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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
dont 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.. So, its a matter of concern as there is a difference when the offender is a
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.
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
those times. . I f you look at the records of the __________ how come that
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 dont 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

Criminal Law Review Transcript 2003-2004 (Book II)


Judge Oscar Pimentel

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 wouldnt 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

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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. Its 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, noiba 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.. If there is already an agreement
between two persons who have already committed themselves to commit an act
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
separate and distinct elements.. 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

Criminal Law Review Transcript 2003-2004 (Book II)


Judge Oscar Pimentel

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? Yes.. Reporting to the
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
this.. 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.. He can be assured in his own
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
you have to use your common sense.. If the person has been sick, naturally it will
take time. If that person is hiding from a c0-conspirator etc, it will really take
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

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relative to the defense of our country? Eh kung coup detat nga, nung nandyan
na nga ang mga tao sa Oakwood hindi pa nila natiktikan eh? And they said it
involves national security.. Well, if that would be the case, butas- butas and
national security natin.. What are the people in our intelligence community doing
prior to this? Nothing.. Or maybe these people are good. There are only two
things there.. Either these people are so good for our intelligence community
people that they cannot be detected or that our intelligence community are
sleeping.
Just like in espionage.. 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
or trice the guarder will even salute you. .try me or try it for yourself. Who is a
member of the military here or the police Its a signal. The guards need
subdivision, the guards need at night, theyre 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 dont have even
pass etc..No just blink it three times.
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 __________ 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 visitors 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

Criminal Law Review Transcript 2003-2004 (Book II)


Judge Oscar Pimentel

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
is ________continuing 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, thats 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 ___-the determination of whether it has
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
differentnevertheless 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.
* Im 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 couldnt
distinguish sa tape kasi dire-direcho naman so I just transcribed it.. if you
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 _________. Actually rebellion is not what you call in a continuing crime.
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 _______ and companion cases __________.

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These people _________ and others are actually NPA regulars and they
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 __________,one criminal offense. How about the others who were
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 lets go to penalties. Penalties for Principal, accomplices,
accessories penalties for consummated felonies, penalties for frustrated
felonies and for attempted felonies.
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

Criminal Law Review Transcript 2003-2004 (Book II)


Judge Oscar Pimentel

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, lets 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 felonythe penalty is

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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 hes
an accessory, but because you are familiar with the participation of the offender,
you will just tell him dont 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 hes 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)

Criminal Law Review Transcript 2003-2004 (Book II)


Judge Oscar Pimentel

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 dont 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 didnt 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.

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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 dont have to wait for 10 days, you dont have to wait
for a resolution, you dont have to wait for the filing of the information in the

Criminal Law Review Transcript 2003-2004 (Book II)


Judge Oscar Pimentel

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 prosecutors 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.

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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

Criminal Law Review Transcript 2003-2004 (Book II)


Judge Oscar Pimentel

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 hell 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 doesnt 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

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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.. you will have to account for this and that,
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 hes wearing a yellow shirt. Mukha ngang ano ito di nag-aahit.. eh hindi
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. Ive been
telling the jailers, you dont 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

Criminal Law Review Transcript 2003-2004 (Book II)


Judge Oscar Pimentel

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

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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 detat. It is only rebellion that has been decided by the SC as a
continuing crime. Is there any decision by the SC that coup detat 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 detat is still a continuing offense. But it
would be debatable as the elements of coup detat 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 detat 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 detat.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 detat with the assistance of a civilian, then its coupdetat. If it is
rebellion it does not matter if these people are members of the AFP or not or the
leaders are civilians, it doesnt 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.

Criminal Law Review Transcript 2003-2004 (Book II)


Judge Oscar Pimentel

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

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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 dont 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 .. even if the metamphetamine hydrochloride
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

Criminal Law Review Transcript 2003-2004 (Book II)


Judge Oscar Pimentel

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 childs
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

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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 dont 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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Judge Oscar Pimentel

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. Jehovas 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 ones 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 faithfulnaku! Actually, it is
committed in a place of worship or while there is a marriage ceremony or a

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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 itthen 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? Dont 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 peoples 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 govt itself or any of its military or naval installations

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Judge Oscar Pimentel

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 1989how 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 detat or it is rebellion. Of
course, I have personal knowledge that the 1st 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 offenderthere 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, lets 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 govt 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
dont know yet bec we dont have actual facts.

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How about rebellion? Rebellion is the rising publicly and taking up of arms
against the govt the purpose of which is to take away the allegiance of the
people from the govt or to take away any part of the territory of the Philippines
from the govt 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, theres no question about that. There is a taking
up of arms against the govtthere were display of firearms and bombno
problem. The problem there is proving their intention to take part of the territory
of the Philippines. Ah, partOakwood. Its 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 cant 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 govt 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 govt 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 dont 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, lets 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 = its 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 dont know whether
they take a bath or not. What is the next purpose2.) prevent the National Govt
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 different3.) 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
rebellionnone. 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 dont 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 rebelliontapos sila. But they succeeded thats 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

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asked to resign. It was a directive that we submit our courtesy resignation.


Actually, its 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...meaning that a proposal has been made to you
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
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 MexicanAmerican-Filipino, staged several attempts and he was not successful. Now, he is
still not successful. When will he be successful? Hehehe I dont knowI cant
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.
Meronin CA 408, yesI researched. hehehe CA 408 as amended by RA
7055. And Ill point to you the exact provision of the lawits I thinkin 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
detat 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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Judge Oscar Pimentel

important. Ill give you a copy of this including the Articles of War which is
CA 408. Its high time that you should be familiar with this bec of the question
at Oakwood and other questions that may arise in the future.
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 govt 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 rebellionyou 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

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and the purpose is almost the same. But then in rebellion, some of the purposes
there are different from coup d etat.
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 govt 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. Thats 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 monthyou dont 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. Forceyou 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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Judge Oscar Pimentel

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. Noit must be due to the
committee or the body itselfnot 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
firearmspasok 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

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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 usapanlibre 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: Imprisonednot 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. Hes good. I dont 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

Criminal Law Review Transcript 2003-2004 (Book II)


Judge Oscar Pimentel

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.
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 detat?
Oh, ayan di na naman kasama ang coup d etat.
2.) any person who shall attack and employ force, violence or intimidation shall
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 dutiesonly 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.

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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.
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 langbaka 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
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
thereesp now, there is move to disenfranchise the people in the squatters area. I
have been telling you since 1st year, these people are not supposed to be voters of
their locality bec they are not legally residing in these places.

SEPT. 3, 2003

Criminal Law Review Transcript 2003-2004 (Book II)


Judge Oscar Pimentel

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 1st one is the purpose of these people are to
achieve the purposes of the crime of sedition or rebellion. Coup detat 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 2nd 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 govt 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 situationis 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

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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 dont 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 dont 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 Natl Assembly has to
summon a person is in connection with any inquiry in aid of legislation. They

Criminal Law Review Transcript 2003-2004 (Book II)


Judge Oscar Pimentel

dont 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
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 Natl 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 dont 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 handright 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
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
the whole truth in this proceedings and whatever. And that there must be an
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 dont 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 dont believe in Godno 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

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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.
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 theremore
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.
Unlawful use of means of publication. There are I think four.
1.) The publication with malice of false news which is known to the
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.
2.) 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

Criminal Law Review Transcript 2003-2004 (Book II)


Judge Oscar Pimentel

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 dont 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,
sinong M4?) Si Mawanay, Mahusay, Mateo, Mikeapat yun na
Mnareceive ko lang sa text yun ha.
3.) Those who by means of words or utterances shall encourage people to
disobey the law and those who actually exhorts the commission of any
violation of any act.
4.) About publication of articles, news etc that are authored by an
anonymous persons or who put their name as anonymous.
That is already four. Dont 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 dont pay your taxes, you go to jail, dito Ive 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, its the center of the town, thats 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.

