Bar Examination Questionnaire for Criminal Law Set A 1.

Isabel, a housemaid, broke into a pawnshop intent on stealing items of jewelry in it. She found, however, that the jewelry were in a locked chest. Unable to open it, she took the chest out of the shop. What crime did she commit? A. Robbery in an uninhabited place or in a private building B. Theft C. Robbery in an inhabited house or public building. D. Qualified theft 2. The alternative circumstance of relationship shall NOT be considered between A. mother-in-law and daughter-in-law. B. adopted son and legitimate natural daughter. C. aunt and nephew. D. stepfather and stepson. 3. Arthur, Ben, and Cesar quarreled with Glen while they were at the latters house. Enraged, Arthur repeatedly stabbed Glen while Ben and Cesar pinned his arms. What aggravating circumstance if any attended the killing of Glen? A. Evident premeditation. B. None. C. Abuse of superior strength. D. Treachery. 4. The presence of a mitigating circumstance in a crime A. increases the penalty to its maximum period. B. changes the gravity of the offense. C. affects the imposable penalty, depending on other modifying circumstances. D. automatically reduces the penalty. 5. He is an accomplice who A. agreed to serve as a lookout after his companions decided to murder the victim. B. watched quietly as the murderer stabbed his victim. C. helped the murderer find the victim who was hiding to avoid detection. D. provided no help, when he can, to save the victim from dying. 6. Principles of public international law exempt certain individuals from the Generality characteristic of criminal law. Who among the following are NOT exempt from the Generality rule? A. Ministers Resident B. Commercial Attache of a foreign country C. Ambassador D. Chiefs of Mission 7. As a modifying circumstance, insanity A. is in the nature of confession and avoidance. B. may be presumed from the offenders previous behaviour C. may be mitigating if its presence becomes apparent subsequent to the commission of the crime.

D. exempts the offender from criminal liability whatever the circumstances. 8. Zeno and Primo asked Bert to give them a sketch of the location of Andys house since they wanted to kill him. Bert agreed and drew them the sketch. Zeno and Primo drove to the place and killed Andy. What crime did Bert commit? A. Accomplice to murder, since his cooperation was minimal. B. Accessory to murder, since his map facilitated the escape of the two. C. None, since he took no step to take part in executing the crime. D. Principal to murder, since he acted in conspiracy with Zeno and Primo. 9. A police officer surreptitiously placed a marijuana stick in a students pocket and then arrested him for possession of marijuana cigarette. What crime can the police officer be charged with? A. None, as it is a case of entrapment B. Unlawful arrest C. Incriminating an innocent person D. Complex crime of incriminating an innocent person with unlawful arrest 10. The police officer in civilian clothes asked X where he can buy shabu. X responded by asking the officer how much of the drug he needed. When he told him, X left, returned after a few minutes with the shabu, gave it to the officer, and took his money. X is A. liable for selling since the police operation was a valid entrapment. B. not liable for selling since the police operation was an invalid entrapment. C. liable for selling since the police operation was a valid form of instigation. D. not liable since the police operation was an invalid instigation. 11. Plaintiff X said in his civil complaint for damages that defendant Y, employing fraud, convinced him to buy a defective vehicle. Y filed a criminal action for libel against X for maliciously imputing fraud on him. Will the action prosper if it turns out that the civil complaint for damages was baseless? A. No, since pleadings filed in court are absolutely privileged. B. No, since malice is not evident. C. Yes, given the fact that the imputation of fraud was baseless. D. Yes, parties must state the truth in their pleadings. 12. The maxim "Nullum crimen nula poena sine lege" means that A. the act is criminal at the time of its commission and recognized as such at the time of its commission but the penalty therefor is prescribed in a subsequently enacted law. B. the act is criminal and punished under and pursuant to common law. C. there is a crime for as long as the act is inherently evil. D. crime is a product of the law. 13. X, a tabloid columnist, wrote an article describing Y, a public official, as stupid, corrupt, and having amassed ill-gotten wealth. X relied on a source from Y's own office who fed him the information. Did X commit libel? A. Yes, since the article was libelous and inconsistent with good faith andreasonable care. B. No, since X but made a fair commentary on a matter of public interest. C. No, since Xs article constitutes privileged communication. D. No, since he wrote his article under the freedom enjoyed by the press.

14. The husband has for a long time physically and mentally tortured his wife. After one episode of beating, the wife took the husbands gun and shot him dead. Under the circumstances, her act constitutes A. mitigating vindication of grave offense. B. battered woman syndrome, a complete self-defense. C. incomplete self-defense. D. mitigating passion and obfuscation. 15. There is violation of Art. 316, RPC (Other forms of Swindling) where A. the owner of property sells a property and subsequently rescinds the sale. B. the real property subject of the sale does not exist. C. the property was mortgaged for a usurious contract of loan. D. the owner disposes of his encumbered real property as if it is free from encumbrances. 16. X, a police officer, placed a hood on the head of W, a suspected drug pusher, and watched as Y and Z, police trainees, beat up and tortured W to get his confession. X is liable as A. as accomplice in violation of the Anti-Torture Act. B. a principal in violation of the Anti-Torture Act. C. a principal in violation of the Anti-Hazing Law. D. an accomplice in violation of the Anti-Hazing Law. 17. Dr. Chow, a government doctor, failed to submit his Daily Time Record (DTR) from January to March 2000 and did not get approval of his sick leave application for April because of evidence that he was actually moonlighting elsewhere. Thus, the medical Director caused the withholding of his salary for the periods in question until he submitted his DTRs in May 2000. Can Dr. Chow prosecute the medical director for causing him undue injury in violation of the Anti-Graft and Corrupt Practices Act? A. Yes, since the medical Director acted with evident bad faith. B. No, since the medical director has full discretion in releasing the salary of government doctors. C. Yes, since his salary was withheld without prior hearing. D. No, since Dr. Chow brought it upon himself, having failed to submit therequired DTRs. 18. When a penal law is absolutely repealed such that the offense is decriminalized, a pending case charging the accused of the repealed crime is to be A. prosecuted still since the charge was valid when filed. B. dismissed without any precondition. C. dismissed provided the accused is not a habitual delinquent. D. prosecuted still since the offended party has a vested interest in the repealed law. 19. In malversation of public funds, the offenders return of the amount malversed has the following effect A. It is exculpatory. B. It is inculpatory, an admission of the commission of the crime. C. The imposable penalty will depend on what was not returned. D. It is mitigating. 20. The exchanges of highly offensive words between two quarrelling women in the presence of a crowd of people constitute A. one count of grave slander against the woman who uttered the more insulting expressions.

B. grave slander against the woman who started it and light slander against the other woman. C. two separate counts of light slander, one for each woman. D. two separate counts of grave slander, one against each of them. 21. Any person who, having found lost property, shall fail to deliver the same to the local authorities or to its owner is liable for A. occupation or usurpation of personal property. B. civil damages only. C. theft. D. other deceits. 22. A crime resulting from negligence, reckless imprudence, lack of foresight or lack of skill is called A. dolo. B. culpa. C. tortious crimes. D. quasi delict. 23. To mitigate his liability for inflicting physical injury to another, an accused with a physical defect must prove that such defect restricted his freedom of action and understanding. This proof is not required where the physical defect consists of A. a severed right hand. B. complete blindness. C. being deaf mute and dumb. D. a severed leg. 24. An extenuating circumstance, which has the same effect as a mitigatingcircumstance, is exemplified by A. the mother killing her 2-day old child to conceal her dishonor. B. the accused committing theft out of extreme poverty. C. the accused raping his victim in extreme state of passion. D. the accused surrendering the weapon he used in his crime to the authorities. 25. Three men gave Arnold fist blows and kicks causing him to fall. As they surrounded and continued hitting him, he grabbed a knife he had in his pocket and stabbed one of the men straight to the heart. What crime did Arnold commit? A. Homicide with incomplete self-defense, since he could have run from his aggressors. B. Homicide, since he knew that stabbing a person in the heart is fatal. C. Homicide mitigated by incomplete self-defense, since stabbing a person to the heart is excessive. D. No crime, since he needed to repel the aggression, employing reasonablemeans for doing so. 26. A, B, and C agreed to rob a house of its cash. A and B entered the house while C remained outside as lookout. After getting the cash, A and B decided to set the house on fire to destroy any evidence of their presence. What crime or crimes did C commit? A. Robbery and arson since arson took place as an incident of the robbery. B. Robbery and arson since C took no step to stop the arson. C. Just for robbery since he only agreed to it and served as lookout. D. Accomplice to robbery since his role in the crime was minimal.

27. X, a court employee, wrote the presiding judge a letter, imputing to Y, also a court employee, the act of receiving an expensive gift from one of the parties in a pending case. Because of this, Y accused X of libel. Does Y need to prove the element of malice in the case? A. No, since malice is self-evident in the letter. B. Yes, malice is not presumed since X wrote the letter to the presiding judgewho has a duty to act on what it states. C. No, since malice is presumed with respect to defamatory imputations. D. Yes, since malice is not presumed in libel. 28. X killed B, mistakenly believing that she was his wife, upon surprising her having sex with another man in a motel room. What is the criminal liability of X? A. None since he killed her under exceptional circumstances. B. None since he acted under a mistake of fact. C. Parricide. D. Homicide. 29. X draws a check upon request of Y, the payee, who told X that he would merely show the check to his creditor to gain more time to pay his account. The check bounced upon presentation by the creditor. Under the circumstances, whocan be prosecuted for estafa based on the dishonored check? A. Y as the one who negotiated the check contrary to the agreement B. X as the drawer of the check C. Both X and Y based on conspiracy D. None 30. Ana visited her daughter Belen who worked as Caloys housemaid. Caloy was not at home but Debbie, a casual visitor in the house, verbally maligned Belen in Anas presence. Irked, Ana assaulted Debbie. Under the circumstances, dwelling is NOT regarded as aggravating because A. Dwelling did nothing to provoke Ana into assaulting Debbie. B. Caloy, the owner of the house, was not present. C. Debbie is not a dweller of the house. D. Belen, whom Debbie maligned, also dwells in the house. 31. It is a matter of judicial knowledge that certain individuals will kill others or commit serious offenses for no reason at all. For this reason, A. lack of motive can result in conviction where the crime and the accused's partin it are shown. B. motive is material only where there is no evidence of criminal intent. C. lack of motive precludes conviction. D. the motive of an offender is absolutely immaterial. 32. Minority is a privileged mitigating circumstance which operates to reduce the penalty by a degree where the child is A. 15 years and below acting without discernment. B. above 15 years but below 18 acting without discernment. C. below 18 years acting with discernment. D. 18 years old at the time of the commission of the crime acting with discernment. 33. The crime of robbery in an inhabited house or public building is mitigated when the offenders A. entered the house using false keys.

B. although armed did not fire their weapons. C. entered through a window without breaking it. D. although armed took property valued at only P200. 34. A private person who assists the escape of a person who committed robbery shall be liable A. as a principal to the crime of robbery. B. as an accessory to the crime of robbery. C. as a principal to the crime of obstruction of justice. D. as an accessory to the crime of obstruction of justice. 35. Which among the following circumstances do NOT qualify the crime of kidnapping? A. The victim is killed as a consequence of the detention. B. The offender is a public officer. C. Ransom is demanded. D. The victim is raped. 36. Removing, concealing or destroying documents to defraud another constitutes the crime of estafa if committed by A. any public officer. B. a public officer officially entrusted with the document. C. private individuals who executed the same. D. private individuals. 37. Dagami concealed Bugnas body and the fact that he killed him by setting Bugnas house on fire. What crime or crimes did Dagami commit? A. Murder, the arson being absorbed already B. Separate crimes of murder and arson C. Arson, the homicide being absorbed already D. Arson with murder as a compound crime 38. Sam wrote a letter to his friends stating that Judge Odon loves obscene magazines and keeps these in his desk. Charged with libel, can Sam present proof that Judge Odon indeed loves obscene magazines and keeps these in his desk? A. No, since the imputation is not related to the duties of a judge. B. No, since Sam does not impute a crime to Judge Odon. C. No, since Sam imputes the commission of a crime to Judge Odon. D. Yes, since truth can be a valid defense in libel. 39. X, without intent to kill, aimed his gun at Z and fired it, hitting the latter who died as a consequence. Under the circumstances A. X cannot plead praetor intentionem since the intent to kill is presumed fromthe killing of the victim. B. X may plead praetor intentionem since he intended only to scare, not kill Z. C. X may plead aberratio ictus as he had no intention to hit Z. D. X may plead commission of only Discharge of Firearm as he had no intent to kill Z when he fired his gun. 40. Which of the following statements constitute Inciting to Sedition? A. Utterance of statements irritating or obnoxious to the ears of the police officers.

B. Speeches extolling communism and urging the people to hold a national strikeand paralyze commerce and trade. C. Leaders of jeepney and bus associations shouting Bukas tuloy ang welga hanggang sa magkagulo na! D. Speeches calling for resignation of high government officials. 41. Culpa can either be a crime by itself or a mode of committing a crime. Culpa is a crime by itself in A. reckless imprudence resulting in murder. B. medical malpractice. C. serious physical Injuries thru reckless imprudence. D. complex crime of reckless imprudence resulting in serious physical injuries. 42. The mitigating circumstance of immediate vindication of a grave offense cannot be appreciated in a case where A. Following the killing of his adopted brother, P went to the place where ithappened and killed S whom he found there. B. X kills Y who attempted to rape Xs wife. C. P severely maltreats S, a septuagenarian, prompting the latter to kill him. D. M killed R who slandered his wife. 43. To save himself from crashing into an unlighted truck abandoned on the road, Jose swerved his car to the right towards the graveled shoulder, killing two bystanders. Is he entitled to the justifying circumstance of state of necessity? A. No, because the bystanders had nothing to do with the abandoned truck on the road. B. No, because the injury done is greater than the evil to be avoided. C. Yes, since the instinct of self-preservation takes priority in an emergency. D. Yes, since the bystanders should have kept off the shoulder of the road. 44. The accused was shocked to discover his wife and their dr iver sleeping in the masters bedroom. Outraged, the accused got his gun and killed both. Can the accused claim that he killed the two under exceptional circumstances? A. No, since the accused had time to reflect when he got his gun. B. No, since the accused did not catch them while having sexual intercourse. C. Yes, since the wife and their driver desecrated the marital bed. D. Yes, since the scene shows that they had an intimate relationship. 45. The three accused forcibly took their victim from his car but the latter succeeded in freeing himself from their grip. What crime did the three accused commit? A. forcible abduction. B. frustrated kidnapping. C. attempted kidnapping. D. grave coercion. 46. Deeply enraged by his wifes infidelity, the husband shot and killed her lover. The husband subsequently surrendered to the police. How will the court appreciate the mitigating circumstances of (i) passion or obfuscation, (ii) vindication of a grave offense, and (iii) voluntary surrender that the husband invoked and proved?

A. It will appreciate passion or obfuscation and voluntary surrender as one mitigating circumstance and vindication of a grave offense as another. B. It will appreciate all three mitigating circumstances separately. C. It will appreciate the three mitigating circumstances only as one. D. It will appreciate passion or obfuscation and vindication of a grave offense asjust one mitigating circumstance and voluntary surrender as another. 47. The aggravating circumstance of uninhabited place is aggravating in murder committed A. on a banca far out at sea. B. in a house located in cul de sac. C. in a dark alley in Tondo. D. in a partly occupied condominium building. 48. The penalty of perpetual or temporary special disqualification for the exercise of the right of suffrage does NOT deprive the offender of the right A. to be elected to a public office. B. to vote in any popular election for a public office. C. to vote in a plebiscite. D. to hold any public office. 49. Without meaning anything, Z happened to stare into the eye of one of four men hanging out by a store which he passed. Taking offense, the four mauled and robbed him of his wages. Z went home, took a knife, and stabbed one of his attackers to death. Charged with murder, Z may raise the mitigating circumstance of A. praeter intentionem. B. incomplete self-defense preceded by undue provocation. C. passion or obfuscation. D. complete self-defense. 50. A public officer who immediately returns the bribe money handed over to him commits A. no crime. B. attempted bribery. C. consummated bribery. D. frustrated bribery. 51. Direct bribery is a crime involving moral turpitude. From which of the following elements of direct bribery can moral turpitude be inferred? A. The offender receives a gift by himself or through another. B. The offender is a public officer. C. The offender takes a gift with a view to committing a crime in exchange. D. The act which the offender agrees to perform or which he executes is connected with his official duties. 52. Insuperable cause is an exempting circumstance which may be applied to A. robbery. B. misprision of treason. C. homicide. D. rebellion.

53. Which of the following crimes is an exception to the Territoriality Rule in Criminal law? A. Violation of the Trademark Law committed by an alien in the Philippines. B. Forgery of US bank notes committed in the Philippines. C. Crime committed by a Filipino in the disputed Spratly's Island. D. Plunder committed at his place of assignment abroad by a Philippine publicofficer. 54. X, Y and Z agreed among themselves to attack and kill A, a police officer, but they left their homemade guns in their vehicle before approaching him. What crime have they committed? A. Conspiracy to commit indirect assault. B. Attempted direct assault. C. Conspiracy to commit direct assault. D. Illegal possession of firearms. 55. On hearing a hospital ward patient on the next bed, shrieking in pain and begging to die, Mona shut off the oxygen that was sustaining the patient, resulting in his death. What crime if any did Mona commit? A. Homicide. B. Murder if she deliberated on her action. C. Giving Assistance to Suicide. D. Euthanasia. 56. When committed outside the Philippine territory, our courts DO NOT have jurisdiction over the crime of A. treason. B. piracy. C. espionage. D. rebellion. 57. Motive is generally IMMATERIAL in determining criminal liability EXCEPT when A. several offenders committed the crime but the court wants to ascertain which of them acted as leader. B. the evidence of the crime consists of both direct and circumstantial evidence. C. ascertaining the degree of penalty that may be imposed on the offender. D. the evidence of guilt of the accused is circumstantial. 58. Which of the following circumstances of dishonor of a check can be a basis for prosecution under the bouncing checks law? A. The check was returned unpaid with stamp stop payment, although the drawers deposit was sufficient. B. The check, drawn and issued in the Philippines, was dishonored by thedrawee bank in a foreign country. C. The check was presented to the bank for payment 6 months after the date of issue. D. The drawer of the dishonored check paid its value within 5 days from notice of dishonor. 59. X and his step-father have a long-standing enmity. One day, irked by an argument with his stepfather, X smashed the windshield of his step-fathers brand new Audi sports car. X is liable for A. malicious mischief.

B. malicious mischief with the alternative mitigating circumstance of relationship. C. malicious mischief with the alternative aggravating circumstance of relationship. D. RIGHT ANSWER the civil damage he caused. 60. The classification of felonies into grave, less grave, and light is important in ascertaining A. if certain crimes committed on the same occasion can be complexed. B. the correct penalty for crimes committed through reckless imprudence. C. whether the offender is liable as an accomplice. D. what stage of the felony has been reached. 61. A child in conflict with the law shall enjoy all the rights of a child until A. he is found to have acted with discernment. B. his minority is set off by some aggravating circumstance. C. he is proved to be 18 years or older. D. he forfeits such rights by gross misconduct and immorality. 62. Mr. P owns a boarding house where he knowingly allowed children to be videotaped while simulating explicit sexual activities. What is Mr. P's criminal liability, if any? A. Corruption of minors under the Penal Code B. Violation of the Child Pornography Act C. Violation of the Child Abuse Law D. None 63. W allowed a man to have sex with her thinking that he was her husband. After realizing that the man was not her husband, W stabbed him to death. Under the circumstances, the mitigating circumstance in attendance constitutes A. defense of honor. B. immediate vindication of a grave offense. C. passion or obfuscation. D. self-defense. 64. The prescriptive period for bigamy is 15 years counted from the date of the A. discovery of the second marriage by the offended spouse. B. registration of the second marriage in the Local Civil Registry. C. celebration or solemnization of the second marriage. D. discovery of the second marriage by the authorities. 65. After properly waiving his Miranda rights, the offender led the police to where he buried the gun he used in shooting the victim. How does this affect his liability? A. This serves as an analogous mitigating circumstance of voluntary surrender. B. It has no effect at all since the law provides none. C. He is considered to have confessed to murder. D. This serves as aggravating circumstance of concealment of weapon. 66. A qualifying aggravating circumstance A. changes the description and the nature of the offense. B. increases the penalty to its next degree but absorbs all the other aggravating circumstances. C. raises the penalty by two periods higher.

D. is one which applies only in conjunction with another aggravating circumstance. 67. X inflicted serious injuries on Y. Because of delay in providing medical treatment to Y, he died. Is X criminally liable for the death of Y? A. Yes because the delay did not break the causal connection between X'sfelonious act and the injuries sustained by Y. B. Yes because any intervening cause between the infliction of injury and death is immaterial. C. No because the infliction of injury was not the immediate cause of the death. D. No because the delay in the administration of the medical treatment was an intervening cause. 68. In an attempted felony, the offenders preparatory act A. itself constitutes an offense. B. must seem connected to the intended crime. C. must not be connected to the intended crime. D. requires another act to result in a felony. 69. X inflicted violent kicks on vital parts of E's body. E nevertheless was able to flee for fear of his life. Refusing to undergo treatment for his injuries, E died 3 days later. Is X liable for Es death? A. No, since kicks on the body cannot cause death. B. No, since it took too long for death to occur. C. Yes, since E cannot be compelled to undergo medical treatment. D. Yes, since it was a natural result of the injuries X inflicted on E. 70. 003-1137-0001 A criminal action for rape is extinguished when the offender is forgiven by A. RIGHT ANSWER the offenders wife who herself is the rape victim. B. his wife for having raped another woman. C. the rape victims husband. D. the rape victim herself. 71. A battered woman claiming self-defense under the Anti-Violence against Women and Children must prove that the final acute battering episode was preceded by A. 3 battering episodes. B. 4 battering episodes. C. 5 battering episodes. D. 2 battering episodes. 72. A special complex crime is a composite crime A. made up of 2 or more crimes defined in the Penal Code. B. with its own definition and special penalty provided by the Penal Code. C. with its own definition and special penalty provided by a special penal law. D. made up of 2 or more crimes defined in the Penal Code and special penal laws. 73. What court has jurisdiction when an Indonesian crew murders the Filipino captain on board a vessel of Russian registry while the vessel is anchored outside the breakwaters of the Manila bay? A. The Indonesian court. B. The Russian court. C. The Philippine court. D. Any court that first asserts jurisdiction over the case.

