Villa, Horeb Felix B.

LLB-1

LEGAL WRITING MIDTERM ASSIGNMENT

Case #1:
Facts:
In the aftermath of Typhoon Yolanda in Tacloban, Oby Juan was
charged with theft. It is alleged that he stole 1 sack of rice, 3 gallons of
purified water, 1 box of biscuits from a warehouse left ruined by the
typhoon. It is alleged that the theft occurred 5 days after Yolanda struck.

The owner of the warehouse, Mr. Pal Patin, claimed that Oby Juan
actually committed qualified theft, by reason of being the former’s
employee, there being an employer-employee relationship between the two
parties (Oby Juan is a sales assistant in the grocery store owned by Mr.
Patin). Moreover, Mr. Patin claims that such theft was aggravated by the
fact that it was committed on the occasion of a calamity.

Issues:
1. Did Oby Juan commit theft according to Article 308 of the Revised Penal
Code (RPC) because he allegedly stole some items from a damaged
warehouse? If so, would the fact that he was an employee of Mr. Pal Patin
qualify the theft according to Article 310 of the same Code?
2. Is the aggravating circumstance of calamity as defined in Article 14 of
the RPC applicable here, on the argument of Mr. Patin that such theft was
committed 5 days after Typhoon Yolanda struck Tacloban?

Ruling:
The accused, Oby Juan should be adjudged as guilty of the crime of
qualified theft, not by reason of his employment to Mr. Pal Patin, but
because he committed the theft during the occasion of a calamity.

Article 308 of the Revised Penal Code, punishes the crime of theft:

Art. 308. Who are liable for theft. — Theft is committed by any person who,
with intent to gain but without violence against or intimidation of persons nor
force upon things, shall take personal property of another without the latter's
consent.
Theft is likewise committed by:
1. Any person who, having found lost property, shall fail to deliver the same to
the local authorities or to its owner;
 2. Any person who, after having maliciously damaged the property of another,
shall remove or make use of the fruits or object of the damage caused by him; and
3. Any person who shall enter an in closed estate or a field where trespass is
forbidden or which belongs to another and without the consent of its owner, shall
hunt or fish upon the same or shall gather cereals, or other forest or farm products.

Furthermore, Article 310 of the RPC as amended, defines and penalizes

the crime of Qualified Theft:

Art. 310. Qualified theft. — The crime of theft shall be punished by the
penalties next higher by two degrees than those respectively specified in the
next preceding article, if committed by a domestic servant, or with grave abuse
of confidence, or if the property stolen is motor vehicle, mail matter or large
cattle or consists of coconuts taken from the premises of the plantation or fish
taken from a fishpond or fishery, or if property is taken on the occasion of fire,
earthquake, typhoon, volcanic eruption, or any other calamity, vehicular
accident or civil disturbance.

Theft is qualified when the theft is (1) committed by a domestic servant;

(2) committed with grave abuse of discretion; (3) If the property stolen is a
motor vehicle, mail matter or large cattle; (4) If the property stolen consists
of coconuts taken from the premises of a plantation; (5) If the property
stolen is taken from a fishpond or fishery and (6) If the property was taken
on the occasion of fire, earthquake, TYPHOON, volcanic eruption or
any other calamity, vehicular accident or civil disturbance.

The penalty for qualified theft according to the RPC shall be two
degrees higher than that of simple theft.

According to the Supreme Court in the case of People v. Celis1, theft

committed by a laborer or employee is not qualified theft, but only simple
theft. As stated by the Court:

“The mere circumstance that the accused worked as a laborer in the place
where the theft was committed, does not suffice to create the relation of
confidence and intimacy that the law requires. Theft by a laborer or employee is
only simple theft ”

But, there has yet to be any Supreme Court ruling on the matter of
qualified theft due to calamities.

