In my research of different cases on the net, i came upon the blog of Atty. Hector de Leon, Jr., son of Atty. Hector de Leon, famous author of Philippine Law Subjects. It is updated with the latest citations of court decisions and has "NewLex" containing listings of recent Republic Acts. Presentation and contents of the site are very simple. The web design as well is very simple. Yet, it is a rich source of information for law students like me.
Thursday, July 23, 2009
Bar Operations 2009
It's been a long time since my last post in this blawg. Me and my classmates (third year students) have been very busy preparing for the Bar Operations activity for the four sundays of September this year.
What is Bar Operations?
The Bar Operations is an activity of the College of Law
In our University (University of Pangasinan) The Third Year College of Law students are in charge of hosting the Bar Operations. In line with this, we will be reproducing Bar Materials for the examinees and we will be sending representatives during the examination day for moral support and assistance.
In aid of this noble cause, different committees are formed assigned with certain tasks in aim of giving benevolent support to the bar examinees. One of the major assistance given to the examinees are the bar tips and updates, which refers to the possible questions and topics that will be asked during the examination. This bar tips are made exclusive for the bar examinees graduates of the university. =/
Thursday, April 2, 2009
Elopement and Marriage
PROBLEM:
Mr. A desires to seek your services as counsel. His problem is that he has young daughter B, who is only 16 years old. B eloped with Mr. C, who is 26 years old. Mr. A the father desires to regain the custody of his minor daughter. As counsel for Mr. A, discuss all the steps you will take in accordance with your theory which you have formed.
ANSWER:
The question to be decided is whether Mr. A still retains his right to the custody of his minor daughter, B.
The first step is definitely to ascertain the facts and circumstances surrounding the case. The date when B eloped with C, the period of elopement and whether or not a marriage was constituted between B and C after the former eloped with the latter.
If the problem has been brought to my attention after elopement, immediately the second step is to file a petition before the court for the issuance of a writ of habeas corpus directing any lawful officer to take from Mr. C and produce before the Court the person of B and requiring the former to justify his right to the custody of said minor, and, after hearing, to award said custody to his father, Mr. A. But if the elopement happened giving B and C the opportunity to contract a marriage, time has to be considered.
If the elopement and eventual marriage of a minor to a person of legal age took place before the effectivity of the Family Code, the applicable law would be the Marriage Law of 1929 (Act No. 3631), particularly Section 2, which sets forth the required legal capacity of the contracting parties to marriage. On the other hand, if the minor eloped with a man of legal age and contracted marriage with him on or after August 3 of 1988, which is the date of the effectivity of the Family Code, then the pertinent provisions of said Code apply.
In the case of Ching Huat vs. Co Heong (GR. No. L-1211, January 30, 1947), Maria Ching, was then 15 years of age at the time she agreed to elope with and marry respondent Co Heong, 21 years of age or more, on June 21, 1946 in Plaridel Bulacan, before the Justice of the Peace of said municipality. Her father, Ching Huat, alleged that respondent, took advantage of his confidential and spiritual relation with Maria Ching as her godfather, and persuaded and induced her by means of trick, promises and cajolery, to leave the parental home and to elope with him in the night of June 21, 1946. However, the Court held that by virtue of Section 2 of Act No. 3631 or otherwise known as the Marriage Law of 1929, Maria Ching was already in her marriageable age. The marriage was valid as both complied with the essential requisites of marriage applicable during that time. Having been validly married on June 21, 1946, she became emancipated on that same date (as provided in arts. 314 [1] and 315, of the old Civil Code). This emancipation brought about the loss by her father of the parental authority that he was claiming. Hence, in this case, the Court denied the petition of Ching Huat for the issuance of a Writ of Habeas Corpus.
Citing the foregoing case, it is clear that if the situation of B is as such, then Mr. A has no remedy by reason of the marriage as well as emancipation from parental authority. The second step should therefore to advise A of the consequences of actions to be taken.
If however, considering the minority of B who eloped with C at the time or after the Family Code took effect on August 3, 1988, the petition for the issuance of a Writ of Habeas Corpus may pursue.
Mr. A could also file civil and criminal charges against Mr. C for the grievous moral wrong he committed and for seducing his minor daughter into contracting marriage with him.
