The 4 elements of bigamy

Dear PAO,
My cousin married at the age of 21. His wife moved to Singapore to fulfill her professional dreams, and they eventually stopped communicating with one another. My cousin met another woman subsequently. He has been very open to her about his marital status and, though their relationship has deepened, he has remained firm with his decision that he will not marry again until his marriage with his wife is annulled.

One night, we were having a drinking spree at my cousin’s house. His girlfriend was inducing him to sign a document. When my cousin saw that it appeared to be a contract of marriage, he refused to sign. But his girlfriend told him that it is not an official contract and she will just use it to pull a joke on her friends. Since he was starting to get annoyed, he just gave in and signed the document. Unfortunately, their relationship turned sour months later because of irreconcilable differences.

Now, my cousin’s ex-girlfriend is threatening to sue him for bigamy. She said she will use the document he signed against him. Do you think this action will prosper in court? Please advise.

Loveliness

Dear Loveliness,
Bigamy is a crime punishable under Article 349 of the Revised Penal Code of the Philippines. In order for a person accused of the commission thereof to be held criminally responsible, the following elements must exist: The offender is legally married; the marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code; a second or subsequent marriage is contracted; and such second or subsequent marriage has all the essential requisites of a valid marriage.

In the situation of your cousin, it is apparent that the first and second elements are present. The presence of the third and fourth elements, however, is doubtful. While your cousin signed a document, which was purported to be a contract of marriage, that document alone will not suffice to conclude that he is, in fact, married to his former girlfriend. Keep in mind that there is only a valid contract of marriage if the following essential and formal requisites are present: legal capacity of the contracting parties who must be a male and a female; consent freely given by the parties in the presence of the solemnizing officer; the solemnizing officer has authority to solemnize the marriage; a valid marriage license, except in the cases allowed by law; and a marriage ceremony that takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not fewer than two witnesses of legal age (Articles 2 and 3, Family Code of the Philippines).

Since your cousin and his former girlfriend did not appear to have secured a valid marriage license, and neither was there a marriage ceremony that took place in accordance with the tenets of our law, it cannot be argued that all the elements to a valid contract of marriage are present. Thus, we are inclined to believe that there exists no true contract of marriage between them. Taking these into consideration, we are not persuaded to conclude that a case for bigamy against your cousin will prosper in court.

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

‘INC leaders tried to kill me’

Former Iglesia minister: I was illegally detained

Lowell Menorca 2nd, an expelled minister of the Iglesia ni Cristo (INC or Church of Christ) on Sunday claimed that officials of the religious group ordered him killed in July this year.

Menorca, accompanied by his wife Jinky, said he and his family were illegally detained by the INC for three months.

Recounting his ordeal to media, the former minister said he and his family were abducted in Bulan, Sorsogon, and taken to Dasmariñas City in Cavite where two attempts on his life were made.

He said he was handcuffed for 17 hours during the trip from Sorsogon to Cavite.

According to Menorca, he was forced into an empty car and a grenade was tossed inside but it did not explode.

A police officer was then sent to finish him off but Menorca said he pleaded for his life.

“Sabi ko, please don’t kill me. Maawa ka na sa akin. Ang katunayan po ay ministro ako ng Iglesia ni Cristo at may asawa po ako at isang anak [I told him, have mercy on me. I am a minister of the Iglesia ni Cristo, and I have a wife and a child]. I was already crying. Sabi ko I am not a bad person. Huwag niyo naman po sanang hayaan na lumaki ang anak ko na walang ama [I told him please do not allow my child to grow up without a father],’” Menorca said.

He said the policeman took pity on him and agreed not to kill him on condition that criminal charges will be filed against the minister.

“He [police officer] said he will let me live if I can promise that I will agree to whatever charge he will give me in prison, and that I will not make a scandal,” Menorca added.

Charges of illegal possession of firearms were later filed against the minister in a Cavite court.

Menorca, whose petition for a writ of amparo filed in his behalf by his brother was recently granted by the Supreme Court, blamed the INC’s Council of Elders for his torture.

He, however, refused to identify them, saying they will be named when he files criminal charges against them in court.

Menorca said his travails started in July when he was ordered to report to the church’s district office for some incursion while officiating a worship service.

He was then directed to write a statement accusing the estranged sibling of INC executive minister Eduardo Manalo as the person behind several blog posts critical of the INC.

Menorca refused. Several days later, a group of armed men, which included some policemen, accosted him.

“Habang papasok sila at nakita nilang nakita ko na sila ay patakbo silang pumunta sa akin na sumisigaw ng ‘Dapa! Dapa kung ayaw mong masaktan.’ Nakatutok ang lahat ng kanilang baril sa akin [I saw them coming. They were running and they told me to get down if I did not want to be hurt. Their guns were pointed at me],” he said.

From Cavite, Menorca said he and his family were taken to the INC compound in Quezon City where they were detained for three months.

He claimed that they were forbidden to communicate with other people and that he was allowed to go out under heavy guard to deliver statements prepared by church officials to make it appear that all is well.

The former minister said he was suspected to be one of the persons critical of the INC leadership.

“For three months we were there, for three months we were incarcerated. We were never free to go out,’” he told reporters.

Last week, the Supreme Court ordered Manalo to appear before the Court of Appeals (CA) and to bring with him the members of his congregation who were allegedly being held by the church against their will.

