon the accused…so it can neither modify the circumstance, it couldn‘t modify the penalty that is to be imposed upon the accused. Remember, had the case of Echegaray been decided later because what was discovered during the trial of Echegaray is that he is not the step father but the actual father of Baby…but the allegation in the information is that he was the stepfather…echegaray would have been alive today…he would be serving only the penalty of reclusion perpetua. Yes, that is the thing that actually happened in the case of echegaray. I don‘t think that we have to go over all the qualified rapes…unless you have some questions on qualified rapes. What were the changes there? The first change is about the rape of a religious. In the old law under RA 7659 it is enough that the offended party is a religious. But when 8353 came along they added two conditions, that the offender knew that the woman is a religious and that the woman is actually engaged in her occupation as a religious at the time when the rape occurred…so there are additional…the same is true to those that are afflicted with aids and other venereal diseases and even in other cases. About those in the custody of the military, no problem with that. Those where the offenders are the member of the military, police or any law enforcement agency etc…there must be an abuse

of public position in order that the penalty of death maybe imposed

you

know when there is an abuse of public position or when the crime is committed by an organized crime group or a syndicate composed of two, they are all special aggravating circumstances. Irrespective of whether there is a mitigating circumstance, it is still the maximum of the penalty that should be imposed so there is no way that they can get out of the death penalty. Even if they pleaded guilty, voluntarily surrendered, throw themselves at the mercy of the court, still death penalty shall be imposed if there is abuse of public position or if the crime is committed by a syndicate or an organized crime group. Remember an organized crime group started under the RPC as only two persons collaborating and confederating. Then in the labor code it was raised to three then in other laws etc it was raised to 4, and then in RA 1659 that is in syndicated estafa it was raised to 5. Well in cases of rape what are the principles about rape…ah this the easiest crime to concoct and to charge but the hardest crime to prove. This is the crime of rape. Is there a need for an offended party to have another witness to corroborate her testimony? No. is there a need for physical examination in order that an offended maybe able to establish that she was raped? NO. these are

and

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simple principles that were laid down by the SC and they are still effective until today. The question now is regarding complex crimes in regard to rape…we have of course the crime of robbery with rape, robbery with homicide. In robbery with rape, it must be remembered that the original intention of the offender is to commit robbery and that rape was committed after the robbery or during the robbery. If the original purpose of the offenders are to rob, and rape only became an afterthought, what crime is committed? It is still robbery with rape. But supposing the original purpose of the offenders is to rape and later on as an afterthought, they robbed the victim or took the property of the victim, ah two separate crimes are committed. The crime of rape and either the crime of robbery or theft. Because they are considered only as an afterthought. In cases of robbery with rape, you have to remember that sometimes there is a conspiracy

among persons to commit the crime of robbery

will be a lookout, there will

be somebody who not participate in the actual taking of the property…those who have no knowledge of the commission of crime of rape cant be held criminally liable for robbery with rape…its only those persons who have personal

knowledge and if they have personal knowledge they didn‘t prevent the commission of the rape then they are equally liable with the one who actually raped the victim. About rape with homicide…any homicide that is committed

it is an afterthought whatever it is as a result of the rape, it is

after rape

rape with homicide. How about if the crime committed or the incident resulted to robbery with homicide and rape? What would happen to the crime of rape? Under the old jurisprudence, rape will be considered only as an aggravating circumstance. That is correct…but in a new decision of the SC, the rape can‘t be considered as an aggravating circumstance because its not included in article 14

of RPC. It shall be a separate crime to be instituted by the prosecutor so there will be two crimes that would be filed in court. Actually robbery with homicide and then rape. Not anymore that rape shall be considered as an aggravating circumstance.

na yan…marriage between the

offender and the offended party and of course forgiveness by the wife on the offending husband. Presumption, is actually in favor of rape. When a woman cries rape, then there is rape. Kidnapping and serious illegal detention…when you talk of kidnapping, naturally there will be a deprivation of liberty. To be distinguished from coercion, because in coercion it is simply a crime where another prohibits the offended party from performing an act or compelling the offended party to perform an act against the will of the offended party. While in kidnapping, there is a total intention to deprive another of his or her liberty. If the purpose of deprivation of the liberty of a woman is because the man has a lewd design it becomes an abduction with rape or an abduction it does not become kidnapping. Kasi the purpose there is to enjoy his lewd design, not to deprive the woman of her liberty, so it becomes an abduction…the simple deprivation of liberty is

there

whether

Damages, wala na yan. Pardon

wala

kidnapping. But if the purpose of the offender is to enslave the victim, even if the offender kidnaps the victim, buys the victim, or……END OF TAPE….

Sept. 22, 2003 By: Aze September 22 Crim Lecture

Ok, where are we now? Art. 266 Rape? Tapos na tayo sa Physical injuries? Well, I will repeat noh that in Physical injuries, particularly serious and less serious, what is determinative there in the even that the person would claim that he was incapacitated to perform his usual occupation, is that he has a legal occupation at the time… If he failed to perform his work by reason of the injuries

So, if

sustained, the period which he failed to perform his duty shall be included

he was hospitalized only for 10 days but then he was hospitalized for a period of 30 or more days then that would be serious physical injuries but then if he is not engage in any legal occupation, the period of his hospitalization or the period in which he was attended to by the physician, that would be the basis for

determining whether it is slight or serious physical injuries.

And deformity

the one that causes disfigurement. So there was a

question, supposing it enhanced his figure? Previously women are not even looking at him but when he got that injury, a lot of women are already falling in love with him, would you consider that physical injury? One author said no,

because it is not a deformity, it even enhances the appearance of the person. For example, stabbing the person at his chin, previously he does not have any cleft chin, after he was stabbed and the wound healed, and it left a cleft chin and it even enhanced his appearance. One author said it is not physical injuries, it should be one that deforms his appearance that is why it is called deformity, it resulted to ugliness. Well, I subscribed to that Yung administration of injurious substance, it must be injected,

swallowed, not superficial like throwing acid at the face of the victim, that is not what it means.