74. X, intending to kill Y, a store owner, fired at Y from the street, but the shot killed not only Y but also Z who was in the store. As a case of aberratio ictus, it is punishable as a A. complex crime proper. B. special complex crime. C. continuing crime. D. compound crime. 75. A proposal to commit a felony is punishable only when the law specifically provides a penalty for it as in the case of proposal to commit A. rebellion. B. sedition. C. espionage. D. highway robbery

Essay II a) What is a privileged mitigating circumstance? (5%)' b) Distinguish a privileged mitigating circumstance from an ordinary mitigating circumstance as to reduction of penalty and offsetting against aggravating circumstance/s. (5%) v a) Who is an accomplice? (5%) b) Distinguish an accomplice from a conspirator as to their knowledge of the criminal design of the principal, their pa11icipation, the penalty to be imposed in relation to the penalty for the principal, and the requisites/elements to be established by the prosecution in order to hold them criminally responsible for their respective roles in the commission of the crime. (5/o) VI a) What is the fundamental principle in applying and interpreting criminal laws, including the Indeterminate Sentence Law? (5%) b) How is the Indeterminate Sentence Law applied in imposing a sentence? (5/o) VIII a) Who is a habitual delinquent? (5%) b) Distinguish habitual delinquency from recidivism as to the crimes committed, the period of time the crimes are committed, the number of crimes committed and their effects in relation to the penalty to be imposed on a convict. (5%) IX a) Define conspiracy. (5%) b) Distinguish by way of illustration conspiracy as a felony from conspiracy as a manner of incurring liability in relation to the crimes of rebellion and murder. (5%)

MITIGATING CIRCUMSTANCE I. MINORITY (Art. 13 [2]) You know that we have the Privilege and the Ordinary. The Privilege mitigating circumstances are only two. With respect to minority and with respect to incomplete self-defense, defense of relatives and defense of strangers. They should be lumped only into 2. But then in minority, it should still be divided into 2 with respect to the degree for which it may be lowered. If a minor is over 9 but under 15 and he acted with discernment, the penalty that should be imposed should be less than 2 degrees or 2 degrees lower from that which the law imposes. If he is under 18 but over 15 at the time of the commission of the crime, he is entitled to a penalty which is one degree lower from that which is provided by law. Except when the crime committed is an offense and the penalty that was imposed is a specific penalty for special laws only. But if the penalty that was imposed even if it is a special law is a penalty under the RPC still the accused is entitled to a penalty lower by 1 degree. So, minority. II. INCOMPLETE JUSTIFYING OR EXEMPTING (art. 13 [1]) Incomplete self-defense, the penalty should be lowered by one or two degrees depending upon the discretion of the court; and even defense of relatives and defense of relatives. However, it is actually an essential element that unlawful aggression in all the 3 instances should be present. If unlawful aggression is absent, an ordinary mitigating circumstance may only be present such as when there is sufficient provocation on the part of the offended party, that would be only an ordinary mitigating circumstance and it will not be a privileged one. How about the other justifying or exempting circumstances? Well, they may be the source of ordinary mitigating circumstance if majority of the requisites are present. Except incomplete self-defense, defense of relatives and defense of strangers. Minority except for special laws is always a privileged mitigating circumstance. III. LACK OF INTENTION TO COMMIT SO GRAVE A WRONG (Art. 13 [3]) Lack of intention to commit so grave a wrong. That is no problem. Is there any problem? IV. PLEA OF GUILTY / VOLUNTARY SURRENDER(Art. 13 [7]) The problem there is plea of guilty. Because under the rules even under the Rules of Criminal Procedure, the plea of guilt must be given or interposed before the presentation of evidence for the prosecution. But bec of the New Rules of CrimPro, we now have a problem. It is a fact that pre-trial in criminal cases is mandatory. But during the pre-trial, there can be a pre-trial agreement. You are familiar with a pretrial agreement? It is a part of pre-trial which usually takes place after the marking of the exhibits for the prosecution and the defense. It is when the parties agreed to enter into stipulations and admissions esp., say for example, the first thing that a lawyer would usually do esp. if he is for the prosecution if there are documentary evidence is to ask the other party whether the other party will stipulate as to the due execution, existence and authenticity of the contents of the documents marked as exhibits. And if he does, it should be incorporated in the pre-trial agreement. Now, there may be facts that are not in writing but then it could be the subject of stipulations, etc. Now, after all these stipulations or admissions have already been the subject of agreement with the parties, then the court should order the issuance of the pre-trial agreement which pre-trial agreement must be signed by the parties (private complainant and accused) duly assisted by their respective counsels and approved by the court. It should form part, however, of the pre-trial conference bec the pre-trial conference would still go to the aspect of determining the issues etc., the number of witnesses, the purposes for which exhibits will be presented etc. the number of persons who would testify, their names, the nature of their testimony, etc. All these must be taken up during the pre-trial. In other words, in pre-trial of cases, the parties have to lay their cards on the table. But, well, in my long year in the bench, I have developed also a sort of my own system of conducting a pre-trial. We cannot avoid sometimes that there are evidence which at the time of the pre-trial are not available. We cannot avoid also that during the trial a witness will surface