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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 dont 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
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.)
Majahs notes:
Article 157. Evasion of Service of Sentence
1.) Ordinary prisoner escapes from jail while serving sentence
*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.) During calamities or disorder
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.
3.) Violation of Conditional Pardon
4.) Violation of Conditions in Destierro (judges 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

Criminal Law Review Transcript 2003-2004 (Book II)


Judge Oscar Pimentel

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 youcan 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
dont 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 dont have any lion in the Phils except only in the zoos. Or an
American eagleI 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 sealthat 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 dont 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
Velardeno. It must be the real name of the President. That is whyoh, 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

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dismissed that lawyer from malacaang 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. Its 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 onea 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 dont
distinguish.

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Judge Oscar Pimentel

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 dont 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 cashyou 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 govt, 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 USEKNOWINGLY 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 allegedGRAVE 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.

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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 ones 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.

Criminal Law Review Transcript 2003-2004 (Book II)


Judge Oscar Pimentel

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 ECommerce (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 _______ DAY AT ________ WITH THE AFFIANT
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 ECommerce? 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?
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 its a necessary
means of committing other crimes. In relation with all these falsifications, the use

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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 dont 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 dont 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 themjust to
make a statement? I dont 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
Maxs 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

Criminal Law Review Transcript 2003-2004 (Book II)


Judge Oscar Pimentel

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, Paero? Ah, your honor, no more. The last him I told him,
paero, san ba yung nakapulang sapatos no, your honor. Wala na ho iyon.
False certificate of merits or serviceyou 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.

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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 HWorld 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 Genoh, Mongcadodo
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 dont 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
deathMcArthur 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 dont 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.

Criminal Law Review Transcript 2003-2004 (Book II)


Judge Oscar Pimentel

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
crimethey 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 them4 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 himselfcan 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.

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Bec if he can get away with it, he is acquitted, so its 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, quasijudicial 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 MahusayMawanayMedel. Puro M yan eh. They
are actually exhibiting for the public that it pays to perjure ones 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 its
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 its 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 Thats 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.

Criminal Law Review Transcript 2003-2004 (Book II)


Judge Oscar Pimentel

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 wont 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...bec I will be
commenting laterbut 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 ffxxx But do not enumerate to
the smallest detail the testimony that he is going to give. Only in general. If its
only to establish the allegation in your informationto 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
womaneh, magalit pa ang asawa ko sa akin. (hehehe ) So, be careful in your
formal offer.
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 dont know if we
have in the Phils a private auctioneer licensed by the govt. None noh unlike
Kristys 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

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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 doesnt 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 beerits a common name. How about the
case of Bali about an Indian who is manufacturing Bali sockshe 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

Criminal Law Review Transcript 2003-2004 (Book II)


Judge Oscar Pimentel

competing with the business of Sony Corp of America. But bec according to
them, its a well-known name so they cannot use or they cannot utilize the same.
Mang Donalds and McDonalds, 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

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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, its the faithful. Here in grave scandal, its 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. Its
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 dont 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
govt 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. Showsthat 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, its
the selling or distributing.
Then you have Vagrants and Prostitutes. Vagrantswell, 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

Criminal Law Review Transcript 2003-2004 (Book II)


Judge Oscar Pimentel

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 Katupasbec their occupation is Kain, Tulog, Pasyal. (hehehe ) They
are able bodied but they dont 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 Padis 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 Padis 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 gainNONE. 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 suspiciousbagancia (I dont 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

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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 ngayondaisy 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 lawcan 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 its 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.

Criminal Law Review Transcript 2003-2004 (Book II)


Judge Oscar Pimentel

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 this
1.) 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 dont 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 prosecutors 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

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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. Dont 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? 67,000 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 dont 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.

Criminal Law Review Transcript 2003-2004 (Book II)


Judge Oscar Pimentel

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 2nd 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). Thats 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 youd tell it to your wife, she might accidentally tell it
to your friend and thats 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

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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 govt 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 taxicabwhen 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 govt 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 1st 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

Criminal Law Review Transcript 2003-2004 (Book II)


Judge Oscar Pimentel

other person regarding all this and he actually become interested either in any
investment or speculation for purposes of defrauding the govt. 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 govt 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 2nd 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 dont 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 langgagapang ka para
makakuha. Eh, how about occupancy permit feedun 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 dont
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.

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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

Criminal Law Review Transcript 2003-2004 (Book II)


Judge Oscar Pimentel

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

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

Criminal Law Review Transcript 2003-2004 (Book II)


Judge Oscar Pimentel

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

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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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Judge Oscar Pimentel

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

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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 doctors 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 dont 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

Criminal Law Review Transcript 2003-2004 (Book II)


Judge Oscar Pimentel

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, lets try if you have the guts. Lets 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

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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. Its 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 dont 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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Judge Oscar Pimentel

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 magjudge 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.

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Pero sa buhay na ito, in this life, you have to play ball otherwise they dont 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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Judge Oscar Pimentel

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)

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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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Judge Oscar Pimentel

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

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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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Judge Oscar Pimentel

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. Its not gangs, its
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.
Lets 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

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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 dont 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 whats
important to constitute infanticide. It is not correct to say that if ohere is Mr.
Sia and Ms. SalvaI 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
20sas 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. Abortionswell there
are how many kinds of abortions? We have intentional abortion, unintentional
abortionwe 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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Judge Oscar Pimentel

intentional abortion in the event that the abortion was employed without any
violence upon the womanhmph, 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 wont 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

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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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Judge Oscar Pimentel

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.

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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 dont know
if you can do it but lets 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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Judge Oscar Pimentel

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
dont like this. But well, there are those who even wanted to have a scar on their
cheeks. Macho daw ang dating. Well, I dont 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

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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 dont think so because the
detection of whether there is a transmittal of the virus or not to the woman would

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Judge Oscar Pimentel

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 coconspirator 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 prosecutors 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. Youre 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

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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, dont ask me to stamp my approval in
that alteration. You ask maybe somebody elses 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
anal orifice of another or by inserting an instrument or object..eto ang
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 nonlawyer 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

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Judge Oscar Pimentel

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
dont 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. Thats a case and its in my book, it is in the book that I
am preparing.
Question: Since a crime was committed when she was still a minor, couldnt 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

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been raped, she didnt file a complainshe 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 fatherso she filed two cases of rape against
the fathernaturally 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 dont think so but then if she says that say for example, she has already
considered the same as an experience and she didnt say that she neither
consented nor did she refuse or did she protest etcthat 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 SCmore 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 etcand 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 didnt 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 notthe 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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Judge Oscar Pimentel

telling their patients that if the patient will have sex with tem, the ailments of
those patients will be cured etc, etcand 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 machinationeven 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 ehit 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, etcbecause 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 namethis
politician recruits young girls from the brgys to be his scholars in diff schools in
their province etcbut 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 53 54 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