Alright, art. 266, Rape

Well, rape, maybe a qualified one, it may be a

statutory rape, it may be an ordinary rape, it may be sexual assault and marital rape. So, these are the rapes that are now punishable under the revised penal code amended by R.A. 8353. When you say qualified rape, they are listed under those 10 circumstances of which the rape may be committed by an offender. Where the victim is less than 7, where the victim is a religious and the offender

knows that he is a religious and that he is in the actual performance of his vocation, previously there was no mention in the R.A. 7659 that it must be known to the offender and neither did it mention that the victim must be in the

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actual performance of his vocation. Probably it came to their knowledge that there were those religious who at some times are not wearing their usual customary uniforms or whatever you may call it, or they are not anymore in the stream of the society where they belong, they already have gone to the mountains or whatever to become a part of revolutionary forces, they are not in the actual performance of their vocation when they are already with the rebels. Ok, well those suffering from aids or other stds, that the offender knowing that he has such disease and he rapes a woman, and transmitted the virus to the woman. Those are the circumstances but I disagree because I said that the transmission of the virus to the woman is not essential. It is the fact that the person knows that he is afflicted wit those diseases and he rapes a woman, the transmission should not anymore be an element. But they made it an element, what can we do. And then if the victim is under the custody of the military, police or other law enforcement agency and if the victim is raped by any of those I mentioned with abuse of their official position. And then we have those rapes that are committed against victims who are suffering from disabilities, etc then it is also qualified rape. There are 10 qualified rapes. Now you have the statutory rape when the

woman is less than 12, less than 12 ha

already 12 years old can give her consent to sexual intercourse. Yes, because a woman less than 12 years old, whether she gave her consent or not, and there was sexual intercourse, it is considered statutory rape-- People v. Jalosjos. And we have the ordinary rape, those that were committed by person, who by means of force, threat, violence or intimidation, or while the woman is insane or unconscious, then it is already rape. And rape now may also be committed by means of fraudulent machination and abuse of public authority. You may actually be surprised that fraudulent machination is included. But it doesn‘t mean that if a man promises to marry a woman and then the man said that ―if you will not have sex with me, I will not marry you‖ and then the woman

acceded and then later on the man did not marry the woman, they were saying

that it was rape because there was fraudulent machination

voluntary. Well, she knows that she should not give herself to a man who is just trying to have sex with her on that kind of pretext. So, it is not rape. Well, she can file a claim of damages against the man but not the criminal offense of rape. Then, there are one noted prof said that if a man went to a prostitution

house and hire the services of the prostitute, and then he did not pay the

prostitute. The prostitute filed a case of rape

case succeed? NO, because prior to the sexual intercourse, there was consent. And it is a valid consent on the part of the woman. She was not intimidated, nor

forced, nor violence used against her, there was no fraudulent machination

because she was a prostitute

estafa by means of false pretenses. When the man pretended to possess property

the rationale there is that a girl who is

I said NO, it was

Is there a crime of rape? Will the

That is her business. The only crime I see there is

or money, when in fact he does not have any money, then he enjoyed himself

with the woman

Ok, the fraudulent machination that were discussed in Congress is about twins, identical twins, one is married, a businessman and when one went to

another country who did not tell his wife about it, and it came to the knowledge of the identical twin and he came to the house of his identical twin and of course

And only after the twin brother

discovered that actually the man who was not there the night before was the husband and the man she slept with was the brother. That was fraudulent machination. And according to the example of Sen. Rocco while the act was being discussed that the act of certain psychologist or psychiatrist who tell their clients that if they are going to have sex with them, all their ailments and all their problems will be gone and these clients who are gullible and believing that such will really cure them and succeeded to these physicians, psychologists, etc, that is according to the example there in the minutes, is fraudulent machination. Abuse of public authority is simple because this is the case of, well… People v. Sanchez, according to the Supreme Court, there is abuse of public authority because the taking of the woman was with the help of the police authority. But I doubt if there really is abuse of public authority there, I would

say that there was force, violence because the woman was abducted together with

her boyfriend, and they were both killed. The evidence was pointing to that there was the use of force but not abuse of authority. The abuse of authority that I know was the case of People v. Labides(?) in quezon province. But I do not

know if it reached the Supreme Court

province and he would take in young girls who belong to poor families in some barangays in quezon province to send them to school, but you know, his purpose is different from we believe what he is going to do. He has some other purpose and that is to enjoy himself with sexual intercourse with these young ladies and although these young ladies are giving in to him, there is always that threat that they will not be able to continue their studies if they refused. It would be an abuse of authority. When you say an unconscious, it involves a woman who is asleep or actually unconscious, there are women who by reason of tiredness, as the Supreme Court said that their vaginal openings are wide because they were not assisted by doctors when they gave birth and sometimes they would not even feel the entry of the male‘s organs in their vaginas even in their sleep, that would be considered as unconsciousness. There is nothing much about rape, except of sexual assault which is describes as the insertion of the male organ in the oral orifice or anal orifice of another or the insertion of an object in the vagina of a woman or in the anal orifice of another is considered also as sexual assault. The only issue there is what object? Must it be a foreign object or must it be part of the body of a person? The opinion of retired Justice Aquino is to the effect that even a finger

he slept there and you know what happened next

that is estafa.

Labides is a congressman in quezon

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of a person can be considered as an object. That is his opinion, that was written in one of his papers that were distributed to us while we were attending a seminar at the Philippine Judicial Academy. Well, I myself objected because the idea of the word ―instrument‖ and the purpose of the Congress in stating that there must be an instrument inserted is premised upon the findings of Congress then that there were incidents involving sexual perversions such as the insertion of a barrel of a gun, the insertion of a bottle and of course pieces of woods and other things. One particular crime which was classified as a heinous crime because it resulted to the death of a young girl who was about 13 years old, that happened in the Angeles city, Pampanga, and there was an insertion of a vibrator by the foreigner

on the vagina of the girl which resulted to the death of the young girl even if she was treated in the hospital. So, I said it must be a foreign object. It must not be a part of the body of a human being. Because if it is not part of the body of the human being, it is considered an instrument or object. And well, I said jokingly, a finger of a

person may be considered a foreign object

insert it. It is already a foreign object because it does not anymore belong to the body of the person. I was joking only but it could be true. As a matter of fact, in the case decided by the Supreme Court in People

v. Dy, it was mentioned there that it was only act of lasciviousness. So, I still maintain that it must be a foreign object. The crime of rape, marital rape, is not specifically defined in art 266. It‘s only the fact of pardon by the offended woman or the mere forgiveness will be considered as an instance of extinguishing the crime itself at any stage, just like the marriage of the offended party with the offender.

just cut the finger of the person and

Alright, you will know the stages of the crime of rape

that it is only

attempted and consummated. And if you read the cases, you will know that it is not only the touching of the man‘s organ of the labia majora of the woman that consummates the rape. According to the Supreme Court, there must be atleast the slightest penetration of the male organ, an erect male organ which is capable

of penetration. If well, in case where the man is suffering from erectile dysfunction and the woman testified that the man, no matter what he did, could not achieve an erection. Although the male‘s organ keeps on touching the labia of the woman, the Supreme Court acquitted the man. He was not even convicted of the crime of acts of lasciviousness because the intention of the man was to have carnal knowledge with the woman. While in act of lasciviousness, the intention of the man was to satisfy his lewd design. So there are different

elements in the crime of attempted rape and act of lasciviousness.

you to distinguish the crime of attempted rape and acts of lasciviousness, in the crime of act of lasciviousness, the intention of the man is only to satisfy his lewd

design. But in attempted rape, that is when the accused has the intention of having carnal knowledge with the woman. Those are the distinctions.