and change his mind. And he may be a credible witness. And he may be a witness who actually is present at the time when the crime was committed. So, what will you do? What you are to do is reserve your right to present exhibits that are not available during the pre-trial. But I have developed a rule that if you reserved your exhibits at least 3 days prior to their presentation you must furnish the opposing counsel a clear copy thereof. If it is a photograph, a clear copy of the photograph. If it is a document, a clear copy of the document. So, that the other party will not be surprised and he can verify whether such document really exists or if it came from a public office, he can verify it there; if it came from a private office, he can verify it from them. In the reservation of witnesses, it is different, the court must know the name of the witness and the nature of the testimony that he is about to give. It shall be contained in a manifestation to be filed with the court at least 7 days prior to the presentation of that witness, copy furnish the opposing counsel, the name, not necessarily the address and the nature of the testimony that that witness will give at the course of the trial. Otherwise, I will not allow that witness to testify, neither would he be allowed to interfere during the proceedings. That is to prevent fake witnesses from testifying, bias witnesses, a witness who suddenly was plucked out of thin air. Meron nyan. I have heard of all those things happening. The problem there is if those evidence are already admitted, is a plea of the accused after the pre-trial but before any witness is presented by the prosecution to be considered as a mitigating circumstance? And all of you also know that a case may be submitted for decision after the pre-trial even in criminal cases supposing that the issue is a legal issue, all facts are admitted, all the events that transpired leading to the alleged commission of the crime are admitted. But what would be in issue is a legal issue. But supposing that accused said, I will plead guilty na lang. I know that what I did was wrong. But both parties have already agreed that there will be no more presentation of evidence by the prosecution and that the court should decide the case based on the admissions, stipulations etc on the pre-trial agreement, what will you do? Will that be considered as a plea of guilty to mitigate the liability of the accused? In my opinion, it is still a mitigating circumstance. The intention of the law in considering that the plea of guilty is a mitigating circumstance prior to the presentation of evidence by the prosecution is that the accused is saving efforts, time, money of the government in the prosecution of the case. And sometimes, it is a sign of admission really of guilt and remorse and therefore, he should be entitled to a mitigating circumstance. Voluntary Surrender. Very easy. Pag-voluntary surrender, all that you have to ask is At the time when you surrender, are you in fear already of being arrested by the authorities? If his answer is yes, no voluntary surrender. If his answer is no, it is actually of my own volition. I would like to save the government of the expense etc. or the police, I would like to save them the efforts of arresting methat is voluntary surrender. Even if there is already a warrant for the arrest of the accused, voluntary surrender may still be considered as a mitigating circumstance. We will give you those cases maybe by Wednesday. V. PASSION OR OBFUSCATION (Art. 13 [6]) It must actually relate to a passion that arose out of legitimate relationship. If the passion comes from an illegitimate or immoral relationship then that is already not considered. VI. DEAF AND DUMB(Art. 13*8+) The other mitigating circumstances are in relation to the physical condition of the accused at that time. He is deaf and dumb, or he is suffering from certain illnesses that restricts his movement or restricts his means of defense, that is mitigating. It will be aggravating, however, if he is the victim. That is the opposite. Deaf and dumb, those who are suffering from certain illnessesthese are mitigating circumstances that are considered as ordinary and other similar conditions of the offender. Do you have any questions regarding mitigating circumstances?

~~~end of tape~~~ DATE: JULY 9, 2003 ARTICLE 14. AGGRAVATING CIRCUMSTANCES Aggravating circumstances have been classified into being an ordinary aggravating, inherent aggravating, special aggravating, specific aggravating and the 2 sometimes are being combinedthe special and specific aggravating circumstances. We have qualified and qualifying circumstances. There is no issue in regard to ordinary aggravating circumstances bec they actually are circumstances which can be offset also by an ordinary mitigating circumstance. It affects the imposition of the penalty as in some other aggravating circumstances only by an increase in period, not by degrees. In Inherent aggravating circumstances sometimes it is not being considered to be a circumstance that would put the penalty in its maximum or in increase the penalty to a period or a degree bec this particular circumstance is inherent in the crime itself that the crime cannot be committed without its presence. Now, we have specific aggravating circumstances, these are only common to a particular crime or a particular violation of the law or a felony. In some special laws, there are specific aggravating circumstances that cannot be found in other special laws or in the RPC particularly in Art. 14. Say for example, in violation of RA 9165, if the act of sale, distribution, delivery took place within 100 meters from the vicinity of a school, then it is a specific aggravating circumstance bec. it refers only to violation of RA 9165. It cannot be applied to any other crime. Now, by law, we have a special aggravating circumstance bec. that is what the law says. In RA 8294, accdg. to the law, the use of illegally possessed firearm in the commission of homicide or murder, although said offense is absorbed in said crime or offense, the use of said firearms is considered as a special aggravating circumstance. What does this mean? If you say specific, it has almost the same nature as a special aggravating circumstance, it could even be mixed with each other. When an aggravating circumstance is specific, the presence of mitigating circumstances will not even affect the penalty that will be imposed in violation of the said offense. Bec. in specific aggravating circumstance, it is usually applicable only to violation of special laws so, how can you apply the mitigating circumstance. Can you tell me of any specific aggravating circumstance in any felony under the RPC. There is none bec. all the aggravating circumstances under the RPC are enumerated in Art. 14, therefore, they can apply to any of the crimes under the RPC. But then, in the RPC, you will note that there are some crimes wherein a particular aggravating circumstance may actually be applicable to certain crimes like abuse of public position. Abuse of public position may be an aggravating circumstance in the crime of murder, homicide, theft but not malversation or sometimes qualified theft. Bec. if one abused his public position, it would tantamount as grave abuse of confidence and therefore it may be considered as a qualified aggravating circumstance. And in the event of malversation, it is inherent. You have to abuse your public position in order that you may be able to commit an act of malversation being an accountable officer. As I said, in illegal possession of firearms, the special aggravating circumstance that you can find there is only the use of illegally possessed firearm in the crime of homicide or murder. I have been saying that the word homicide or murder is being used in their generic sense which could include only parricide and infanticide. All other killings are not included in the term of homicide or murder. Why? Say for example, a person was killed during a tumultuous affray, your perception is that in death due to tumultuous affray, a crime of homicide is committed if a person dies, correct? NO, it is not correct. The crime there is the death due to tumultuous affray, it is not homicide. Just like death under exceptional circumstances under Art. 247. The crime there is death under exceptional circumstances and not homicide. How about giving assistance to suicide which shall be punished by the penalty for homicide? The crime there is the giving of assistance in the commission of suicide, it is not homicide although death may have resulted. In abortion etc., well, naturally there is also death but they are not covered.

Reckless imprudence resulting to homicide, there is homicide but the crime is not homicide but it is reckless imprudence so they are not covered. What is the rule then? In those cases that I have mentioned there could be a separate prosecution of the special law and at the same time a separate prosecution for violation of the RPC. It is sometimes confusing in regard to the determination of whether actually a homicide is supposed to be considered as such for purposes of considering illegal possession as a special aggravating circumstance. There could be an instance where homicide may really be the result only of reckless imprudence but nevertheless the charge is homicide in itself. There have been many cases decided by the SC. Naturally, the SC not being a trier of facts which are usually addressed with the Court of Appeals. But sometimes the SC became trier of facts, not actually one that decides legal questions only. QUALIFIED vs. QUALIFYING AGGRAVATING CIRCUMSTANCE When you say qualified or qualifying, the 2 are different from each other. A qualified aggravating circumstance is usually one that is an aggravating circumstance that raises penalty either by one or two degrees higher. Say for example, in theft, the condition of the offender or the condition of the circumstances at the time that it was committed will affect the imposition of the penalty. And that the penalty may either be raised to 2 degrees higher and the crime may be elevated to a more serious one. That is qualified noh. But sometimes it is being mistaken also for qualifying. Let me put it this way. I will agree if it is qualifying always if it will raise the penalty to one or two degrees higher which is provided for by law but it will not increase the penalty only by a period. Let us suppose that at the time that the theft was committed, the person who committed the same is a domestic servant. So, if that is a situational issues that is actually a state of the offender at the time of the commission of the crimethe position, the status of the person at the time. Now, it will also be qualified when, say for example, the property stolen has been specifically designated b y law as one that may only be committed through qualified theft such as theft of coconuts in a coconut plantation, the theft of fish in a fishpond. These are considered qualified thefts. The circumstances pertaining to the offenders are considered as qualifying circumstances. Like murder, from homicide it goes up to murder because of the presence of qualifying circumstances as enumerated in Art. 248 of the RPC. Qualified circumstances are the new kind of aggravating circumstance. These are the circumstances which involve only the imposition of the supreme penalty of death. In RA 8353, there are about 10 qualified aggravating circumstances which raises the penalty from reclusion perpetua to death. Meaning to say, that the penalty is reclusion perpetua to death but if any of the circumstances therein is present, the penalty SHALL be death. Also, in the case of kidnapping. Also, in the case of qualified piracy. There are qualified aggravating circumstances there in qualified piracy if there is when rape, homicide, etc is committed during the piracy, the penalty of death shall be imposed. In cases of kidnapping, the qualified circumstance there is when the victim is killed, when the victim dies on occasion or by reason of the kidnapping, when the victim is raped, when the victim is subjected to inhuman or if not inhuman, dehumanizing acts. So, they are qualified circumstances, meaning that although the penalty is reclusion perpetua to death, it will become an automatic penalty of death. Like in carnapping under RA 7659, the moment that the driver, the owner or any passenger or occupant of the vehicle is killed, the penalty of death SHALL be imposed. In the same manner as in arson, in the event that a person dies in cases of arson, irrespective of whether the person knew of the presence of the person who died on occasion or during the arson, the penalty of death SHALL be imposed. The fact of death is the qualified circumstance. So, you see, these are the classifications of the aggravating circumstances. So, pag nakita mo nang qualified, ah it only involves whether the penalty that will be imposed is death or not. Pag merong qualified, death natapos. That is why it is called qualified. But then, as has been said, all these aggravating circumstances whether they be ordinary, specific or special or qualified or qualifying, esp. qualified ha, must be alleged in the information. As a matter of fact, there is now a move that these qualified, qualifying and other

circumstances that would increase the penalty either by one degree or if not, the penalty of death shall be imposed, the acts specifying what would constitute the qualified aggravating circumstance must also be stated in the information. Not simply stating that where the victim is 7 years old; that the victim is an ascendant. As you see in the recent cases of rape, the offenders were not sentenced to death bec. the prosecution failed to allege the exact relationship between the offender and the offended party. All that was alleged by the prosecutor is that the offender is an ascendant and that the victim is a descendant who is less than 18 years of age. Is that enoughthat the qualified aggravating circumstance of ascendancy and relationship be considered as qualified aggravating? The SC said no, hindi pwede. Yes, there could still be conviction but the penalty of death cannot be imposed. Wellqualifiedqualifyingyou have to see actually their effects. Qualifiedsa ano lang yan ahtheft, trespass to dwelling. Why is the latter qualified? When there is an employment of force, violence, etc. in entering the dwelling of another. What else? Maybe, qualified seduction, bet there is no qualified abduction ha. But the qualified seduction involves only a woman who is less than 18 years of age, virgin and the offender is a priest --o, ayan na naman, pari na naman. Hindi, ascendant etc. These are qualified seduction. I. THAT ADVANTAGE BE TAKEN BY THE OFFENDER OF HIS PUBLIC POSITION I have already passed upon abuse of public position. You see, abuse of public position can either be also a qualified aggravating circumstance. In cases of rape, it is actually a means of committing a crime of rape. If there is abuse of public position, it makes the crime as qualified rape. It is one of those which are a means of committing rape and it will become qualified if there are circumstances that would be present in a qualified rape. But ordinarily, if there is an abuse of public position, it is inherent in the crime of rape bec. it was considered already as a means, just like fraudulent machination. II. THAT THE CRIME BE COMMITTED IN CONTEMPT OF OR WITH INSULT TO THE PUBLIC AUTHORITIES. Then we have contempt or insult to public authorities. When we say contempt or insult to public authorities, it is not the public authority who is a victim, the crime was committed in their presence to cause people to lose respect on them or sometimes to humiliate or put them in the bad lightaccording to the police. Usually, the police would say, to put us in a bad light. What bad light? Is there such a thing as a bad light? Pwede, yung medyo mainit noh. Eh, masakit nga naman yun. But actually, the crime is committed in the presence of these authorities to humiliate them, to make people lose respect on them. Say for example, the mayor is attending a function, eh may isang loko, nandito pala si Mayor. Akala mo siga yan ha, tignan nga natin. So, what he did was to stab a person right in the presence of the mayor. Tignan ko nga kung hindi mapahiya yang mayor na yan. That is an aggravating circumstance. Well, it can be proven by the simple fact that the offender will always admit that he knew of the presence of the mayor. Eh, who will not know the presence of the mayor in a municipality if you are from that place. Even if you are not from that place, people will tell youPare, si mayor yan ha. Ingat ka dyan. O kaya pare, respeto mo, si mayor yan. Eh, usually that is the case. That is contempt or insult to public authorities III. THAT THE ACT BE COMMITTED WITH INSULT OR IN DISREGARD OF THE RESPECT DUE TO THE OFFENDED PARTY ON ACCOUNT OF HIS RANK, AGE, OR SEX, OR THAT IT BE COMMITTEED IN THE DWELLING OF THE OFFENDED PARTY, IF THE LATTER HAS NOT GIVEN PROVOCATION. How about disregard of rank, age, sex or dwelling of the offended party. Disregard of rankwell, only those who have a superior rank may be the offended party. Those who have inferior ranks cannot be a

party to this aggravating circumstance unless the one who has an inferior rank be the offender. So, you hit your manager or your superior, that is aggravating. In the office there are always aggravating circumstance because the employee sometimes would even disobey the superior. It is quite aggravating. How about rank, age and sex. Age, extremes noh. It its because of old age or very young age. You did not respect the age of an old man. Say for example, the one who assaulted a man who is already 60 years old is only 20 years old, that is disrespect of age. Aside maybe of abuse of superior strength. The 2 can go together ha. One may not absorb the other bec the two are different from each other. The disrespect of a young age is, however, absorbed in treachery. Well, some may have believed that disrespect of old age is absorbed also in abuse of superior strength. But, you see, what I do believe is that if the old man is so old already that he was taken advantage of as the old man is defenselessthat is treachery. And the abuse of superior strength there is only a prelude to the treacherous act employed by the offender and that the disrespect to age is actually being absorbed sometimes. But in some cases that I have read, the superior courts said that the two can go together without one absorbing the other because disrespect to age and abuse of superior strength may be different from each other. Because in abuse of superior strength, what happens? That is a great disparity of the strength between the offender and the offended party. Where a man may be an old man but sometimes he may be of equal strength than a young man. O sabi nila si Eddie Garcia di mo kayang patumbahin. Sa pelikula lang yun. He is how old, 80? And according to them he is taking about 21 vitamins a day. Ok, Sex. Well, up to now its only women whose sex are being disregarded, not men. Even if the man chooses to be taken for a woman, there is no disregard of sex there. There is no abuse. There could be a mistake of fact but there could be no disregard of sex. But the woman must deserve that she be respected for her being a woman, for her sex. But because there are women who do not deserve the respect by reason of their sex. Eh nakita mo, may dala-dalang dalawang .45. Sabihin mo teka muna, hindi natin maano yan, babae yan eh. Oh, yun binabaril ka naman ehay naku. Hintayin na lang natin na bitiwan yung baril. So, it depends upon the circumstances. It is not always that when a woman is a victim, that is a disregard of sex. Eh yung mag-asawa, ginulpi nung asawa yung asawa, is there a disregard of sex? Wala eh natural yun. Natural yun. (girls of 4B: violent reaction) Mangyayari yun. Sige na nga kung ayaw nyo e di wag. Sige, tignan natin ten years from today. Kaya nga battered wife syndrome pero nangyayari yun eh kahit na may battered wife syndrome even if it becomes an act of self-defense noh. You will always encounter this kind of problem in a family. There will always be disagreement between the husband and the wifesometimes, it will result to violence. That is 100%. The more that they are in the upper strata of society, the more that these things are happening. Sometimes, mabubuti pa yung mga mahihirap coz sometimes these husbands do not raise his voice, in a small household, it is always the wife who raises her voice. I have seen people like that. If ever that there is a problem, the husband will not raise his voice but he will just leave the house. And if he believes that the temper of the wife has already simmered down, he will return. Okay, disregard of dwelling of the offended party. Sometimes this is inherent. If you stole something from the house of the offended party, you have to disregard the sanctity of his or her dwelling. Akyatbahay gang, robber gangwould you have any respect of the sanctity of the home of the person. Hindi. You trespass the dwelling of another- hindi. because the qualified trespass to dwelling is in itself a crime. There is an aggravating circumstance. What is the aggravating circumstance in qualified trespass to dwelling? Its only when there is use of force or violence or intimidation in the entry. Or when being asked to leave etc. that is where force, violence and intimidation is employed. This may be applicable in crimes against persons which includes rape but not crime against property. There are other crimes that involve dwelling, that is, violation of domicile. But in violation of domicile, it is actually aggravated only

when the police officer when asked to return the articles that he has taken without any search warrant refused to return the same, that is when there is an aggravating circumstance, it is the fact of failure to return. IV. THAT THE ACT BE COMMITTED WITH ABUSE OF CONFIDENCE OR OBVIOUS UNGRATEFULNESS How about abuse of confidence and obvious ungratefulness. In other crimes, abuse of confidence, if grave in nature, becomes a qualified aggravating circumstance. Like in qulifed theft, what is one of the ways of committing qualified theft? Thru grave abuse of confidence but as an ordinary aggravating it is simply abuse of confidence. Remember ha, qualified theft, if the amount is more than P22,000, the crime is not bailable because the penalty that may be imposed is reclusion perpetua. Obvious ungratefulness. Ah, you all know this. In tagalog, walang utang na loob. We always believe in the goodness of people that whenever we have done something for them that is good, they will reciprocate in doing something good for us. But there are people who does not have that kind of attitude. There are times that when you even literally feed a man from your hand he will still bite your hand. Just like some people, he asks for your hand, you give it to him. After giving your hand, he is not satisfied, he will still get your arm. And still not satisfied, he will swallow you whole. There are some people like that, they are never satisfied. So, abuse of confidence and obvious ungratefulness refers to the character of the person. Obvious ungratefulnesssay for example, during a rainy day or night, you saw a man or a woman drenched to the skin. He looks hungry, sick so you told him to come in your house. And then you called your wife, will you please heat the soup that is in the casserole and get some dried clothes from our drawers and arrange the bed so that this person can sleep tonight. After clothing him, feeding him, giving him a bed, when he even told you, Sir, thank you very much. Tomorrow do not wake up early in the morning. I will be waking up early in the morning. I will clean the premises, sir as a sign of gratefulness. When you woke up, your place is very clean. (heheheJ) literally, clean. That is what we call an aggravating circumstance of obvious ungratefulness. Pero yung mga sabing natulungan kita, nabigyan kita ng trabaho, well, speaking as an ordinary humanthat is obvious ungratefulness but not in the commission of a crime. Because to be ungrateful is not in itself a crime. You must commit a crime which is accompanied with obvious ungratefulness, that is when there is an aggravating circumstance. V. THAT THE CRIME BE COMMITTED IN THE PALACE OF THE CHIEEF EXECUTIVE, OR IN HIS PRESENCE, OR WHERE PUBLIC AUTHORITIES ARE ENGAGED IN THE DISCHARGE OF THEIR DUTIES OR IN A PLACE DEDICATED TO RELIGIOUS WORSHIP. When the crime is committed in the palace of the Chief Executive or in any place where public functions are being performed it is an aggravating circumstance. In the Phils., we have only one palace and of course, there are 2 satellites of the palace of the Chief Executive. The 2 satellites are the official residence of the President in Arlegui street and the vacation house of the President in Baguio City. They are included among the palaces of the President. But not the palace of the North, the palace of the sky or whatever. Actually, the palace of the North, what do you call that--palacio de amiana or whateverin Ilocano. In Pawai, Ilocos Norte, I have seen the place about several times. It is simply a big house, it is not a palace, consists of only 4 or 5 rooms upstairs. Dun sa ibaba, there are I think 3 and then the sala. What is beautiful there, I think, is the scenery. When you go to the garden, it is overlooking the Pawai lake. Then, you can walk through the woods, you can walk through the grasses and there is no pollution. You can even gather mangoes and everything there if you are the tenant. If a crime is committed in a place where public functions are being performed. Irrespective of whether at the time that it is committed, there are no public officers or employees there performing their public

functions, it is still an aggravating circumstance bec. what is being considered as an aggravating circumstance there is lack of respect to the place where public functions are being performed, not of respect to the people. Because that would fall under contempt or insult to public authorities. You refer to contempt or insult to public authorities when the person who has an authority is present and yet to insult him or to put him to disrepute or just to make him lose respect in the face of the people, there is what you call contempt to public authorities. But when it is committed in the place, it is actually the place that is to be considered, not the persons who are performing their duties there. So, even if the place at the time when it was committed was vacant, as long as it is being used in the performance of public functions, then it is an aggravating circumstance. Even if, say for example, supposing a crime of homicide is committed in the courthouse at night. There are no more people there but it is considered still as an aggravating circumstance because of the nature of the place. VI. THAT THE CRIME BE COMMITTED IN THE NIGHTTIME OR IN AN UNINHABITED PLACE, OR BY A BAND, WHENEVER SUCH CIRCUMSTANCES MAY FACILITATE THE COMMISSION OF THE OFFENSE. WHENEVER MORE THAN THREE ARMED MALEFACTORS SHALL HAVE ACTED TOGETHER IN THE COMMISSION OF AN OFFENSE, IT SHALL BE DEEMED TO HAVE BEEN COMMITTED BY A BAND. The next aggravating circumstance is nighttime or uninhabited place or by a band. Nighttime becomes an aggravating circumstance only if 1.) it was purposefully sought to facilitate the commission of the crime; or to facilitate the escape of the offender; or in order that the offender may not be identified. They put a third one. What is the definition anyway of nighttime? It starts at the beginning of dusk and ends at the beginning of dawn. Hindi 6pm to 6am yan nor sunset to sunrise, that is wrong. It starts at the beginning of dusk and ends at the beginning of dawn because at the start of the beginning of dusk, there is already darkness and when there is a start of the beginning of dawn, there is still darkness. That is the period of nighttime. You have to be resourceful because you know, criminal law sometimes, although it is only 10%, is a killer subject. Four years ago it is a killer subject, I dont know this year, maybe in your year, I do not know also. The examiner now, I know the examiner, he will not be giving very difficult questions. I do not know next year, but supposing I become the examiner. Siguro pahirapan ano. Tignan natinlets see how things develop. Iba na SC justices ngayon eh.The SC is always subject to barrage of comments. Even in the academe, but I was talking to Dean Villanueva, I was telling him, Oh, I did not try to put your 1 set of work of opinion in connection with the appointments. I mean, the Ateneo people or people from other university, why are we not saying anything, its alright. Two years ago ngawell, if you know the president cannot always be all knowledgeable. Lahat ng sabihin sa kanya mabubuti, mabuting tao yan maam, madaming sinulat na libro yandi naman nya nakita kung ano yung sinulat, magaling yan maam. The only problem is that people perceive that the SC is now being politicize. Yun ang impression nila. Me, I dont still agree to that bec. people change their minds whenever they are already in the SC. When he is already there seating in the bench, iba na eh justice na ko, I should act and behave like one. Nighttime, uninhabited place. Oh, etong school pag walang tao, considered as uninhabited place yan. Its not that the place is permanently uninhabited. The place may be at that point in time uninhabited. What is important is that at the time of the commission of the crime where the possibly of help is remote. Kung sa bundok, sasabihing uninhabited. Eh bihira naman ang pumupunta sa bundok, sina Ka Roger na lang. Pero si Ka Roger, wala naman sa bundok yan eh, tignan mo yung sa likod nya, tsaka yung microphone nya at tsaka yung cellular na ginagamit. Cellular nya mas bago pa kaysa sa akin eh. There was a time when he was still recruiting young students in the place where I was a judge, talagang wala sya, nothing, poor.

VII. THAT THE CRIME BE COMMITTED ON THE OCCASION OS A CONFLAGRATION, SHIPWRECK, EARTHQUAKE, EPIDEMIC, OT OTHER CALAMITY OR MISFORTUNE. On occasion of calamity or misfortunes. Eto either qualified ito or ordinary. It becomes qualified when it comes to crimes to property and qualifying when it comes to crimes against persons. Bec. on occasion of calamity, if you killed a person, that is a qualifying aggravating circumstance under Article 248 of the RPC. When you stole a property, it qualified your offense to a more serious one and that is qualified theft. Even during accidents etc. it is also a qualifying aggravating circumstance bec a person stole any of those cargoes during a vehicular accident, the crime committed is qualified theft. VIII. THAT THE CRIME BE COMMITTED WITH THE AID OF ARMED MEN OR PERSONS WHO INSURE OR AFFORD IMPUNITY Aid of armed men. The armed men must not have participated. Their presence only embolden the offender to commit the offense bec of the presence of the armed men. Bec if the armed men have any participation at all in the commission of the crime, then there is conspiracy. So, there must be no conspiracy in order that aid of armed men may be considered as an aggravating circumstance. IX. THAT THE ACCUSED IS A RECIDIVIST. A RECIDIVIST IS ONE WHO, AT THE TIME OF HIS TRIAL FOR ONE CRIME, SHALL HAVE BEEN PREVIOUSLY CONVICTED BYT FINAL JUDGMENT OF ANOTHER CRIME EMBRACED IN THE SAME TITLE OF THIS CODE Who is a recidivist? Any person who will in 10 years from the date of his last release from prison or last conviction, he commits any crime embraced in the same title of the code is a recidivist. Kelangan memoryahin nyo yanhabitual delinquency, recidivist, quasi-recidivist, habituality or reiteracion. Usually, tignan nyo ha, 3 points up to 4 points yan. Ang laking puntos nyan. So, I really want you to memorize. I want to, shall we call it, even if you are asleep and you were asked upon waking up, you can recite. Hopefully, even in your sleep you can recite. That is what I want. I dont want you to just be listening to me; always relying on my explanations. Sometimes, I am having the intention of misleading you sometimes so that you will study. Eh, papaano hindi na kayo nag-aaral. Balita ko, wala na kayong ginagawa diyan eh. Marami akong spy dyan ha. Tamo kahit si Mr. Leagogo, nagkikita kami kahit sa Iloilo. (heheheJ) Oh, spy ko yan. We even ride in the same plane. Naghiwalay lang kami para hindi mahalata. Dun siya sa unahan ako dun sa huli. You ask him, he will not admit it. Well, I dont know, but maybe for a few years more, I could still do all the things that I am doing but there is a time of saturation eh. Youll feel that you have had enough but lets see when that time comes. X. THAT THE OFFENDER HAS BEEN PREVIOUSLY PUNISHED FOR AN OFFENSE TO WHICH THE LAW ATTACHES AN EQUAL OR GREATER PENALTY OR FOR TWO OR MORE CRIMES TO WHICH IT ATTACHES A LIGHTER PENALTY. Reiteracion, kabisado niyo naman yan eh. Yung mga makukulit. Balik-balik. They are residents of balikbalik. XI. THAT THE CRIME BE COMMITTED IN CONSIDERATION OF A PRICE, REWARD, OR PROMISE Alright, the price, reward or promise. These aggravating circumstances are not only applicable to the principal by direct participation. It is applicable to both the inducer and the principal by direct participation. Some have the idea that because he was induced and motivated by the price, he is