1 76 Phil. 369
 Although there is no ruling from the high court regarding this matter, it
can be said that in specifically including this circumstance of calamities in
the law to qualify theft, the lawmaking authority intended to penalize those
who take advantage of calamities to commit the crime of theft. This
provision in Article 310 of the RPC is akin to the provision in Article 14
paragraph 7 of the same, which lists crimes committed on occasion of
calamities as an aggravating circumstance. The rationale in including this
circumstance as one of the aggravating circumstances is elucidated in the
case of People v. Dicto Arpa1:

“The reason for the provision of this aggravating circumstance "is found in the
debased form of criminality met in one who, in the midst of a great calamity, instead of
lending aid to the afflicted adds to their suffering by taking advantage of their misfortune
to despoil them."

Yet, because the law specifically enumerated that theft committed was
qualified due to the offender’s taking advantage of a calamity or misfortune,
then the aggravating circumstance of calamity and misfortune can no longer
be appreciated as an aggravating circumstance, as the same is already
inherent in the crime of qualified theft.

Counterarguments:
Yer, it may also be argued by the defense that the accused should not be
adjudged as guilty of the crime of qualified theft, but rather be excused from
the crime altogether, because his act was justified under Article 11 of the
Revised Penal Code which states that:

Art. 11. Justifying circumstances. — The following do not incur any criminal
liability:
1. …
4. Any person who, in order to avoid an evil or injury, does not act which
causes damage to another, provided that the following requisites are present;

First. That the evil sought to be avoided actually exists;

Second. That the injury feared be greater than that done to avoid it;
Third. That there be no other practical and less harmful means of
preventing it.
…

Furthermore, there is Article 12 of the same code which states:

1 G.R. No. L-26789, April 25, 1969

Art. 12. Circumstances which exempt from criminal liability. — the following are
exempt from criminal liability:
1. …
6. Any person who acts under the impulse of an uncontrollable fear of an equal or
greater injury.
…

The defense would likely interpose the defense that due to the chaotic
and anarchic state of Tacloban City in the aftermath of Typhoon Yolanda,
where everything was in utter shambles, the local government was
practically unable to function, that a state of emergency had to be declared
in the city and military and police forces had to be deployed to keep the
peace in the area. The relief goods that were badly needed were delayed,
and in many instances not enough for everyone. Thus, looting became a
necessity for survival for those who could not gain access to relief goods.
This is what is called a crime by necessity which has been recognized in
multiple foreign jurisdictions.

Moreover, the defense would also argue that what Oby Juan stole were
things basic for his survival. To reiterate the facts, he allegedly stole 1 sack
of rice, 3 gallons of purified water, 1 box of biscuits from a warehouse left
ruined by the typhoon. If indeed, he did steal these items, it was clearly out
of sheer necessity to live. He did not steal anything luxurious or
unnecessary such as air conditioners or television sets, but what he stole
were basic and necessary for his survival and that of his family. They would
want that the time which he allegedly took the things mentioned to be
considered, that he only resorted to looting after five days of having almost
nothing to eat or drink due to the intense scarcity of resources as a result of
the calamity.

Lastly, the defense would also argue that the circumstance of typhoon or
any other calamity cannot apply because the typhoon had already been gone
for five (5) days when the alleged theft occurred.

Be that as it may, and while his plight does deserve sympathy, it could
not, by any means, totally excuse him from criminal liability. His act could
not be deemed justified as the third requisite of there being no other
practical or less harmful ways of preventing it is not present, as the
government was formulating ways to give food and shelter to the victims.
Article 12 is also not applicable because his act was deliberate and noot
under any “impulse” of an uncontrollable fear or an equal or greater injury.
At most, his liability could be mitigated because he did not intend to commit
so grave a wrong
3
, but then, he would still incur criminal liability. Dura lex sed lex “The
law may be harsh, but it is still the law.” One of the most basic rules in
Statutory Construction is that when the law is clear and free from any doubt
or ambiguity, there is no room for construction or interpretation. There is
only room for application.4 Thus, because the Revised Penal Code states to
the effect that theft committed on the occasion of calamities such as that of
Typhoon Yolanda qualifies the offense, and thus necessarily changes the
nature of the crime committed, then that is the rule to be followed, since this
law is still very much in effect. Until such law is amended or repealed by
the legislature, or declared as unconstitutional by the Supreme Court, the
judge in the case has no choice but to apply the law to the fact he is given,
no matter what his personal biases or opinions on the case may be.5

