Beruflich Dokumente
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Mala in se
Mala prohibita
Criminal
intent
is
immaterial; the only
inquiry is: has the law
been
violated?;
criminal intent not
necessary where the
acts are prohibited for
reasons
of
public
policy, as in illegal
possession of firearms
Mala in se
Mala prohibita
Mitigating
andMitigating
aggravating
aggravating
circumstances
arecircumstances
taken into account ingenerally not
imposing the penalty into account
and
are
taken
SPL NOTES
(a)
(b)
(c)
(d)
SPL NOTES
To
counter
these
allegations,
petitioner presented several documents
showing Tongson's signatures, which were
purportedly the same as those appearing on
the checks. He also showed a copy of an
affidavit of adverse claim wherein Tongson
himself had claimed to be Cawili's business
associate.
In a resolution dated 6 December
1995, City Prosecutor III Eliodoro V. Lara found
probable cause only against Cawili and
dismissed the charges against Tongson.
Petitioner filed a partial appeal before the
Department of Justice (DOJ) even while the
case against Cawili was filed before the proper
court. In a letter-resolution dated 11 July 1997,
after finding that it was possible for Tongson to
co-sign the bounced checks and that he had
deliberately altered his signature in the
pleadings submitted during the preliminary
investigation, Chief State Prosecutor Jovencito
R. Zuo directed the City Prosecutor of
Quezon City to conduct a reinvestigation of the
case against Tongson and to refer the
questioned signatures to the National Bureau
of Investigation (NBI).
Tongson
moved
for
the
reconsideration of the resolution, but his
motion was denied for lack of merit.
On 15 March 1999, Assistant City
Prosecutor Ma. Lelibet S. Sampaga (ACP
Sampaga) dismissed the complaint against
Tongson without referring the matter to the NBI
per the Chief State Prosecutor's resolution. In
her resolution, ACP Sampaga held that the
case had already prescribed pursuant to Act
No. 3326, as amended, which provides that
violations penalized by B.P. Blg. 22 shall
prescribe after four (4) years.
Petitioner appealed to the DOJ. But the DOJ,
through
Undersecretary
Manuel
A.J.
Teehankee, dismissed the same, stating that
the offense had already prescribed pursuant to
Act No. 3326. Petitioner filed a motion for
reconsideration of the DOJ resolution.
On 3 April 2003, the DOJ, this time
through then Undersecretary Ma. Merceditas
N. Gutierrez, ruled in his favor and declared
that the offense had not prescribed and that
the filing of the complaint with the prosecutor's
office interrupted the running of the prescriptive
period citing Ingco v. Sandiganbayan.
However, in a resolution dated 9
August 2004, the DOJ, presumably acting on a
Complied and Transcribed by STEPHANIE NARVAEZ
SPL NOTES
proceedings
for
its
investigation
and
punishment," and the prevailing rule at the time
was that once a complaint is filed with the
justice of the peace for preliminary
investigation, the prescription of the offense is
halted.
Although, Tongson went through the proper
channels, within the prescribed periods.
However, from the time petitioner filed his
complaint-affidavit with the Office of the City
Prosecutor (24 August 1995) up to the time the
DOJ issued the assailed resolution, an
aggregate period of nine (9) years had
elapsed. Clearly, the delay was beyond
petitioner's control. After all, he had already
initiated the active prosecution of the case as
early as 24 August 1995, only to suffer
setbacks because of the DOJ's flip-flopping
resolutions and its misapplication of Act No.
3326.
Aggrieved parties, especially those
who do not sleep on their rights and actively
pursue their causes, should not be allowed to
suffer unnecessarily further simply because of
circumstances beyond their control, like the
accused's delaying tactics or the delay and
inefficiency of the investigating agencies.
The court rules and so hold that the
offense has not yet prescribed. Petitioners
filing of his complaint-affidavit before the Office
of the City Prosecutor on 24 August 1995
signified
the
commencement
of
the
proceedings for the prosecution of the accused
and thus effectively interrupted the prescriptive
period for the offenses they had been charged
under B.P. Blg. 22. Moreover, since there is a
definite finding of probable cause, with the
debunking of the claim of prescription there is
no longer any impediment to the filing of the
information against petitioner.