supposed to be the one to suffer the aggravating circumstance of price, reward or promiseNO, that is not correct. The more that it should apply to the one who offered the price. Eh, di na kaya gawin, kelangan bayaran pa niya, o yun dapat yun aggravating talaga. Price, usually in monetary consideration, or material things. Reward, those which are not material but then to the advantage and of course, not only advantage but to the benefit of the principal of direct participation. Promise, any promise, as long as that promise is taken as such by the principal by direct participation. So, there are 2 principals here: principal by inducement and principal by direct participation. Both deserves the application of the aggravating circumstances. Not only one ha. I dont know the explanation in your bookno explanation at all? None. Kaya nga hindi mo tuloy alam ngayon if you are going to allege that both are supposed to be the subject of an allegation of an aggravating circumstance of price, reward or promise.

XII. THAT THE CRIME BE COMMITTED BY MEANS OF INUNDATION, FIRE, POISON, EXPLOSION, STRANDING OF A VESSEL OR INTENTIONAL DAMAGE THERETO, DERAILMENT OF A LOCOMOTIVE, OR BY USE OF ANY OTHER ARTIFICE INVOLVING GREAT WASTE AND RUIN. By means of inundation, fire, derailment of locomotive, stranding of a vessel, etc. Inundation involves liquid or semi-liquid form that is used in order to commit the crime. It is bec of the volume that caused the commission of the crime. Most of the time, this is an aggravating circumstance not only against crime against persons cut also crime against property. Para masira yung bahay nung kalaban mo, dun mo pinadaan yung lahar sa Pampanga. That is inundation, anong matitira dun? Matatabunan yun. But if you went to call somebody, the same. This in the olden times are being used by those who want to wipe out a tribe or whatever. They usually use inundation or similar acts in order that they may be able to achieve their purpose. Well, fire. You want to kill a person, burn himthat is aggravating. The problem is say for example, you just dont want to kill the victim but you want him to suffer pain, would cruelty be also considered or is cruelty absorbed if the killing is with the use of fire and explosion? Absorbed sa cruelty yan. By the very nature of the means that you used, it involves cruelty. Sinunog mo, syempre masakit yun. But then, it becomes also a qualified aggravating in the case of arson. IN arson, irrespective or whether you know or you do not know the existence of a person in the bldg that you have burned bec arson refers always to a bldg the penalty shall be death if death occurs on occasion or by reason of arson. It used to be that if death occurs, the only crime is arson that is the old concept. But the new concept now under RA 7659, is that if death occurs by reason of arson, the penalty shall be death whether you know or you do not know the existence of the person in the place which you burned. Kaya the best defense is that I want to kill him, it is my intention to kill him. Why? Bec. you will still have the chance of being sentenced to reclusion perpetua just voluntarily surrender or plead guilty. As the use of fire or explosion is a qualifying aggravating circumstance, you will be sentenced only to reclusion perpetua. But if you say, I burned the bldg bec I only want to see that bldg on fire, I dont like the owner but I did not intend to kill the person who was there at that time, death ka. So, this law ought to be amendedmali. Di mo nga alam eh, paano kung may nagnanakaw dun tsaka mo sinunog. Patay yung nagnanakaw, ikaw din patay ka din bec the law did not distinguish whether the person who was killed at the place which was burned is also committing a crime or not. The law did not distinguish, that is the problem.

Oh, derailment of locomotive. It is the means that was used. The stranding of a vessel. Pinasadsad mo yung barko para patayin lang yung tao, walang hiya naman nohsa bagay okay din noh. These are means of committing acts which are considered as aggravating circumstances. XIII. THAT THE ACT BE COMMITTED WITH EVIDENT PREMEDITATION Lets go to evident premeditation. Evident premeditation simply means that a person has already decided to commit a crime and he has planned to that determination despite the lapse of the period for him to reflect upon the consequences of the acts he intended to commit and he still committed the act that he has committed himself to perform. Maybe to kill. But evident premeditation is an inherent aggravating circumstance in robbery, even in rape, it is inherent. Paplanuhin mo ang rape eh. Ano aaksidentehin mo lang? (Joanne: What if walang intention? Nakita lang.) You know that is a real issue bec I would say that the decisions of the SC in some cases wherein it even said that there must be a lapse of sufficient time to reflect upon the consequences of his acts, if a person saw a woman lying, even if it took him about 10 mins or 5 mins in deciding to rape her, I believe that that is already evident premeditation eh. Bec at the onset, he knows that what he is going to do is inherently wrong and he knows the consequences of what would happen to him if caught and that is death or if not, a long time of imprisonment, and yet he performed the act. You see in your book, 2 hours or 1 hour maybe but I think that the SC has not had the occasion of having to decide. (Joanne: Sir, what if may maniac and naghintay lang siya sa may kanto. He decides to rape the first woman who comes. Is that evident premeditation?) Maniac? You remember the case of murder that a group of persons in Tondo have agreed bec that is their way of life there at that time that the 1st man who will pass by them will be killed so they were just there just watching the flies go by etc. so when a man passed by, one of them suddenly stabbed the guy dead. The people around them knew about what they have agreed upon. The SC there considered evident premeditation as one of the qualifying aggravating circumstance. Even if the victim was not identified prior to the commission of the crime. (Mane: Sir, can it be argued that the maniac is insane?) No, it depends upon what kind of insanity. The insanity that is supposed to be an exempting circumstance is one where the person has a total loss of reason and intelligence. If he is only a maniac from the decisions of the SC, look at the kleptomaniac, where does the kleptomaniac belong? Does the kleptomaniac belong to an exempting circumstance? Insuperable cause? They are even debating eh. Some authors say that a kleptomaniac should be placed under insuperable causes, some says that she knows what she is doing and yet there is that impulse in which it may be controlled. So, it is actually a matter of proof. But maniacs, sex maniacs, I will not agree. (Thony: What if a couple is in the sexual act but within that period the girl wanted to stop. But the guy does not want to. Is that qualified rape?) Ang qualified rape ihoThose that belong to the 10 instances enumerated under RA 8353. One is when the girl is less than 7. Second is when the offender is an ascendant and the defendant is an ascendant etc and that the descendant is less than 18 years of age. Or when the offender is a common-law father of the victim and that the victim is less than 18 or stepfather and the victim is less than 18. When there is actually certain relationships such as uncle. The other are when the offender is a member of the A.F.P. and he abused his public position or a policeman etc. When the victim is under custody or detained and she was raped under detention. When the victim is pregnant and her pregnancy is known to the offender, then the offender rapes her. When the offender is suffering from HIV or AIDS or other venereal diseases and rapes the victim and transmitted the virus to the victim. When the victim is a religious and the same is known to the offender and when at the time of the rape, the religious is in the actual performance of her vocation. When the victim is suffering from physical disability, psychological incapacity or disability etc. those are the qualified

aggravating circumstances in the crime of rape. What you are asking is whether there is rape. Not qualified. Well, actually, if there is a complaint there would be an investigation for rape. But if say for example they have already performed initially the act and then the woman refused and then the man continued, my opinion is that there is no rape. Why in the 1st place would she consent when it is there already? You read the decisions of Justice Fernando in rape cases. He always says that the flesh is weak etc. He has developed a penchant for using better words to what is the feeling of a man in connection with his relations with a woman. Fernando is good at that ha. Not only in holding an umbrella. He is good at writing decisions. No offense meant pero pag yung iba lang diyan, ganun lang. Although he writes very long decisions, you will learn from him. The words that he use are so intertwined with each other that it would be easy for you to understand yet you have to look sometimes (Joanne: Is the method employed involved in evident premeditation. For example, I tried to kill someone by poison pero kulang) Evident premeditation na yun basta poison. (Sir, no, tapos hindi siya namatay. So, I grabbed the knife and then killed him. Sir, does evident premeditation take into consideration the means employed) Yung dalawang yun those are the means in order to kill the person. Even if you initially used one weapon and then turned to another weapon in order to complete what you have started, the evident premeditation must start from the beginning. It must not actually be what you think it should be. Let me put it this way. I and my neighbor in the land that we are both tilling had a dispute over the boundaries. I believed that I am at the losing end. Magaling mandaya eh. Lahi ni Satanas (heheheJ) So, one day, I called my staff, uy umalis na ba si Sanaty? Umalis na, boss. I already started sharpening my bolo. From morning until 5pm, I was sharpening my bolo and I know that in the afternoon he will pass by. So, I said, pagdaan nya mamaya So, when my intended victim passed by, I suddenly hacked him with the intention of decapitating him pero dumaplis lang kalahati. Ayun, kumikisay pa so I got a big stone and dropped it on his head. Do you mean to tell me that my dropping of stone over his head would interrupt the evident premeditation that I have already employed? No, it will not. That is a simple explanation of how evident premeditation, even if it is interrupted by another act, but towards achieving the same results, that is still covered. So, any other question about evident premeditation? Usually, rape there is evident premeditation. But I remember a former Sec. of Justice who espoused the crime of reckless imprudence resulting to rape. (heheheJ) You went into a outing, you have your own rooms. Okay, but the men had a drinking spree at the beach. So, they went to their respective rooms drunk. He entered the wrong room. When he enter, of course, he wanted sex with his wife but it turned out that the woman there is not his wife. But it was dark. Sabi nya, uy, aayaw ayaw ka pa ha. (louder heheheJ) SO, that was actually the language used by the speaker at that time. So, he said, the man do not have any intention to commit voluntary rape but then it turned out that the woman with whom he had sex at that time by means of force or violence is not his wife. Today, it would not matter anymore bec there is marital rape. But before, sabi ko, there could be no rape through reckless imprudence. He should have known already who his wife is. Bakit kahit anong lasing mo kilala mo ang asawa mo. Wag mo kong lokohin (heheheJ) If I were the judge, I will convict him of voluntary rape. XIV. THAT CRAFT, FRAUD, OR DISGUISE BE EMPLOYED XV. THAT ADVANTAGE BE TAKEN OF SUPERIOR STRENGTH, OR MEANS BE EMPLOYED TO WEAKEN THE DEFENSE. XVI. THAT THE ACT BE COMMITTED WITH TREACHERY. (aleviosa). THERE IS TREACHERY WHEN THE OFFENDER COMMITS ANY OF THE CRIMES AGAINST PERSON, EMPLOYING MEANS, METHODS OR FORMS IN THE EXECUTION THEREOF WHICH TEND DIRECTLY AND

SPECIALLY TO INSURE ITS EXECUTION, WITHOUT RISK TO HIMSELF ARISING FROM THE DEFENSE WHICH THE OFFENDED PARTY MIGHT MAKE. XVII. THAT MEANS BE EMPLOYED OR CIRCUMSTANCES BROUGHT ABOUT WHICH ADD IGNOMINY TO THE NATURAL EFFECTS OF THE ACT. XVIII. THAT THE CRIME BE COMMITTED AFTER AN UNLAWFUL ENTRY THERE IS AN UNLAWFUL ENTRY WHEN AN ENTRANCE IS EFFECTED BY A WAY NOT INTENDED FOR THE PURPOSE. XIX. THAT AS A MEANS TO THE COMMISSION OF A CRIME A WALL, ROOF, FLOOR, DOOR, OR WINDOW BE BROKEN XX. THAT THE CRIME BE COMMITTED WITH THE AID OF PERSONS UNDER 15 YEARS OF AGE, OR BY MEANS OF MOTOR VEHICLE, MOTORIZED WATERCRAFT, AIRSHIPS, OR OTHER SIMILAR MEANS XXI. THAT THE WRONG DONE IN THE COMMISSION OF THE CRIME BE DELIBERATELY AUGMENTED BY CAUSING OTHER WRONG NOT NECESSARY FOR ITS COMMISSION Aside from evident premeditation, naturally we have the employment of craft, fraud, or disguise. Abuse of superior strength etc. to weaken the defense. Treachery, ignominy and unlawful entry. Breaking the wall and cruelty and even use of motor vehicle. Ill just lump them into a single discussion. Treachery there is no problem. That is employment of means or methods in order to assure that the person will not be able to put up a defense from the assault or attack to be employed by the offender. And those who are actually are in a state of defenseless condition, there is always treachery. Say for example, one who is sleeping; one who is under the influence of liquor ~~~end of tape~~~

Date: 14 July 2003 Transcribed by: Ria Berbano ALTERNATIVE CIRCUMSTANCES The very description of the circumstances would already put you on guard in relation to what kind these circumstances are. Alternative simply means that it can be considered as either mitigating or aggravating; and in some instances it can be considered as exempting or qualifying/qualified circumstance --- qualifying aggravating and qualified aggravating circumstance. Now, we have for the first alternative circumstance: RELATIONSHIP. We start with exempting circumstances in relation to relationship. Those who commit theft, swindling, falsification, malicious mischief to their parents, descendants, ascendants (as the case may be), brothers and sisters as long as they are living together shall be exempted from criminal liability. So, you put away such particular relationship under exempting circumstance. Accessories who concealed or harbored offenders --- except for those that are provided for by law punishable under special laws in relation to the relationship to the offender such as being the spouse,

ascendant, descendant, relative by affinity within 3rd civil degree or by consanguinity within 4th civil degree are exempted from criminal liability when it comes to being an accessory under the RPC. But the same may not be true with respect to special laws such as obstruction of justice like anti-fencing with respect to par 1 and also as protector of coddlers under R.A. #9165; they cannot be considered as exempting circumstances. Now in relation to ascendants, if a parent catches his/her daughter in the act of sexual intercourse with a man, and their daughter is less than 18 years of age and living with them and the injuries inflicted upon the daughter is only less serious or slight physical injuries, the parent cannot be held criminally liable for the injuries because they are presumed to be exempted by law. You will find this true also under Article 247 under RPC. The relationship between the spouses are considered as an exempting circumstance under the said article. There are others that are considered to exempting circumstances. As a matter of fact, I am still entertaining the idea that infliction of corporal punishment by parents to their children, particularly under Article 263 of the RPC (serious physical injuries), may exempt them still from criminal liability. Although we have R.A. #7610 (The Child Abuse Law). There is a conflict between the said law and the provisions of the RPC. But there is no express repeal or modification in R.A. #7610 of the provision of Art. 263 and other laws that are existing before the passage of R.A. #7610. So, you have it then. There are circumstances, however, that may aggravate either as an ordinary or qualified/qualifying circumstance with respect to relationship may be committed only if the crime is against person or property. There is now a qualified aggravating circumstance in case of crime against persons which used to be crimes against chastity --- that is rape. The other private crimes that are seduction, abduction, etc. they are inherent circumstances. They could not even be aggravating. They are supposed to be inherent in the commission of a crime because such crime would not be even be committed unless their relationship are present --- the relationship of a priest and a member of his flock; or the offender is a priest in qualified seduction of other relatives by affinity or by consanguinity or even ascendants or descendants. Now, in infliction of physical injuries or in attempted homicide (but not frustrated murder, attempted murder), if the offender is of higher degree by blood, then it would me mitigating circumstance. But if the offender has a lower degree by blood or by affinity, usually, it is an aggravating circumstance. Now, you have noted from several decisions of the SC, particularly in cases of rape that these aggravating circumstances must be particularly alleged in the information. In the event that the exact relationship between the offender and the offended party is not alleged in the information, including the age of the offended party, the qualified aggravating circumstance of relationship cannot be taken into consideration, which would merit the imposition of the maximum penalty of death. The usual penalty that the SC imposes is reclusion perpetua because according to the SC the accused at the time is being deprived of his right to be informed of the nature and cause of the accusation against him. If you have read the several cases of Echegaray, probably you have come across the findings of the court as the exact relationship between Echegaray and Baby. It was alleged that Baby was his stepdaughter. But during the trial, it was established that Baby is his own daughter. But then the SC sentenced him to death. That was the time when the Courts attention had not been called by a young lawyer from the PAO that the accused in those kinds of cases are not being informed of the nature and the cause of accusation against them and therefore they cannot be considered as qualified aggravating circumstance. Thus the SC laid down a specific rule: All aggravating circumstances whether ordinary or specific,

qualified or qualifying must be alleged in the information. Failure to allege an aggravating circumstance of any nature in the information, even if proven during the trial cannot be considered as aggravating for purposes of putting the penalty in its maximum or for offsetting the felony. The aggravating circumstance of relationship, you will recall, is mitigating is some respects. But exempting in some respects is inherent. In regard to theft and crimes against property, relationship is always mitigating if the relative do not belong to those who are exempted. With respect to crimes against persons, etc., where all of us know, that the moment that the person has a high degree of blood relationship or affinity, it is aggravating in the event that that person who has a high degree of blood relationship or affinity is the victim. If he is the offender, there is simply mitigating circumstance; except for rape which has already become a crime against persons. There are other instances where relationship may be considered as qualifying aggravating. Relationship between a master and a servant/domestic servant, that is a relationship not by blood or affinity, but by work and it becomes a qualifying circumstance which could make the crime of theft a qualified one. Even in the case of killing of a person, in the event that the person killed is a child of less than 3 days, the relationship (although it is not a factor), the crime that was committed is infanticide, the penalty that should be imposed is that of parricide. Parricide is simply the killing of the spouse, an ascendant, or a descendant. But then, the crime of parricide is akin to murder irrespective of the presence of any of the aggravating circumstances in Art. 14 or in Art 248 of the RPC. It is the fact of relationship that makes the crime committed by a spouse, ascendant of descendant to an ascendant or a descendant or a spouse that aggravates the killing. These particular areas of concerns that we have actually are not very complicated. The other alternative circumstance is drunkenness. When drunkenness is habitual or purposely sought to embolden the offender in the crime he intended to commit, then it is aggravating. When it is simply accidental or incidental when the crime is committed, it is simply mitigating. However, supposing that the offender is a habitual drunkard, but he is not looking for trouble/any violation of any law, when suddenly there is a heated argument aroused out of a habitual drunkard and another person, then the habitual drunkard, armed with a knife stabbed the other one. Do you think that being a habitual drunkard or habitual drunkenness should be considered as an aggravating circumstance? Well, you see, I have an idea about this. A drunkard or habitual drunkenness should only be considered an aggravating when on occasion of that habitual drunkenness, the person is always committing also a violation of law or a rule or regulation. But even if he is a habitual drunkard, if he is not violating any law, would you consider his habitual drunkenness an aggravating circumstance? Supposing in that case, he was the one challenged, would his being a habitual drunkard be considered an aggravating circumstance? I am definitely going to disagree. So, my own opinion, aside from being a habitual drunkard, that person at the time when he is under the control of intoxicating liquor or beverages, he usually commit violations of the law, rules, or regulation in order that habitual drunkenness be considered an aggravating circumstance as against him. Unfair eh! Drunkenness sometimes occurs when a person who doesnt usually engage drinking habitually or regularly or on occasion, but he loses control of himself to the point that he cannot distinguish right or wrong/he cannot remember what he has done before. Under the law/jurisprudence, that is considered as habitual drunkenness. There are times when men/women sometimes drink and sometimes do not remember what happened before, do you mean to tell me that that person is a habitual drunkard? Supposing he does it only once a month or every two weeks? That is why the SC abandoned the theory of regularity in drinking. It only adopted the theory that if the person has been frequently taking intoxicating liquors and that when he took those, he already loss his reason

or control of himself and he cannot anymore remember what he has done at the time when he is under the influence of liquor etc. then he is a habitual drunkard. Anyone who purposely sought drunkenness to embolden himself to commit the crime would naturally be considered as an aggravating circumstance of drunkenness. However, if he does not purposely sought so, it becomes mitigating circumstance. They say usually in southern tagalong and other places in the are, Ikaw nga ang malasing. Meaning, you try what you are going to do when you are drunk. Not only in the southern tagalong, even in the Visayan region and in Mindanao. Usually a person who is drunk would not do something that is not acceptable to all those who are present. He may create a little problem or trouble by reason of his being drunk. If it is not habitual, that is when it is considered as a mitigating circumstance. Lack of degree of education, etc., it is always aggravating when the person has taken advantage of his high degree of education; unless also it is inherent in the commission of the crime. Like for example, a doctor in cases of reckless imprudence resulting to homicide (which is also a case of malpractice), he must be a doctor in order to commit that crime. Say the operation was successful, but the patient died. But in certain cases, some people argue that illiteracy is a mitigating circumstance according to the SC. Not always, because there are some people who are illiterate but really possess a talented mind. There are some illiterates who are better than those who are able to read and write. They use their common sense most of the time. Illiteracy by itself is not a mitigating circumstance. It must be coupled with lack of understanding of what is wrong and what is right. But when it comes to mala in se, lack of degree of education is not anymore accepted as a mitigating circumstance. You remember the case of the Muslims or the moros, who claim that they should be given the mitigating circumstance of lack of degree of education. They never stepped inside the classroom in their elementary days, and it is but natural for them to kill their enemy so they wont have an enemy later on. It is very common to them to resort to that kind of argument. But it is mala in se. The problem is it is very wrong to kill without any justifiable reason. Being an enemy of another tribe, group, etc., is not a justification to kill the other group or members of the other group. After Article 15, we go to Article 16: Who are those criminally liable? Those who are criminally liable for grave felonies are the principals, accomplices and accessories. Those who are criminally liable for light felonies are only the principals and accomplices. Do you agree? You have to agree because that is the law. But using your common sense, do you agree? If a light felony is committed by an offender and he is an accomplice, what penalty should be imposed to him? An accomplice is entitled to a penalty lower by one degree. So if it is a light penalty, it is supposed to be punished by a light penalty. And what is one degree lower from a light penalty? For example, slight physical injuries, the penalty is naturally arresto menor up to imprisonment of 30 days? What is one degree lower than this? Wala rin eh! So, do you agree with the law? I dont agree with the law! Even in theft, hindi rin eh. Although if you were asked in the bar exam, for purposes of passing or becoming a top-notcher, you should answer according to the law. But if you are asked your honest belief, you should use your common sense. It is actually a matter of concern. Article 17 is about Principals. There are three kinds of principals. One is a principal by direct participation, the other is by inducement, and the last is by indispensable cooperation. You are very familiar by principals by direct participation --- they must be the main actor. They are the ones who actually did the commission of the crime. For example, in killing, they are the ones who actually killed the victim. Principal by direct inducement are the people who employ promises, rewards, and prizes to induce another to commit a crime. Even in the exempting circumstances, there are principals by

inducement. The one who employed uncontrollable fear or irresistible force are not exempted from criminal liability; they are liable for being principals by inducement. These principals by direct participation, may only be exempted if there are principals by inducement. There is such a thing as instigation in the commission of a crime --- that is Entrapment. This is participated by two or more persons. One is the one entrapping the other, and in instigation, one who is instigating the other. The one instigating the other is a principal by inducement. The one instigated or entrapped is the person who may be prosecuted for the crime prosecuted. In crimes where instigation was an act which resulted in the commission of the crime, the person instigated is exempt from the criminal liability. The instigator is the principal by inducement. In entrapment, that is a legal method employed by the law enforcers to catch a person violating the law in the act of committing the same. The distinction between instigation and entrapment has been asked three or four times in the bar. One of the difficult thing to interpret is the principal by indispensable participation. Meaning to say, without his participation in the act of the crime, it would not have been accomplished. Such is a very generic description of a principal by indispensable cooperation. One case decided by the SC: One man grabbed and delivered a girl to his friend whom the latter wanted to have sex with. The latter raped the girl. What is the liability of the man who grabbed the girl? If not for him, the crime of rape would not have been accomplished; therefore he is a principal by indispensable cooperation. Other example is an owner of a motor banca in the middle of night who was approached by a group of men to transport them to their enemy, and the said owner agreed to do so, not necessarily to participate in the killing. But then, upon arrival at the place where the enemy will be killed, the owner of the banca told them, shall I wait for you or not? Such is an indication of intention to conspire with the others; such can be considered an exhibition to an agreement to the commission of the crime. Without him, then the crime would not have been committed. But, supposing he knew the purpose of the men, brought them there (as he is the only boat owner at the place and no other transportation may be utilized by the men) and told them, bahala na kayo! after that. Could he be considered a person who has incurred criminal liability and as what? That person by prior or simultaneous act has participated in the crime without necessarily being a principal shall be considered only as an accomplice. It is important to distinguish a principal by indispensable cooperation and an accomplice. An accomplice is not a principal whatsoever, but performed simultaneous or prior to the commission of the crime and such participation is not indispensable. *Questions of Faye regarding conspiracy cannot be heard very well. **Answer of Judge Pimentel: Persons who were challenged, even without prior agreement to commit a crime, but their purpose in committing an act and helping each other in the same purpose, such is considered conspiracy. Planning prior is not the controlling factor. There is always conspiracy whenever a person induces another to commit a crime. The moment one agrees with the inducer, there is conspiracy. **Between/amongst principals, you do not distinguish WON there is conspiracy, it is already given. You only distinguish the acts of the principals to know if they are inducers, cooperators, etc. **The one who is not most guilty is the principal by indispensable cooperation because he only cooperated and not the one wielded the weapon for killing. The most guilty is the principal by

inducement. If the latter poses more danger to society; if he can always try to get away with his crimes by paying his way out or give rewards. **The testimony of the principal by indispensable participation (as a state witness) would convict the other principals because with the corroboration of other evidence, evidence against the others will be very strong. There are three kinds of Accessories: first, the one who profits from the commission of the crime (a corresponding special law, P.D. 1612: Anti-Fencing Law, punishes so whereby said accessory becomes the principal). In the Anti-Fencing Law, relationship is not an exempting circumstance. If the property stolen belongs to the son of the one who profited from the commission of the crime and he becomes the dealer of the property stolen from the other son, naturally, the son who stole if from the other son who is living with him is exemptedwhat happens to the father under the Anti-fencing Law? That is a ticklish issue. My contention is that he is still liable despite the fact that he is the parent of one of the parties. The fact that they are related to one another exempts him to criminal liability should not extend to the one who becomes a fence. (arg, putol yung discussion due to tape reversion) The other two: 1) harboring, concealing, etc. the offender 2) concealing, destroying the effects of the crime. These are acts of accessories under Art 19. There are two laws that may be involved. If it is in connection with drugs, he may become a protector or a coddler under R.A. #9165. If it is in connection with any other crime, it might fall under the law on obstruction of justice. There are so many who are exempted from being accessories. I have already enumerated those who are exempted, particularly those accessories who are exempted from criminal liability under Art. 20 of the RPC (yun lang #2 and #3; yung #1 is not exempted from criminal liability). But then, if they are charged under a special law, I believe they can be successfully prosecuted and later on convicted for violation of the special law because that would not require criminal intent; while as an accessory under Art 19, if would require criminal intent. How about penalties that may be imposed? The penalties that may be imposed are only those that are provided by law. You cannot impose any penalties that is not provided by law. Excessive, unusual, harsh, and cruel cannot be imposed by the courts. I remember one time when a police general conducted traffic somewhere at Ayala and EDSA. He caught several jaywalkers. After catching them, he lined them up and ordered them to give him 20 push-ups. The Jaywalking Law provides for a penalty of fine of up to P1,000 only. No other penalty can be imposed!!! You know, he can be administratively charged for what he imposed, he committed a misconduct! Imposing a penalty that is not provided for by law is grave coercion! (jokes omitted) Everybody knows Art. 22 of the RPC. The cases involved are the cases of Robin Padilla, Congressman De Guzman, and Martin Simon. All penal laws shall have prospective effect; it shall only have retroactive effect if it is favorable to the accused. R.A. #8294 carries a much lower penalty than what is provided in P.D. #1866. When Robin Padilla, De Guzman, etc. and this law was passed, it is beneficial to them, they are entitled to a retroactive effect of the penal law.