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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
hathat is the practice now which to my mind is disservice to the judiciary.
Now the Campuhan case and the Limb Syndrome, you know all thatyou 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
accusedso it can neither modify the circumstance, it couldnt 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 Babybut the
allegation in the information is that he was the stepfatherechegaray would have
been alive todayhe would be serving only the penalty of reclusion perpetua.
Yes, that is the thing that actually happened in the case of echegaray. I dont
think that we have to go over all the qualified rapesunless 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 occurredso
there are additionalthe 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 etcthere must be an abuse
of public position in order that the penalty of death maybe imposed..and 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 rapeah 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

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Judge Oscar Pimentel

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 rapewe
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..there will be a lookout, there will
be somebody who not participate in the actual taking of the propertythose who
have no knowledge of the commission of crime of rape cant be held criminally
liable for robbery with rapeits only those persons who have personal
knowledge and if they have personal knowledge they didnt prevent the
commission of the rape then they are equally liable with the one who actually
raped the victim. About rape with homicideany homicide that is committed
after rape..whether it is an afterthought whatever it is as a result of the rape, it is
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 correctbut in a new decision of the SC, the rape cant 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.
Damages, wala na yan. Pardon..wala na yanmarriage 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 detentionwhen 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 abductionthe simple deprivation of liberty is

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kidnapping. But if the purpose of the offender is to enslave the victim, even if
the offender kidnaps the victim, buys the victim, orEND 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
sustained, the period which he failed to perform his duty shall be included.. So, if
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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Judge Oscar Pimentel

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.. the rationale there is that a girl who is
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
doesnt 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.. I said NO, it was
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.. Is there a crime of rape? Will the
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.. That is her business. The only crime I see there is
estafa by means of false pretenses. When the man pretended to possess property

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or money, when in fact he does not have any money, then he enjoyed himself
with the woman.. that is estafa.
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
he slept there and you know what happened next.. 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.. Labides is a congressman in quezon
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 males 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

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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.. just cut the finger of the person and
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.
Its 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.
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 mans 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 males 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. If they ask
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.

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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.. halika sama ka sa amin
Alright, I dont 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.
Now, in relation to rape.. If the original intention of the offender is 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 stepdaughter and others.. the exact relationship must be alleged together with the age
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 dont 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.. Well, it being the wording of
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..I dont know the reason up to now.. Well, may be because
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.. I dont know.. it is not being reported.
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

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authority? Yes, because only the military are authorized to wear such uniform.
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.. These people will not go voluntarily go with you unless
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.
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.. I think that is
not fair..

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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.. It must be the permanent abandonment
of the minor of his home, to disturb the tranquility or disturb the harmony in
ones 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.. Ano pa yung isang
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

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But actually, it could be a defense ha.. I just do not know if the court
will believe you.. but if you have no other defense, you can make use of that.
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.. If he is not a minor, that is art 274 because you
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.. Wag mong gawin
domestic servant, gawin mong gardener!.. Sa farm laborer, gawin mong
construction laborer..
Well, we have abandonment of helpless persons and exploitation of
minors.. pagdating sa minors, 7610 talaga. Although the provisions of the RPC
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.. I said no,
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

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Judge Oscar Pimentel

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 thats 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

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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 ones home or inducing a minor to
abandon ones home the purpose there, as I stated previously, is to cause some
trouble or to destroy the tranquility of ones 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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Judge Oscar Pimentel

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
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
may have entered the house for purposes maybe of killing somebody or just
maybe disturbing the tranquility of the home of a person. I am for attempted
trespass to dwelling in the same manner as when it cannot be determined what is
the intention of the person when he enters the dwelling of another. If you cannot
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.
Grave threats! Just remember this any person who shall threaten
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
degree lower from the penalty of the crime which the accused threatened to
commit. For example: If you dont give me money I am going to kill you. Is that
a threat or is that robbery? In robbery, usually the robber will say give me
money otherwise I will kill you. In threat, I will kill you if you do not give me
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
grave threat and the penalty would be one degree lower from the penalty for the
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.

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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
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
a weapon during a quarrel. The other threat that is actually a much graver one
than other light threats is the threat to commit a wrong not amounting to or
constituting a crime made in any manner expressed in the 1 st paragraph of Art.
282. What could be a threat which is wrong but does not amount to a crime?
Lets 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
ones 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
a gun that is grave threats but the penalty is only arresto mayor. But if ever you
draw a weapon do not point your weapon to a person. Just draw a weapon
because once you point it to a person that is already grave threats but the penalty
is arresto mayor only. There was, however, a decision of the SC which said that
if you draw a weapon to threaten another it is only other light threats. Actually,
there is really conflicting versions with respect to grave threats with respect to the
3rd paragraph or the 3rd 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
light threats. It is best that you interpret it in favor of the accused.
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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Judge Oscar Pimentel

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 1st 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.
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
is not enough, is given? Consummated na yon di ba? Can you seize the property
to apply it to the value of the indebtedness? Hindi eh! There must be a court
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.
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.
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
offender does not reveal the secrets then he will be punished by a lower penalty.
A wife who seizes the correspondents of her husband is not committing a crime,
but if she intends to use the correspondents that she seized from her husband as

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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. Lets 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.
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
on occasion commits any of the acts of robbery and on occasion or by reason of
robbery the crime of homicide shall have been committed or when the robbery
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
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.
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
is committed likewise has been already settled down by the SC. The SC, in
deciding such a case, ruled that the crime of rape shall be separately prosecuted
from the crime of robbery with homicide. And it stands to reason that such

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Judge Oscar Pimentel

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 dont 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

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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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Judge Oscar Pimentel

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

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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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Judge Oscar Pimentel

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

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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 dont 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

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Judge Oscar Pimentel

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

Attempted 2 degrees lower


Frustrated 1 degree lower

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).

Minor kinds of theft include: hunting, fishing, gathering of products in an


enclosed estate without the consent of the owner (except trees), the penalty to be
imposed is arresto mayor in minimum or a fine of not more than P50 when the
offender is motivated by hunger or lack of opportunity to earn a living (but the
latter is not applicable in the provinces anyway!)

Jo-anne raises a question but muffled eh.

Fox example, the amount involved is P6M. How many P10,000 are there in a
million? So this will yield to 600 years. Even six generations will not be enough
to serve such penalty!

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.
In Qualified Theft, information has to allege that there is grave abuse of
confidence. In Estafa, a simple allegation of abuse of confidence is already
enough!
Simple theft is necessarily included in qualified theft. If it is not alleged that the
theft was with grave abuse of confidence, then only the former shall be imposed.
Graduation is also applied:

Theft of Gold punished under P.D. #581. Judge talks about where gold can be
found within the Philippines.
Penalties for theft under Article 309:
If the amount involved is more than P22,000Total penalty to be imposed by
the courts shall not exceed 20 years. You may compute the penalty until 600
years, but the accused shall only serve the maximum penalty of 20 years. The
most that you can imposed upon a person in cases of ordinary theft is
indeterminate prison term from 12 years of prision mayor as minimum to 20
years of reclusion temporal as maximum.