To counter the second argument that what the accused only took from
the warehouse were essentials for his own survival and that of his family,
this cannot apply because the law simply states that theft committed on
occasions of calamities qualifies the offense without any distinction
whatsoever as to the reason for the offender in committing the offense.
Where the law does not distinguish, the courts should also not distinguish.6

And to refute the defense’s last probable argument, Article 310 of the
Revised Penal Code not only lists typhoons and other calamities as
circumstances in which the theft is qualified, but it also lists the
circumstance of other civil disturbance to which the situation during the
aftermath of Yolanda was. (Anarchic, chaotic, no peace and order). Thus,
even if the typhoon had already been gone for 5 days when the theft
occurred, it can still be reckoned that Mr. Oby Juan took advantage of the
civil disturbance which resulted from the typhoon to take the personal
properties of Mr. Pal Patin without the latter’s consent.

Conclusion
To summarize, the accused Oby Juan should be adjudged as guilty of the
crime of qualified theft, not by reason of his employment to Mr. Pal Patin,
but because he committed the theft on the occasion of a calamity as stated in
Article 310 of the Revised Penal Code. The aggravating circumstance of
calamity as defined in Article 14 paragraph 7 of the same Code cannot be
applied as it is already inherent in the crime itself. The possible defenses of
the accused may consist of invoking Articles 11 and 12 of the RPC, which
is not applicable because the circumstances enumerated in those Articles are
not present in this case, at most his liability could only be mitigated. Second,
that what the accused took were necessary for his and his family’s survival
cannot be taken into consideration as the law does not provide that theft is
3 Article 13(3) Revised Penal Code
4 Agpalo, Statutory Construction 6th ed. (2009) cited in Bolos v. Bolos, G.R. No. 186400, October 20, 2010.
5 People v. Veneracion, G.R. No. 119987-88, October 12, 1995.
6 Amores v. HRET, G.R. No. 189600, June 29,2010.
justified if only basic necessities are stolen. And lastly, the defense could
argue that the circumstance of typhoon was no longer applicable when the
alleged theft occurred, thus the crime cannot be qualified. But as stated
above, there is an additional circumstance of other civil disturbance which
could also qualify the offense committed by Mr. Oby Juan.

With these, we pray that the accused, Mr. Oby Juan be adjudged as guilty of
the crime of Qualified Theft, as defined and penalized by Article 310 of the
Revised Penal Code.

Case #2:
Facts:
Arra Wen was charged with serious physical injuries against her
husband of five years. She admits to seriously wounding her husband, but
says that she only did it when she caught her husband in the act of having
sexual intercourse with his lover, a man. Her husband, Czar Uman did not
deny his wife’s statements, but claimed that both of them had already
separated in fact for three years to the day of the incident.

Medical reports reveal that Arra Wen is a victim of repeated spousal

abuse- both physical and psychological.Meanwhile, Czar Uman asks the
court to deny to his wife the custody of their three-year old daughter
claiming that Arra Wen is not fit to have custody of the child because of her
criminal propensity.

Issues:
1. Can Arra Wen be charged with serious physical injuries according to
Article 263 of the Revised Penal Code (RPC) considering that she admits to
seriously injuring her husband when she caught the latter in the act of sexual
intercourse with another man?
2. Are the findings of the medical reports that Arra Wen is a victim both of
physical and psychological abuse or that Arra Wen’s consent to the
marriage was vitiated due to the fact that Czar Uman hid his homosexuality
from his wife sufficient grounds for legal separation or annulment of
marriage according to Article 46 or 55 of the Family Code?
3. Can Arra Wen be granted custody of their three-year old daughter in
accordance with Article 213 of the Family Code despite the allegation of her
husband that she has criminal propensities?