How about the provision in R.A. #9165, which states that the provision of the RPC shall not have suppletory effect? Would that include Art. 22 of the RPC? No, it would not. It shall only be confined in Art. 10 of the RPC. *Question of Edcel re the Lacson case.(hard to distinguish). **Judge groans and cracks jokes. In the interpretation/construing penal laws, it shall be strictly be construed against the State and in favor of the accused. That has been a time-honored principle. It has never been changed. It is enshrined in the Constitution here and all over the world. If you are going to ask me whether we should balance the interest of the State or not, I dont think that is a matter to be balanced! If the SC states that just because an accused is menace to the society, then I disagree. Just like Alan Paguia, he is becoming a character (laughter). Judge recounts Paguias goodness to him. I will defend his right to say what he does/believes in is right; but whether he is wrong or not, I cannot defend him. If not one will do so, where will we go? Pulutin tayo sa kangkungan nyan eh. If it turns out he is wrong, that is his problem. *Talk about Fornier being a debater. *Read the article of Dean Bocobo in the PDI. *More regarding Paguias actuations and his reliance to God Almighty; other considerations or right cause. *Jo-annes comment that Paguia flunked half the class and passed after appeal. Some people have their own way of doing things; I have my own way of doing things In Article 22 of the RPC, you just remember the case of People vs. Martin Simon in relation to R.A. #7659, R.A. #6425, R.A. #8294, P.D. #1866, the cases of Robin Padilla and Congressman De Guzman. Article 23 of the RPC actually involves pardon by the offended party, not by the State. Pardon by the offended party may be given in order to be effective in cases of private crimes that cannot be prosecuted de officio prior to the institution of the criminal action in the proper court. So if the pardon was given during the preliminary investigation, whether in the MTC or the prosecutors office, that would constitute a valid ground for pardon. Private Crimes: Acts of lasciviousness, simple seduction, qualified seduction, etc, etc. But there is a condition put down by the SC in jurisprudence: in the event that the offended party is a minor, the pardon given by the minor cannot be effective unless it is in conformity with her parents. But, another case came to mind, before rape became a crime against persons. In this case, the father rape his daughter. The first rape occurred when the daughter was less than 18 years of age. At that time, the daughter said, tang, if you are going to do that again, I am going to file a case against you. I forgive you now. Such forgiveness was without the consent of the mother. After reaching the age of 18, she was raped again. She filed two cases of rape against her father. This time it is not qualified anymore. The lower court convicted the father. The SC acquitted the father with respect to the first rape because although the mother did not conform to the pardon, when the girl reached the age of 18 and she did not retract the pardon, such becomes an effective grant of pardon considering that no criminal case yet has been filed against the father in any proper court. But, with the case of the second rape, convicted. When she filed the case, she was already of age. Her non-withdrawal of the prior pardon makes so still effective and valid (remember that ha)

*Kathy Los question, was the pardon conditional? **Judge: conditional nga!!! But she did not retract so when she became 18, thus, it became a reality before she filed the criminal case. In other words, the withdrawal of the pardon must be immediately made after she turned 18 years of age. Her pardon was initially invalid, but it became valid after she became 18 and prior to the institution of the case. For crimes that can be prosecuted de officio, there are only two instance where pardon is allowed, in no other case can it occur. One, in cases of marital rape, the forgiveness given by the wife may be given any time even if the offender is serving sentence. How about what is really happening in the court, so many are submitting affidavits of desistance. Are they valid? Such affidavits are not valid to dismiss an information. But some people insist, kami ang nag-reklamo, mas marunong pa kayo? There ought to be a law that when the private complainant withdrew by reason of monetary or other considerations (not because there was no crime committed), they should be penalized. Before, I cite these people to contempt and fined them up to P5,000. Pero nagdahan-dahan na ko kasi mareklamo dito ang tao sa Maynila. I know I am right because what they do is contemptuous. A long story about accounting in a company if the boss executes an affidavit of desistance, I will dismiss the case. So, it is really a case-to-case basis. Pardon by the offended party in multiple rape by several persons. If the accused agreed to marry the victim and the latter agrees as long as she can end off with the good-looking one. The problem here is if the marriage takes place, would the other accused be benefited by the pardon? No! It used to be the others would benefit because rape was a private crime before. Now, since rape is a crime against persons which can be prosecuted de oficio, the other accused cannot be benefited by the marriage. In cases of rape with multiple homicide, according to the SC, the other rapes cannot be aggravating circumstance. There is only one rape with homicide and the others are considered independent rapes because rape is not amongst those aggravating circumstance enumerated in Art 14 of the RPC. Measures adopted which are not considered as penalties: Preventive imprisonment, confinement in an asylum or a rehabilitation center. In preventive imprisonment, the period, in the event of conviction, shall be considered for purposes of computing the length of service still to be served by the offender, that is the only benefit the felon can derive. The purpose here is reformation. The other confinements are not considered to be like so. ~~~end of tape~~~ DATE: July 16, 2003 By: Katherine Faye Darvin FINE (A fine) is afflictive when the fine is more than P 6,000.00 and it is correccional when it is P 6,000.00 but more than P 200.00 and it is light when it is P 200 and below.

That is up to P 200 is light fine, more than P 200 but does not exceed P 6000.00 is correccional fine but more than P 6000.00 is afflictive fine. (Im not kidding, guys, he just repeated what he said! In the reverse order!) do not confuse the correccional fines with jurisdictional fines because there is a difference between the two. Naturally, if the fines are within the jurisdiction of the MTC, it is either light or correccional but a part of the correccional fine is already within the jurisdiction of the RTC. Why? Because under BP 129, as amended by several laws and the Rules of Court, rule on the jurisdiction of the RTC and MTC with respect to fines hasnt been changed. It remains to be that the jurisdiction of the first level courts that is the MTC, MCTC and MeTC shall be up to a fine of P 4,000.00. so it is when the correccional fine and we are familiar with the pronouncements of the Supreme Court in so many cases that when the penalty is correccional in nature, it is within the jurisdiction of the MCTC, MTC and MeTC EXCEPT when the penalty is solely a fine. The exclusive jurisdiction of the MCTC, MTC and MeTC is only up to a fine of P 4,000.00, beyond that it is already with the RTC. Do not confuse the jurisdictional fine and the fine as a penalty because the fine as a penalty would start from up to P200.00 light penalty, from P200.00 to P6,000.00 correccional penalty and more than P 6,000.00 is an afflictive. Do not confuse the jurisdictional fine for purposes of acquisition of jurisdiction by the 1st level courts and the 2nd level courts. (ok?!) Article 27 speaks of duration and effects of penalties. RA 7659 only amended the duration of life imprisonment and reclusion perpetua because the duration of the penalty of reclusion perpetua has been increased from 20 years and 1 day to 40 years from 30 years. Same is true with life imprisonment although in some cases the Supreme Court has pronounced that there is no maximum duration of the penalty of life imprisonment but in RA 7659, it specifically provided that the maximum of duration of life imprisonment of life imprisonment is 40 years (did it not say so?) yes it did. Now, there was a problem also when a penalty of death is commuted to reclusion perpetua. When the duration of reclusion perpetua is only up to a maximum of 30 years of imprisonment, if the death penalty then and up to now is reduced or is commuted to reclusion perpetua, the duration of the penalty should be up to 40 years, actually that is more on accessory penalties and even civil interdiction should be up to 40 years. The problem now of course is if you are going to look at the accessory penalties of reclusion perpetua, the accessory penalties of reclusion perpetua is perpetual in nature. Its not only up to 40 years but the accused shall suffer a perpetual accessory penalty or perpetual accessory penalties. This has bee our problem because the law has not yet been amended. It should have been amended a long time ago and the appropriate durations should have been fixed by RA 7659. But RA 7659 did not fix the durations of accessory penalties. It should have fixed it in order that there should be no more confusion. Despite the duration of the penalties of reclusion perpetua, life imprisonment, etc, they still remain indivisible and for purposes of indeterminate sentence law and for other purposes, including of that of parole or commutation of sentence sometimes. But the penalty of reclusion perpetua carries with it all the accessory penalties that may be found under the RPC. On the other hand, the penalty of life imprisonment do not carry with it accessory penalties. The reason being that it is a special law and special laws do not provide for accessory penalties except in one law that I have come across and that is RA 9165. So, even the penalty of reclusion temporal, which has a duration of from 12 years and 1 day up to 20 years, its accessory penalties or some of its accessory penalties may reach up to perpetual accessory

penalties, meaning to say that it has a perpetual effect. Say for example, civil interdiction, a person who may have been convicted of within the range of reclusion temporal shall suffer perpetual absolute disqualification from any of those enumerations provided for by the law. The penalty of prision mayor, etc, although prision mayor is, actually an afflictive penalty, the general rule is that the accessory penalty is only up to the duration of the actual penalty imposed which is within the range of prision mayor. The same is true in prision correccional and arresto mayor. But, are there accessory penalties on destierro, suspension and light penalties? Are there? Destierro? There is none. Suspension? There is none. Arresto mayor? Well, only up to the duration of the penalty imposed by the court. The same is true with respect to arresto menor. Why? Because the one cannot exercise some of his rights while he is actually incarcerated in jail. Even if he is serving his sentence in his own residence, still he cannot exercise certain rights because at that time, he is prevented from doing so because he is serving sentence. There are instances where naturally the penalties are to be computed. For purposes of computing the penalty for those who are already under detention or preventive imprisonment, when do you start computing the penalty that should be served by the offender? It shall be computed from the day of final judgment. If he is already under detention or he is already a detention prisoner. If he is not a detention prisoner, the penalty shall or the duration of the penalty shall be computed from the time that he is placed at the disposal of the authorities and when does a person convicted of a crime is placed under the disposal of the authorities? When? Meaning to say that the judgment has become final and executory and he is already at the disposal of the authorities. The two must concur. He is already at the disposal of the that the judgment has already been final and executory and that he is at the disposal of the authorities. Well he is the disposal of the authorities when actually there is already a return of the warrant of arrest or a return showing that the accused was already arrested and already confined in jail or when the accused has already voluntarily surrendered to the court. He would then be at the disposal of the authorities. What are the evidence that would prove that he is already at the disposal of the authorities? When the court issues a commitment order on final sentence. Usually, what is the term being used by the prison authorities for that commitment on final sentence? That is called MITTIMUS. If you are asked a question what is the meaning of mittimus? It is a commitment order issued by the court for the accused to serve his sentence by virtue of a final judgment. There are several kinds of commitment orders which are not exactly a mittimus. 1) commitment during the pendency of the trial. The records of the case must be complete if a person has been arrested, the duty of the court is to issue a commitment order during the pendency of the case. If the accused has been sentenced and the judgment has become final and executory, that is already the mittimus or a commitment by virtue of a final judgment, how about those who appealed and they are still in prison, they cannot post bail? Or that the court prohibits the posting of bail? That is a commitment during the pendency of appeal. Are you familiar now with these several commitments? They are evidence that the accused is already at the hands of the authorities. The authorities cannot anymore claim: di, wala sa amin yan eh!) It is important. When you are a private prosecutor, never mind if you are for the accused, do not assert the issuance of that commitment order. If you are a private prosecutor you must ask a judge to issue a commitment order during the pendency of the case. Why? Well, you will xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx authorities

How about preventive imprisonments? Preventive imprisonments have some effects especially in computing the penalties in the event that the accused is convicted. In the event that the accused is convicted, it has also some effect in the government because if the accused is convicted and upon being committed to a detention center, he agreed with the jail warded that he is to be treated as a convicted prisoner, he shall be entitled to a full credit of the period of his detention. Naturally if the detention prisoner is amenable to being treated as a convicted prisoner, he will be performing duties which are supposed to be performed only by convicted prisoners. But those who do not agree to be treated as convicted prisoners can sleep whole day. They wont be assigned any duties. The only effect, the only advantage of agreeing to be treated as a convicted prisoner is that in the event that the person is convicted, his period of detention shall be credited to him in whole. If however he is not amenable to be treated as a convicted prisoner, he shall be entitled only to 4/5 of the period his preventive imprisonment. Ex. if it is 5 years as a detention prisoner, what would be credited to him is only a period of 4 years. He will not be given the entire years. How about all those people who were not convicted but they suffered preventive imprisonment? It depends upon the reason for their acquittal. If the reason for their acquittal was that they are innocent, they did not commit any wrong or any crime, they shall be entitled to be paid a sort of disturbance payment in the form of P 10,000/year of imprisonment. (here Judge told the story of the 2 innocent people who were sent to jail just because they ran side by side in the direction where the accused is also running) (Judge ordered for the two innocent people that were convicted to be paid P 10,000.00/ year for their 10-year incarceration.) it first should be coursed through the department of justice, etc and that it would depend upon the availability of funds and that they would have to follow it up with the DBM. (continuation of story) but when they were about to leave, farinas transit refused to accommodate them despite the fact that they already have the passes from the bureau of prisons. So I called them up to accommodate this people. Otherwise I said, if they complain, at the instance of the court, it will institute a case of indirect contempt against the manager of the corporation. So they were forced. Effects of penalties: perpetual, temporary, absolute disqualifications from holding office from being elected to any office or to vote and be voted upon, suspension from public office or civil interdiction and bond to keep the peace. What is important here is the perpetual absolute disqualification of suffrage. Under Book One of the RPC, if a person is sentenced to a penalty of more than 18 months, he shall suffer perpetual absolute disqualification to vote and be voted upon. That is when he served his sentence. If however, he is accepted for probation, then the moment that the probation is terminated, he shall also be restored to all his civil rights. That is the benefit of one who will be undergoing probation. He will be restored to all his civil rights and that includes his political rights. Do you recall a newspaper article that a mayor is being asked to be disqualified to sit as a mayor on the ground that he is under probation when he ran for public office? But he won despite the fact that he is under probation. But the guy said, when he won the election, they terminated my probation before I assumed office. And therefore I am already restored to all my civil and political rights. The matter is now with the Supreme Court I believe will determine if that person is eligible to become the mayor of that town or not. It is

actually not really a big issue if the person has been given a pardon by the President. No problem. But here, what we only know in probation is that when the probation is terminated by the court, the offender is restored to all his civil rights. But lets see what is the decision of the SC in that case. In RA 9165, irrespective of the penalty imposed, the offender shall suffer only certain portions of civil interdiction. He will not have parental authority. He cannot dispose of his property nor manage the same. But the law did not say that he will suffer the loss of marital authority if he violates any of the provisions of RA 9156. maybe it was an oversight but maybe it was purposely omitted by the one whoa authored the law and the researcher. And as I have already said to my students in special proceeding, when a person is suffering from civil interdiction, xxx (tape screeches then stops) SIDE B (I think this is the story of rolito go) xxxxx When he was sentenced with finality to serve a penalty of reclusion perpetua, when he failed to appeal because he choose to jump bail and resort to hiding because he escaped There could be valid reasons for his escape because if you read the case of Go v. CA, who will not be afraid? The arrest of Go is illegal. The preliminary investigation is illegal. All struck against him. The pretrial is illegal. The trial, which occurred is illegal and the SC has declared all of it as illegal but the SC said: Go, you have to undergo preliminary investigation and directed the provincial prosecutor of Rizal to conduct preliminary investigation but meanwhile the SC said Mr. Go, before you can be released, post a bail. There is no preliminary investigation yet and yet he is asked to post a bail. What I understand in criminal procedure is that it should be the accused who should request to post a bail before undergoing preliminary investigation. Isnt that correct in your crim pro? Not the prosecutor, not the court! That is again a first in the history of preliminary investigations that the court is the one already ordering the accused to post bail without the accused asking for it. Pardon by the President. Naturally, before the President of the Philippines could grant pardon, the decision convicting the accused must have become final and executory. During the tome of Pres. Ramos they made a boo-boo when the office of the President granted a pardon to a person whose judgment has not yet attained finality, I mean, whose conviction has not yet attained finality. And somebody went to the SC questioning and the SC has to dress-down the chairman of the board of pardons and parole, etc and all others concerned that they should first determine whether the judgment has become final and executory before they recommend to the President that a person be granted pardon. So Erap should be found guilty be first and not appeal and just ask pardon and lets be done with it para tapos na, wala nang maraming gulo. If he will do that probably he will be disqualified from running for public office. that is his the end. And also, atty. Paguia will not have a problem anymore. Important: this is the part where Judge impliedly states that its not his style to fail students: (Judge is telling the story about the flunking of students , or even of the class we will be creating a good image.. I said: (Judge said) do you think that you will be creating a good image? That means that you have accepted poor students, mean, students who dont deserve to be in the college of law and we have to flunk them? Well I was telling them, your selection of the students who goes to your school is very poor if we are going to do that. We should teach them, we should not threaten them by flunking them or by not allowing them to graduate or whatever you see those are things that are not supposed to be done I dont know if thats alright with them. To me its not alright with me. I have my own way of doing things. Lets see.. ok)

How about pardons that were extended by the President? Can they be recalled or revoked? How about if it is absolute pardon? Can the President recall? Hindi na. It is an act of liberality on the part of the President that has already been extended to another person and therefore the president is bound by his acts. You can just imagine, if I am the President, no matter what the public will say I already said my piece, I already gave him my pardon, that is all there is to it. are you going to argue with me? Then argue with some other people not me. I am nit the right person to argue with. But then during the time of Erap in the case of Manero, maybe because afraid of bad publicity or afraid of adverse comments, etc. or the comments already being made by several people, Erap withdraw the pardon to the guy. And now he will suffer about 22 or 20 years more years of imprisonment. Despite the fact that he has already been in jail for the last 17 years or more or 23 years to my mind when a President extends pardon, if it is absolute, no recall even if there is fraud. Because the office of the President has all the means to discover if there is fraud. Are you going to tell me that those people who screen those people who will be granted pardon did not do their job? Sila ang wag mong bigyan ng pardon. We should not give them any privilege at all. That is my idea. Conditional there should be no problem because anytime if the President is displeased with the acts being committed by the grantee, all that he has to do is revoke because that is a contract between the President and the person given a conditional pardon. And if one violates any provisions of that contract, the contract becomes ineffective. And therefore the President has all the right to revoke it. that is the principle there that has to be understood. That would include costs. Fees, indemnities, whether fixed or alternative in nature, are considered as costs. Well it is only in this country that costs are at its minimum. In other countries, the costs are prohibitive in litigation. As I told you the costs that were Where is OJ Simpson tried? New York? Or California? California no? They billed OJ, because he was acquitted on grounds of reasonable doubt and he was also found liable civilly, they billed OJ in the criminal case I believe of the costs which would amounts to $25.5 million and whole amount in the civil case of about $3 million. Sa Philippines magkano lang costs? P2,000.00, P 2,500.00, etc.. and whoever pays costs? Hudas not pay? Most of those convicted do not pay. Despite the fact that they have the capacity to pay. We are in cost and now we will go to pecuniary liabilities. Pecuniary liabilities will consist of reparation of the damage caused, indemnification of damages, indemnification of consequential damages including costs and others. Alright, now, subsidiary penalties. Do not confuse subsidiary penalties from preventive imprisonment. Subsidiary penalties are only available when the penalty includes a fine in itself and the penalty is not beyond prision correccional. But if it is prision correccional, it depends if in computing the subsidiary penalty it will reach the maximum of prision correccional. In the event that the penalty is imprisonment and fine and the imprisonment is correccional in nature, what would be the severest penalty that can be imposed as a correccional penalty which shall include fine? How many months? How many years? Did the law say so? What did the law says? In such an event, the subsidiary penalty shall not increase 1/3 of the penalty that was imposed. Say for example, the penalty imposed is up to 3 years, the subsidiary penalty in case there is a fine paid cannot exceed 1 year because it is within the range of 1/3. Now, in the event that it is solely a fine, what should be the subsidiary penalty? In case it is solely a fine, the subsidiary penalty irrespective of the amount even if it is a Billion peso or what you see in (RA) 9165 up to 550 million pesos, it shall not exceed 6 months. And you know of course that subsidiary imprisonment or penalty shall be computed at P8/day of imprisonment. But that was since 1968. if you look at your book, that particular provision fixing the amount of subsidiary penalty etc or subsidiary imprisonment was actually an amended to the minimum wage then of P4 which was increased to P8 in 1968. from then on, the law was not anymore amended. The people in Congress forgot amount subsidiary imprisonment because they could all pay the fine. Kayang-kaya magbayad ng fine eh. From

their own beef barrels, pork barrels, dog barrels or whatever, they can pay. But in no case in the event that the only penalty is a fine, the subsidiary imprisonment cannot, irrespective of the amount cannot exceed 6 months. It is high time now that they amend it. how much is the minimum wage now in Metro Manila? P 250? Ang laki non from P8. somebody should write your Congressman to amend the law. Ako if I write our Congresswoman, she might not take it as a good advice. She might not take it as a good advice, she might take it as a political gimmick of which I am never engaged in such an activity. Dapat everybody should write their Congressman not just because for the heck of it or you want to tell your Congressman that you know the law. Its actually for not only practical but for the benefit of those people who may be imprisoned because of poverty. Well, the penalties were, the accessory penalties are only inherent to those with respect to death, reclusion perpetua, death which has been commuted to reclusion perpetua not life imprisonment ha!, reclusion temporal, prision mayor and prision correccional. Arresto mayor, No. Arresto menor, no. but then with respect to accessory penalties of civil interdiction, the penalties that carry with it civil interdiction are only those that have been commuted from death to reclusion perpetua or penalty of reclusion perpetua or reclusion temporal. Other than those penalties, civil interdiction do not attach. Remember that. You should remember that. Now, the accessory penalties in cases of prision mayor, prision correccional and arresto, are only supposed to attach to the penalties during the duration of the actual penalties imposed in the maximum. So if what was imposed is prision mayor minimum, that is from 6 years and 1 day to 8 years, the period of the accessory penalty is only up to 8 years only. Not the entire range of prision mayor. Same is true with prision correccional, same is true with arresto mayor, and never mind arresto menor because arresto menor is so temporary, just wait for 10 days, 20 days up to 30 days. After getting out, it is automatic that he is restored to all his civil, political and other rights. Now, forfeiture and confiscation or confiscation and forfeiture. We are aware that instruments used in the commission of the crime are subject to forfeitures. Question: If an instrument is used in the commission of the crime but it belongs to a third person, can it be subject to a forfeiture? No? But then if the property is only possessed by the owner by reason of a permit or a privilege, can it be forfeited in favor of the government of the Republic of the Philippines? Such as a gun, a firearm, naturally, the possession of a firearm is a mere privilege because you are being issued a license. If the firearm is used in the commission of a crime, is it automatic that it shall be forfeited in favor of the government even if it belongs to a third person? No. it must be shown that the offender, even if he uses a firearm belonging to another must actually have used the same with the knowledge of the owner. If the owner knew that that particular licensed property will be used by the offender in the commission of the crime, then it shall be forfeited in favor of the government of the Philippines. If it is a contraband, no problem. Whether it belongs to anyone, it shall be forfeited in favor of the government of the Republic of the Philippines but it cannot be destroyed if such property can still be the subject of usage of the citizen of that country if it is still within the commerce of man. But if it is beyond the commerce of man, then it shall be destroyed. Save for example, even if it could be used but it is beyond the commerce of man, it could be destroyed. For example, fake CDs. if those fake CDs have been confiscated, can you claim that you bought it with your own money and you earned that money from a legitimate source. Can your argument hold? No. it is still to be forfeited even if it can still be the subject of commerce. But then that word commerce is rather confusing. It must be lawful commerce. Because there is an unlawful commerce such as the sale of this CDs, VCDs, tapes, whathaveyou.

Even this uka-ukay. I was made to understand from those who know that it came from the Salvation Army and it is the Salvation Army whos selling them. And the Salvation Army is a non-governmental institution? Charitable institution? Where are the money going? (this is the ukay-ukay story) so are they contrabands? Can they be forfeited in favor of the government of the republic? There was a time that it was prohibited. Now you cant control it anymore. There are properties that maybe subject to forfeiture which is different from escheat proceedings under the special proceedings. Escheats, when the deceased left no will, left no heir, the office of the Solicitor General should file, an escheat proceeding with the proper court so that the property will be privately owned by the government. Private yon non public. It shall be owned by the government in its private capacity. And that well, any person who have an interest over the property such as an heir, has a period of 5 years within which to bring an action to recover that property which was given to the government within 5 years from the date of its delivery to the government. Remember that. But it is not forfeiture. What Reversions in spec pro. You have a property in Makati. A Taiwanese went to see you. without asking for his citizenship, you sold him your property. It turns out that he is actually a Taiwan citizen and he cannot own any real property in the Philippines. What happens to the property that you sold? It will also be subject of escheat in the manner of reversion proceedings. The property shall revert back to the estate. That is reversion. Since the time of Krivenko, a Russian who acquired properties in the Philippines. Properties that were used as a greenhouse or property where plant sources of dangerous drugs are cultured. These shall be forfeited in favor of the government of the Republic of the Philippines. The proceedings may be impliedly instituted in the criminal case. But if it is not established in the criminal action, then you can fine a separate action for escheat proceedings against the owner. There are so many kinds of forfeiture proceedings. As a matter of fact, I now have a problem. Actually two problems regarding properties belonging to private individuals. A case of violation of RA 8484, the access device law. A Taiwanese was caught manufacturing fictitious cards or embossing with an embossing machine, fictitious credit cards. You name it, he has it. what did them in is that they bought several appliances from several stores almost daily. And they sell those appliances at a very very low price. They were caught with a 48 inch flat TV. The problem is, after the guy was convicted, the order being final and executory, we tried to return the TV to the store where they allegedly bought it. but the store refused to accept it saying that it was not bought in that store. So we asked the manufacturer to determine to which establishment that TV was delivered but the manufacturer refused. The TV set is there, we cannot use it, we cannot dispose of it and its occupying a lot of space. Can we forfeit it in favor of the government? Hindi because it belongs to a private individual who is not in conspiracy with the people in the use of a falsified or a forged credit card. So it is a dilemma for us. Another dilemma for us is a PNP police officer who was using his big bike for extortion activities. He has his own lawyers who revealed the secret of the peace officer. ~~~end of tape~~~ DATE: 21 July 2003 By: Mildred Joy Que COMPLEX CRIMES The complex crime proper is actually the commission of a crime which is a necessary means of committing another and a compound crime is a commission of a single act that results into two or more