As for the civil aspect, he may file on behalf of her daughter a petition for the declaration of the nullity of marriage under Art. 35 (1) of the Family Code.[1]
If Mr. C had carnal knowledge with B, A may likewise file a criminal suit against him for simple seduction under Art. 338 of the Revised Penal Code[2] or if only acts of lewdness were committed, Acts of Lasciviousness under Art. 339 of the RPC[3].
[1] Art. 35. The following marriages shall be void from the beginning:
(1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians, xxx
[2] Art. 338. Simple seduction. — The seduction of a woman who is single or a widow of good reputation, over twelve but under eighteen years of age, committed by means of deceit, shall be punished by arresto mayor.
[3] Art. 339. Acts of lasciviousness with the consent of the offended party. — The penalty of arresto mayor shall be imposed to punish any other acts of lasciviousness committed by the same persons and the same circumstances as those provided in Articles 337 and 338.
Monday, March 2, 2009
Presence of Treachery in Murder, not in Homicide
FACTS:
The accused A was charged of murder for stabbing B and the RTC sentenced B guilty of murder. One of the issues presented was whether or not the prosecution was able to establish beyond reasonable doubt the presence of treachery in killing B. As testified by eyewitnesses, A and B were drinking liquor in front of house of A. After drinking so much there was an argument between A and B and B went home to his house and returned to the place where they were drinking carrying with him a sharp bolo. When A came back, B was urinating on the dike of the fishpond near his house. A stabbed the victim B and hit him on his left chest as a result of the injury, B died.
ISSUES:
- Was there treachery?
- What is the crime committed by A? Murder or homicide?
ANSWER:
1. Citing People vs Cayabyab (GR. No. 123073, June 19, 1997), for treachery to be present, two conditions must concur: (1) employment of means of execution that give the person attacked no opportunity to defend himself, much less retaliate; and (2) conscious and deliberate adoption of the means of execution. More importantly, treachery must be based on some positive, conclusive proof and not only upon hypothetical facts or on mere supposition or presumption. It must be proved as cogently as the killing itself.
In the above mentioned facts, there was nothing stated that the accused attacked the victim from behind or whether the attack was unexpected, catching the victim totally unaware of the coming peril. There is indeed reasonable doubt on the presence of alevosia.
2. Article 248 and 249 of the Revised Penal Code of the
Art. 248. Murder. — Any person who, not falling within the provisions of Article 246[1] shall kill another, shall be guilty of murder and shall be punished by reclusion temporal in its maximum period to death, if committed with any of the following attendant circumstances:
1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity.
2. In consideration of a price, reward, or promise.
3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a street car or locomotive, fall of an airship, by means of motor vehicles, or with the use of any other means involving great waste and ruin.
4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic or other public calamity.
5. With evident premeditation.
6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse.
Art. 249. Homicide. — Any person who, not falling within the provisions of Article 246, shall kill another without the attendance of any of the circumstances enumerated in the next preceding article, shall be deemed guilty of homicide and be punished by reclusion temporal.
[1] Art. 246. Parricide. — Any person who shall kill his father, mother, or child, whether legitimate or illegitimate, or any of his ascendants, or descendants, or his spouse, shall be guilty of parricide and shall be punished by the penalty of reclusion perpetua to death.
Submitted to Judge Meneses, February 27, 2009.
Wednesday, February 18, 2009
Facts similar to People vs Binondo
FACTS:
The accused, Juan, brought the head of a person to the police station with the following version:
At about 8 in the evening, the accused and his wife went to the store to drink tuba. On their way to the store, the victim, Pedro, suddenly emerged from under a mango tree and approached the accused in an angry mood carrying a gun on his left hand and a bolo on the right and at the same time brandishing his bolo as if in the act of charging him, saying, “Why are you looking for me? What is your purpose?”
The victim finally arrived and he tried to force open the main door but failed. So he shouted at the accused, "Juan, come out I will break your head.”
Juan position himself near the kitchen door, awaiting the attack of Pedro. Pedro forced open the kitchen door. When he was about to enter with his head protruding inside the kitchen, Juan aimed his rifle at the head of Pedro. From a distance of about one and one half (1-1/2) feet, he fired the rifle. When this happened, Pedro was still holding his firearm and his bolo and turned his head towards Juan and aimed his gun at him. But before Pedro could fire his gun, Juan attacked him with his bolo, his purpose to let the latter loosen his hold on his weapons. This was followed by five or six more strokes on the neck and body and so Pedro finally dropped his weapons and fell to the floor. Except on the skin of the nape, the head was almost severed from the body.