If they ask

Well, it is poetic justice that the man was acquitted actually because his

name will be spread all over the volume of the scra that he cannot do it anymore and in his won town, the women will always invite him because he will be a safe

company to them. Si Pedro, wala na yan

Alright, I don‘t know of any problem you will have in the crime of rape except probably in rape with homicide, robbery with rape, robbery with homicide

and then rape. Have I not discussed to you those in complex crimes? If the intention of the man is to rape a victim, but then he killed the victim later, that is rape with homicide. Even if the rape is only an after thought, that is still rape with homicide. But it is different from robbery with rape because in robbery with rape, the original intention of the offender is to rob. And if there was a rape that was committed later, then that would be robbery with rape.

If the original intention of the offender is rape

halika sama ka sa amin…

Now, in relation to rape

and then as an after thought he decided to rob the woman or he decided to steal then two cases must be filed. Rape and robbery or rape and theft. Is rape an aggravating circumstance? Supposing there is robbery with rape, and there is another rape committed. Will the other rape be considered as an aggravating circumstance? NO, because the rape has never been included in art. 14 as an aggravating circumstance. Same is true with robbery with homicide and rape, the rape there will have to be a separate crime. It used to be that the Supreme Court treated the other crime of rape as an aggravating circumstance. But later on, they changed their mind, it is not anymore correct. The crime of rape should have to be a separate crime, for each and every act of rape, there is one crime of rape. Do you have any question about rape or sexual assault? Crimes against persons na ito ha… Ms. Aguila: Judge, since the insertion of the finger into a vagina is not considered rape, then how about oral sex? Judge: Actually that is a problem. My own opinion is that it is not sexual assault. It is a sexual perversion, if not perversion it is actually an act of

lasciviousness if it is without the consent of the woman. Look, I was saying then that supposing what was inserted was the nose, not the finger, would that be a sexual assault? So, I would say that it is only an act of lasciviousness. The Supreme Court must have to decide one way or the other. The latest decision that we have is the case of People v. Dy, that the grandson or son of the governor of Isabela, I do not know if he is in Muntinlupa But then, he was sentenced Ok, we go to… well, in order to constitute qualified rape and the accused be convicted and the be sentenced to death, all the aggravating circumstances, whether it is aggravating or it is ordinary, must be alleged in the information. Even in other crimes already and not only in the crime of rape. In crimes of rape, what is peculiar there is the relationship between the parties, the offended party and the offender. If the relationship is an ascendant-

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descendant or actually the relationship that was mentioned is step-father to step-

authority? Yes, because only the military are authorized to wear such uniform.

daughter and others

of the victim. Not exactly the exact age like years, months but only in years that is enough. Failure to allege you cannot obtain the death penalty, it will only be considered as ordinary rape which will have the penalty of reclusion perpetua. Alright, we will have a break of 5 minutes…

Kidnapping with serious illegal detention. The word any private individual who shall kidnap another for the purpose of depriving the person of his or her liberty shall be punished with reclusion perpetua to death. The word ―private individual‖ there is actually a description only of person who is acting as

a private individual. He may be a public officer but if he is not acting in his

official capacity, he should be considered as a private individual. A policeman, a military man, they should not be considered as public official if they are not in actual performance of their duties and for purposes of kidnapping, they shall be deemed as private individuals. Kidnapping and serious illegal detention should be distinguished from each other. In kidnapping, there must be an actual taking of the victim, either by force, violence or intimidation. And the taking is against the will of the victim. In serious illegal detention, the only important thing to remember there is locking up. You may not have employed violence,

intimidation etc, but you may have employed fraud, but if the person is already in the room, has voluntary gone into the room and you lock her up and deprive her of liberty then that is illegal detention. You don‘t have to point a gun at her for her to enter the room, she may have voluntarily went inside but once inside, then you lock her up then that is illegal detention. Your purpose is to deprive him/her of his liberty then that is what it means. It becomes only a serious kidnapping or serious illegal detention in the event that the deprivation of liberty lasted for more than 3 days. When the law says when the kidnapping or the illegal detention, eh may kidnapping bang nagla-last for 3 days? Literally speaking ha? If the kidnapping lasts for more than 3 days, hindi yata, mukhang hindi tama ano? well siguro naghahabulan pa yun, 3 araw, etc So, I think the proper word is the detention lasted for more than or the

deprivation of liberty lasted for more than 3 days

the law, you follow the wording of the law. But it is also correct to say that if the deprivation of liberty or the detention lasted for more than 3 days, that would be

a serious kidnapping. It used to be under the old Code that it is 5 days, they

shorten it to 3 days

kidnapping has become an industry in the provinces and even here in metro manila, it has become actually the order of the day. Everyday now, there is

always kidnapping

Now, one question was asked of me… Supposing the person or persons that took another and deprive that person of his liberty, at the time of the taking these people are wearing camouflage uniforms, is that simulation of public

the exact relationship must be alleged together with the age

Well, it being the wording of

I don‘t know the reason up to now

I don‘t know

Well, may be because

it is not being reported.

There is therefore a simulation of the public authority and it is serious kidnapping and serious illegal detention. Well, if serious physical injuries are inflicted upon the persons kidnapped or detained or if threats to kill him shall have been made, eh usually

there are threats made

you tell him that you will kill him so that is already serious. In cases of children, they do not have to threaten the children, they just have to abduct the children, carry the children to a waiting car and go. And then if the person detained or kidnapped is a female, a minor or a public officer, and it is only mitigating if the offender is the parents. But the wordings of the law would leave you confused. If you read the law, you will commit a mistake probably. That if the person detained is a minor, female, or a public officer but then there is no word there, the new law is different, if the person detained is a minor, except when the offender are their parents, it is mitigating, a female or a public officer. So yung exceptions kasama female and public officer, hindi isinama dun sa minor eh, the wording of the law is better in the old law than in the new law. Alright, the penalty of death shall be imposed upon a person who shall kidnapped or seriously detained a person, if the purpose of kidnapping is to extort

ransom, if the victim is killed, if the victim dies on occasion or by reason of the kidnapping and if the offended party is subject to torture, etc and other dehumanizing acts then it is considered as qualified kidnapping. Remember, kidnapping may be serious, qualified, or ordinary kidnapping or we call it ordinary and slight illegal detention. The difference between kidnapping and coercion is very much clear, if the facts and circumstances of the case would not reveal the real purpose of the offender, always go to coercion. Because in the coercion, it is either compelling the person to perform and act against his will or preventing a person from performing an act against his will. So, you go to coercion if the purpose is not clear. If the purpose is not clear that the person intended to deprive the person of liberty then that is coercion, just like the case that took place in Maco, Davao del Norte that a man invited a girl to go with him and when they are already in Maco, the minor was already crying and asking that she be brought home because it is already dark. And she was seen together with the offender by a woman who was a resident of the place where they bought reside, the woman went to the police station and the man was arrested. The man was charged with qualified kidnapping bec the victim was a minor, it was serious ha and qualified at that bec the victim was a minor.