grave or less grave felonies. A special complex crime is one that has been specifically designated by law as such. You will note that the complex crime proper only says that an act may be or is a necessary means of committing another such as what falsification etc which is a means to commit estafa thus the crime committed is estafa through falsification of commercial or private documents. Even sometimes other crimes can be complex with another as long as it is a necessary means of committing the other unless that particular act which is also a crime is already absorbed in the commission of the crime. Such as what? Do you know of any crime or offense that has been already absorbed in another crime despite the fact that it is actually a separate crime in itself and it is not even sometimes a necessary means of committing the other. Well, illegal possession of firearms as we know has been absorbed in the commission of the crime of murder or homicide. It shall only serve as a special aggravating circumstance. But there are crimes that are absorbed in several crimes of which their absorption to those crimes do not even affect either modify or whatever the crime that has been committed such as rebellion, carnapping may be absorbed in rebellion because these rebels must have to use transportation in order that they can move from one place to another. Even piracy may be absorbed in the crime of rebellion. Definitely illegal possession of firearms is absolutely absorbed in the crime of rebellion but that was since the time of People v. Hernandez, Enrile v. Salazar and such other cases. Rebellion being a continuous crime it may absorb so many crimes such as theft etc. Now the only crimes that cannot be absorbed in the crime of rebellion are naturally private crimes or those crimes that involve chastity which may however been transferred to crime against persons but by the very nature of the crime itself it cannot be absorbed in the crime of rebellion. There are other crimes necessary in order to commit other crimes. But, in crimes of treason, naturally the possession of firearms etc and everything maybe also absorbed in the crime of treason. The reason being that during actual hostilities or in times of war one must have to possess firearms or other similar instruments in order that they maybe able to succeed in their purpose but definitely in some crimes you cannot consider them as absorbed in the crime of treason. Now, this absorption theory only goes as far as the crime that was committed is a necessary means also of committing the other. That is as far as it can go. Now in compound crime it is simply a single act resulting into two or more less grave or grave felonies. Say for example, a person shot another and then of course it resulted into double homicide, it resulted into homicide and serious physical injuries. That is actually a compound crime but the problem here is does a complex crime proper follows the principle in compound crime? Meaning, must the act that is a necessary means, must the crime that is a necessary means of committing the other crime must also be a less grave or a grave felony? Does it follow? Because only the compound crime specifically provides that the single act must have resulted into two or more less grave or grave felonies but in complex crime proper did the law state that the crime that was committed which is a necessary means of committing another crime must also be a less grave or grave felony and that the resulting crime must also be a less grave or a grave felony? There is no such provision. There is no jurisprudence that will explain whether it adopts the principle of compound crime.

However, by simple understanding of the laws on complex crime, it would appear to me that the same principle will apply in compound crime. Well, in complex crime which is actually a compound crime the Supreme Court in disposing of a case involving a reckless imprudence which is a single act and it resulted to so many things- multiple homicide, multiple serious physical injuries, damage to property, less serious physical injuries and slight physical injuries because one of the victim was able to jump from the vehicle while it was about to plunge into a deep ravine. He was able to jump, he suffered only slight physical injuries. What was the decision of the Supreme Court there? The Supreme Court said that the crime of reckless imprudence resulting to slight physical injuries cannot be included in the complex crimes of reckless imprudence resulting to homicide etc up to the serious physical injuries. The Supreme Court ordered that the crime of reckless imprudence resulting to slight physical injuries which resulted out of that particular compound crime should be instituted separately and prosecuted separately and decided separately from the rest. The reason being that the single act resulted into shall we call it, one of the resulting acts or one of the acts that was the result of a single act or one of the crimes that resulted out of a single act is a light felony. Although it may seem impractical, because the prosecutor will have to prepare another information or complaint, then, the accused there will have to be arraigned again, the presentation of evidence in the other case will be the same presentation of evidence in this slight physical injury case especially the testimonies of witnesses, the testimony of the police officer etc.. My gosh, the government will be spending so much effort and money in prosecuting only a reckless imprudence resulting only to a slight physical injury case. And there will be multiplicity of suits. Although the accused will not be placed in double jeopardy yet it would result to multiplicity of suits which is being avoided actually by the rules of court yet the Supreme Court said file a slight physical injury case. So, that is the present situation now in relation to compound crimes. The third complex crime is the special complex crime. But then, this special complex crime only refers to specific victims and specific offenders and specific acts. I will give you an example of which probably you did not realize that it applies only to specific persons. In that it cannot apply to any other persons other than those mentioned by the law. You all know that under republic act 7659 amending the law on carnapping that is 6958 or something like that, there could be a carnapping with homicide. A special complex crime of carnapping with homicide. But then, the law provides only for specific victims, that on occasion of the carnapping, in order that there could be a special complex crime of carnapping with homicide, the victim must either be the following: the driver, the owner or any occupant of the vehicle. If say for example the victim during the carnapping is a person who is a bystander or one who was just trying the help the victim or even a policeman who was trying to prevent the carnapping, there could be no carnapping with homicide. The carnapping will be separately prosecuted from the crime of homicide or murder or homicide with direct assault or murder with direct assault. So you see, that is a particular complex crime of which the victims have already been predetermined by law. Any other victim that is not within those enumerated by law cannot be considered to be complex with the crime of carnapping. In all the other cases, let us say for example, robbery with homicide, in robbery with homicide, what happens? Any victim whether it is committed as a means to commit the robbery or on occasion thereof , or by reason thereof, the crime of robbery with homicide is committed. Now, in the crime of robbery with rape, the rape is only incidental to the crime of robbery, the main purpose of the offender is to commit robbery, rape was actually only an after thought during the commission of the robbery unless of course you will note that if the offender has already determined that aside from the robbery that he is going to commit, he will commit rape, the two shall be separately prosecuted from each other. The crime of robbery should be an independent crime to be prosecuted separately and the rape should be an independent crime to be separately prosecuted and they cannot be complexed with each other because the offender has already decided prior to the commission of both, that he will commit both crimes.

There are times when an offender aside from having decided to rob a woman, said Im going to rape that woman after I have robbed her, now is that a complex crime of robbery with rape? No, that is not a complex crime of robbery with rape. It is a separate crime of robbery and a separate crime of rape because there are two criminal intents already present in the mind of the offender. I think this is the first time that this matter has been brought to your attention. There are other principles that you have to know in relation to this. But, let us discuss first other kinds of complex crimes. Let us go to arson before I go to robbery with homicide etc. and of course certain developments in these particular crimes, special complex crimes. In arson, it used to be that there is no complex crime of arson with homicide. There was none. If you burn a building and a person dies, you do not know that that person is present only the crime of arson is committed. If you burn a building in order to kill a person, then that is murder with the use of fire. But with the passage of RA 7659, it has changed the complex crime principle in regard to arson because in the old rule, there is no complex crime in regard to arson. Now, there is one. Even if the offender does not know the presence of a person but he burned a building resulting to the death of that person, there is a complex crime of arson with homicide. And the worst part of it is that the penalty is worse than murder, because the law says that the penalty shall be death, Shall! On the other hand, if your intention is to kill your victim, you burn his house to kill him, that is murder. The penalty is reclusion perpetua to death. So, if you are the lawyer of a person accused of arson with homicide, ask him to plea bargain and enter a plea of guilty to murder. Why, the moment he pleads guilty, he will be already out of being sentenced to death. The only penalty that can be imposed upon him is reclusion perpetua, you saved his life. SO this law was passed without actually the congress realizing the gravity of their mistake. But it was actually a mistake. The crime of robbery with homicide, has different phases. I mean, the participants in the crime of robbery with homicide, may depend upon first, the conspiracy and second, it may depend upon the place where the crime is to committed. Let me put it this way, supposing that three persons agreed to commit the crime of robbery, it was explained by their leader that the place where the robbery will take place is the residence of their former employer. I mean the employer of two of them. One is not familiar with the place. The two are familiar with the place. They were the house painters of the place to be robbed. They discussed that usually the owner of the house leaves before 8 am to go to his work and the only person being left behind is the maid. So, what would happen? Naturally if there would be a conspiracy, there is a possibility that there will be an employment of force or violence which may even result to the death of the maid or any other person who may be present at the house of the offended party. Supposing further that in the agreement, one of them who is not familiar with the place was designated as a lookout and the lookout will only give a signal while he is in a sari-sari store probably smoking a pack of cigarettes or drinking a bottle of coke or whatever, that if ever a patrol car or a mobile car or barangay tanods or other law enforcement agents or suspicious looking persons pass by, he will give the signal to his cohorts or to his friends. But during the entry of the two men after they knock at the front gate, it was the maid who opened the gate and knowing the two as they were the former painters of the house, she said, what are you doing here? Well, we left some tools or equipments and we want to get them. Some of them are on the roof, we forget them on the roof. So the maid believed them, asked them to enter, allowed them to enter. But after the maid closed the gate, the two armed with screwdrivers and an ice peak stabbed the maid more than 15 times, she died on the spot. It so happens that another person was then present in the vicinity, he was a newly hired houseboy. While he was about to help the girl, the two assaulted him also and stabbed him several times, he died. So, the robbery went on smoothly etc. the things that they want to get were carted away by them and the one

who was appointed as lookout called a taxi cab and they placed the goods inside the taxi cab of course they were able to get money, jewelry and appliances. But while on their way to Tondo passing by Del Pan bridge, the police officers noted that there are wires dangling from the compartment so they became suspicious, accosted the three and after hearing from the radio that a robbery took place in Makati, they arrested the three. The two after trial were convicted sentenced to reclusion perpetua, they did not appeal. Only one appealed, the lookout. He claims, I did not participate in the killing. I agreed that there be a robbery in a place that is inhabited but I never said that I agreed that they should kill the maid. All that I know is that there is a maid that is being left behind and therefore, the maid would probably be tied only or whatever, I did not even agreed to have her killed so I should be sentenced only for the crime of robbery, nothing more, nothing less. His appeal went to the Supreme Court but the Supreme Court said, the moment that you agree to commit a robbery on a place where there is a possibility that you have to or your companions have to employ force, violence or intimidation, then in the event that death occurs during the robbery by the employment of force or violence, even if you are only a lookout, you are equally liable with the rest of your companions. So he was actually also meted out the penalty of reclusion perpetua. But this may change if the circumstances would be different. Say for example, the house that they robbers agreed to rob is an uninhabited house, meaning to say an abandoned house, may be the owner has left for the United States or has left for other places, he left antiques or other valuable goods inside after locking them with the intention of returning later maybe about a year or two. So, knowing that the owner will not return in a year or two, three of those persons decided to rob the house, one was designated as a lookout, the two are designated to rob, the same circumstances however took place. Let us say for example that the robbers were able to enter, suddenly they saw a scavenger or if not maybe a vagrant who usually inhabits abandoned buildings or uninhabited buildings and because the two do not want any witness to what they are going to do or to what they have done, they killed the vagrant. The problem now is naturally all of them will have to be charged of robbery with homicide. If the lookout can establish that their agreement is simply that they will rob an uninhabited house and it was established that that person who was present at the place which was robbed is a vagrant and no one knows that such person is present thereat, would you impose the same penalty to those who actually killed the vagrant in a case of robbery with homicide or would you impose only a penalty for the crime of robbery against the one who is a lookout? The answer is yes because the lookout has agreed only to commit robbery with force upon things and not with force, violence or intimidation upon persons. So, ladies and gentlemen, in the event that such a scenario is brought to your attention in a question in the bar examinations, such would be the answer. You have to be careful whether the facts actually are very clear enough that you may be able to understand whether the agreement actually is about robbery with force upon things or robbery with force, violence or intimidation upon persons because the liabilities of the offenders there who may have participated differently from each other are also different from each other. Yes, that is the rule even in complex crimes. You know of course that in complex crimes especially if it is a means of committing another or it is a compound crime, the penalty shall be for the more serious crime of the two or all of them. However, in special complex crimes the law fixes already a specific penalty for that special complex crime. There are other complex crimes, well we actually have plenty of them such as abduction with rape. But you see there are instances where after the woman has been abducted, she will be raped several times by the abductor. The prosecutor sometimes charges only one crime- abduction with multiple rape. Would that charge be correct? The charge is actually incorrect. The prosecutor did not study his criminal law as there could only be one abduction with rape. That is the first rape. The succeeding rapes are

different crimes of rape and neither can the other rapes be considered as other aggravating circumstances or as an aggravating circumstance as held in previous cases. The Supreme Court in its recent cases, in its recent decisions came to realize that rape is not among the aggravating circumstances enumerated in article 14. So it did not aggravate the first abduction with rape or the abduction with rape. The other rapes for every sexual intercourse that the offender had with the victim, it is a separate and distinct crime of rape. So you see now the difference. You have to be careful now because you are in your fourth year in trying to understand criminal law because this is one of the more difficult subjects. Although it is very interesting, very, very interesting, the only problem is that there could be so many side issues, there could be so many things that may be asked in criminal law. If the examiner is an imaginative examiner, he could propound questions that probably even himself may not be able to answer the question. Oh yeah, we have had that experience. Sometimes we doubt even the answer that we prepared. Yes, even during the times when we attend the meeting after the bar examinations in order to answer the questions, most of us do not agree to the question that should be adopted by the examiner. So you would see that there is a correct answer, there is an alternative answer and there is a second alternative answer. But usually the alternative answer would have a lesser percentage than the correct answer and then the second alternative answer will have a lesser also percentage but then you still get some points. Yes, Mr. Ty? There are 3 individuals they entered into a conspiracy to rob an inhabited place. They agreed that to beat up and tie the persons in the house. But then when the robbing incident took place, they saw the maid and the house boy. First they tied them up but the two decided to kill the maid and the houseboy. They succeeded in killing the maid which was vehemently opposed by one of the robbers so when they were about to kill the houseboy, one said that the agreement was only to tie them up so he decided to let the houseboy escape. So, judge in imposing the penalty should it be the penalty for robbery with homicide? Yes, for the first homicide. Even though he attempted to prevent the killing of the maid but he was not successful? Well if there is already an attempt on his part and he exerted all efforts in order to prevent the commission of homicide, nevertheless the crime of homicide was committed by the others, he will only be held guilty of the crime of robbery because that would be considered as almost akin to spontaneous desistance which is an absolutory cause under article 12 of RPC. Sir, in that example can you not say that there was conspiracy on that part between them? Even if there is conspiracy, if at the time that they are going to execute what has been decided in the conspiracy but one desisted, then he cannot be held criminally liable for the crime through which he desisted. Why? Because conspiracy by itself is not punishable by law. You can agree to rape, you can agree to murder, you can agree to whatever and you can even go to the place where you are going to do it but then at the last moment you desisted when you are still in the subjective phase wherein you have still control over your actions and that you desisted at the final moment, then you are exempted from criminal liability. That is an absolutory cause. Even if you prepared already all the instruments, you already went there inside etcbut at the last moment, hindi pwede yan, hindi ako papayag but then you have to resist or if not resist you have to raise your objection in such a manner that it is not a token

objection. It must be a serious objection or a resistance to the commission of the act that you have conspired to commit otherwise you are still criminally liable. Lets take a break and then we will go to continuing crimes or delito continuado, t he continuous crimes and then you have the transitory crimes and thereafter we will go to computation of penalties etc just a simple computation in order that you may be able to have a working knowledge on how to compute penalties. When you say continuing crimes you have to differentiate it from continuous crimes because a continuing crime as held by the Supreme Court in some cases requires only one criminal intent. The first case that was cited in a law book about a continuing crime or a delito continuado is the case of a thief who stole five fighting cocks that were tied at the side of the street belonging to different owners and the thief was charged of five separate crimes of theft. So you see, during those times, those fighting cocks are not so expensive as the fighting cocks of today but yet it reached the Supreme Court on a legal issue of whether the accused maybe convicted of five separate thefts or only one theft. One single theft. The Supreme Court there in deciding the case used the concept of one criminal intent. The Supreme Court said that although the owners of the fighting cocks are five different people but there being only one criminal intent in the commission of a felony, then there is only one crime of theft and therefore the accused should be sentenced only for one single crime of theft. Now the Supreme Court however came up with another decision in relation to this. In the case of Santiago v. Sandiganbayan or Garchitorena, you remember that? Former senator Santiago who was then a BID commissioner, granted Filipino citizenship by way of administrative proceedings to 34 Indians, these Indians, bombays. Ang hirap pa naman nitong mga Bombay noh, halos isa lang pangalan eh. Do you know that we are being pestered with the issuance of clearances for several times, I think about 30 to 40 times. The name of all those who are asking for clearances is the same. Manhitching. (Im not sure of the spelling but it sounds like that) Recently, I told my branch clerk Tony, will you please enter my chambers, do not issue any clearance. What you have to do is this, because we are being pestered with clearances, we do not know whether actually we are giving a clearance to the offender or not, because there had been so many cases that were filed in our courts and in several courts. One is rape, the other one is homicide, the others are estafa etc.. And I said, look the better position to take is simple, ask him to get a certification from the Bureau of Immigration and Deportation that he is a legitimate alien who is actually either residing in the Philippines and given a permanent residency status. Otherwise if he has been only given a visitors visa, why should we give him a clearance? There is no point eh if you are only a visitor, you will ask for a clearance, why should we give you a clearance? So, as I was saying, Commissioner Santiago then was charged of 34 counts of violating section 3e of RA 3019. Before she could be arraigned, she went to the Supreme Court and challenged the filing of 34 informations against her contending that the act if ever that she committed is a delito continuado or a continuing crime and there is only one criminal intent that may be imputed against her in the event that indeed she caused undue injury to the government. The SC agreed with her and ordered the prosecutor to dismiss all the cases and refile only one information. Well that is already a decision of the SC. But I was thinking along the line of RA 3019 being a special law. A law that is malum prohibitum. IF a law is mala prohibita, does criminal intent have any business in the determination of whether you have criminal intent or not? So, if it is mala prohibita, criminal intent is not suppose to enter into the picture and therefore the filing of 34 informations are correct. But the Supreme Court said that being only one criminal intent etc..ah only one information should be filed against her. Now, maybe I have been saying it already but it could happen that it is debatable sometimes that certain special laws may require criminal intent and some may not. But basically, all offenses in violation of special laws do not require criminal intent. That is a general rule, except when the special law uses the word knowingly. Ok? Because if there is a word that the offender

knowingly causes undue injury, then there must be there a criminal intent. But if there is no such word, simply put it was stated therein that one caused undue injury to another etc. that is different. Nevertheless, we have to honor whatever decisions that was promulgated by the SC, because there would be chaos unless we honor their decisions. Continuous crimes refer to crimes that are even committed only for the first time but then the offender continues to commit the same unless he has already served the sentence, unless he has already been given amnesty, pardon or unless he has already renounced his belief for his allegiance to a particular association or party or whatever. Just like in the case of rebellion. Actually rebellion is not what you call continuing crime. While it is a continuing crime in a sense that the moment you committed the same, you continue to commit the same even if you have not actually been in the active participation of the acts being committed by your friends in the movement. But it is a continuous crime. The moment you commit it, you still continue to commit it up to the time that you have renounced your belief in such struggle. You remember the case of Umil v. Ramos and companion cases. Well, these people, Umil and others are actually NPA regulars. And they have been identified by the army and the police as NPA regulars but then they decided not to engage anymore in arm struggle somewhere in a certain part of Luzon. Instead they decided to become engaged in certain activities while employed as laborers or workers in different establishments such as those who were arrested are working in factories in Muntinlupa, some are working as laborers in certain construction sites in Las Pinas and other places in Metro Manila. When they were arrested without a warrant, they claimed that the arrest was illegal. But then as the SC has stated in that case, it said that you continue to commit the crime that you have previously committed yourselves to commit until such time as you have renounced your belief in that particular struggle of yours. So, actually it is a continuous crime which is different from a transitory crime. A transitory crime is a crime where any of its elements or any of its ingredients may have been committed in another place and that you can file the case in any of the places where any of its elements or any of its ingredients was committed. An example of which is violation of BP22, illegal recruitment in a large scale, syndicated estafa etc. Look, even in syndicated estafa, there is only one criminal intent there. So you have a problem with syndicated estafa this time because the people engaged in syndicated estafa has already covered almost all parts of the country and that their victims are from different parts of the Philippines. Some of them have never filed cases against this people. Some are only intending to file their cases in the places where they have been victimized. The problem there is how to go about trying these cases because if it is a syndicated estafa, there is only a single criminal intent especially if that person by the use of a corporation collects contributions from the general public and actually their purpose is defraud the people from whom they collect money or whatever. You have now several syndicated estafa cases, the problem is there are others who file separate cases against them. If we are going to have them consolidated, how about the others who did not file but chose to file later on, what would happen? Under the theory of delito continuado, there is only one criminal intent. How about the others who were not able to participate, then who decided only to participate later on? This is the problem. Kagaya nitong mga sina Baladjay, sina ano? They are a problem eh. There are cases in Manila of syndicated estafa. There are cases in Makati of syndicated estafa. There are even cases of simple estafa; there are cases in Paranaque etc. I think the Secretary of Justice should take a hand on this to consolidate all these cases only in one court. Because using the theory of delito continuado, there is only one crime that was committed and that is syndicated estafa. That is the problem in delito continuado in relation to one criminal intent. Even if the others may have been committed in different places, you have to file only one single criminal action in any of the places that the syndicated estafa was committed. So if you are the defense counsel for, say for example any of

those kinds of accused, you have to move to quash or to dismiss the other cases in order that the same will be consolidated only in one court. And that there will be no different resolutions from the other courts, kasi, there is one that is one that is filed in Cebu- syndicated estafa. There is one filed in Makati. The accused will naturally file a motion or a petition to bail in both courts so that she can enjoy temporary liberty while she is being tried. There could be two different rulings. Lets say the Cebu court granted the petition for bail but the court in Makati denied. Pano ka ngayon? There are two. Then it would result to forum shopping. It would result to an accused being placed in double jeopardy or it is really a mess. So, we have to study how are these particular continuing crimes or delito continuado may be resolved because it would greatly affect our citizens in the event that such kinds of crimes are committed. Alright transitory crimes, well BP22. Example, a check was issued in Hongkong payable in Singapore. But the parties went to the Philippines, had a good time. They played golf at Wack-wack. That is where the check was delivered to the other party. If the check bounced, can . (CUTNEXT SIDE OF THE TAPE) Yes, there is already one case decided by the Supreme Court. These are what we call transitory crimes that well, one element may have taken place in one place, others may have taken place in another place etc. Here you can file the case in any of those places where any of its essential elements or ingredients have been committed. Ok, any questions? Now, lets go to penalties. Penalties for principals, accomplices, accessories. Penalties for consummated felony. Penalties for frustrated felony. Penalties for attempted felony. I have adopted a little system and most of you who were my students in Crim 1 are familiar with this. It is very easy how to do it and I will repeat so that you will remember the simple rules. Now you there a principal, the equivalent of the principal is naturally consummated. Now you have accomplice, you have accessory, you have frustrated, and you have attempted. In the computation of penalties, naturally if the law says that the penalty of reclusion temporal shall be imposed upon a person who shall be found guilty of the crime of homicide. The law speaks of homicide being consummated and that the person who will be sentenced to reclusion temporal is the principal. That is given. That is what the law intends or the provision of the law should be interpreted. Now, so let us say that in the crime of homicide, the principal committed the same so it is consummated, the penalty is reclusion temporal. No problem. But supposing that the crime committed is a frustrated homicide, what penalty shall the principal be meted out? Or what is the penalty for the principal in a frustrated homicide? The penalty shall be one degree lower. One degree. So one degree lower would be prision mayor. Alright! Supposing that the offender is a principal in an attempted homicide, the penalty shall be 2 degrees lower which is prision correccional. Ok? Very simple because all that you have to do is- if the crime is frustrated, one degree lower. If it is attempted, two degrees lower. Now, the principal naturally gets the full penalty. If he is an accomplice, one degree lower. If he is an accessory, 2 degrees lower. Ok? That is very simple. So, if he is I said the principal and the crime he committed is in the attempted stage, the penalty that should be imposed upon him is 2 degrees lower from the penalty imposable on the principal in a consummated felony. In the case of homicide, naturally the penalty is prision correccional, because it is 2 degrees lower from reclusion temporal. Now let us say that the offender is an accomplice, he committed the crime of homicide, it is consummated. So the penalty will be one degree lower from