Knowing that Pedro have an amulet which could revive him if his body is doused with water, Juan finally decided to cut off the victim’s head completely. Immediately thereafter, he carried the victim's head to the police station and surrendered it to the police authorities.
PROBLEM/ISSUE:
During the trial, Juan invoked self-defense. If you were the judge, what will be your decision?
ANSWER:
Juan’s plea of self-defense is completely incredible and he is criminally liable for the commission of murder on the basis of admitting that he killed Pedro.
Citing People vs Binondo (G.R. No. 97227 October 20, 1992), well entrenched in this jurisdiction is the doctrine that when the accused admits having killed the victim, but invokes self-defense, the burden of proving the elements of that defense by clear and convincing evidence lies with the accused. To do that, he must rely on the strength of his evidence and not on the weakness of the prosecution. (People vs. Ansoyon, 75 Phil. 772 (1946): People vs. Libed, 14 SCRA 410 (1965); People vs. Canial, 46 SCRA 634 (1972); People vs. Kindo, 95 SCRA 553 (1980); People vs. Bacoyot, 174 SCRA 285 (1989); People vs. Maceda, 197 SCRA 499 (1991).
Whether or not Juan acted in self-defense is essentially a question of fact and the court will be the one to appreciate facts and circumstances of weight and substance that would have render its conclusion. The accused must present clear and convincing evidence for the court to sustain the claim of self-defense.
Even assuming that Juan’s story were true, the oral threat made by Pedro to kill him unaccompanied by any other unequivocal act clearly showing his intent to carry out his threat does not constitute unlawful aggression. Mere shouting threats and poundings on the door of the accused's house do not constitute unlawful aggression as held in People vs. Masangkay (157 SCRA 320, 1988).
Furthermore, the fact that Juan shut off all the lights inside the house, there could not have possibly been any form of attack which may be said to be immediate and imminent from the victim upon his person. Putting out the lights inside the house threw the house in total darkness that the victim could not be in a position to locate him physically.
Not only was there an absence of unlawful aggression in the case at bar, but the claim of self-defense is likewise negated by the physical evidence.
Juan suffered no harm or injury physically. The number and nature of the wounds inflicted on the victim proved that if at all, the attack came from the accused. The victim had no chance to defend himself even if armed. The means employed becomes unreasonable and unnecessary when after the aggression head ceased and the victim no longer posed any threat of further attack, the accused continued inflicting injuries on the victim who fell to the ground helpless.
What absolutely negated the existence of a "reasonable necessity of the means employed in repelling the attack” was the fact that the accused decapitated the victim. The claim that the victim possessed an amulet which could revive him did not justify that last and final act of cutting off the victim's head. A dead man could not have possibly posed any further resistance or launch an attack, be it imminent or remote.
Due to the absence of self-defense, the Court is to determine whether or not there was any attending circumstance which will qualify the killing to murder.
These facts clearly constitute treachery, which raised the crime to murder.
The presence of the qualifying circumstance of treachery was evidence from the testimony of the accused himself. According to him, his wife arrived ahead of the victim and he was apprised of the fact that the victim was on his way to their house and was threatening to kill him. He had enough time to prepare himself, his weapons and surroundings in a way that he would have the advantage of position and could deliver the first blow without risk to himself from his unwary victim. This he accomplished by putting off all the lights inside the house and by positioning himself near the kitchen door where he could not be seen at once. The accused employed means, methods or forms in the execution of the offense which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make.
Furthermore, when the killing was done with cruelty, by deliberately or inhumanly augmenting the suffering of the victim or outraging or scoffing at his person or corpse, it was likewise qualified to murder.
Article 248 of the Revised Penal Code provides that any person with the exception of those persons who shall kill his father, mother, or child, whether legitimate or illegitimate, or any of his ascendants, or descendants, or his spouse, who shall kill another, shall be guilty of murder and shall be punished by reclusion temporal in its maximum period to death, if committed with any of the following attendant circumstances:
1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity.