These people will not go voluntarily go with you unless

It was after 6 years that the SC handed down its decision, only finding

that the accused is guilty of grave coercion and sentencing the accused of 6

months of imprisonment. The guy suffered for more than 5 years not fair

I think that is

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Alright, how about if the person voluntary releases the person from detention before 3 days of confinement, then that is slight illegal detention. If they have not attained the purpose for which they intended and afford the institution of the criminal proceedings, this is slight illegal detention. Now, article 269 is about unlawful arrest and I have told you a long time ago that you have to go to the case of Go v. CA so that you will be able to understand clearly what is unlawful arrest. Although, Go was not arrested there, the SC described what is unlawful arrest when no legal ground to arrest a person without a warrant. Actually, unlawful arrest even include detention, without arresting the accused, that is the case of Go v. CA, it would constitute illegal arrest. You detained a person without any legal ground. When will it become arbitrary detention? It will become arbitrary detention when there is arbitrary arrest and the detention is unlawful and that the hours are actually violated. Alright, kidnapping of minors. Actually, it is not a kidnapping. Because there was a voluntary delivery of minors to another person who is supposed to be in charge of the custody of minors but when there is a demand for the return of the minor, the one in custody refuses. I think the penalty here is excessive and cruel, bec it is simply the refusal to deliver the minor. This could have been a subject of the legislation because to me prision correcional in its Maximum period to prision mayor in its medium period, that should be the penalty. But should not be reclusion perpetua. Because the person has legal custody, the only problem is that he refuses to deliver the minor when there is demand to return the minor. That is not a serious crime to me because you can go to court and apply for habeas corpus, the courts are open even Saturday and can issue writ of habeas corpus. Well, there are courts that are open during Saturdays Alright, inducing the minor to abandon his home. The purpose of the offender here is to disturb the tranquility of the home of the minor. If you induced a minor in order for him to enjoy the lights of manila, that is not

inducing a minor to abandon his home

of the minor of his home, to disturb the tranquility or disturb the harmony in one‘s home and that is one punishable by law. But if you only induce the minor to bring him to watch a movie or to starcity, hindi yun… Ok, you want to have a good defense in kidnapping? Invoke slavery, art

272. You will not acquit the accused but look at the provision of the RPC,

arresto mayor and a fine not exceeding 10,000 to anyone who shall sell, kidnap, or detain a human being for the purpose of enslaving him. Sabihin mo land, I

kidnapped him para magkaroon ako ng aliping saguiguilid

alipin? Namamahay… o ayun, depensa yan… O sinong makakaalam? Pinagtratrabaho mo sa bahay, tell him ―alipin kita ha‖… that is a very good defense. O pag mangingidnap kayo, yan lang ―alipin kita ha!‖ hehehe

It must be the permanent abandonment

Ano pa yung isang

But actually, it could be a defense ha

I just do not know if the court

will believe you

The other is exploitation of child labor, this is already in R.A. 7610, but this is still effective, because anyone who under the pretext of reimbursing

himself with the debt incurred by an ascendant of the person entrusted with the custody of the minor shall retain him in his service, that is a crime. And one

thing more, if that is a minor ha

are compelling the person to pay the debt by making him a domestic servant or a

farm laborer. Para makaiwas ka, may madaling paraan dun

domestic servant, gawin mong gardener! construction laborer

but if you have no other defense, you can make use of that.

If he is not a minor, that is art 274 because you

Wag mong gawin

Sa farm laborer, gawin mong

Well, we have abandonment of helpless persons and exploitation of pagdating sa minors, 7610 talaga. Although the provisions of the RPC

minors

may still be the subject of an information filed. All minor victims fall under R.A. 7610 whether it is physical abuse, psychological abuse, etc, etc. That is why I told you that prostitutes are exempted from criminal

liability. I was watching a television program and there was a raid against a bar

and they were charging the minors for working without permit etc

charge the bar owner! Because the minors are exempted from criminal liability. Art. 275, if you were the one who accidentally injured another and you failed to give him assistance then you are liable. But for example, nakaaksidente ka sa tondo, nabundol mo ang bata, ano are you going to give an assistance? Bababa ka? Eh makikita mo eh ang daming anaconda sa katawan. You may not give any assistance and that is a legal excuse. It is only if you can give assistance without detriment to yourself or without putting your life in danger. Abandoning a minor, eh nakita ka ng child who is less than 7 years of age, eh abandoned or you have in your custody a child less than 7 years old, but you abandon the child and the abandonment of the child resulted to the death of the child then you are liable for abandonment of the child and the penalty is prision mayor, unless it will be proved that you abandoned the child with evident premeditation with intent really to kill the child, if it does not result to the death of the child, prision correcional lang. Well, art 277, the parents of the child have a duty to take care of their children as it is provided in art 277 that anyone who is in charge of the rearing or education of the minor and then he delivers child to any institution without the consent of the one who entrusted the child to him, or in the absence of the latter, the consent of the proper authority shall be guilty of abandonment of the minor. The same penalty shall be imposed to the parents who shall neglect their children, by not giving them education which their station in life requires and their financial condition permits. Well, who is a Filipino who does not dream of giving their child get an education Well, I remember the story of Jose Pidal, the one who ride a bike going to Albay, I think… He did not send his only child to school but he does not have

I said no,

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any occupation in manila but you cannot charge him because his financial capability does not permit him. But, who among us, who would not do almost

anything just to send their children to school. That is why sometimes you people, whenever you go home, and you tell your parents you have good grades then they are also happy. And they are as sad as you are also when you tell them that you have a problem with your studies. That is how the parents feel. I am also a parent that‘s why I know. That is why there is actually a provision in the RPC that encourages parents to send their children to school. Well, most of you are over 22 years old and your parents do not have anymore obligation to send you to school and yet your parents are sending you to school. That is how Filipinos think… That is why we are very fortunate we have this culture and we have that kind of attitude with our children. Unlike in America, if the children want to study further, they have to work. We are lucky indeed to have a culture that

encourages children to study

so our culture is still the best in the world.

So, I see you on Wednesday so we can finish until art….