Article 310, Qualified Theft:


The penalty that will be imposed will be two degrees higher if the accused takes
the property belonging to another without the latters consent and with intent to
gain --- and such property is a mail matter, a coconut in a coconut plantation, fish
in a fish pond, or if the offender is a domestic servant, or if the offender gravely
abused the confidence of the owner.
If the amount of the property is over P22,000, according to the case of People vs.
Reyes, the penalty that should be imposed upon the accused is Reclusion
Perpetua and it is not bailable. This decision was later confirmed in the case of
People vs. Bago (330 SCRA).
Do not believe in the recommendation of the DOJ that it is bailable by P80,000 to
P100,000. DOJ commits ignorance of the law! I have a pending case with the
Supreme Court regarding this matter, qualified theft, because I did not fix the
bail. CA said it is bailable. The problem with the SolGen, they did not execute a
certification of non-forum shopping! What is further interesting in that case is,
the accused is not in the Philippines! How then can he ask any relief?! He cant,
because the court has no jurisdiction over his personand yet the CA entertained

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his appeal and reversed my ruling. Ok lang, it is the SolGen who is having a
headache.

article. Even if the Titles of the property says, bounded by a big narra tree, the
said tree is considered a boundary. But now, they are using permanent markers.

Off topic discussion regarding domestic servants as judge says i-lower na lang
penalty for them kasi kawawa naman sila and kailangan naman talaga sila in the
house.

Article 314, Fraudulent Insolvency


These are the people who absconds with their property in order to defraud
creditors. If he is a merchant, the penalty is prision mayor and if he is not a
merchant, the penalty is prision correctional in its maximum period to prision
mayor in its medium period. When you apply for the provisional remedy of writ
of attachment, it is always alleged that the defendant is absconding or is about to
abscond to defraud creditors and he/she has no sufficient property which can
answer for his/her obligation and there is fraud in contracting or in payment of
the obligation.

Wala na yung carnapping and cattle-rustling dyan ha.


In robbery, you consider the cattle as the subject that will raise the penalty to one
degree higher. But in cattle-rustling, it is quite different because it is a special
law. In carnapping, it is also different because penalties are not the same. If
there is no force, violence, and intimidation upon persons in carnapping, the
penalty is only 14 years 8 months and 1 day to 17 years and 4 months. If there is
force, violence, or intimidation upon persons, then the penalty will be 17 years 4
months and 1 day to 30 years. And if the owner, passenger, or driver is/are
killed, the penalty of death shall be imposed. So it is a heinous crime (R.A.
#7659).
Article 311, Theft of Property of the National Library, Etc.
So you can steal the famous paintings in the National Library; but not the ones in
GSIS as that is not a National Library or National Museum; so it would depend
on the value of the property. However, if you steal something at National
Library or National Museum, even if it is a prized painting, the penalty only is
arresto mayor or a fine ranging from P200-P500! It is much better to steal from
National Library or National Museum than the GSIS.
Article 312, Occupation of Real Property or Usurpation of Real Rights
Any person who uses force, violence, or intimidation in occupying real properties
or usurping real rights shall be guilty of this article. Supposing you are an owner
of a real property which is adjacent to a river, there is always an easement (up to
30 meters) which the owner enjoys for purposes of access to the river. Say for
example, a person forces his way to the river saying the way belongs to the
government. Is he correct? No, easement is a real right! That person who forced
and threatened you can be charged under Article 312. This is popular in the
provinces; here in Manila, wala nang mga easements. Take note that this article
is composed of two things: 1. Occupation of Real Property 2. Usurpation of Real
Rights. This was asked in the Bar 4-5 years ago, to differentiate the two.
Article 313, Altering Boundaries
This is the case of Satan and St. Peter --- regarding boundaries of heaven and
hell. This is the case where people remove the mohones/markers or cut the trees
which are used as boundaries. Those people who removed so are guilty of this

Article 315, Swindling or Estafa


Any person who shall defraud another by any means here below shall be guilty of
swindling. There are three ways of committing swindling. The first kind or
mode is with unfaithfulness or abuse of confidence. Look at the provision of this
law, the first is by altering the substance or quantity or quality of value which the
offender shall deliver by virtue of a legal/illegal obligation; the second is by
misappropriation or conversion to the prejudice of another any money or personal
goods or property received by the offender in trust (whether totally or partially
guaranteed by a bond). Hindi kasama dito ang real property ha. And by taking
undue advantage of signature of the offended party in blank. And by writing any
document above such signature in blank to the prejudice of the offended party or
by any third person. A and C do not require demand. In misappropriation or
conversion, before any person can be prosecuted for estafa or swindling, there
must first be a demand from the offended party from the offender either to pay
the value of the thing given in trust or given by way of
commission/administration. If there is no such demand, there is no estafa yet
committed. The demand must be formal, not just verbal. In connection with the
altering of substances, just remember that the offender here has the obligation to
deliver for whatever consideration (thus, differentiated from 2B, by altering the
quality or weight of anything pertaining to his art or business; no obligation to
deliver). You will note also that in 1A, altering substance quality and quantity.
In 2B, only the quality is involved here.
There are so many acts of estafa under paragraph #2, this is actually by means of
any of the false pretenses or fraudulent acts executed prior or simultaneous to the
commission of the fraud. Using fictitious names or falsely pretending to posses
power, influence, property, agency, business, qualification, credit, or imaginary
transaction.

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Judge Oscar Pimentel

Letter A of Article 315 has to be differentiated also with Article 316 because in
the latter, pretending to be the owner of the property, while the former pretending
to possess property. In Article 315, personal property and possession are
involved. In Article 316, pretension to be the owner of a real property and the
conveyance/sale/mortgage of the same to another are involved.
Pyramiding Schemes pretending to have a business or imaginary transaction. If
people only will stop being gullible and greedy, scams involving these wont
happen. Judge goes on and on about this and talked about procedure and the
delaying tactics of guilty people involved in these scams. Brush up on your
Crimpro for this.
Paragraph 2D in relation to P.D. #818 --- issuance of a post dated check in
payment of an obligation which was incurred simultaneously with the issuance of
the check. It must not be a post dated check to pay for an obligation already
incurred. If the check is issued in payment of an existing or a pre-existing
obligation, then no estafa is incurred. It is only when the check is paid and it is
post dated when the obligation is incurred; then it would be in violation of P.D.
#818.
Requisites under P.D. #818:
1. notice by the bank or the holder of the check that it was dishonored by
reason of closed account, DAIF, DAUD
2. formal demand to the drawer of the check that he made good of the
value of the check for three days (not banking days). But if you want
the person liable under B.P. #22, make it five banking days. But if you
want to squish the person who defrauded you, make it only three days!
Now, in relation to letter E
There is a case filed in my sala, the Oakwood case. A retired sea captain leased a
room in Oakwood for so and so amount. He only paid the down payment and
nothing thereafter. But he kept on ordering food etc. He was charged only for
non-payment of his room. Is that estafa? No, it is only a civil case because there
was a lease contract. Oakwood should not have let him sign a lease contract, but
rather a card of occupancy. He only committed Estafa regarding the foods and
drinks he did not pay for as no contract governs him doing so. O, remember that
ha, lease contracts mean civil obligation only.
In paragraph 2, demand is necessary ha
The third is through any fraudulent means to induce another to sign any
document. E napakadali naman nun.