2. In consideration of a price, reward, or promise.
3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel, derailment or assault upon a street car or locomotive, fall of an airship, by means of motor vehicles, or with the use of any other means involving great waste and ruin.
4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of a volcano, destructive cyclone, epidemic or other public calamity.
5. With evident premeditation.
6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse.
As regards the mitigating circumstances claimed, it may be off-set by the aggravating circumstances of treachery under Article 14 of the Revised Penal Code which provides that “there is treachery when the offender commits any of the crimes against the 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.”
. The accused could not, however, claim incomplete self-defense as there was no unlawful aggression on the part of the victim.
However, the killing was accompanied by the qualifying circumstance of outraging at the corpse of the victim, thus constituting the crime into murder. Treachery may be considered as a mere aggravating circumstance which may be set off by the mitigating circumstance of voluntary surrender.
For reasons indicated, and in the light of the applicable law and jurisprudence on the matter, from the given facts of the case, the accused is guilty of the crime of murder. And since every person criminally liable for a felony is also civilly liable (Art 100, Revised Penal Code), it is just but right that the accused be ordered to indemnify the heirs of the victim.
Tuesday, February 10, 2009
Witnesses' Credibility
PROBLEM:
At the roadside fronting the house of A, he was shot by B. Then C grabbed the gun from B and also fired at A twice hitting him. W, the wife of A, testified that she was standing by the window of their house waiting for her husband. A was alongside the road also waiting for his son to bring in their cows. Thus, W says she clearly saw how her husband was shot by the accused B and C. Similarly, S, a 9-year old son was about that time bringing in their cows from the other side of river and was going to the side where his father was waiting. S also testified that he saw B shot his father.
The defense questioned the credibility of the witnesses. First, why is the wife waiting for her husband to bring in their cows at that time when she should have been busy with their other children as it was supper time. Second, the inconsistency of S’ testimony was also questioned, that when he went out of the house, his father was already dead.
ANSWER:
Citing the case of People vs Salazar (GRN 84891, Apri17, 1993), one's credibility cannot be attacked simply by saying that he should not have acted the way he did. The court had held that people react differently to a situation. The innate differences in man make each one unique by himself. Man's actions and reactions cannot be stereotyped. Thus, W cannot be faulted if she chose to wait for her husband and son by the window rather than do other chores. There is nothing unnatural in such action that would militate against her credibility.
As to S’ apparently contradictory statements that he saw the shooting of his father, with his other declaration, that when he went out that evening, his father was already dead, may have erred for he was only 9 years old. But the error is not fatal. We cannot expect a boy of tender age to understand every question asked of him in the course of his direct examination, much less, during his cross-examination. Ample margin of error and understanding should be accorded to young witnesses who much more than adults, would be gripped with tension due to the novelty of the experience of testifying before a court.
Moreover, in the same case, citing People vs Nalan (GRN 86640, January 25, 1991), it has been held that the most honest witnesses may make mistakes sometimes but such honest lapses do not necessarily impair their credibility.
It cannot also be questioned that the prosecution witnesses being relatives of the victim are biased witnesses. The fact that prosecution witnesses are the wife and son of the victim does not make them incompetent witnesses nor detract from the credit due them (People vs Cuyo, GRN 76211, April 30, 1991, 196 SCRA 447). Mere relationship to a party cannot militate against the credibility of witnesses or be taken as destructive of the witnesses' credibility (People v. Penones, GRN 71553, August 16, 1991, 200 SCRA 624).
Practicum II Research Paper No. 2 submitted to Judge Iluminado Meneses onJanuary 30, 2009.
Some information about Rape
FACTS:
Maria, a 16-year old girl, bought lemon from the store 60 meters away from the house. On her way home, Pedro and Juan invited her to go to the waiting shed with them. She refused and they followed her to her house.
She went to her room and the two men were able to enter her room by climbing up the window. She attempted to go out but they pulled her back. Juan undressed her and inserted his penis into her vagina while standing. She tried to push them away but she was easily overcome by the two men. The sexual assault lasted about one minute and one went home. Pedro took his turn and had sexual intercourse with her in the same standing position. The sexual assault lasted about three minutes.
The accused, Pedro and Juan aver that the testimony of Maria is not credible considering that at the time she was raped, she never resisted her rapist nor call for help. They were not armed and she was not threatened. There was no showing of force or intimidation.