Sept. 24, 2003 By: Mane

…who is under 16 years of age to perform any dangerous feat of balancing of exhibition of physical strength - that is exhibition of physical strength, not only of physical strength and contortion or any person who being an acrobat, gymnast, rope walker, diver, wild animal tamer, or engage in similar calling shall employ in exhibitions of this kind children under 16 years of age who are not his children or descendants. Question: supposing that a person has a child. The person is engaged in this kind of occupation. He asked his child to swallow swords, broken bottles and everything. Is that in violation? No! According to the law it is not if he is your child, but if he is not your child then that is when you are liable. The law is quite weird sometimes, but then under RA 7610 that is considered as child abuse. So it can be prosecuted under RA 7610 and not under the provisions of Article 278. If he will also employ any descendant of his who is under 12 years of age, then that is in violation of this article. Take note that any ascendant, guardian or teacher or any person entrusted in any capacity with the care and custody of children under 16 years of age and who shall deliver such child gratuitously to any person following any of the callings enumerated in paragraph 2 hereof or to any habitual vagrant or a beggar, although we may charge him under child abuse law, can also be under kidnapping of a minor. This is because the person is in charge of the custody and he delivers such person to anyone not authorized by law to accept such child. It may even constitute a graver offense of kidnapping a minor in the event that such minor is taken from

another and there is violence, force or intimidation. In the event that these laws are violated then the parents maybe deprived of their parental authority over their children. In regard to abandonment of one‘s home or inducing a minor to abandon one‘s home the purpose there, as I stated previously, is to cause some trouble or to destroy the tranquility of one‘s home. If a child is induced to abandon his home or his‘ parents or curators to follow any person engaged in this kind of calling it will fall under article 278. That is the distinction between the two.

We now go to qualified trespass to dwelling. It is qualified only if there is force, violence, or intimidation employed by the offender and when the offender enters the dwelling of another against the will of the legal occupant of

the dwelling. It shall be an ordinary trespass to dwelling if no force, violence or intimidation is employed upon the owner or legal occupant of the dwelling. If the purpose of the person who is trying to enter the dwelling of another is not clear, it is not clear whether he intended to rob, kill or whatever those who were inside, then the crime is always trespass to dwelling. It is qualified if there is force or violence employed. You will note that in qualified trespass to dwelling

it does not only refer to violence or force that is being employed to a person. The

law is clear that when the offense is committed by means of violence or intimidation, the violence may refer to violence upon things or force upon things. Some legal scholars, however, says that the violence being referred to there is violence upon persons because it is accompanied by the word ―intimidation‖. Others, however, says that it is even violence or equivalent to force upon things. My interpretation of this is that this being qualified trespass to dwelling, I would go with the last opinion that it should be upon persons. When you enter the dwelling of another it is inherent that you use picklocks or you destroy a wall or you enter the dwelling of another when the door is open. So it is usually absorbed. What is not absorbed is the violence or force or intimidation upon persons. And this is not applicable to a person who enters the dwelling of

another to prevent any serious harm to himself. The word ―serious‖ must always be there. If you answer a question ―to prevent any harm to himself‖ - that is not correct! The correct statement would be to prevent any SERIOUS harm to himself or to the occupants of the house or the dwelling or a third person. Neither shall it be applicable to any person who shall enter the dwelling of another for the purpose of rendering some service to humanity or justice nor anyone who shall enter taverns and other public houses when they are open. One

question that is usually being asked by some professors in criminal law relates to

a problem which runs this way: a person was caught destroying the wall of a

house. He was about to enter when he was apprehended by the police. It is the testimony of a neighbor that before that man broke the wall where he intends to enter he was heard saying that ―I am going to rob the house‖. What crime did the offender commit? Is it attempted trespass or attempted robbery? According to

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the neighbor he overheard the man saying ―I intend to rob the house‖. My answer would still be trespass to dwelling. Why? Well, granting for the sake of

Grave threats! Just remember this… any person who shall threaten

They always say that if it is a case of grave threat, then the penalty lower by two degrees shall be imposed or lower by one degree. NO! If the threat is without

argument that he intended to rob the house, that is only in the mind of the person. He may even desist during or prior to the entry to the house to rob the house. He

condition at all or without any demand for money, the penalty is only arresto mayor. If it is done in the heat of anger it is only light threats. Just like drawing

may have entered the house for purposes maybe of killing somebody or just

a

weapon during a quarrel. The other threat that is actually a much graver one

maybe disturbing the tranquility of the home of a person. I am for attempted

than other light threats is the threat to commit a wrong not amounting to or

trespass to dwelling in the same manner as when it cannot be determined what is

constituting a crime made in any manner expressed in the 1 st paragraph of Art.

the intention of the person when he enters the dwelling of another. If you cannot

282.

What could be a threat which is wrong but does not amount to a crime?

determine his intention in entering the dwelling of another, then the crime committed is only trespass to dwelling as there is no clear showing of the definite intention of the offender.

another with harm or infliction of any injury upon the person or upon the property of another or that of his family of any wrong amounting to a crime should suffer a penalty of ???. This is if the threat is subject to a condition and that condition is made subject to a demand for money or there is a demand for money or it is subject to a condition and the demand for money or the condition was accomplished or was obtained by the offender. The penalty would be one

Let‘s go to recent events: What did Kris Aquino told Joey… hahaha! What Kris Aquino said is that ―I am going to destroy your political career‖. Is destroying one‘s political career a wrong? Yes, but it does not amount to crime. So it belongs to light threats only. Pimentel: ―I am not going to allow you to graduate‖. Hehehe! That is light threats because that does not amount to a crime. It is wrong but it is not a crime. Art 282 and 283 are the only threats wherein the court may order the person who threatened another to post a bond for good behavior and failure to do so may be a ground to sentence the offender to destierro. But the person must first violate the condition of the bond. The condition in the bond is that he should not molest… If you threaten another with

gun that is grave threats but the penalty is only arresto mayor. But if ever you

a

degree lower from the penalty of the crime which the accused threatened to

draw a weapon do not point your weapon to a person. Just draw a weapon

commit. For example: If you don‘t give me money I am going to kill you. Is that

because once you point it to a person that is already grave threats but the penalty

a threat or is that robbery? In robbery, usually the robber will say ―give me

is

arresto mayor only. There was, however, a decision of the SC which said that

money otherwise I will kill you‖. In threat, ―I will kill you if you do not give me

if

you draw a weapon to threaten another it is only other light threats. Actually,

money‖. In ordinary robbery they will say ―give me money otherwise I will kill you‖. In threat, ―I will kill you if you do not give me money‖. So the threat is ahead of the demand. Example: ―I will kill you and so that I will not kill you give me money‖. That is when it is considered as a threat or when it is subject to a condition. I am going to burn your house if you do not give me money. There is therefore a threat of arson. The condition is that if you will give me money I will not burn your house. If I was able to obtain money from you it is a case of

there is really conflicting versions with respect to grave threats with respect to the 3rd paragraph or the 3 rd kind of grave threats and other light threats. In other light threats, if you are going to look at the article it says that any person who without being included in the provisions of the next preceding article… So it is not light threats under Art. 283 and it is not a grave threats under Art 282. My interpretation of this other light threats is that if say for example you draw a weapon and you point it to another in the heat of anger then it is a simple other

grave threat and the penalty would be one degree lower from the penalty for the

light threats. It is best that you interpret it in favor of the accused.

crime he intended to commit because it was accomplished. If the condition is not accomplished, then the penalty two degrees lower will be imposed. In case of homicide, the penalty being reclusion temporal if the threat is to kill and is subject to a condition or there is a demand for money. The penalty will be lowered by one degree only and so it is prision mayor. If the condition is not realized then the penalty shall be lowered by two degrees. If there is no condition it is simple arresto mayor. Say, for example, you went to the house of another person. You have been actually thinking of the things that the person has done to you and so you decided to kill him. In a very cool manner you said ―padre, I am going to kill you‖ - that will be considered as grave threat even if there is no demand for money and there is no condition attached to the threat so the penalty will be only arresto mayor. That is the mistake of some prosecutors.