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Resorting to some fraudulent practice to ensure success in a gambling game.


Yung dala-dalawa ang alas, pag-uusap through signs, fixing of the
lotto/cockfighting etc. That is estafa! Judge talked lengthily about sabong and
says we should know all these things.
Remove, conceal, destroy (in whole and in part) any court record, office files, or
any other documents/papers. This needs damage.
We will discuss may be B.P. #22 and the other articles next time

October 1, 2003
By: Faye
Caveat: I am not sure if Judge was consistently accurate with regard to the
Article numbers so kindly check it during your review.
Estafa.
Paragraph 2 is very simple. and well explain paragraph 2(d) and I told you that it
is connected with BP 22 and I dont have to discuss BP 22 with you. except for
the fact that in PB 818 the demand must only be for the drawer of the check,
make good the value of the check within 3 days not 5 banking days. And
remember when a question is asked of you whether a demand for the drawer of
the check to deposit the value of the check in the bank but the check was
dishonored due to closed account, what is the effect of that demand? It is not a
demand at all because it is impossible of accomplishment. You cannot deposit
anymore any amount in a closed account. It is already closed and it cannot be
reopened by the bank. I was once asked by a prosecutor because the complainant
claims that he made a demand. For the accused to deposit the amount in the bank.
But then when the check was shown to the prosecutor it is a closed account. the
prosecutor asked me, is this demand proper? It is improper because she is asking
for the impossible. How can you deposit the money in the bank within 3 days or
within 5 banking days when the account of the drawer is already closed? That is
an impossibility. And therefore it is not a demand at all.
There are only3 acts committed in estafa through any fraudulent means and the
first is inducing another to sign any document by means of deceit and the other
one is to resort to any fraudulent or scheme in order to assure the success in a
gambling game. And likewise the removal or the concealment of the destruction
of court records to the prejudice of another. Those are the only 3. there is no
problem on the other estafa unless you want to ask me questions about estafa Im
willing to answer them. How about estafa under the trust receipt law and under
PD 1689? In 1689, that is the syndicated estafa, that is the pyramiding scheme.

Criminal Law Review Transcript 2003-2004 (Book II)


Judge Oscar Pimentel

But the offenders must be at least 5 and they are acting either as corporations, etc
or some associations and their usual means of deceiving the people is to ask
contributions from the public or deposits from the public on the promise that the
money that they will be receiving will be invested in some business when in fact
they are not doing it. That is known as the Fonzi Scheme. Fonzi is an Italian who
went to the United States during the present time and he was the one who
actually he did not invent this. He just perfected this and the Filipinos went
ahead to even more than perfect it as they can cheat actually even Generals and
even Judges. In the case that I am handling, there are Judges that are investors but
only in small amounts but the generals in millions. Do we have to discuss BP 22?
The only recent development in BP 22 is about the penalty that may be imposed,
which according to the 2 cases decided by the SC, this is a penalty or fine
equivalent to the value of the check or the amount stated in the face of the check.
It is simply a recommendation on the part of the SC not anymore a directive.
According to the SC, the discretion still rest upon the Trial Judge, but if it is the
SC that recommends, you must follow it. When the accused appears before the
SC, that will be the decision of the SC so why waste your time and make that
person suffer when he will get what he wants when he goes to the SC? The
problem now is in connection with the prosecution of BP 22 cases. If you file a
case for violation of BP 22, you must be ready to pay docket fees according to
the scheme prescribed by the SC. If you fail to pay docket fees within 15 days
from learning of the filing of the information, even if there is already a finding
that probable cause exist for the issuance of a warrant and the warrant has been
issued, that warrant will never be implemented. And what will happen to your
case? It will be archived. And it will be revived only if you can pay already the
docket fees. Now nobody has yet questioned the circular of the SC because to my
mind that is preventing a person to having a free access to the courts as
guaranteed by the Constitution. You can just imagine that even the criminal
aspect of the case has to be suspended. I will agree if it is only the civil aspect
that has to be suspended. But the criminal aspect, I dont believe that that is
denying a person free access to the court and even if it is a criminal action
(Mga sis, confused din ako dito sa statement na to ni Judge both sides na
naman yung agree nya)
Judge tip: In the bar exams, when the question asks what is your opinion, it is a
given, you just have to write very well and do not write too long an answer. It
only tests your ability to write.
In connection with estafa, there is a new SC circular wherein in all cases of
estafa, the complainant, must within 15 days must pay also the docket fees upon
learning the filing of the information. If the docket fees are not paid, the criminal
action shall continue but the private offended party cannot prove the civil aspect
of the case. What a waste of time, noh? You have to bring another action. What

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they have been doing is well to fine a motion to litigate as a pauper. Because
according to them, they have already been duped of several millions of pesos,
they are already paupers. You know what I am doing? And I dont know if that
will be alright with the SC, I am considering that the docket fees are a first lien in
the event of the recovery of the civil liability by the offended party. Because the
offended party may only recover the civil liability by execution. So the sheriff
must see to it that the amount of docket fees, etc, must be satisfied first before he
gives the share of the private complainant. That way, you also serve the
government in the collection of whats due to it. that is what I did. I dont know if
that is acceptable. But I think that they will accept it rather than to deny the
offended party free access to the courts.
In the violation of the anti-trust receipts law which is also estafa, this is where the
person opens a letter of credit in a bank and using the letter of credit he purchases
goods from abroad which he use for manufacture goods that are for sale here or
for export of the things manufactured and the goods are delivered to the owner of
the one who asked for a loan covered by the LC. Upon arrival of the goods to the
Philippines, the same is supposed to be delivered to the owners and if there
would be estafa, upon delivery of goods to the owner, the owner must at the same
time or simultaneously with the delivery sign the trust receipt because the
condition in the trust receipt is that if the goods are sold, the person who opens
the LC of the debtor shall pay the bank or deliver the proceeds of sale to the bank
if the goods are not sold then the property shall be returned to the bank. That is
the essence of the trust receipt law. The trust receipt must be signed by the debtor
simultaneous with the delivery of the goods. If the trust receipt is signed after the
delivery of the goods, it becomes a civil obligation and it is not estafa. That is the
case of PPL v. CULINARES. Those are the only things that are important in
estafa.
Ian: with your last example sir, pag tumalbog and cheke, BP 22 na yun agad, sir?
Judge: No! not yet! If the check bounced, there are still requirements that you
have to comply with. First, make a demand if you are the holder of the check or
the bank will notify the drawer of the check either by depositing, etc, depending
upon what was the reason given in the dishonor of the check. Now, that demand
is a necessary element. Aside from the demand, you must give the other party
sufficient time. In BP 22, its 5 banking days. In PD 818, it is only 3 days. It is
not even banking days. So in estafa under par 2d of Art 315, the period within
which you may allow a person to make good the value of the check or deposit the
value of the check if it is feasible or to make arrangements so that the check will
be considered as paid is only 3 days. Irrespective of holidays, whatever. That is
the rule. In BP 22, it is 5 banking days. And that you must see to it that the
demand was given to the person who is supposed to answer to the violation of BP
22. unless he has left his residence, your demand must be directed to his last