the penalty imposable in the crime of homicide. That is prision mayor. If he is an accomplice but the homicide is committed in its frustrated stage, the penalty shall be 2 degrees lower from the penalty imposable by law. So 1 and 1 is naturally 2. 2 degrees lower from reclusion temporal would be prision correccional. Now, if the accomplice in the crime of attempted homicide is to be punished, the penalty shall be 3 degrees lower. So, if he is an accomplice to an attempted homicide, the penalty shall be arresto mayor. Ok? If the accessory committed a consummated felony lets say homicide, how many degrees lower would be the penalty to the accessory? 2 degrees lower already because he is an accessory. From reclusion temporal it would be only prision correccional. Supposing that the accessory committed only frustrated homicide, the penalty shall be 3 degrees lower. And what is 3 degrees lower from the penalty of reclusion temporal? Arresto mayor. Now supposing he is an accessory to an attempted felony, the penalty is arresto menor. So a person who might have committed an attempted homicide but he is only an accessory may be punished only by a penalty from 1-30 days of imprisonment. He may even be punished by only one day if he pleaded guilty because it is to be the minimum of arresto menor. In knowing this simple computation of penalties, if you know this computation it will help you a lot in the event that a client would come and see you. Atty. Ako ho ang nagtago ng balisong eh atty. Hinuhuli ho ako ng pulis, hindi naman ho ako kasama dun sa patayan eh kaibigan ko ho yung pumunta sa bahay. Tinago ko nahuli ho ako. Ano ho ba ang kasalanan ko atty? Kung sakali ho at mapatunayan ako na may kasalanan, anong sentensya ho ang maibibigay sa akin? Naturally, the man would be worried, he might be thinking ay taon ito, years. Huli ako accessory. Or he may not even know that he is an accessory. But because you are familiar with the participation of the offenders, you will just tell him dont worry Ill take care of your case. Are you hiring me? Alright, sign an agreement that I am your lawyer. How much is the fee sir? Eh, kung mayaman sumingil ka na. Then all that you have to do is just tell him, ako na ang bahala sayo. You will be sentenced up to only 10 days of imprisonment, probation ka pa. Sigurado ka ba atty? Just plead guilty. If he is a minor, patay libre. Because minority is a privileged mitigating circumstance of which he is entitled to a reduction of one degree lower and there is no one degree lower for arresto menor. Masayang-masaya ngayon yun. Ang galing ni atty talaga. The illustration on the board is as follows:

Homicide Principal Consummated Reclusion Temporal Accomplice Frustrated Prision Mayor Accessory Attempted Prision Correccional So, this simple computation, I know that most of those who are here were my former students in Crim 1, some I do not know whether there are some who were not my former students. This is the way how to compute. Its very simple but if you read the law, I dont know if in a weeks time you will be able to know how to go about computing these penalties. Can you? Within a week? Within 10 to 15 minutes by this simple explanation you know already what you are going to do even if they ask you in the bar

exams, this is simply the formula and you will never get lost. In any other penalty, you will never get lost. That is how simple it is. Papahirapan kayo ng iba. Pa-iikutin kayo but eto lang yun eh. Do you have any questions? No questions? Alright. Well, of course, we are already in penalties. That is why we have to know what probably could possibly affect penalties. They are the modifying circumstances. And you know that we have discussed already aggravating, mitigating circumstances, mitigating privileged and ordinary. Aggravating you have the qualifying, the qualified, the specific, the special, inherent, the ordinary. You will note that there are certain crimes of which an aggravating circumstance is in by itself is inherent. Say for example, what is inherent in certain crimes? Well, naturally in cases of estafa, there is always evident premeditation. Well, in certain crimes such as rape there is always treachery most of the time. So they are inherent in the commission of the crime. Even if they are present, they cannot be considered as aggravating. Even in mitigating circumstances, there are in some cases that we have discovered inherent mitigating circumstances. But although they are inherent mitigating circumstances, they may not be considered as modifying circumstances. In the case of rape, the offender is physically or he has a physical defect. A physical defect by itself is inherent mitigating. But would it be a modifying or mitigating circumstance in the crime of rape if he is the offender? Naturally it is not. But it will be aggravating if the person who is raped is suffering from physical defect. It is actually even a qualified aggravating circumstance. So you see there are instances where the determination of modifying circumstances are very, very important. That is why the rule now, under the rules of criminal procedures, with respect to aggravating circumstances is that they must be alleged in the information. Failure to allege that you cannot prove it. And even if you were able to prove it, it will not be taken as a modifying circumstance to aggravate the penalty that may be imposed or even to qualify the crime to a more serious one. There are usual mistakes that are being committed by lawyers, even prosecutors, even some judges. It has been my experience in the bench say for example in the crime of estafa or in qualified theft, both may be committed by abused of confidence. But is mere abuse of confidence enough in the crime of qualified theft? No, it is not. So it becomes an inherent aggravating circumstance in qualified theft if it is grave abuse of confidence. It even qualifies a mere crime of simple theft to that of qualified theft. There are so many ah remember that ..qualified theft always grave abuse of confidence. Pag wala kang nakitang grave sa information sa qualified theft, huwag mo ng turuan yung prosecutor. Do not call the attention of the prosecutor or even the judge, do not call his attention. Pabayaan mo, let your client be arraigned. Can the judge convict him of qualified theft? No, because there is no allegation of grave abuse of confidence. Wala, so he can be only found guilty to a more lesser offense of theft. But then, delikado pa. So, look ladies and gentlemen, you have to be familiar with all these, because if you are very familiar with the aggravating circumstances, the qualified circumstances, the qualifying aggravating circumstances, the ordinary, the inherent aggravating circumstances, that would be a lot of use to you. Even in the bar exams, we do not know eh what would be in the mind of the examiner, although in my experience, it is very rare as the rains in May when they are going to ask you to compute penalties. But there was a time when they asked examinees to compute penalties and the percentage given is 15%. 15! So, if you do not penalties, bye bye baby. Your only chance of getting a passing grade is to know everything aside from the question regarding penalties. You might probably get about 80, 75 but definitely the chances are you will be having a difficult time. Alright by Wednesday, I will discuss further- penalties, etc. and those which I have not discussed which are still a part of Book 1. Going into penalties, we will discuss the indeterminate sentence law and how to compute the penalties that should be imposed applying Indeterminate Sentence law. Then we will go to probation law and then we will go to other special laws that have connections with Book 1 of the RPC. Remember, that PD603 has already been amended and not only amended but actually overtaken

already by even a new circular of the SC. That is a memorandum circular of the SC regarding juveniles in conflict with the law. These memorandums actually are in the nature of laws but then, well, the SC will apply them whether you like it or not. If I discuss penalties further, it will take me more than 30 minutes so its useless because I want to start from the very beginning in order that you may be able to understand fully what I am saying especially those that involve the application of the indeterminate sentence law. Those that I have missed, I am going to discuss so that you will be well-rounded after we finish book 1 of RPC. Let us then meet on Wednesday. ~~~end of tape~~~ DATE: JULY 23, 2003 By: Charmane Kanahashi While MANEs eating a bag of CHEETOS The FINES may be a part of the penalty either and or a fine which accompanied an imprisonment or that the fine is the sole penalty that was imposed by the court. The rule is if the penalty of imprisonment is already afflictive or more than 6 years, and there is also a fine imposed in the same penalty to the accused, no subsidiary imprisonment if the fine is not paid by the accused, that is the rule. You will note that there are so many laws which imposed the fine despite the fact that the principal penalty of imprisonment is already afflictive in nature. When however, the penalty consisting of imprisonment is correctional in nature or that it is a light penalty, the accused, if every there is an accompanying fine, must have to serve a subsidiary imprisonment in the event he fails to pay the fine. In the case where the fine is not made or is not paid, and the penalty is correctional in nature, or even arresto as the case may be, the subsidiary imprisonment shall not be more than 1/3 of the principal penalty of imprisonment but it cannot exceed 1 year. Say for example the accused was sentenced to an imprisonment of up to 4 years and 2 months of prision correccional that is the maximum, and a fine of P6,000, if the accused failed to pay the fine, he will serve subsidiary imprisonment but the latter shall be 1/3 of the penalty imposed in the maximum which if you compute the same, the subsidiary imprisonment for P6,000 will be more than a year, so the subsidiary imprisonment even if computing the same to reach up to 1/3 only, the same will still exceed 1 year. Thus, the subsidiary imprisonment to be imposed upon the accused should only be up to 1 year and it cannot exceed the same even if it is less than 1/3 of the maximum of the penalty to be imposed. Alright. In connection with the principal penalty of fine, if the principal penalty of fine is imposed, according to the law, the maximum subsidiary imprisonment that the accused should serve, cannot exceed 6 months. So even if the fine is P1M, you will compute probably the subsidiary imprisonment at P8/day, that would be how many years huh? P1M? P8/day? Patay ka don, ha. But then the law only says that if the sole penalty if a fine, the subsidiary imprisonment cannot exceed 6 months. 6 months lang yon?! This is important because although the SC have toned down a little in cases of BP 22, when the SC issued a circular, even to the judges after deciding 2 or 3 cases, in connection with violation of BP 22, wherein the SC categorically stated that if the offender in BP 22 is a first timer, the penalty that should be imposed should only be fine equal to the value of the check that bounced. People were expecting subsidiary imprisonment dyan if they cannot pay the fine, and that it should be at P8/day if they do not know the rules regarding subsidiary imprisonment, then they will say ah P1M at P8/day,

how many days will P1M be at P8/day? It will be about more than maybe 10,000 or even 40,000 days, how many days are there in a year? How many? 125,000 days and if you convert that into years, (background: 342.4 years). HAHAHA! Do you expect him to live that long?! So, well, the law is, shall we call it, correct in saying that well, if it is simply a fine, it cannot exceed, the subsidiary imprisonment cannot exceed 6 months. I will repeat. If the penalty is already afflictive, and it involves an imprisonment even if the offender failed to pay the fine or refused to pay the fine, he cannot suffer for any subsidiary imprisonment in the event that he refused or fails pay the fine. He cannot because that is the law. OK! There is actually no problem regarding subsidiary imprisonment as long as the penalty that was imposed are correctional or light penalties because there is a specific rule. It shall be at least 1/3, cannot exceed 1/3 of the principal penalty of imprisonment but even if it does not exceed 1 year, it still cannot exceed 1/3 if the subsidiary imprisonment consists of 1/3, the 1/3 cannot still exceed 1 year. ALRIGHT! Then, we discuss the death penalty before we go to the Indeterminate Sentence. The death penalty law which is covered by RA 7659 amending the provisions of the RPC, is actually only almost a repetition of the old law. There are only very few, shall we call it, amendments. The law says that the death penalty cannot be imposed upon a person who at the time of the commission of the crime is less than 18 years old and to those who at the time of the promulgation of the sentence is already 70 years old or over. The reason being that a person who less than 18 years of age has not yet reached physical and mental maturity to make him suffer the supreme penalty of death. On the other hand, a person who is 70 or over is only a few steps from the grave. So, you can wait for only about 5 years, 10 years and that will be his the end. And because, you know, this people are already old. We consider them actually as people who deserve not condemnation but sometimes compassion. We have had occasions of seeing already old people who still commit certain crimes. ALRIGHT! How about suspension of the implementation of death sentence? According to the law, a woman who is pregnant and w/n a period of 1 year from date of her delivery, she cannot be executed. And the execution shall be suspended. Another one that was enumerated under the law is that when the offender has reached the age of 70 or more. The last portion of the article is not only confusing but is wrong! When you speak of suspension, naturally you speak of, shall we call it, executing the offender in the future. Because that is suspension eh! There will come a time when you will execute him but if he is an old man already, you cannot even impose the death penalty to a person who is 70 or over, how much more execute him? So that provision of the law, I think, has been misunderstood. Not suspension huh? But, would rather be that, it should be that the person who has reached the age of 70 cannot be executed. Alright! There are only 2 instances where the execution of the death sentence can be suspended. The first is about the woman and the second is when the person becomes insane after the finality of the judgment huh? And if he became insane after the finality of judgment, you have to wait until he regains his sanity or when he regains a lucid interval. But if he did not regain his lucid interval eh he stays in the mental institution. Alright. According to the law on death penalty, the moment that a lower court, that is the 2nd level court, the RTC or SB imposes the death penalty, the accused need not appeal because the law provides for an automatic appeal. Well, for record purposes, the accused files a notice of appeal but even if he does not file any notice of appeal, the records of the case shall be transmitted and forwarded to the Honorable SC

w/n 20 days from the promulgation of judgment. And that if the records of the case is not complete, particularly, those that are lacking in TSNs from the date of transmittal to the SC, the steno reporter should see to it that the transcript of steno notes be completed and submitted to the SC w/n 15 days. You all know that when the records of the case are already complete in the SC, the SC will issue a resolution directing the parties to submit their respective memorandum. Well, usually, the government is represented by the SolGen and the accused will be represented by his counsel on record. If the memorandum and all other papers are already complete, the period w/ w/c the SC shall render judgment must be a period w/n 1 year from the completion of the record of the case. But that is already an impossible task! At the present, it cannot be accomplished. The SC will not be able to decide a case where the penalty imposed is death w/n a period of 1 year. That is impossible. There are how many death convicts who are waiting for the final decision of the SC? There are more than 1,000 death convicts in the death row. So if, say for example, all of them are submitted, considered submitted for decision, the SC has to decide at least 3 cases everyday including Sundays and holidays. 3 cases a day?! That would be an impossible task! It is the, those who passed the law did not realize that it will come to a point where the SC will be deluged of this kind of cases. They should have passed a law that is more realistic. The SC cannot ask for an extension, can it?? Its the law. So, they can ask an extension to God. Thats the only thing that they can do probably. But then when the lower courts are the ones who are supposed to resolve pending incidents, they are very strict. Okay. If the SC finally decides the case and it has attained finality, it is the duty of the SC, under the law, to forward the records of the case to the Office of the President w/n 20 days for review purposes in relation to the exercise of the power of the President to grant pardon or commutation of sentence or you know, conditional pardon or whatever hmm.. And the Office of the President has also 1 year to decide whether the President shall grant pardon or not so the accused will have to wait for 2 years. But that is, shall we call it, a long time. Alright! If the President does (sic) not decide to grant pardon or any of the clemencies that the President has in his powers, the Office of the President is required to return the records to the SC and that the SC upon receipt of the records has also, not only the authority but the obligation to remand the records of the case to the court of origin, the 2nd level trial court. Why is it that the records of the case has to be forwarded to the 2nd level courts, to the RTC or SB? Actually, the old law has provided for certain rules and regulations in connection with the execution of the death convict. Under the old system, it is the lower court who upon receipt of the records of the case that will fix the date of execution. Now, no more. I dont know what is happening but what Ive read from the rules and regulations of the Bureau of Corrections is that the Director of Prisons that schedule the execution of the convict. Although I believe that it is wrong because it should be the court which should schedule. It should actually determine the date of the execution of the convict. Now, the convict must be only informed of his execution before sunrise of the day of his execution and execution shall not take place until 8 hrs. thereafter giving way to the accused to, shall we call it, call his family, to call the minister of his faith or his priest or whatever, call his lawyer to assist him in the disposition of his properties, call his physician for him to know whether he is still healthy or not, he might be insane already or whatever and he actually has the privilege of even calling for his friends and family those whom he wants to confer. The conference shall take place in his chambers or in the place where he is confined. And he can actually make use of the 8 hrs. that is allotted to him. It used to be that the Bureau of Corrections has a practice then before the new law has been passed that prisoners to be executed may ask for their last meal and they have the choice of their last meal. The usually ask, during those times, Maxxs Fried Chicken, isang buo, Maxxs noong unang panahon pa yang Maxx, Maxx na yan! Wala naman noong KFC, Kenny Rogers, wala namang Inasal noon or whatever. So Max parati yan and others will ask for a little caviar here and there etc. but now, the prisoners, the convicts who are supposed to die by lethal injection are not being given

that privilege anymore. Their last meal shall consist of the same meal that other prisoners are taking. Sabi nga nung Bureau Director, bakit pa pakakainin ng masarap yan eh papatayin din naman? But it was then during the time of Pineda, Canal, or that one from Bacolod, they were even asked what food they want etc. even if they ordered the best in town, they will be given to them. Now, no more. ALRIGHT! During the execution of the convict, his relatives may be present his wife etc., those who may want to watch his execution but then the number of persons who shall witness the execution should be limited by the Director of Prisons. You know of course that the PRESS are the ones who are most interested in covering the execution of a death convict. Piyesta nga daw dun pagka may execution eh. Unlike in the US where it is actually not an event that would be carried all over the radios, TV, etc. Hindi eh. They do it as a matter of course. Dito, it is a sarswela. And that, well, the usual procedure in connection with the PRESS is that they cannot all be accommodated during the execution so what they are going to do is draw lots. Pag nabunot mo ikaw ngayon, ikaw, ikalawa ikaw, alright, yung mga iba, wait na lang kayo. You have to wait for your turn. OK.. There will be 2 physicians who will attend to the death convict and they shall also be the ones who should declare him dead. When a death convict has been declared dead, what? His body may be claimed by his relatives. By his family. If the family claims his body, then it shall be given to them with instructions from the Director that the body of the death convict cannot be buried with pomp. If no relative/s claim the body of the death convict, any medical or scientific institution or school may ask the Director of Prisons that the body of the death convict be given to them for scientific or medical studies and the body shall stay with them for not more than 1 year. And after such period, the scientific institution or school shall cause the burial of the death convict in one of the public cemeteries and the burial shall be that of a paupers burial. In the event that nobody would want the body anymore, no relatives, no institution etc. is interested in the body of the death convict, then the Bureau Director shall see to it that the body of the convict which has been executed shall be buried in the public cemetery inside the Bureau of Corrections in a paupers burial. So, that ends the, shall we call it, the procedure in connection with the execution of the death convict etc. and the disposition of his body. OK! Do you have any questions? No questions? Alright, let us proceed to the Indeterminate Sentence Law. The Indeterminate Sentence Law is actually, an application of the Positivist Theory. You will recall that the purpose of imposing a penalty under the Positivist Theory is to reform, to rehabilitate or to correct the errors of the ways of the offender. Yes.. (background question: In the case of lethal injection, what will happen if the dosage was inadequate to kill the person? Can the procedure be performed again? Yes. How many times? Until he dies!) There was a case, actually, there was an incident that happened in the Phils. When the method being used then in executing a death convict is through electrocution. 5,000 volts of electricity was set through the body of the death convict but he did not die! He did not, 5,000 volts ha. They increased the same to 7,500, hindi pa rin. They increased it already to 10,000, ay un patay. So the same is true in lethal injection. But they will remember or recall the case of Echegaray, that his lawyer, Atty. Teodoro Te, on a question of law, filed a case for the SC in connection with the implementation of the mode of execution of Leo Echegaray. It is being argued by Atty. Te at that time, that when the crime was committed by accused Echegaray, the mode of putting a person to death at that time is through gas chambers. But during the interregnum, while his appeal is being reviewed by the SC, the Congress passed another law changing the mode of execution from gas chambers to lethal injection. According to Atty. Theodore Te, the accused should be executed by the mode of execution at the time of commission of the crime. So the SC, well, the only why a person is being executed after he has been sentenced to death is to put him to death. The manner with which a person may be put to

death is not anymore a legal issue. It could be by any other means which the law has permitted. If it is lethal injection, even if that is not the means of putting to death the convict on the day of the commission of the crime, it shall still be through lethal injection that he has to die. There is no problem anymore in connection with the means and methods with which the accused may be put to death. OK! Any other question? (background: Judge, what does it mean when a person is sentenced with 3 death penalties?) Actually it is only a, shall we call it, a description of the penalties that the court has to impose but there can only be one execution because he only has 1 life. The court usually, for purposes of, shall we call it, informing the world that such person has committed 3 crimes of which the penalties are death. So they will impose 3 separate penalties of death but he can only be executed once. Some even have been sentenced to as many as 12 death penalties but the SC said that well, there is only one life that can be executed and if the same has been executed, that is the end. ALRIGHT! Yes.. (background: What if the imposable penalty is death penalty, can the government not impose it, for example the case of extradition of a foreigner to the US, the SC has condition for the extradition, there is a condition that death penalty will not be imposed?) Actually, that is an interference to the independence of the Phils. Why?! Why should they impose that condition? I know what youre talking about, sa Atong Ang? The court in the US has agreed to hear the petition for extradition and then set their conditions which the Phils. has to follow otherwise, they will not hear the extradition case. They look upon the Phils. as a subordinate, huh? Na dapat sumunod na lang tayo sa utos nila. I mean if they are encroaching upon the independence of our country, they should not impose such a condition. Maybe they can, shall we call it, on the side, just make bulong, sige I will help dito, I will help dito pero you tell your President, you tell your people there that he should not be sentenced to death. Because Atong Ang has already informed the authorities of the US that if he is deported to the Phils. or if he is extradited to the Phils., he will be sentenced to death. He will not get even an inch of favor from the government. I think that is wrong; that is not supposed to be flaunted by the US that they can dictate upon us on what to do with a certain person who has been accused of a crime? Di pu-pwede yon. Can we impose that also? If we want a person to be extradited to their country? Sabihin natin a di pwede, we will only extra dite this person to your country if you will not sentence him to death. Oh, are they not going to cry foul? Are they not going to howl etc? Sasabihin nila terrorist na tayo so that they can declare war against us. Any other question? ALRIGHT, lets take a break then I will continue with the Indeterminate Sentence Law. Sneeze! (Bless you, Judge!) The SC has come up with a decision lately that all penalties to be imposed by the Court when the maximum exceeds 1 year, except on one instance, shall have a minimum and a maximum. In other words, there is no more straight penalty when the maximum of the penalty has exceeded 1 year, except for one. It used to be a practice of the courts to impose straight penalties if they do not like the accused. Because, if a straight penalty is imposed, the accused must have to undergo imprisonment up to the last day of the penalty imposed upon him. But according to the SC, this violates the right of the accused to enjoy the privileges under the indeterminate sentence as the ISL encourages good behavior while a person is serving sentence. You will note that even under several provisions of the RPC, reduction of penalties are allowed when one escaped during or on occasion of calamities, well, for good behavior, they are being _____ allowances for good behavior up to 15 days a month if they have already exceeded serving sentence of more than 10 years. So this actually encourages good behavior to the accused. Now, the ISL does not apply to the following, does NOT apply ha! It does not apply to those who had been sentenced to indivisible penalties such as death, reclusion perpertua and life imprisonment. You cannot apply the ISL because there is no, shall we call it, periods that the same may be lowered to and that although there is a range of the penalty of reclusion perpetua and life imprisonment, such penalties still remain indivisible. There was one time when the SC considered reclusion perpetua as a divisible penalty and that was when they decided the case of People vs. Lucas. The SC then committed an error when the SC declared that reclusion perpetua having a range of from,

20 years and 1 day to 30 years then, is a divisible penalty. But when the OSG asked for a clarification, the SC, in a one-page resolution, said that reclusion perpetua is NOT a divisible penalty and it shall remain as such. Now, the provisions of the ISL shall not also apply to penalties which does not involve imprisonment. These penalties are destierro and suspension. I dont know whether its included in your book but definitely you cannot apply the ISL the penalties which does not involve imprisonment. It should always be a straight penalty or a penalty of which the time is fixed. Also, the indeterminate sentence do not apply to penalties the maximum of which do not exceed 1 year. Aside from that, the ISL do not apply to crimes of treason and others which are included in crimes against national security. Also, it does not apply to crimes against humanity or against the law of nations such as piracy, mutiny and even hijacking. These are the instances where the ISL does not apply. ALRIGHT! There is a difference when the law says that the BENEFITS of the ISL shall not apply because the benefits of the ISL for felonies ha, for felonies, hmm, as you will find out hmm, except those which are enumerated ha, under the law such as treason etc. piracy, the accused shall enjoy a certain benefit if the crime he committed falls under the category of a felony or even if it does not fall under the category of a felony if it is a special law but it uses the penalties common to felonies under the RPC. Now, the benefits of the ISL do not apply to crimes of treason etc. to piracy etc. ha and also to those who are habitual delinquents. What is the meaning of the same? Well, the benefits of the ISL for crimes considered as felonies or for those offenses which uses the penalty common only to the penalties provided under the RPC, would simply mean that the minimum shall be 1 degree lower and the maximum cannot exceed the maximum fixed by law after considering the modifying circumstances. On the other hand, the ISL if applied to special laws or those which the benefits of the ISL do not apply, the minimum shall be the minimum fixed by the law and the maximum cannot exceed the maximum fixed by the law. Although the sentence is still indeterminate. ALRIGHT! Let us say for example that a person is charged of a crime which is punishable under the RPC and that let us supposed that the penalty provided for by the law is prision mayor. Alright..If you are going to the explanation of the SC in some cases, you will note that the SC says that you should first, determine the penalty to be imposed upon the accused without and then apply the ISL and after applying the ISL, you determine the modifying circumstances. That is what the SC has ruled in several cases. But, the most practical and easiest way of determining the penalty which will arrive in the same, shall we call it, penalty and which would be more easier for the courts and the students of law to understand is, and I think the SC will change his mind later, is for the court to determine first what are the modifying circumstances present, apply the modifying circumstances present, and after applying the modifying circumstances, then, apply the ISL by getting the minimum of the penalty by, shall we call it, going down 1 degree within the period as provided for under the law. Say for example, the penalty is prision mayor, naturally prision mayor has 3 periods: minimum, medium and maximum. Let us say there is an aggravating circumstance and no mitigating circumstance, if such be the case and the accused is not a habitual delinquent, then he is entitled to the benefits of the ISL, the minimum penalty that shall be imposed upon him should be 1 degree lower from prision mayor maximum because you had already considered the modifying circumstance. Hence, the minimum thereof, is prision correccional in its minimum period. So it is easy. Now, you just get the range of prision correccional in its minimum period, get the range of prision correccional in its maximum period and prision mayor in its maximum period. The range of prision correccional in its maximum period is an imprisonment of from 4 years, 2 months and 1 day to 6 years while prision mayor in its maximum period is an imprisonment of from 10 years and 1 day to 12 years. Now, this is where the discretion of the judge will come in. Actually, it is not sometimes the discretion eh. Well, I will say it is still the discretion when there are no outside factors which will affect the decision of the judge in the computation of the sentence. My usual practice