I have already distinguished grave coercion with kidnapping. In grave coercion, the person who committed such act is without authority from the law. And by means of violence or intimidation (actually it must be against violence only) prevent another from doing something not prohibited by law or to compel him to do something against his will whether it be right or wrong. In other words, you can actually prohibit somebody from doing something even without authority from the law if he is committing a crime or if he is committing an immoral act, but you cannot compel a person to perform an act whether it be right or wrong. It is only, however, in connection with the physical activity of which a person may perform. Say for example: can you compel a person to pay a tax? Yes! Can you compel a person to report for work? Yes, if he is not sick,

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suffering from any ailment, and especially if he is employed in that particular place. If the coercion is committed for the purpose of compelling another to

perform any religious act or prevent him from doing so the penalty next higher in degree shall be imposed. Example: you compel a person to go to mass when he

is not a catholic. That is also grave coercion. If you prevent that person from

going to mass that is also grave coercion if he is a catholic. If he is not and you

prevent him from going to mass that is not coercion because that person must have a religious belief in regard to the activity that he is going to perform. It will amount to the 1 st paragraph of Art. 286. Even though you compel a seventh day adventist member to eat pork that does not belong to paragraph 2. That belongs

to paragraph 1. Did you ask him to perform a religious act? No! Did you

prevent him from performing a religious act? No din! So it will fall under

paragraph 1 of Art. 286.

evidence in court the SC held that she cannot do so because that is the property of the husband. Aside from that, there is an illegal search and seizure.

Revealing secrets with abuse of office. This concerns managers, employees, servants who in their capacity shall learn the secrets of their master and reveal the same. Let‘s take the case of Mahusay. If it is true that he is the messenger and confidante of Mr. Arroyo and he suddenly went on a rampage and revealed things that are supposed to be confidential in nature, could he be held liable for revealing the secrets of his employer? Yes because he is an employee and he learned the secrets of his master in the performance of his functions. And those are all the elements that are supposed to be in Art. 291. He is definitely liable. I am definite about that.

Light coercions! Example: masyadong mainit tong creditor. He cannot wait for the debtor to pay him. So he seized the property of the debtor for purposes of applying it to the debt. That is light coercion. How about the practice of some money lenders or these people who are always going around etc.? Installment! Installment! The item is yours etc. We will just collect from you 1 peso per day. And if you are not able to pay the amount for some time and they seize your property is that light coercion? In your sales, is the sale consummated the moment the property is delivered and the payment, whether it

There are 2 acts that may constitute the act of robbery. One is by means of violence or intimidation upon persons or force upon things. If it is by force or violence or intimidation upon persons it is covered under Art. 294. The difference between robbery and theft is that in theft, there is no force, violence or intimidation upon persons. Neither is there force upon things. In both crimes, there is the taking of personal property of another with intent to gain without the consent of the owner. The crime of robbery under Art. 294 speaks even of special complex crimes in paragraph 1. The law says that the penalty of reclusion perpetua to death shall be imposed upon any person who by reason or

is

not enough, is given? Consummated na yon di ba? Can you seize the property

on occasion commits any of the acts of robbery and on occasion or by reason of

to

apply it to the value of the indebtedness? Hindi eh! There must be a court

robbery the crime of homicide shall have been committed or when the robbery

order to seek for the remedy of replevin in order that you may be given the property. If you do it on your own, it is considered light coercion. All other unjust vexations or other coercions are considered light coercions.

shall have been accompanied by rape or intentional mutilation or arson. In other words, in cases of robbery with homicide at any stage prior or after it is always robbery with homicide. In cases of robbery with rape or with intentional

In Art. 288, other similar coercions, this is where the owner of establishments ask their employees to buy or purchase the merchandise from them in a compulsory manner or that they are being pushed to receive as their wages tokens. But supposing these people agree that they receive token and small pieces of paper and they will use that to buy merchandise from the store. That agreement is valid! It is only applicable when you compel them against their will. If there is no compulsion and they agreed, there is no crime. It may appear as unfair labor practice, but it is not a crime under the RPC.

mutilation or arson. Note the word ―or when the robbery shall have been accompanied‖ meaning the mutilation or the rape or the arson must come after the robbery. It is actually just common sense because if you rape a woman after you have burned the house, what will you steal? The rule is, in these complex crimes, whenever there is homicide committed prior to, simultaneously with, or after the robbery, it is always robbery with homicide. There will be only robbery with rape if the robbery has been committed and thereafter, the rape was committed regardless if even the same is a mere afterthought. The same is true with mutilation or arson. It is different when rape is the purpose of the offender.

So the parents, the custodians or even the spouse with respect to another who seizes the correspondents of another in order to discover the secrets of another is liable for covering secrets through seizure of correspondents. If the

If the purpose of the offender is to rape the victim and as an afterthought he committed robbery or theft, there are 2 crimes that are committed. One robbery and a separate crime of rape or theft - that is rape and robbery or theft. They are separate crimes. The problem with respect to robbery with homicide and a rape

offender does not reveal the secrets then he will be punished by a lower penalty.

is committed likewise has been already settled down by the SC. The SC, in

A

wife who seizes the correspondents of her husband is not committing a crime,

deciding such a case, ruled that the crime of rape shall be separately prosecuted