The High Court’s order also directed the CA to hear and decide on the petition filed by Anthony Menorca and Jungko Otsuka. Anthony is the brother of Lowell.

A writ of amparo is a remedy available to any person whose right to life, liberty and security has been violated or threatened.

Trixie Angeles, lawyer for the Menorca camp, said charges of illegal detention will be filed against some officials of the religious group.

source:  Manila Times

SC affirms life term on motorcycle theft

The Supreme Court (SC) has affirmed the Court of Appeals (CA) and lower court decisions finding a man guilty of carnapping and qualified theft for stealing a motorcycle in Mandaluyong City in 2007.

In a ruling written by Senior Associate Justice Martin S. Villarama, Jr., the SC’s Third Division dismissed the appeal filed by Julkipli Asamuddin.

The SC upheld the decision of the CA dated May 22, 2014.

Records of the case show that in July 2007, Asamuddin carted away the Honda XRM motorcycle with Plate No. UU-9142 amounting to Php49,000 owned by Emelina Gloria.

The case was elevated to the SC when Asamuddin did not get a favorable decision both from the CA and the Mandaluyong City Regional Trial Court (RTC).

In its Sept. 2, 2015 ruling, the SC said that the RTC and the CA were right when they ruled against Asamuddin.

“The RTC, as affirmed by the CA, correctly imposed in the criminal case for carnapping the penalty of 14 years and 8 months, as minimum, to 17 years and 4 months, as maximum, which is within the range of the imposable penalty under Section 14 of R.A. No. 6539[,]” the SC said.

The SC said that “the appellant was correctly meted the penalty of reclusion perpetua for Qualified Theft in [a separate case.]”

“The penalty for Qualified Theft is two degrees higher under Article 31062 of the Revised Penal Code, thus appellant was correctly sentenced to reclusion perpetua. However, appellant is disqualified under R.A. No. 9346 in relation to Resolution No. 24-4-1064 to avail the benefits of parole.”

Concurring with the ruling were Associate Justices Diosdado M. Peralta, Jose P. Perez and Jose C. Mendoza. PNA

source:  Manila Times

Prescription of crimes

Dear PAO, 
In 2006, the owner of the house I am renting, with the help of other persons, forcibly entered our home and took my antique cabinets. What happened is that they lured my wife out of the house and forcibly entered our house through the rear door. Then, they refused to let us in and began piling our belongings outside on the street. However, the antique cabinets were kept as payment for our back rentals. Can we still file a case against them though the incident happened in 2006?        
Sonica5

Dear Sonica5,
Before answering your question concerning prescription of crimes, it is crucial to establish first what crime was actually committed.

Based on your narration, the acts of the owner of the house and his aides would constitute theft. There is theft when a person who, with intent to gain but without violence against, or intimidation of persons or force upon things, shall take personal property of another without the latter’s consent (Art. 308, Revised Penal Code [RPC]). The elements of the crime of theft are: 1) taking of personal property; 2) the property belongs to another; 3) done with intent to gain; 4) done without consent of the owner; and 5) accomplished without the use of violence against or intimidation of persons, or force upon things (People vs. Yusay, 50 Phil. 598).

Applying the foregoing to your case, it is clear that the first four elements are present. The owner of the house and his aides took the antique cabinets you own with intent to gain, that is, to apply it to the unpaid rents, and that the same was executed without your consent. As to the last element referring to violence, intimidation and force, your narration is devoid of any allegation of violence or intimidation employed by the owner of the house and his aides against you and your wife to secure possession of the antique cabinets. Hence, we assume that there is none. Moreover, though you mention a forcible entry, none of the instances mentioned in Article 299 of the RPC, constituting force upon things such as breaking of door, using false keys or pretending the exercise of public authority to enter your house is apparent from your narration. The lack of allegation on these matters leads us to conclude that there is no violence, intimidation of persons, or force upon things present in your case, satisfying the final element of the crime of theft.

This is not to say that forcible entry into a house is not punishable by law. The forcible entry into your house could be separately considered as trespass to dwelling. Trespass to dwelling is committed by any person who shall enter the dwelling of another against the latter’s will. (Art. 280, Id.) Under this law, the offender may be prosecuted so long as the entry is prohibited by the owner, expressly or impliedly, even though no violence was employed. The entry of the owner of the house and his aides into your house which you categorize as forcible creates an impression to us that the entry was effected against your will and thus we consider the crime of trespass to dwelling.

Going to your query on prescription of crimes, Article 90 of the Revised Penal Code sets the period of prescription of crimes or the period allowed to institute a case which is not uniform for all crimes. It ranges from two months to 20 years depending on the classification of the imposable penalty. In general, the higher the penalty, the longer the prescription period.

Theft is penalized according to the value of personal property taken and the penalty that can be imposed on the offender ranges from aresto menor in its minimum period to reclusion temporal. Thus, depending on the value of personal property taken, the crime of theft prescribes in two months or up to 20 years (Article 309 in relation to Sections 25 & 90, Id.) As there is no allegation as to the value of the antique cabinets taken, the period of prescription cannot be ascertained. Assuming, however, that the value of the antique cabinets taken were more than P12,000, then you at least have 15 years to file the case.

As to the trespassing case, we regret to inform you that the case may no longer be filed. Simple trespass to dwelling is punishable by aresto mayor which prescribes in five years. (Article 280 in relation to Sections 25 & 90, Id.) Considering that the crime occurred in 2006 or around nine years ago, your right to file the case has already prescribed.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net