Ruling:
On the first issue, on whether Arra Wen can be charged with serious
physical injuries by her husband, in accordance with Article 263 of the
Revised Penal Code. First of all, she does admit to the commission of the
crime, but says that she only did so upon seeing her husband in the act of
sexual intercourse with another man. Thus, she can be charged, but she can
avail of the benefits of Article 247 of the Revised Penal Code which states:

Article 247. Death or physical injuries inflicted under exceptional

circumstances- Any legally married person who having surprised his spouse in the
act of committing sexual intercourse with another person, shall kill any of them or
both of them in the act or immediately thereafter, or shall inflict upon them any
serious physical injury, shall suffer the penalty of destierro.

If he shall inflict upon them physical injuries of any other kind, he shall be
exempt from punishment.

These rules shall be applicable, under the same circumstances, to parents with
respect to their daughters under eighteen years of age, and their seducer, while the
daughters are living with their parents.

Any person who shall promote or facilitate the prostitution of his wife or
daughter, or shall otherwise have consented to the infidelity of the other spouse shall
not be entitled to the benefits of this article.

It must be noted however, that Article 247 of the RPC does not define
and penalize a felony.7 It only serves to mitigate the penalty, that instead of
the usual penalty of serious physical injuries (prision mayor or prision
correccional as the case may be), the penalty for such an act would only be
destierro or exile. She should still be charged with the crime of serious
physical injuries against her husband, but her penalty, if ever found guilty,
would not be the penalty prescribed under Article 263, but of Article 247 of
the RPC.

The second issue is on whether the grounds invoked by Arra Wen

(physical and psychological abuse, vitiated consent) are sufficient grounds
for legal separation or annulment of marriage.

Article 55 of the Family Code of the Philippines (Executive Order No.

209) prescribes the grounds for legal separation:

Article 55
A petition for legal separation may be filed on any of the following grounds:

1. Repeated physical violence or grossly abusive conduct directed against the

petitioner, a common child, or a child of the petitioner;
2. Physical violence or moral pressure to compel the petitioner to change
religious or political affiliation;
3. Attempt of respondent to corrupt or induce the petitioner, a common child, or a
child of the petitioner, to engage in prostitution, or connivance in such corruption or
inducement;
4. Final judgment sentencing the respondent to imprisonment of more than six years,
even if pardoned;
5. Drug addiction or habitual alcoholism of the respondent;

7 Reyes, Luis B. Revised Penal Code Book II. 2016 Edition. p. 510.
6. Lesbianism or homosexuality of the respondent;
7. Contracting by the respondent of a subsequent bigamous marriage, whether in the
Philippines or abroad;
8. Sexual infidelity or perversion;
9. Attempt by the respondent against the life of the petitioner; or
10. Abandonment of petitioner by respondent without justifiable cause for more than
one year.
For purposes of this Article, the term child shall include a child by nature or by
adoption. (9a)

According to the facts presented, it can be inferred that Czar Uman, by

his act of engaging in sexual intercourse with another man, is a homosexual,
and that his act of having intercourse with another person other than his
spouse, is an act of sexual infidelity or perversion, and that according to
medical reports, Arra Wen is abused, both physically and psychologically
by her husband. These circumstances are all grounds for legal separation.
But, it is also worthy to note, that legal separation is actually just relative
divorce. It does not end the marriage between the two spouses, but it is just
a “separation of bed and board”8 such that the spouses are now allowed to
live separately from each other, and their property regimes will be
dissolved.9 So yes, the grounds presented in the facts of this case at bar are
valid grounds for the spouses to seek legal separation.

Yet, as can also be inferred in the facts of the case, Arra Wen’s husband,
Czar Uman was a closeted homosexual due to the fact that Arra Wen was
surprised to see her husband in bed with another man. So this may be a
ground not only for legal separation, but for annulment of the marriage due
to vitiated consent. As for the annulment of marriage, the grounds for such
are enumerated in Article 45 of the Family Code which states:

Art. 45. A marriage may be annulled for any of the following causes, existing at
the time of the marriage:
(1) That the party in whose behalf it is sought to have the marriage annulled was
eighteen years of age or over but below twenty-one, and the marriage was
solemnized without the consent of the parents, guardian or person having
substitute parental authority over the party, in that order, unless after attaining
the age of twenty-one, such party freely cohabited with the other and both lived
together as husband and wife;
(2) That either party was of unsound mind, unless such party after coming to
reason, freely cohabited with the other as husband and wife;
(3) That the consent of either party was obtained by fraud, unless such
party afterwards, with full knowledge of the facts constituting the fraud,
freely cohabited with the other as husband and wife;
(4) That the consent of either party was obtained by force, intimidation or undue
influence, unless the same having disappeared or ceased, such party thereafter
freely cohabited with the other as husband and wife;
(5) That either party was physically incapable of consummating the marriage
with the other, and such incapacity continues and appears to be incurable; or

8 Lapuz v. Eufemio, 43 SCRA 177

9 Sta. Maria, Melencio. Persons and Family Relations Law. 2015 Edition. p. 370.
 (6) That either party was afflicted with a sexually-transmissible disease found to
be serious and appears to be incurable.(85a)

As to what constitutes as fraud, Article 46 of the same Code states:

Art. 46. Any of the following circumstances shall constitute fraud referred to in
Number 3 of the preceding Article:

(1) Non-disclosure of a previous conviction by final judgment of the other party

of a crime involving moral turpitude;
(2) Concealment by the wife of the fact that at the time of the marriage, she was
pregnant by a man other than her husband;
(3) Concealment of sexually transmissible disease, regardless of its nature,
existing at the time of the marriage; or
(4) Concealment of drug addiction, habitual alcoholism or homosexuality
or lesbianism existing at the time of the marriage.
No other misrepresentation or deceit as to character, health, rank, fortune or
chastity shall constitute such fraud as will give grounds for action for the annulment
of marriage. (86a)

Thus, it can be inferred that homosexuality is a ground both for legal

separation or annulment of the marriage. Yet, because Arra Wen did not
know of her husband’s homosexuality at the time of marriage (it is
presumed that she did not know as she was surprised to see her husband in
bed with another man), then it may be said that her consent to her marriage
with her estranged husband was vitiated due to the fact that he hid the fact
of his homosexuality from her at the time if the marriage and that it was
only discovered later, after they got married but separated only in fact. Thus,
it would be more beneficial for her to get an annulment of her marriage with
Czar, on the ground of vitiated consent due to concealment of
homosexuality during the marriage as annulment totally ends the marriage
and may capacitate her to contract another marriage should she wish to,
whereas in legal separation, since the marriage bond is not severed, she may
not legally marry, and may even be charged with adultery if she has
relations with another person other than her spouse. But, annulment can also
be costly, tedious and long because many processes have to be observed
first such as investigation, trial type hearings, etc. before one can obtain a
judicial declaration of nullity of marriage.10

On the third issue, on whether or not Arra Wen should be given custody
of their three-year old daughter in light of her criminal propensity, we
should first examine the law on child custody, which is Article 213 of the
Family Code. It says:

10 Id.
 Art. 213. In case of separation of the parents, parental authority shall be
exercised by the parent designated by the Court. The Court shall take into account
all relevant considerations, especially the choice of the child over seven years of age,
unless the parent chosen is unfit.

No child under seven years of age shall be separated from the mother, unless the
court finds compelling reasons to order otherwise.

The general rule is that, if the child is under seven years of age, the
custody shall go to the mother. Yet if the court finds compelling reason to
rule otherwise i.e., the mother is abusive, unfit to raise the child, etc., then it
can give custody to others, such as the father of the child.

Now, here is where the conundrum of this case lies. Both parents may
be seen to be unfit parents for the child, as the father is abusive, and the
mother has criminal tendencies. Now, in case both parents are unable to
adequately support the child, or are deemed to be unfit parents of the child,
to whom shall the custody of the child go?

Article 214 of the Family Code provides the answer. It states:

Art. 214. In case of death, absence or unsuitability of the parents, substitute

parental authority shall be exercised by the surviving grandparent. In case several
survive, the one designated by the court, taking into account the same consideration
mentioned in the preceding article, shall exercise the authority.