WHEREFORE,
the
petition
is
GRANTED. The resolutions of the Court of
Appeals dated 29 October 2004 and 21 March
2005 are REVERSED and SET ASIDE. The
resolution of the Department of Justice dated 9
August 2004 is also ANNULLED and SET
ASIDE. The Department of Justice is
ORDERED to REFILE the information against
the petitioner. No costs.
P.D. NO. 1866, as amended by R.A. NO.
8294, otherwise known as AN ACT
AMENDING THE PROVISIONS OF
Complied and Transcribed by STEPHANIE NARVAEZ
1.
2.
3.
4.
5.
SPL NOTES
1)
2)
*
UNLICENSED FIREARM shall include:
(a)
(b)
SPL NOTES
1.
2.
firearm,
explosive
or
ammunition
for
possession by itself is not prohibited by law. In
the case of an explosive, a permit or license to
possess is usually granted to mining
corporations, military personnel and other
legitimate users. As the prosecution failed to
discharge its burden of proving that appellant
was not authorized to possess the grenade
seized from his house, his acquittal for illegal
possession of explosive is inevitable (People
vs. Cortez, 334 SCRA 334).
KINDS OF POSSESSION
The unvarying rule is that ownership
is not an essential element of illegal
possession of firearms and ammunition. What
the law requires is merely possession which
includes not only actual possession, but also
constructive possession or the subjection of
the thing to ones control and management
(Gonzales vs. CA, GR no. 95523, August 18,
1997).
PD 1866, which was passed to curb
criminality affecting public order and safety
punishes, inter alia, both actual and physical
possession and constructive possession of
firearms, ammunition and explosives without
authority or license therefor. Ownership is thus
not an essential element. In the case of
constructive possession, it refers to the
subjection of the articles in question to ones
control and management. Once the evidence
indubitably point to possession without the
requisite authority or license, coupled with
animus possidendi or intent to possess on the
part of the accused, conviction for violation of
the said law must follow.
6
SPL NOTES
1.
2.
3.
Rebellion,
insurrection,
sedition
or
attempted coup detat - use of unlicensed
firearm is absorbed as an element. There is no
effect on the penalty for the rebellion, etc.
4.
SPL NOTES
(1)
(2)
SPL NOTES
1.
Any
person
who
shall
unlawfully
manufacture, deal in, acquire, dispose or
possess:
a. Any
a. Any
b. The
3.
4.
Any
person
who
shall
unlawfully
manufacture, assemble, deal in, acquire,
dispose, or possess hand grenade, rifle
grenade, and other explosives or other
incendiary device capable of producing
destructive effect on contiguous objects for
causing injury or death to any person;
5.
1.
2.
b. Any
2.
SPL NOTES
SPL NOTES
1.
2.
3.
11
SPL NOTES
SPL NOTES
1.
2.
13
SPL NOTES
AGGRAVATING CIRCUMSTANCES
The special aggravating circumstance
of spite under section 4(3) of the decree, that
the offender have been motivated by spite or
hatred towards the owner or occupant of the
property, should not be appreciated where it
appears to be more of impulse, heat of anger
or risen temper rather than real spite or hatred
that impelled the accused to give vent to his
wounded ego.
PD 1613 pronounces as guilty of
arson any person who deliberately burns
another persons property, wherever located.
The circumstance that the property burned is
located in an urban, congested or populated
area qualifies the offense and converts it into
destructive arson punishable under Sec. 2(7)
of the law, by reclusion temporal in its max to
reclusion perpetual. On the other hand, Sec.
4(4), the circumstance that the perpetrator of
the arson is a criminal syndicate serves as a
special aggravating circumstance.
14
SPL NOTES
1.
2.
3.
Which
results
in
defraudation/misappropriation of
a. funds
contribute
stockholders of:
by
the
members
or
i. Rural banks
ii. Cooperatives
iii.
samahang nayons or
iv.