ISSUE:
ANSWER:
Absence of external injuries in the body of the rape victim is not essential to the conviction of her attackers. (People vs Davatos, 229 SCRA 647)
Absence of external signs or physical injuries does not negate the commission of rape since proof of injuries is not an essential element of the crime (People v. Casipit, 232 SCRA 638).
Absence of external signs of injury does not necessarily negate the commission of rape, especially when the victim was so intimidated by the offender into submission. (People v. Bautista, 236 SCRA 102).
The Court has time and again held that the absence of any external signs or physical injuries does not negate the commission of the crime of rape. (People v. Alimon, 257 SCRA 658).
Absence of external injuries, in fact, does not negate the use of force or intimidation. It bears stressing that the absence of struggle on the part of the rape victim does not necessarily negate the commission of the offense. Failure to shout for help or fight back cannot be equated to voluntary submission to the criminal intent of the accused. xxx Fear, in lieu of force or violence, is subjective. Addressed to the mind of the victim of rape, its presence cannot be tested by any hard-and-fast rule but must instead be viewed in the light of the perception and judgment of the victim at the time of the commission of the crime. In addition, as the Court has repeatedly observed, people act differently to a given stimulus or type of situation, and there is no standard form of behavioral response that can be expected from those who are confronted with a strange, startling or frightening experience. (People v. Lustre, 386 Phil. 390).
1. By a man who shall have carnal knowledge of a woman under any of the following:
a. Through force, threat, or intimidation;
b. When the offended party is deprived of reason or otherwise unconscious;
c. By means of fraudulent machination or grave abuse of authority; and
d. When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present.
2. By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another person's mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person.
...xxx...
Article 266-D. Presumptions. Any physical overt act manifesting resistance against the act of rape in any degree from the offended party, or where the offended party is so situated as to render her/him incapable of giving valid consent, may be accepted as evidence in the prosecution of the acts punished under Article 266-A.
Any physical overt act manifesting resistance against the rape in any degree from the victim is admissible as evidence of lack of consent. Tenacious resistance, however, is not required. Neither is a determined and persistent physical struggle on the part of the victim necessary. The lawmakers took note of the fact that rape victims cannot mount a physical struggle in cases where they were gripped by overpowering fear or subjugated by moral authority. Article 266-D tempered the case law requirement of physical struggle by the victim with the victim’s fear of the rapist or incapacity to give valid consent. Thus, the law now provides that resistance may be proved by any physical overt act in any degree from the offended party (People vs. Dulay, GRN 144344-68, July 23, 2002).
Practicum II Research Paper No. 3 submitted to Judge Iluminado Meneses on February 6, 2009.
Thursday, January 29, 2009
Funeral Rights
FACTS and PROBLEM: Juana, 25 years old, single and living with Pedro. Pedro is a 25 year old married man. Juana died during pregnancy in the residence of Pedro. Carlos, Juana’s brother, wanted to get the dead body of his sister. He contends that he is the legal custodial of the deceased body. Pedro refused to allow Carlos to get the body of Juana. Is the contention of Carlos tenable?
ANSWER: The Civil Code of the
Art 305. The duty and the right to make arrangements for the funeral of a relative shall be in accordance with the order established for support, under Article 294. In case of descendants of the same degree, or of brothers and sisters, the oldest shall be preferred. In case of ascendants, the paternal shall have a better right.
“Those who are duty-bound to make arrangements shall be in accordance with the order established for support. This order is now governed by Article 199 of the Family Code which repealed Article 294 of the Civil Code and which provides that such duty shall devolve first on the spouse; in his or her absence or incapacity, the descendants in the nearest degree; in the absence or incapacity of the latter, the ascendants in the nearest degree; and finally, in the absence of all the said persons, the brothers and sisters.”1 (Emphasis supplied)
Pedro is not related in any way to Juana except that the latter is the former’s paramour. Though they might have lived as husband and wife, their cohabitation is not a valid ground for him to claim a right to the body of Juana. If he is to contend such, it is not meritorious. The law is clear and legally speaking, Carlos’ rights cannot be questioned when it comes to his claim to perform his duties as brother of Juana.
1 Sta. Maria, Jr., Melecio. Persons and Family Relations Law. 4th ed., 2004, p. 890.
NOTES: Submitted on my Legal Research Class, October 27, 2007
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