whenever I decide a case is to leave out the computation of the penalty for the morning prior to the promulgation. The reason being that although, I can trust some of my employees, but kasi some of them cannot help sometimes but to open their mouths eh. Di ba? Titingnan yung kaso, Uy, hanggang 20 years pala to. Eh kung ma-impormahan yong, if the accused suddenly gets _____ of the fact that the maximum of the penalty that will be imposed upon himself is 20 years, you cannot expect him to be present the next day during promulgation! Yes! So what I usually do is, well, I go to the office early in the morning, very early in the morning. Maybe about 6:30, Im there already. And, I prepare the computation and of course after finishing the computation if the stenographer who knows how to type or how to encode the decision in the computer, then she will be the one to finish it. By 8:30, the whole decision is already complete and that what I have to do is just sign it. Well, as I said, it depends upon the time when the judge prepared the computation. Eh, supposing the judge is having a bad day that day. The judge probably woke up on the wrong side of the bed and maybe when he was trying to start his car, it wouldnt start and well, he has to go to the repair shop to ask his auto mechanic to remedy the situation. Mainit ang ulo niya. That would be his start of the day. When he arrives in court, the accused did not even greet him good morning. The accused has been there early but he has 2 -3 bodyguards with him as if he is going to a place where he is going to fight other people. So, that would be etched in the mind of the judge. Eh, dadala-dala pa ng bodyguard to, ano ba to? ALRIGHT! So let us say for example that the judge will now compute the penalty, the judge will naturally take that into consideration. Salbahe yan ah. Di man lang bumati. Mainit ang ulo. ALRIGHT. He will sentence the accused to an indeterminate sentence of from 6 years of prision correccional as minimum to 12 years of prision mayor as maximum. Yun lang, di lang siya binati non. Medyo ayaw lang umistart yung kanyang kotse. Is his decision correct? Yes, his decision is correct. Its still within the range of the penalty. Oh, pero dumating si judge, maagang-maaga. Nakita niya yung akusado maayos ang bihis even if his clothes has seen better days etc. but it is still neat, it is, shall we call it, freshly pressed even if his shoes is almost a rundown one, it is still clean, you saw his children, they are very, very respectful of elders. You see the wife, looking very sad. They knew, they knew that the accused will be sentenced, but then, they are there. The whole family are there. In other words, these people, maybe you know, maybe, have strong family ties. Which is what is needed. So the judge will consider that, eto naman pala mabuti mag pamilia. kasama pa mga anak. etc. Siguro napilitan lang ito. Well, we always think of the better way how to deal with these people. So what would be written by the judge there, computing the penalty. the accused is here by sentenced to an indeterminate penalty of from four years, two months, and one day of prision correccional ~~~end of tape~~~ MAJAHS NOTES: Computing the minimum, medium and maximum in ISL Example: Penalty is prision mayor in minimum and medium (6 years and 1 day to 10 years)= 10 years difference 1.) convert 4 years into days = 1460 2.) divide into 3 3.) add the 1st 1/3 to 6 years and 1 day, it will be the minimum 4.) add 1 day to the maximum in the result in #3, it will be the medium 5.) add 1 day to the maximum in the medium period until 10 years, it will be the maximum period. DATE: July 30, 2003 (Azenith Viojan) THREE-FOLD RULE --xxx---

DATE: August 4, 2003 By: MajArvin EXTINCTION OF CRIMINAL LIABILITY Criminal Liability may be extinguished by the death of the offender but when it is the offended party who dies, the criminal liability of the offender is not extinguished. The death however of the offender also extinguishes his pecuniary liabilities or personal liabilities. But then, the offended party has still a recourse in order to recover the civil liability that the offender may have incurred by reason of having committed a crime. The claim of the offended party may be lodged against the estate of the offender as long as the offender dies prior to the entry of final judgment of conviction and of course, on the civil aspect of the case. Now, when the offender dies after the entry of final judgment, the rule is different. Although the court sometimes issues a writ of execution, that writ of execution cannot be implemented as against the estate but that writ of execution may still be of some use to the offended party. How? When delivery to the administrator as a claim against the estate but the same shall not be enforced. It is one of the preferred credits or it is one of the liabilities which must be paid by the estate in the event that the administrator or the executor has already gathered and determined all the properties of the deceased including the debts, expenses in relation to the administration of the properties including of course some of the preferred expenses such as burial and funeral expenses and sometimes an order from the court to pay attorneys fees which may be a part of the expenses. Only after all these liabilities that the estate may be distributed among the heirs, legatees and devisees etc and that would be the end of the settlement of the estate of the deceased person. But in respect to these contingent claims wherein there is no judgment yet as to the civil liability of the offender. What happens? Can it be tried in the intestate proceedings? File a separate action against the estate. Of which the administrator upon authority of the court may be allowed to defend the interest of the estate as against the claimant. It is only when there is a finality that the interest of the claimant may become a reality; that when there is a contingent claim what would be the natural reaction of the administrator or the executor. When there is a contingent claim, the heirs must be ordered to post a bond when the property is already distributed to them. Bec the administrator or executor cannot forever hold on to the properties of the heirs as it may dissipate and later on his bond will answer for those losses that may be incurred by the properties. So, this will become contingent claims. Then if the heirs are given already their respective shares, they will be asked to post a bond to answer to any or all contingent claims that may be adjudged against the estate by virtue of a final judgment. And it is against that bond that that contingent claim may be enforced. Actually, not against the estate eh. Although theoretically, you sue the estate di ba in a separate action. You cannot claim that damages in the intestate or estate proceedings of the deceased. Did you get me? (4B:YES) Kung walang claim there is no problem eh. If there are already final judgment, you lay a claim against the estate. And all of this will be paid before the residue will be distributed to the heirs. But if there is a contingent claim still it is the duty of the executor or administrator to see to it that the all these properties are all ready after the payment of all the liabilities etc. the estate are distributed. But this is the time when the heirs will be asked to post a bond bec there are contingent claims here amounting to maybe 10 million. If ever there will be a final judgment against the estate, naturally the easiest way of being able to recover your claim is against the bond, not anymore against the estate. The claim must be made within 2 years from when? From the final settlement of the estate? YES, from the final settlement of the estate of the deceased person. Well, there are others, pardon, amnesty, marriage by the offended party with the offender and well, forgiveness by the wife on the offending husband in cases of marital rape. And there are others, say for example, pardon by the offended party given to the offender in private crimes prior to the institution of the criminal action. There could be other grounds, say for example, in relation to civil liabilities, the

pardon by the offended party on the offender extinguishes, totally extinguishes the civil liability but the criminal aspect is not actually a concern in connection with the pardon to be given by the private offended party or by the heirs in the event that there is already a pending criminal action. And of course, when there is a complete and absolute repeal of the law wherein in the accused may have been charged that totally extinguishes. But that repeal shall be subject to the condition that that repeal favors the accused. If the repeal will not favor the accused, it is useless. The accused will still be tried and accorded a sentence and he must be able to serve the sentence which the court has imposed upon him. There is nothing much about extinction of criminal liability and if you want to ask some questions, ask them now before I proceed to prescription of crimes and prescription of penalties. CIVIL LIABILITY RESTITUTION We can go also to how civil liability is satisfied. You want the way on how civil liability will be satisfied to be discussed first? Well, civil liability may be satisfied only by restitution of the thing that has been lost, destroyed or taken if it is already in the hands of a third person. Even if it has been lawfully acquired by the third person without prejudice on the part of that 3rd person to claim whatever damages he may have sustained by reason of having bought or received such property from another as against the one who gave it to him or sold it to him. But that property must be returned to the actual owner. Of course, this is only subject to the usual wear and tear of any property of that kind bec the wear and tear of a property would depend on what kind of a property it is and for what it is being used. If that property is being used, say for example, as a passenger jeepney, naturally the wear and tear would be different from a passenger jeepney that is not being used for passenger purposes, I mean, when the jeepney is not a passenger jeepney, it is different from a passenger jeepney. REPARATION And you have reparation which includes, of course, the sentimental value that a person attaches to a thing. Reparation is the payment of the actual value of the property at the time it was lost. Which may be, of course, subject to an increase in its value by reason of the sentimental value that the owner attaches to it. A sentimental value may be proven by establishing the reason for that property being in possession of the owner, the occasion with which that property was given, the efforts that he has exerted in order to preserve the same and of course, the importance which he attaches to the property and his life or in the life of the family. Those are the things that you have to consider in sentimental values. Others do not know how to prove the sentimental value. Just rememberwho gave that to you? How it was given? When? For what reason? Etc. What were the things that you have to perform in order that it may be preserved etc. and then of course, the importance that you attaches to that property are supposed to be established. Remember that when you allege sentimental value you must present evidence in relation to the sentimental value that you attaches to it. Failure on the part of the offended party to present evidence in connection with the sentimental value that one attaches to the property, no sentimental value in any amount can be adjudged in favor of the owner even if there would be an adjudged reparation of damages. INDEMNIFICATION FOR CONSEQUENTIAL DAMAGES Consequential damages, no problem. The only problem there is in regard to moral damages. Previously, before the new case of 2003 was released, you have to prove even in cases of frustrated homicide, murder even in rape cases, about moral damages but now in a recent decision of the SC, what we have to prove is merely the fact of the commission of the crime of frustrated murder and the court may already adjudge moral damages as against the offender. There is no need of proving what were the

feelings suffered by the offended party in order to prove moral damages. I dont know if you have come across that decision of the SC. Dati-dati you have to prove. What was not changed however is about attorneys fees which however should have been changed a long time ago. Accdg to the SC, you have to prove your entitlement to attorneys fees before the court should award. Look, if you are the private prosecutor, you have prepared memorandum, everything, you have signed so many pleadings before the lower court, before the SCare you are still going to prove that you are entitled to attorneys fees? But then the SC has not yet changed its mind, you have to prove attorneys fees by competent evidence. What they want now is the billing, about contracts, etc, agreements. Well, anyway, it will not take you 5 mins. if you are the one who is proving it. All that you have to do is to ask the witness Mr. Witness, you said that you secured the services of a counsel, is that correct? Yes, sir. Then, who is the lawyer that you hired to assist you in this case? He is the one, sir. Will you please announce his name. He announced. All right, in connection, with this hiring of a lawyer, do you have an agreement? Yes, sir. Was that agreement reduced into writing? Yes, this is it, sir. All right, mark it. Aside from this, what are your agreements? Okay, sabihin mo na, per appearance, per disappearance (heheheJ) tapos na. You were able to prove. Because the others, they just assume that is what the SC do not want, do not assume. But then when it comes to the victims, the SC said that it can be taken judicial notice of that when a person is stabbed and he nearly died, do you have to prove moral damages? Not anymore. The court may take judicial notice that indeed that person suffered moral damages. And it is up to the court, based in the evidence presented, to determine how much bec the person then will announce what is his profession or what is his occupation. Whether he is a family man, who is he in his community, etc. etc. So, from there you can already make your own computation of the moral damages that you are going to award in favor of that person. Maybe even exemplary damages may not even be the subject of proof bec if moral damages is awarded, naturally, you can expect that exemplary damages may be awarded. But when you dont award moral damages, you cannot award exemplary damages. How can you award exemplary damages when there is no moral damages. PRESCRIPTION OF CRIMES / PRESCRIPTION OF PENALTIES Okay, prescription of crimes and prescription of penalties. It is very easy. You just try to compare one from the other and remember the numbers. Oh, prescription of crimes, 20, 15, 10, 5, 1, 6, 2. prescription of penalties, 20, 15, 10, 5, 1. So, if you know the sequence, ah prescription of crimes yung una tatlo yun. There are 3. itong prescription of penalties, yung una dalawa lang. Why? In prescription of crimes, the penalties of reclusion temporal, reclusion perpetua and death shall prescribe in 20 years. On the other hand, in prescription of penalties, only reclusion perpetua and death prescribes in 20 years. The penalty of reclusion temporal and prision mayor prescribes in 15 years. The same is true with prescription of crimes, only prision mayor prescribes in 15 years. That is the only afflictive penalty that prescribes in 15 years. Now, correctional crimes punishable by correctional penalties, except for arresto mayor, prescribes in 10 years. Arresto mayor prescribes in 5 years. Then you have 1 year libel. Then you have oral defamation6 months and you have light felonies2 months. I remember libel, now we are having a problem bec of the case of the firm v. Ninas Cacho Olivares. Villaraza & Villaraza charged Olivares of 19 counts of libel. It was raffled last Friday when I did not go to the office. Napunta sa akin tatlo. Pagdating nitong umaga, kinukulit na ko ng mga former Ateneans. Judge issue mo naman na yung warrant. We promise that we will be able to secure a warrant of I have to study whether there is a valid information, whether there is a probable cause for the issuance of a warrant of arrest. I should be satisfied then I should know all the facts that are contained in the records of the case. Otherwise, if somebody asks me what was your basis, then I will not be able to answer them. I will look stupidaccording to Jaworski when he said, we will all look stupid here in this hearing. That is the language of Jaworski whenever he butt in any investigation (heheheJ) napapansin ko yun. Parati sinasabi

niya, we will all look stupid. Jaworski kasi can get away with it eh. And Joker doesnt even say anything. He will just be arranging his disarranged hair. So, you will know, that is how easy it is. Just remember, if you can remember the numbers, it is very easy. If your examiner in the bar examination is prone to giving questions regarding definitions and enumerations, these are the usual enumerations that they give. Justice Vitug, now is the examiner, is fond of enumeration or give the meaning of. Look at the, if you are helping in the bar operations, previous questions last year ha. Let all the bar examinees look at the bar questions last year and see how the questions were framed bec he was the one who framed them. So, you will know his style. Your friends that you are going to help will know the style. And then read the answers that were given in the U.P. Law Center. In that way, I can assure you that would be an added bonus to the examinees if they will be able to familiarize themselves with the style of Justice Vitug bec he is the one actually handling all the preparation of the questions. He will of course allow you to prepare your own questions but he will revise it. Your question will still be your question but the way how it is framed, he will be the one to frame it. So you tell your examinees. Well, Ill just drop by but Im not the reviewee. Most probably I will just be lecturing on updates in crim law for 2-4 hours as the case maybe. I wont have the luxury of time to give instructions but you will be able to help them in that way. Prescriptions. When are prescription of crimes suspended? Well, let us say before suspension when shall prescription of the crimes commence? It shall commence upon the discovery of the crime. By whom? By the offended party or by any person or by the authorities. And it shall be interrupted when? It shall be interrupted when the person has been brought for preliminary investigations etc and is arrested, the prescription of the crime will not continue. It shall be suspended until such time as the case has been filed etc. suspended pa rin yun. Or if he went to a country of which we have extradition treaty, will the prescription of the crime be suspended? No, it will not. How about if he goes to a country which we do not have any extradition treaty? The more that it will not be suspended. Hindi rin, Noso, all that the person has to do is go to a country which the Philippines does not have extradition treaty so that the prescription of the crime will be suspended NO. Actually, there are some debates regarding that. They are saying that it will be suspended etc bec he went to a country and well, he should be given the benefit of having the prescription of crime suspended. It is different when it is prescription of penalty. If he goes to a country that we have extradition treaty, will the prescription of the penalty be suspended?Hindi. It will not be suspended. Kasi we can always get him and serve his sentence. Now, when should the prescription of penalties commence? Ah very easy, it shall commence only from the time that the offender while not under detention, the judgment of the court became final and executory. The moment it became final and executory and he has not been arrested not brought before judicial authorities for proper disposition then the prescription of penalties will already commence. Eh di magtago ka langmagtago ka ng magtago. The moment that youre caught, suspended na naman. You escape, you hide, suspended na naman. Once, however, the suspension for the running of the period for the prescription of penalties has been earned by the offender, can it be remitted? Meaning to say, will the same be considered as ineffective in the moment that he has been arrested? No. once he has earned it, it will continue. Then, it will continue if again he will be able to evade the service of his sentence. To those who are in prison, the penalty shall only prescribe when you are able to escape from the institution where you are serving you sentence. As a matter of fact, even if you are serving your sentence in your home, it will take you one year if you became liable for evasion of sentence before that particular crime of your prescribe. But then, how about the evasion of service of sentence? Ah, that is you problem again. The crime for which you have been convicted, the penalty for which you are supposed to serve will prescribe in one year. But how

about the evasion of service of sentence? Kulong ka pa rin. So, no way, ganun yun eh. The only thing that will actually totally extinguish whatever criminal liability or whatever penalty may be extinguished is when you are out and not serving your sentence. Bec if you are serving your sentence, the moment you escape from prison, you commit another crime. So, patong ng patong yan. Its only when you are outside and you dont commit a crime etc. ayunayos na. But if you commit a crime, be sure that the crime you committed must be an offense so that you will not become a quasi-recidivist. If you commit a felony, quasi-recidivist ka. Okay. How about prescription of penalties in regard to penalties that involves a compound one. An imprisonment and a fine. Kasi if it is a penalty of imprisonment or a fine, I am sure that you are going to tell me that the principal penalty is the imprisonment, is that correct? Lets say for example, the penalty is a correccional one6 yearsso, that would expire in 10 years. But then, there is a tail in the penaltythe tail is the fine. The word is OR but it is P30,000. From which of the 2 are you going to base the prescription of the penalty. One is a correctional penalty, that is prision correccional, and the other is an afflictive penalty bec it is more than P6,000 as a fine. What is the rule given by Reyes? And will you agree? Even if say for example, it is AND a fine, which will you consider as the principal penaltyis it the imprisonment or the fine? For purposes of prescription, which will be the basis of prescription, the imprisonment of the fine? According to Reyes, the fine, when there is a compound penaltyyou look. My contention however despite that opinion is that the principal penalty shall be the imprisonment in a compound penalty. Why? If you are going to ask me, why did I say that? Because if it is purely a fine, what would be the subsidiary imprisonment to be served by the accused? 6 months! What is 6 months? Correccional. Oh, tapos sasabihin mo what would be the basis is the fine. When the subsidiary imprisonment for the fine is simply a correccional penalty. I will not agree even if they have a decision pa in that particular question. Well, if you are asked probably in the bar exams, just follow what is in the book. (heheheJ) But if you are asked your opinion and the reason why you are disagreeingit is because all fines, irrespective of the amounts if the same would exceed a subsidiary imprisonment of 6 months, shall be fixed at 6 months. No more no less. It cannot go beyond 6 months. 6 months is a correccional penalty. Now, in prescription of penalties, when the penalty is simply a finewala tayong problema. Bec the law specifically provides that the fine should be afflictive if it is more that P6, 000 but still I would like to disagree with that bec of the subsidiary imprisonment that attaches to a fine. Kasi hindi mo mapalampas ng 6 months yan ehits a good issue to be resolved bec if he cannot pay the fine, how long will he stay in jail?6months even if it is P1M even if it is P30M6 months pa rin. You cannot increase it. We have a P50M fine in RA 9165 ha, still he has to serve subsidiary imprisonment only for 6 months. SUBSIDIARY LIABILITY OF INNKEEPERS, TAVERNKEEPERS, AND PROPRIETORS OF ESTABLISHMENTS Okay. We should go now to subsidiary liability of innkeepers, tavernkeepers, etc. There is no problem regarding that bec if say for example, the principal himselfthe one who committed the theft or the robbery, he was caught, there is no problem. But the problem is kung walang pambayad. Ayun na. There are rules that must have to be followed. There is a rule that if, say for example, the owner, the operator etc violated rules and regulations etc of the city or municipality or the ordinance of the municipality or the rules and regulations promulgated by the police etcliable yan. IN this connection, may I ask you, would this affect the rule that you have to declare your valuables in the establishment and that you abide the rules and regulations before you can recover from them subsidiarily if there is a violation of an ordinance by the owner of the establishment? Remember that the 2 are separate from each other. So, even if you did not declare but they violated certain rules and regulations or ordinance, liable sila. It is only when they did not violate any rules and regulations or ordinance and you did not declareah, that is when they are not liable. Kagaya ng pumunta kaalam ko madalas kayo, you go to resorts etc wherein

it is a resort and at the same time a restaurantyou attend a reception of weddings or baptismal parties, whatever. There is even a guard but there is no notice there. Have you seen these resorts if they have any notice? WALA. IF they have no notice, you did not declare, nawalan ka, but then you lost it bec they do not have a double lock and there is an ordinance that their doors must have a double lock, can you go after them? YES, you can go after them and make them liable. It is only when there is a notice that you should inform them etc and they have not violated any rules and regulations that they are not subsidiarily liable. When the crime committed is robbery with force, violence or intimidation upon personsayan, they are not liable EXCEPT when the ones who perpetrated it are their own employees. Even in theft cases, they are liable. SUBSIDIARY LIABILITY OF OTHER PERSONS How about parents, teachers? Who are primarily liable for the damages resulting out of a crime incurred by their ward or by their children? Parents muna. Itong children, even if they have their own properties, it is only when the parents cannot pay that their properties may be held liable. Yun ang masakit eh. Your children are the one committing it bec you cannot discipline them anymore, the teachers cannot discipline them, the teacher cannot even hit them with a small stick, yet the primary liability is on the teacher. Those who did a research of RA 7610 or those who sponsored it, you belong to the Human Rights group or the rights of childrendid you ever look at this provision of the law. Hindi eh. You will become parents, maybe you will become teachers someday, we do not know. Ano mangyayari diyan? Only sa minors lang yan hapupils, secondary. Pag medyo college na, hindi na kasali yan. Oh, 1st level and 2nd level education lang ito. The property of the parents are the 1st that are supposed to answer for the liability incurred by their children and the teachers incurred by their pupils or by their students. Its when they do not have any property or the property has been exhausted that they will go after the property of the pupil or the ward. These are very simple. EXTINCTION OF CIVIL LIABILITY Well, extinction of civil liabilityah, wala namang problema yan eh. Just read Art. 2170 or 2176 of the Civil Code? Yan na yunlost of the thing due, payment, etc. then you have of course, others such as novationthese would extinguish the civil liability or it would be considered as already closed. Do you have any questions? In Book One? We have already discussed ISL, Probation? Wala ah(heheheJ)tignan natin. Joanne: Computation of Indeterminate Sentence? Computation? Napakadali lang naman nun eh. Anong gusto mo, yung more complicated, or the simple one? Madali lang naman ang Indeterminate Sentence eh. Judge wrote this on the board. [Facts: Homicide Reclusion Temporal Offender: 17 years old Plea: guilty Under the ISL, one degree lower for the minimum Maximum should not exceed the maximum fixed by law ] This is a simple example of the computation of the benefits of the ISL that an accused may enjoy bec it is a crime punishable under the RPC known as a felony. Its only when the crime is a felony or when an offense carries with it a penalty common to violations of the RPC that he shall enjoy the benefits of the ISL. And that benefit is that the minimum penalty shall be lowered by one degree from the penalty imposed or imposable? (judge: hahaha J) If you say imposed, that is a different matter when you say imposable. Let us just clear that up. If the offender is a 17 year old boy. He committed homicide, he pleaded guilty. What are you going to do in order to arrive at the penalty which is imposable under the law? Are you now going to lower the

penalty by one degree immediately bec the offender is entitled to a privileged mitigating circumstance of minority? After lowering it to 1 degree, are you going to fix the penalty to be imposed upon the accused to the minimum because there is present one mitigating circumstanceso that the penalty that should be imposed upon the accused is prision mayor in its minimum period? OR should you first apply the ISL by lowering the minimum to one degree lower then you apply already the privileged mitigating circumstance and then the modifying circumstance of plea of guilty. If you did the 2nd that will be very confusing. Do it the easier way. The easier way is that considering that homicide is punishable by reclusion temporal and the offender is only 17, lower the penalty by one degree. Then, go to the application of the modifying circumstances. So, after applying the modified circumstance of guilty, the penalty that will be imposed is PRISION MAYORMINIMUM. Then, you apply the ISL. What does the ISL says? The minimum shall be one degree lower from the penalty to be imposed by the law. To be IMPOSED. So, one degree lower from the penalty to be imposed by the law is PRISION CORRECCIONAL MINIMUM. You know the range already, prision mayor in its minimum period which is 6 years and 1 day to 8 years and prision correccional in its minimum would be 6 months and 1 day to 2 years and 4 months. So, the judge can impose an IS of from 6 months and 1 day of prision correccional as minimum to 6 years and 1 day of prision mayor as maximum. [Illustration: MINIMUM= Prision Correccional in its minimum (6 months & 1 day to 2 years & 4 months) MAXIMUM= Prision Mayor in its minimum (6 years & 1 day to 8 years) ] Now, I have been telling you that it depends upon the temper of the judge when he arrives at the office as to the computation of the penalty. The penalty will be announced by judge in open court or it will be read. The accused is hereby sentenced an Indeterminate Penalty of from 2 years and 4 months of prision correccionaltignan nyo, dalawang taon agad ang layo to 8 years of prision mayor as maximum. Is he correct? Yes. Supposing the judge said maginoong bastos naman ito eh. Well, I will sentence you of an Indeterminate Penalty of from 6 months and 1 day of prision correctional as minimum to 8 years of prision mayor as maximum. Will the judge be right? Yes, bec it is still within the range. Kaya nga maginoong bastos eh. Maginoo dun sa minimum, bastos na pagdating dun sa maximum. (heheheJ) Eto na yung pinakamadali eh. Hindi na yung maghahanap ka ng kung anu-ano pa, uumpisahan mo kaagad homicide, penalty: reclusion temporal, then 1 degree lower would be prision mayor then tsaka ka pa lang mag-aaply etcmagulo yun eh. Hahaba ang proceso. The process will be long and tedious and sometimes it will result toy confusion. Then there will be an error in the computation. Here, there is no error, its as a simple as that and you will always be right. Even if sometimes the decision of the SC says that the minimum shall be within the range of prision correccional in any periodnapakalaki ng range nun eh. E di maguumpisa ng an indeterminate sentence of 6 years of prision correccional as minimum to 6 years and 1 day of prision mayor as maximumisang araw lang ang diperensya! Ano niloloko mo ang sarili mo? (heheheJ) So, that would be the result of some of the decisions of the SC if you are going to be very literal about it. That is why I have adopted this system so that you will always be right. You will never be wrong. You are on the safe side. Dun tayo sa safe side, mahirap yung makikipagsugal ka pa. Taking the bar exams is not a gamble, it is actually by a good preparation that you are going to be successful in the taking of the bar examination. Kaya ngayon pa lang talagang pukpukin na ninyomagpuyat na kayo. Pag sinabi nyong pagdating na lang ng pre-bar tsaka na ko mag-aaral, wag ka nang mag-aral (heheheJ) di ka rin lang papasa. Anything else. Well, if you do not have anything more, then we will end the session, I declare Wednesday as a free cut day. (4B: Yehey! J).