Farmers associations; or
b. Funds
solicited
corporations/associations
general public.
from
by
the
1.
2.
Constitutes
economic
sabotage
threatens the stability of the nation.
that
SPL NOTES
FOUNDATION;
FITS
IN
SECOND
CATEGORY
Similarly, the fact that the entity
involved was not a rural bank, cooperative,
samahang nayon or farmers association does
not take the case out of the coverage of PD
1689. Its thrid whereas clause states that it
also applies to other corporations/associations
operating on funds solicited from the general
public. To construe the law otherwise would
sanction the proliferation of minor-league
schemers who opeate in the countryside. To
allow these crimes to go unabated could spell
disaster for people from the lower income
bracket, the primary target of swindlers (People
vs. Balasa, G.R. No. 106357, September 3,
1998).
PONZI SCHEME - is an investment program
that offers impossibly high returns and pays
these returns to early investors out of the
capital contributed by later investors. Named
after Charles Ponzi who promoted the scheme
in the 1920s, the original scheme involved the
issuance of bonds which offered 50% interest
in 45 days or a 100% profit if held for 90 days.
Basically, Ponzi used the money he received
from later investors to pay extravagant rates of
Complied and Transcribed by STEPHANIE NARVAEZ
16
SPL NOTES
1.
2.
*
17
SPL NOTES
*
*
1.
2.
3.
4.
A.
1.
2.
3.
CRIMINAL
LIABILITY
B.
1.
18
SPL NOTES
2.
3.
* Prosecution
under BP 22 shall be
without prejudice toa ny liability for
any violation in the RPC.
* The
* The
1.
2.
OF
19
SPL NOTES
3.
1.
2.
3.
4.
5.
6.
20
SPL NOTES
2.
3.
A. Violence
1.
2.
3.
4.
C.
Wife;
Former wife; or
Against a woman with whom the person has
or had a sexual or dating relationship; or
With whom he has a common child, or
against her child whether legitimate or
illegitimate,
within or without the family abode, which result
in or is likely to result in physical, sexual,
psychological harm or suffering, or economic
abuse including threats of such act, battery,
assault, coercion, harassment or arbitrary
deprivation of liberty.
*
Rustan argues that the one act of
sending an offensive picture should not be
considered a form of harassment. He claims
that such would unduly ruin him personally and
set a very dangerous precedent. But Section
3(a) of RA 9262 punishes any act or series of
acts that constitute/s violence against women.
This means that a single act of harassment,
which translates into violence, would be
enough. The object of the law is to protect
women and children. Punishing only violence
that is repeatedly committed would license
isolated ones (Rustan Ang vs. CA).
1.
2.
3.
4.
5.
6.
7.
8.
Stalking;
Damage to property;
Public ridicule or humiliation;
Repeated verbal abuse;
Mental infidelity;
Causing or allowing the victim to witness the
physical, sexual or psychological abuse of a
member of the family to which the victim
belongs; or
To witness pornography in any form;
To witness abusive injury to pets; or
D.
1.
2.
Harassment;
9.
10.
11.
B. Sexual
1.
Intimidation;
3.
4.
SPL NOTES
(d)
E. Physical
(e)
F. Dating
(1)
(2)
(3)
(4)
G.
H.
I.
(g)
(a)
(b)
(c)
(h)
22
SPL NOTES
(1)
(2)
(3)
(4)
(5)
(i)Causing
SPL NOTES
if respondent must
remove
personal
effects
from
the
residence, the court
shall direct a law
enforcement agent to
accompany
the
respondent
has
gathered his things
and escort respondent
from the residence;
(d) Directing the respondent to stay away from
petitioner and designated family or household
member at a distance specified by the court,
and to stay away from the residence, school,
place of employment, or any specified place
frequented by the petitioner and any
designated family or household member;
(e) Directing lawful possession and use by
petitioner of an automobile and other essential
personal effects, regardless of ownership, and
directing the appropriate law enforcement
officer to accompany the petitioner to the
residence of the parties to ensure that the
petitioner is safely restored to the possession
of the automobile and other essential personal
effects, or to supervise the petitioner's or
respondent's removal of personal belongings;
(f) Granting a temporary or permanent custody
of a child/children to the petitioner;
(g) Directing the respondent to provide support
to the woman and/or her child if entitled to legal
support.