Criminal Law Review Transcript 2003-2004 (Book II)


Judge Oscar Pimentel

known address and that is already a substantial compliance in regard to up to a


receipt of the demand.
In corporate checks, make sure that the person authorized by the corporation in a
board resolution has the power to fund the check. Because if the person
authorized to sign the check who must be a respondent in the violation of BP 22
cannot fund the check, because of his or her position in the company because of
his or her position in the company like a mere secretary or janitor, that person
cannot be held liable for violation of BP 22. that is the case of PPL v. Rosa
Limlao or Limlaw. Ian: in that case sir, who will be liable? Judge: it is only the
Board of Directors who gave the authority to a janitor or a secretary will be liable
not for BP 22 but for estafa through fraudulent means.
Edcel: Judge(asks a question) Judge: It must be the prosecutor who must prove
that the accused is a second-time offender. It is not for the accused to prove that
he is a first-time offender. Because if the prosecutor can prove that he is a
second-time offender, the penalty is already imprisonment or double the amount
of the fine or both.
Art 316. the first in 316 is about a person pretending to be an owner of a real
property sells or encumbers or mortgages or convey the same to another. This is
different from estafa by pretending to possess property. In estafa by pretending to
possess property under Art 315 par 2a, the property that is supposed to be
possessed by the offender in that Art is a personal property and you rely on his
pretensions that he possess personal property which includes money. This all
involve real property, Art 316. you encumber property that are already
encumbered and dispose of the same, even if the encumbrance is not recorder,
even if the mortgage is not recorded. Likewise in the other paragraph it refers
now to a personal property when the offender actually wrongfully take a property
from the lawful possessor of the property thus prejudicing the possessor. This is
to be differentiated from light coercions. You remember in light coercions when
the debtor who is in possession of a personal property becomes the victim of the
creditor who seizes personal property of the debtor and applies the personal
property of the debtor to the satisfaction of the debtor? That is light coercion.
Here it is different. The person to whom the property belongs must not be a
debtor. He is simply a lawful possessor whether the possession is gratuitous or
whatever as long as he is a lawful possessor and not a debtor and it was wrong
fully seized by another, by the offender, that is estafa under article 316 if there is
a prejudice that was caused to the lawful possessor.
In no. 4, the execution of fictitious contract, and it will cause damage to another
then it will become estafa under 316. those who accept compensations given to
them under the belief that they are entitled to it but they did not work for it, these

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are liable for estafa. This is what is known in the government as RA 1530, who
goes only to their employers to collect their salaries every 15-30 and they did not
perform any work in the belief that they are entitled to it because they were
appointed that is estafa. In the ordinary cases, these are laborers who receive
salaries from their employers in the belief that they are entitled to it but in fact
they did not work for it, that is estafa. If there is no belief, that may amount to
theft, depending upon the circumstances.
Those who are signatories to sureties in a bank involving real properties you
know at present when you post that a real property has a surety in any criminal or
civil case, it must be registered with the register of deeds. And if you sell them or
encumber them, without the court having first having the release of those
properties then you are liable even if the case has already been terminated. There
is a problem here that I can see. Supposing the spouses has became a surety in a
criminal case and one of the spouses died, so surety is personal in nature so
therefore the personal liability of that surety is extinguished. But because it is
joint and several, the only surety remaining may be held liable in the event that
the accused cannot anymore be located and has jumped bail. In the forfeiture of
the bond, with respect to the one who died, you cannot forfeit their share. But
you can forfeit the entire amount coming from the other surety. But then
supposing that is a piece of land, there has to be a settlement of estate, di ba? And
no writ of execution can be issued any estate of a deceased person. You have to
put the same as a claim only. In spec pro do you remember that? No writ of
execution can be enforced in a pending intestate or testate proceedings. Because
the claim may be satisfied during the distribution of the shares after paying all the
obligations. That is simple.
Yung mga fictitious contracts, it is usual with businessmen. They execute
fictitious deeds of sales of their properties in favor of another person so that the
creditor will not be able to run after their properties or the creditors cannot touch
them. But if you ask me, can you attach a property that was sold by a debtor and
the debtor is also actually the defendant in a case? Yes. As long as the sale is so
close to either prior to the filing of the complaint or the sale was done during the
pendency of the obligation. You can have it attached. You will be practicing
maybe a year from now and if you were asked to file a complaint for sum of
money with a writ of preliminary attachment and then you were able to find that
the debtor has already transferred all his properties, if the transfer occurred
during the pendency of the indebtedness, have those properties attached and let
the person who bought it prove that he bought it in good faith and for value. As
you will know, most of the sales are undervalued. If its undervalued, there is
already a prima facie evidence that it was to defraud the creditors.

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Judge Oscar Pimentel

Depending upon the time the sale in order to defraud the creditors must be done
after the demand has been made. That is where there is fraud upon creditors. The
other one that I was telling you is for purposes of attachment also or fictitious
contract. Jo-anne: so sir, if the sale happened during the existence of the contract
but before the demand, estafa? Judge: Pasok sa estafa. If the sale is after the
demand, Art 314.
Swindling a minor. You take advantage of the emotions, inexperience and
feelings of a minor. You ask him to assume an obligation. Well, there might be
an obligation but you ask him to assume or you ask him to release the properties
etc. even if it is true that there are encumbrances in the property but you ask him
to release. Usually, its because of utang na loob to cancel the debt. Naturally,
that is estafa.
Art 318, other deceits. Some other deceits that may not be enumerated in this
article. For example, those that may not fall under PD 1689 or in trust receipts or
any other kind of estafa such as making the person believe that you have the
capacity to turn something into gold.- that is other deceits. Those who for profit
or gain shall interpreted dreams or make forecasts. Those who tell fortunes for
profit and those that take advantage of the credulity of the public in a similar
manner. That is estafa. Except those who are in the weather bureau are exempted.
If Madam Auring is going to ask you to give her money, that is estafa. Even feng
sui, if they will ask for money, that is making forecasts and telling fortunes.
Removal or sale of mortgaged property. This involves personal property which
was mortgaged under the chattel mortgage law. But it should be the nature of the
property that you should look into. Those that are by nature of their character
they are movable, like vehicles, you cannot say that this property can only be
confined in that town and it should not live there. You can even go to Mindanao
using the RORO. But then it is actually prohibited for any mortgagor in any
chattel mortgage to remove the property and transfer it to another town. The
pledging, the selling, the encumbering of the mortgaged property is also
prohibited under this article.
Destructive arson. This has been discussed in RA 7659. The only law on arson
now existing is the one consolidated with RA 7659. no more. The 1613 law on
arson, no more. So just remember these principles in arson: there is no frustrated
arson. There are only 2 stages in arson: attempted and consummated. The
moment a part of the building suffers from scorching, even how small, that is
already consummated arson. Likewise in arson, the moment that a person dies by
reason of the arson, the penalty shall be death. But then if fire is used in the
commission of another crime, example murder, you will note that the law on
arson is related to such. I will show you why. The law says now, irrespective of