but if she intends to use the correspondents that she seized from her husband as

from the crime of robbery with homicide. And it stands to reason that such

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should be the jurisprudence. Why? It was correctly stated by the SC that rape has never been an aggravating circumstance under Art. 14 or in any special law and therefore it can never absorbed in the crime of rape with homicide as an aggravating circumstance. The other kinds of robbery are in connection with robbery with physical injuries, etc. The more serious the physical injuries is, the higher the penalty. You will note that in the crime of robbery with force, violence or intimidation, the amount involved is never a factor in the imposition of the penalty. Look at the provision of Art. 294, paragraph 5, wherein the law says that the penalty of prision correccional in its maximum period to prision mayor in its medium period shall be imposed upon any person who commits robbery in other cases. In other words, if you only use threat or intimidation to commit the crime of robbery, irrespective of the amount involved in the robbery, the penalty is only prision correcional in its maximum period to prision mayor in its medium period. This is amended already by R.A. 7659. Actually, I was wondering why they did not still increase the penalty. Example: You rob a person carrying 1 million pesos and you have a knife with you. You only threaten him that if you don‘t give me that bag I will stab you. Is the threat of stabbing the victim an aggravating circumstance? NO! So if the accused pleads guilty he may still be placed on probation if there are no aggravating circumstance. This is because the penalty would be in the minimum of the penalty provided by the law. And the minimum is prision correccional in its maximum period despite the fact that the amount involved is 1 million pesos. I cannot understand it. In theft, if you steal more than P22,000 the penalty already is prision mayor in its maximum period and for every P10,000 in excess of P22,000, an additional penalty of 1 year shall be imposed. However, the maximum of which shall not exceed 20 years. This is really something for us to look into and it appears to me that indeed robbery is more traumatic than the crime of theft. Meaning the victim in a robbery suffers more trauma than one who is a victim of simple theft and yet if the amount involved in simple theft is a big amount the accused may be sentenced with 20 years in imprisonment, whereas in robbery that is not the case. In robbery, there has to be serious physical injuries and other kind of injuries under Art. 263. Now, the liability of the participants in the crime of robbery with homicide may depend upon circumstances of each case. Let us say a group of 4 men decided to rob a house. But they know that the house is inhabited. So one was assigned as a lookout and another to guard the gate. And the two entered the building and immediately stabbed the maid, the boy. What will be the liability of each and every participant to the commission of the crime? All of them shall be equally liable as principal. The act of one is the act of all. Let us change the scenario. The offenders decided to rob a house wherein the owners have already left for over a year and there is no assurance of their return in the future. So it is already considered an uninhabited house. The same facts. As you know, as in most uninhabited houses here in Metro Manila, the vagrants usually are using them as

their shelter. However, this is not known to the robbers. While they are ransacking the house of valuables, they saw the vagrant. Fearing they will be remembered by the vagrant in case they are caught, they killed the vagrant. In point of liability, is the liability of those who killed the victim meaning those who are inside and those who are outside who does not know of the killing liable for the same penalty? No! Only those who participated in the killing or if ever he is present and he did not prevent the killing shall suffer the penalty of robbery with homicide. But then those who did not have knowledge, because their agreement is to rob a house which is not inhabited, will only be guilty of the crime of robbery.

Now, what is the difference between highway robbery and robbery and brigandage? The robbery that is covered by Art. 294 is very very explicit. Robbery with force, violence or intimidation upon persons and robbery with force upon things. And that irrespective of whether they have determined their victim or not or they have already determined the place or the person that will be their victim that is ordinary robbery but it will not necessarily be committed in the highway. In robbery in the highway which is still existing in PD 532. As in PD 532, the law on piracy included therein has already been repealed. The victim is always identified by the offenders. In brigandage, it is different. Irrespective of whether the persons are in buses or known or not known to them, in other words, they will commit robbery or kidnapping of persons for purposes of extorting ransom from them indiscriminately in the highway. Any person who passes in the highway they will rob. Not necessarily passengers but any person. That is an indiscriminate robbery in the highway. Now, is there a crime to extort money? That is extortion. Extortion is also considered as robbery but they are different in that in robbery the intimidation is actual and immediate. Meaning the threat is present immediately. Whereas in threats to extort money, the threats may not be immediately present. Actually, sometimes the same is conditional in nature and it may take place in the future. In robbery, the intimidation is personal to the offended party. In extortion through threats, it may be through an intermediary or through letters. Likewise, in threats the intimidation may refer to a person or honor or property of another. In robbery, the same is directed to the person of the victim, not to his honor, not to his property and not to any member of his family. In robbery, the gain of the culprit is immediate. In extortion, the gain maybe later. If you rob another passenger in a ship that is not piracy. That is only simple robbery. If you steal something from the ship even its cargo and you are a passenger that is not piracy or mutiny but only simple robbery. Art 296 is the definition of a band. Must be 4 or more malefactors. They usually take part in the crimes of robbery. When the arms used by the band in the commission of a crime are unlicensed firearms the penalty that shall be imposed upon the members of the band shall be in the maximum period without prejudice to the criminal liability of the offenders for the crime of illegal possession of

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firearms. So the law is very clear that in cases of robbery by a band the crime of illegal possession of firearms is not absorbed but in the event however that the robbery by a band resulted to the killing of a victim so it becomes robbery with homicide. Is the offense of illegal possession of firearms absorbed? That is a good question in the bar. The answer is no because the crime of robbery with homicide is a crime against property. It is not a crime against persons. And illegal possession of firearms is only absorbed in 2 crimes against persons. That is homicide and murder. The other are crimes against national security that is treason, rebellion or insurrection, coup d ‗etat and sedition. Actually, it is absorbed even without the same being even an aggravating circumstance. If the band or any robbery is committed with homicide and it is with the use of and illegally possessed firearms the crime of illegal possession of firearms is not absorbed in the crime of robbery with homicide because the crime of robbery with homicide is not a crime against persons but a crime against property. If I will be an examiner I will ask that question or I will tell somebody to ask that question. Hahaha! Any member of any band even if he did not participate in any overt act as long as his presence is established he will be equally liable with the other members of the band. There is no need to discuss conspiracy because the band itself is in itself likewise a conspiracy. Robbery with force upon things should only take place in a public building or edifice devoted to religious worship, robbery in an inhabited place, robbery in a private building, or uninhabited house. So these are the only things that may be the subject of robbery with force upon things. Actually, you cannot find anymore any kind of robbery with force upon things unless it be a building. Even the taking of a receptacle that is closed it must be taken from a building or an edifice. The commission of robbery with force upon things like when you enter the building in an entrance not devoted for such. I asked this question: supposing I said, there are 2 doors in a room and one is marked exit and the other one is marked entrance. You entered in the door marked as exit and you took something from inside is that robbery? No! Because the door is always for the purpose of ingress and egress irrespective of whether you mark it as exit. It is prohibited to have a one way door.

Sept. 29, 2003 By: Ria

Under Common Wealth Act No. 417, in relation to those that are specified in articles in 294, 295, 297, 299, 300 and 302 of the Revised Penal Code (RPC):

when the property taken is mail matter or large cattle, the offenders have suffered the penalty next higher in degree than those provided in said articles. That is the qualified robbery. Hence, even if the penalty is already reclusion temporal, if

what was taken is mail matter or large cattle, the penalty in that particular kind of robbery, even if, it is without false violence or intimidation upon persons, the penalty of reclusion perpetua may be imposed. Let us see if it is correct. In Article 294, that is, actually robbery with violence or intimidation of persons, naturally, on occasion of the robbery, any of the physical injuries under Article 263 shall have been inflicted, the penalty may be up to reclusion temporal especially if the robbery is under of subdivision 1 and subdivision 2 of Article 294. So if it is reclusion temporal, the next penalty higher by 1 degree could be reclusion perpetua; which you would never think of because here there is no such line of a penalty even on robbery without force, violence or intimidation.

Let us suppose that there is robbery but there is no force, violence or intimidation. What then would the penalty be imposed? If there is a breaking of doors, walls; what penalty may be imposed in said crime?