Notwithstanding other
laws to the contrary,
the court shall order
an
appropriate
percentage of the
income or salary of the
respondent
to
be
withheld regularly by
the
respondent's
employer for the same
to be automatically
24
SPL NOTES
(c)
Under Section 11 (How to file PO):
If the applicants is not the victim, the
application must be accompanied by an
affidavit of the applicant attesting to:
(a)
(b)
the circumstances of
consent given by the victim for the
filling of the application.
(d)
Those
arising
at
the
workplace where the contending
parties are employed or at the
institution where such parties are
enrolled for study, shall be brought in
the barangay where such workplace
or institution is located.
Objections to venue shall be raised in the
mediation proceedings before the punong
barangay; otherwise, the same shall be
deemed waived. Any legal question which may
confront the punong barangay in resolving
objections to venue herein referred to may be
submitted to the Secretary of Justice, or his
duly designated representative, whose ruling
thereon shall be binding.
25
SPL NOTES
- Respondents
non-appearance
despite proper notice, or his lack of a
lawyer, or the non-availability of his
lawyer shall NOT be a ground for
rescheduling or postponing the
hearing on the merits of the
issuance of a PPO.
- If despite due notice respondent fails
to appear - court shall allow ex parte
presentation of evidence by the
applicant and render judgment on
the basis of the evidence presented.
The court shall allow the introduction
of any history of abusive conduct of
a respondent even if the same was
not directed against the applicant or
the person for whom the applicant is
made.
- If depsite due notice respondent
appears without counsel - court shall
appoint a lawyer for the respondent
and immediately proceed with the
hearing.
GENERAL RULE: The court shall, to the extent
possible, conduct the hearing on the merits of
the issuance of a PPO in one (1) day.
EXCEPTION: Where the court is unable to
conduct the hearing within one (1) day and the
TPO issued is due to expire, the court shall
continuously extend or renew the TPO for a
period of thirty (30) days at each particular time
until final judgment is issued. The extended or
renewed TPO may be modified by the court as
may be necessary or applicable to address the
needs of the applicant.
- The court may grant any, some or all of the
reliefs specified in Section 8 hereof in a PPO.
- A PPO shall be effective until revoked by a
court upon application of the person in whose
favor the order was issued. The court shall
ensure immediate personal service of the PPO
on respondent.
- The court shall not deny the issuance of
protection order on the basis of the lapse of
time between the act of violence and the filing
of the application.
- Regardless of the conviction or acquittal of
the respondent, the Court must determine
whether or not the PPO shall become final.
- Even in a dismissal, a PPO shall be granted
as long as there is no clear showing that the
26
SPL NOTES
pendency of an application
for BPO shall not preclude a
petitioner from applying for, or
the court from, granting a
TPO or PPO.
(a)
(b)
3.
Custody of children.
The woman victim of violence shall be entitled
to the custody and support of her
child/children. Children below seven (7) years
old older but with mental or physical disabilities
shall automatically be given to the mother, with
right to support, unless the court finds
compelling reasons to order otherwise.
A victim who is suffering from
battered woman syndrome shall not be
disqualified from having custody of her
children. In no case shall custody of minor
children be given to the perpetrator of a woman
who is suffering from Battered woman
syndrome.(section 28)
Persons
Intervening
Exempt
from
Liability.
In every case of violence against women and
their children as herein defined, any person,
private individual or police authority or
barangay official who, acting in accordance
with law, responds or intervenes without using
violence or restraint greater than necessary to
ensure the safety of the victim, shall not be
Complied and Transcribed by STEPHANIE NARVAEZ
an indigent;
or there is an immediate
necessity due to imminent danger or
threat of danger to act on an
application for a protection order,
the court shall accept the application without
payment of the filing fee and other fees and of
transcript of stenographic notes.(section 38)
* An
5.
SPL NOTES
28
SPL NOTES
29