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the application of the above enumerated qualifying circumstances, the penalty of


reclusion perpetua to death likewise shall be imposed if the arson is committed or
perpetuated by 2 or more persons or by group. Regardless of whether the purpose
is merely to burn or to destroy the building or the burning merely constitute an
overt act in the commission of any violation of law. So in case of murder,
because that is another violation of law, the penalty is still reclusion perpetua to
death. Not mandatory death. So it would appear to me, if you are going to look at
it in such a way, that even if the offender does not know the existence of the
person in the building he burned, and that person dies, the penalty shall be death.
So it will be better if you put up the defense that indeed you want to kill the
person, that is murder with the use of fire and the penalty shall be reclusion
perpetua to death as you will see in the very provisions of the law. You have a
chance therefore to live by pleading guilty. If you plead guilty, the penalty shall
be reclusion perpetua.
You will note that in destructive arson, there are so many principles that you have
to learn. In destructive arson, whether you only burn once a building or on
several occasions or you burn it once, twice or several times, as long as your
intention is to burn buildings or a group of buildings, then it shall be considered
as destructive arson. If the building burned is devoted to public functions or even
if it is of private ownership but it is devoted to the public in general and it is
burned, it is considered as destructive arson. This will include workshops for
business. It is considered destructive. All those arsons that are committed to
hotels, motels, transient dwellings, public conveyances. Public conveyances
terminals. Its not the bus its not the jeepney, it is the place where you are
supposed to take your ride. It is also destructive arson. Train locomotive, ship,
airship, it is also destructive arson. But not a bus because it is not mentioned
here. Not also a jeepney. If you burn a factory or a warehouse any appurtenances
thereto devoted for the service of public utilities then it is destructive arson. If
you burn a building in order to conceal bankruptcy or to defraud creditors and to
collect from them insurance, then that is destructive arson. The same is true with
arsenals. The penalty here is reclusion perpetua, burning of arsenals or storehouse
or factories in any inhabited place is destructive arson. The other kinds of
destructive arson is the burning of farmhouses etc and you will note that if
TAPE WAS CUT
SIDE B
not included in Art 331 if the property do not exceed 50 pesos. But these are
naturally buildings, edifice, etc
The arson of properties of small value they are the uninhabited huts, storehouse,
barns, sheds, etc. the value of which does not exceed 25 pesos. Can you build a
hut worth 25 pesos. This is already pass.

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Judge Oscar Pimentel

Art 324 is crimes involving destruction. Well if you want to destroy something,
use explosives or discharge of an electric current, sinking or inundation or
stranding of a vessel. Jo-anne: Judge, what if the burning was committed to
conceal the crime? Judge: those are two crimes murder and arson. Because it is
not necessary to commit murder or burn the house in order that one or the other
may be committed. The two are different acts and they are 2 different crimes. Joanne: But Judge, in Par 5, for the purpose of destroying or concealing evidence
Judge: that is evidence only not the crime. Jo-anne: but Judge if the purpose of
burning the whole house is to burn and conceal the body, doesnt it fall under this
paragraph? Judge: No. it is still. If the thing burned is a building or an edifice, it
will still fall under Art 320. You can burn the body without burning the building.
Jo-anne: what if you burn the building to remove the traces? Judge: then that is
still arson and murder. 2 crimes. Jo-anne: but what about par 5, judge? The
concealing of evidence? Judge: actually it is the evidence, not the fact of the
crime that is being concealed. It is the fact of evidence. Say for example the
clothes, the weapon that were used, those were the evidence. The body may be
considered an evidence because the person is already dead. But if it is to conceal
the crime, it is different.
So burning ones own property to commit arson, there is no problem here. The
penalty will be as provided for and stated in this chapter. If you want to burn your
own property, be sure that it is in an uninhabited place because if it is done, then
and your purpose is to defraud or case damage to another, and the prejudice is
actually caused, the penalty is only arresto mayor in its maximum period to
prision correccional in its minimum period shall be imposed.
Art 326-A, this is if death resulted as a consequence of arson committed on any
of the properties under any of the circumstances mentioned during the penalty
shall be death.
Prima facie evidence of arson too much insurance. There are flammable
materials in excess of what is needed in the storage. You found mechanical or
electrical device or containers of flammable materials in the place where it was
burned. Those are prima facie evidence of arson. So you can device ways and
means in order to answer any question regarding arson.
PD 1613? Or 1630? As I stated amending the law on arson is not anymore in
effect.
In Art 326-B, prima facie evidence of arson, these are also actually contained in
RA 7659. There is what we call a planting of evidence here it was adopted from
RA 7659. Aside from planting of evidence it was made for purposes of extortion

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or coercion. Now, the penalty naturally is different from those that are
mentioned. Those prima facie evidence of arson, the evidence there, if you plant
them, that is when it is punishable as planting of evidence or you place them for
the purposes of extortion or coercion then the penalty is only up to prision
correccional.
We go to malicious mischief. This is only the destruction of personal property by
another person and it does not fall under the next preceding chapter. If you
destroy a chair, a door, a television, that is malicious mischief. If you spray paint
on the walls and walls are included because walls are owned by the owner of the
lot. So if those that spray paint are caught, aside from the penalty, they are civilly
liable and they may be asked to pay for it especially the minors, ha! Minors, who
are liable? The parents if they allow their children to roam around beyond the
curfew hours. Absolute liability yon. supposing a question is asked, a 14-year old
boy was caught at 12 mn spray painting the walls, then who shall be held civilly
liable? Primarily are the parents. Because they are negligent It is only when they
can prove that they are not negligent that the property of the minor naturally has
to answer unless of course the minor does not have any property then the
subsidiary liability devolves now to the parents. So the parents have the primary
liability and not the property of the minor because there is a presumption of
liability especially when done doing curfew hours. They should strictly enforce
that.
Especial kinds of malicious mischief if you destroy something to disrupt public
functions, spread the contagion of cattle, to use poisonous or corrosive
substances, these are special kinds of malicious mischief. Other mischiefs these
are the mischiefs not included in the preceding articles.
Damage and obstruction to means of communication do you remember the
spreading of virus in the computers? So it destroys also telephone lines because a
computer operates incases where you have a website through the use of
telephone. This was the law that should have been applied to hackers when the
anti-hacking law has not yet been passed. There is already an anti-hacking law so
it will not fall anymore under this, this is the destruction of telephone lines, etc.
how about those websites? Dito papatak, article 330. because they are not
electrical transmission lines.
Destroying or damaging statutes, public monuments or paintings. When you get
the gulok or bolo of Andres Bonifacio, is it theft or article 331? No its not theft.
Is there a value to the gulok? It falls under 331? Is it a personal property? Its not
because its attached to a real property. That is the reason why the bolo of
Bonifacio is not considered personal property and cannot be the subject of the
crime of theft. It is destruction of statutes or public monuments. Tinanggal mo