So according to this provision, in case both parents are deemed unfit or

are unable to support and adequately care for the child, the grandparents
may exercise substitute parental authority over the child and gain custody of
the same. The paramount consideration in these cases are the best interests
of the child. As stated by the Supreme Court through the late eminent
Justice J.B.L. Reyes, in Medina v. Macabali11

While our law recognizes the right of a parent to the custody of her child, Courts
must not lose sight of the basic principle that "in all questions on the care, custody,
education and property of children, the latter's welfare shall be paramount"

Thus taking into consideration that both parents may be deemed unfit
due to their violent tendencies as accounted by their turbulent history, the
court should grant custody to the grandparents or to other persons who may
be able to care for the child and provide for her every need.

11 137 Phil. 329 (1969)

Possible Counterarguments

Arra Wen could always put up the defense of passion and obfuscation to
mitigate her liability for the physical injuries she inflicted on her husband,
in accordance with Article 13 paragraph 6 of the RPC, in addition to the
ground of Article 247 of the same Code (Death or Physical injuries under
exceptional circumstances), but that would not exculpate and absolve her
from criminal liability, but would only lower her penalty for the crime.

Her husband’s defense as to why he was unfaithful to his wife by

engaging in sexual intercourse with another person other than his spouse,
that both of them were already separated in fact is not tenable. Separation in
fact does not sever the marriage vinculum, and unless they have annulled
their marriage, then they are still husband and wife to each other. But,
although not alleged in the facts, Czar Uman cannot be charged with
concubinage under Article 334 of the RPC, as the person Mr. Uman was
with could not be his mistress (as it was a man with whom he had sexual
intercourse with) and that they did not live under scandalous circumstances,
two necessary and indispensable elements of the crime of concubinage.

Czar could also put up the claim that since Arra Wen has criminal
propensities, that she should not be given custody of their three-year old
daughter, and that instead, the same should be given to him as the father of
the child. Again his claim must also fail because although, yes it is true that
generally the rule is that in case of the mother’s incapacity to support her
child, the custody of the child should be given to the father as the natural
parent of the child, and the one who naturally exercises parental authority
over her. Yet, if the custody of the child were to be given to him, it would
possibly expose the child to physical and psychological abuse like that
experienced by her mother, as evidenced by the medical report. Such a
deplorable situation could hardly be seen as beneficial to the child. In fact, it
could even be dangerous to the life and well being of the child if she were to
be exposed to the abusive tendencies of her father. This would not be in
accordance to our laws which give paramount consideration to the best
interests of the child. Thus, it is worthy to reiterate that, in case both parents
are deemed unfit to support and care for their child, custody should be given
to their grandparents, or in their absence, a person who can adequately care
for the child and care for her every need. Such is a necessity if the child is to
grow up in a loving, conducive and healthy environment.

Conclusion
To summarize the points raised here:
First, Arra Wen can be charged for the serious physical injuries she
inflicted on her husband, but she can invoke the defense and possibly avail
of the benefits of Article 247 of the Revised Penal Code (Death or Physical
injuries under exceptional circumstances). But this would not absolve her
from criminal liability, but would mitigate her offense, to the effect of
lowering her penalty from that prescribed by law. The defense of her
husband that they were already separated in fact deserves scant
consideration due to the fact that they are still married, as separation in fact
does not sever the marriage bond between husband and wife.

Second, the grounds raised raised by Arra Wen on her husband’s

constant abuse of her is a ground for legal separation, and his concealed
homosexuality is ground for annulment of their marriage. She could choose
either, but annulment would be more beneficial for her as it would in effect
sever the marriage tie between them, capacitating her to marry again should
she wish to.

Finally, the custody of their three year old daughter should not be given
to either parent, in light of their abusive and criminal tendencies. In
accordance with the time-honored principle that the best interests of the
child should be given paramount consideration, the custody of the child
should be given to the grandparents, or in their absence, a person who can
adequately care for the child and care for her every need.

Thus, all premises considered, it is prayed for that the relief asked for be
granted.