If the robbery is committed by armed persons in an inhabited house or public building or edifice devoted to religious worship, they shall be punished by reclusion temporal if the value of the property taken exceeds P250. E, how much is P250 nowadays? Even your watch that do not even have a battery would be worth more than P250 although you cannot go to Cebuana to pawn it, you can still sell it to somebody for more than P250.

In the event that is taken from a house which is inhabited or in a place of religious worship or whatever, the penalty is already reclusion temporal. If what was taken from a public building is a mail matter or a cattle which is tied in one of the dependencies of the house (in the province there are dependencies wherein the cattles are being kept there). Have you seen such arrangement in the provinces? In order that they may be able to protect their live cattles, most of their live cattles are placed in dependencies which are part of their living quarters. So, the penalty would be reclusion temporal. And if, mail matter or large cattle are taken in such kind of robberies, the penalty would reach up to reclusion perpetua.

It is now even in qualified theft, even if the penalty may be 2 degrees higher, you cannot impose the penalty of death. You can only impose the penalty of up to reclusion perpetua because it is not included among the heinous crimes under Republic Act #7659. But what I was saying then up to now, in cases of qualified theft, it should only be 1 degree higher --- just like in qualified robbery. So there is such a thing as qualified robbery. If you were asked in the bar exams, if there is a qualified robbery, you cite that if the robbery is with force, violence or intimidations, etc. committed in an inhabited house, place of religious worship, etc or in public building and what was taken was mail matter or large scatter, the

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same shall be considered a qualified robbery and the penalty shall be raised 1 degree higher than that which was imposed by law.

No other book mentions such thing as qualified robbery!

We have also taken robbery in an inhabited place by a band and the robbery of places which are considered uninhabited.

What we have to remember is that dependencies are still considered as part of an edifice of a building so long as there is an ingress and egress from that dependencies going to the main house or edifice and vice versa. But then, the buildings must be contiguous to each other, if not, there could be no dependency.

Robbery of cereals or fruits or firewood. There could be a misconception regarding robbery of cereals or fruits or firewood because of the conception that if fruits or cereals are taken with force, violence, or intimidation upon persons, it is only plain simple robbery. But what is really contemplated here is that the fruits or the cereals are in a barn/edifice/enclosure/place where they are being kept and the walls/floors/doors of so are destroyed in connection with the robbery. As regards the firewood, there could only be robbery if the place is uninhabited.

The possession of picklocks and other similar tools, it is only punishable if such possession is with the intention to use the same in the commission of the crime of robbery. The use of picklocks or similar tools is akin to the use of force upon things. Even a real key may be considered as a similar tool because the user is not the owner or possessor of the same.

Those who are makers of these tools are also liable. If the offender is a locksmith, he shall suffer the penalty of prision correccional. When the law says locksmith, he must be authorized by the municipal government or is licensed to make such tools. If he is not authorized, he is not considered for this purpose as a locksmith.

False keys any keys stolen from the owner, or lost and found by another person who did not returned to the owner/authorities. Any key not intended by the owner to open such things are considered as false keys.

Brigandage the only thing you have to remember is that there are at least four or more armed malefactors whose purpose is to rob/kidnap people in the highway for the purpose of extorting ransom from them. The highway is not exclusively those being used by buses, jeepneys, etc. They may be provincial or municipal road. In the case of People vs. Ducusin, those four or more who roam around the

country in order to rob/kidnap people for the purpose of extorting from them are considered as brigands. So, even if they are not robbing people, but they roam around the country, they commit this crime. I don‘t know why the Supreme Court ruled that way. In the Philippines, you cannot really walk all over the country.

Here is also a situation where a person who carries an unlicensed firearm makes the penalty imposable in its maximum period. But in brigandage, the crime of illegal possession of firearms is never absorbed. Those who aid or abet a band of brigands by giving information to them about the movement of the police; or those who are receiving or acquiring such property taken by such brigands. The penalty may be up to prision mayor in its minimum period (afflictive already). Those who aid or abet a band of brigands cannot be considered as accessories under Article 19 of the RPC because there is a special provision and specific penalty for them. But can they be considered as violating P.D. #1612? Yes, they are liable under Anti-Fencing Law.

We go to theft. Theft is the taking of personally property belonging to another without the consent of the owner and with intent to gain. The word ‗another‘ does not necessarily mean the owner. So a thief may commit theft if he took property also stolen by another thief. Both of the thieves are liable in the separate crimes they are committed.

Any person who found any lost property and did not return the same to the owner shall be guilty of theft. Anyone who has maliciously damage the property of another and shall remove the fruits of the damage caused by him, the mere fact that it was removed by the offender from the place he damaged, the same shall be considered theft.

These have to be differentiated with theft of transmission lines. The latter is in under Theft of Electricity. In theft of transmission lines, there is no element of intent to gain. The mere sawing/cutting/distraction or electrical transmission lines shall be considered theft and the penalty is heavier that that which is provided for in ordinary theft.

Who are still liable for the crime of theft? Those who enter enclosed estate or field where trespass is forbidden, without the consent of the owner, and fish or gather fruits/cereals/forest/farm products. Except if the forest product stolen is a tree already capable of being turned to lumber --- this is already under the Forestry Code of the Philippines and the penalty is that of qualified theft under Article 310 of the RPC. However, even the owner may be held liable under the Forestry Code! You can cut tress just as long as they are used inside your property. If you transport the lumber, then there is violation of the Forestry

Criminal Law Review Transcript 2003-2004 (Book II)

57

Judge Oscar Pimentel

MajArvin

Code. Judge talks about kinds of woods and seedlings/trees; computation per cubic meter of boards.

Distinguish theft from estafa or swindling. The point of distinction is the possession of the property. If the possession is only temporary, although given by the owner, with an obligation to return immediately, if the person to whom the property was given absconds with the property, that is simple theft. But if he already has juridical possession and can raise a defense as against a third party in relation to the property he is holding at the time and he misappropriates it or he actually appropriates is, it is already estafa. In both instances, there is parting of the property with the consent of the owner. In theft, the parting is temporary. The holder of the property cannot raise any defense to a third party in connection with the possession of the property. You remember the Igorot case who gave the gold bar/foreign currencies to DeVera with the instruction to have them changed, if not, then return the same? The latter disappeared. SC said the crime involved is theft. The consent given by the Igorot is temporary and only for a specific period. After the lapse of that specific period of time, possession by DeVera is already illegal. In estafa, there is actually no specific period of time (U.S. vs. DeVera).

Jo-anne raises a question but muffled eh.

Eric raises a question but muffled.

If one took a car from the owner without his consent --- that is already carnapping. We take in consideration the nature of the property --- the person entrusted should either do as instructed or immediately return it. The latter is an important condition.

Estafa involves trust and confidence existing between the offended and the offender.

Theft does not involve trust. It is so if a person who receives a property temporarily to convert the same, absconds with the said property.