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Judge Oscar Pimentel

yung gulok eh di hindi na si Bonifacio, yon, iba nang tao yon! remember what I
said ha! Remember the argument that I gave. It is not a personal property it is
already a real property, it is a monument attached already to the real property and
it cannot be removed.
Those who are exempt from criminal liability we have already discusses article
332. kasama lang naman dito, swindling, theft, malicious mischief, ascendants,
descendants, brothers or sisters living together, thats all. But strangers whoa re
participating in the crime are not exempted ha!
Adultery and concubinage, si Joey but if you have already forgiven the
offending spouse, that would include forgiveness to the other offending party.
Prior to the institution of the criminal action if you have offered your forgiveness
or your pardon, that is the end of everything the civil and criminal, that is the end
of it. So Ms. Alma Moreno is only trying to say something that would make some
people think. But she already said things on television that she forgives them or
pardons them.
(this is the culmination of Kris and Joey episode so Judge stated his opinion on
the 4 charges filed against Joey which is now history because of the public
apology... personal note: I can hear my voice in the background. Ako ang kachismisan ni Judge dito! and take note, ang daming murmurs sa background
bigla ha! Updated lahat at nabuhay ang 4B!)
(Ang tagal ng discussion na to ha!)
There could be no selective prosecution in the case of adultery even in
concubinage for that matter because even if the person does not know that the
other person is married, that is only a matter of defense. The person who is
innocent must still be charged and she must put up her defense only after she is
called to put up her defense. The only time when you can charge a person either
of adultery or concubinage alone is when the other party is dead. Adultery, this is
when a married woman shall have sexual intercourse with a man not her husband
and the person knows her to be married, both of them should be charged of
concubinage. Concubinage, it is all-encompassing eh keeping a mistress in the
conjugal dwelling, having sexual intercourse under scandalous circumstances, or
in any other place kahit sa buwan. It is all encompassing eh kahit saan
Concubine, destierro lang yan. Rape, we have already discussed. Acts of
lasciviousness, if the offended party is less than 18 years old, RA 7610. If the
offended party is 18 and above, it is under the RPC. So you have to chop-chop it.
see to it that you divide it to 2.

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Qualified seduction a girl who is more than 12 but less than 18, a virgin for that
matter, then it was committed by a person a person in authority. There must be a
person in authority but this is with consent. If the one who committed is a person
of authority but there is no consent, it is rape. Here, there is consent. Of course
you have the priest, house servant, domestic, guardian, teacher or any other
person who in any capacity is involved in the care and education of the child or
the minor, then this is qualified seduction. Remember that this is a crime
punishable only by a correccional penalty and not even an afflictive penalty.
Its only when the offender is a brother of the offended party or an ascendant then
whether or not the victim is a virgin or not, the penalty is one degree higher.
Remember that in seduction, there should be carnal knowledge. If there is no
carnal knowledge there can be no seduction. The consideration here is virginity.
The reputation is not taken into consideration.
Simple seduction, never mind the widow that is less than 18 years of age, wala na
yan, remove that. Only the widow who is 18 years of age that is of good
reputation. Of good reputation, ha! In simple seduction there is always deceit and
so with qualified seduction. It is the single that is of good reputation in simple
seduction which is the element.
Acts of lasciviousness with the consent of the offended party this is already
committed over a minor so this is also covered by RA 7610. This are the acts of
lasciviousness with the consent of the offended party. But again, no widow ha,
single lang under 18 years of age, or a sister or a descendant regardless of the
reputation or age. Pag sister or descendant, it is regardless of their reputation.
Reputation public perception of a woman.
Corruption of minor, white slave trade, it is already covered by RA 7610. White
slave trade, reclusion perpetua ang penalty in RA 7610.
Forcible abduction, this is the simple abduction of a woman by a man against her
will and with lewd design. Remember although it is not mentioned here that the
abduction must be done by a man, how could there be lewd designs? There can
be lewd design even if the offender is a woman so there is another school of
thought that a woman can commit forcible abduction. Well maybe they are right
because the law did not specify that the offender must be a man but why is it that
the law distinguishes that the offended party must be a woman? In other words,
they refer to the offender as a man. If they refer to any party it should be any
person. In abduction, there is no sexual intercourse. It is simply the taking of a
woman against her will with lewd design and thats all there is to it. that is
forcible abduction. If there would be intercourse, that would be rape. Thus the
crime committed is abduction with rape. Special complex crime.

Criminal Law Review Transcript 2003-2004 (Book II)


Judge Oscar Pimentel

Consented abduction those who are over 12 but under 18 who agrees to be
taken by somebody else then there is lewd design, that is consented. Article 344
you remove only rape then there is no more problem. Because this is prosecution
of crimes of adultery, concubinage, seduction, abduction, and acts of
lasciviousness of over 18 years of age.
The civil liability in crimes of rape and crimes against chastity of abduction,
seduction, the same pa din yan, indemnify the offended woman, acknowledge the
offspring, and in every case support the offspring. Liability of ascendants,
descendants, guardians etc, well, these are only with regard to accessory
penalties. Disqualification from filling the office of the guardian.
Article 347, simulation and substitution of one child for another and concealment
or abandonment of a legitimate child. Simulation, you made it appear that the
woman is the mother, have it registered, that is simulation of birth. That is
different from substitution of one child. You can go to Fabella Hospital and ask
some of the aids there to substitute your child for another child, but you dont
know what will happen to you in the future
How about concealment or abandonment of legitimate child? Sometimes these
are the unwanted child whom the parents would like to lose their civil status but
they are legitimate. Some, they have a favorite child or just for the heck of it,
they want the child to lose his or her identity and of course the legal status of the
child as a legitimate child may abandon the child or conceal her or him.
Usurpation of civil status, well you pretend to become the child of another or you
pretend that you are the father when in fact you are not. You only see this in
telenovelas. In real life, there are some. Especially in inheritance. When the
owners of the land has died, especially without any issue but they have nephews
and nieces, suddenly here comes a person who will claim that he is the
illegitimate child of the one who died. How can you prove? I know because my
mother told me. Then here comes a woman who will claim that she had an
alleged liaison with the deceased. The only problem is if the man has been
proven to be sterile, patay ka! Or impotent or could not bear any children. That is
why there are people who try to usurp the civil status and that is already
consummated, usurpation the civil status of another.
Bigamy? Even 10 times that a person gets married, bigamy. There is no crime of
polygamy here in the Philippines. But then if a person has been declared
presumptively dead, then the other person may get married again without
incurring criminal liability because that is with approval of the court. Marriage
contracted against provisions of the laws, if the legal impediments are still there

65
MajArvin

and it was disregarded and both were married then the crime was marriage
contracted against provisions of the laws. No consent or was obtain through
violence or intimidation, then the same. The premature marriage is still 301 days
from the death it was not amended by the family Code because the Family Code
did not expressly amend the provisions of the RPC.
Performance of an illegal marriage ceremony without marriage license. But you
can cure it by saying 5 years living together as husband and wife, with witnesses,
and then the solemnizing officer executes an affidavit to that effect, especially of
the persons are more than 27 years of age. Or even 23 or 25. but if the persons
are less than 23 years of age, do not execute an affidavit if you are the
solemnizing officer and do not even solemnize the marriage without a license.
Talo ka don because you are liable. Because the 2 cannot live together as
husband and wife if they are below 18 years of age because they cannot get
married.
Libel. Libel is the imputation of anything wrong, or to blacken the memory of
one whos dead. Just remember this: if the person, the offended party is a private
person, there is always a presumption of malice. There is already a prima facie
evidence of malice. If the offended party is a public officer or employee, there is
no presumption of malice. It is on the part of the public officer or employee to
establish malice. Because malice is the heart and soul of libel. That is the
defense. Another defense in libel is proof of truth.
TAPE WAS CUT.
*** END OF CRIM LAW REVIEW***
Goodluck to us!!!!