Consummated crime

Is a person still liable for the crime of bigamy despite the fact that after contracting the second marriage, his first marriage has been judicially declared null and void? This is the question raised and resolved in the case of Charlie.

Charlie has been civilly married to Tina for almost 9 years. Since they got married before a Judge of a Metropolitan Trial Court of Muntinlupa City on Oct. 25, 1992, Tina left to work abroad and would only come home to the Philippines for vacations. Such situation apparently led Charlie into the arms of another woman, Nena whom he courted and eventually married on Nov. 12, 2001 in Meycauayan, Bulacan according to the rites of a Protestant Church.

So when Tina went home for a vacation in 2002, she was informed of such marriage between Charlie and Nena. To verify the information, she went to the National Statistics Office and secured a copy of the marriage certificate confirming the marriage of Charlie and Nena. But since she was working abroad, she had no time to immediately take any steps against Charlie.

It was only on March 14, 2006, when Tina’s uncle filed before the Office of the Provincial Prosecutor of Malolos, a complaint accusing Charlie of committing the crime of bigamy. And on May 7, 2006, Charlie was charged before the Regional Trial Court (RTC) of Bulacan with bigamy defined and penalized under Article 349 of the Revised Penal Code as amended.

It turned out however that Charlie had also filed an action before the RTC of Caloocan City for the declaration of nullity of his marriage to Tina on the ground of the latter’s psychological incapacity to comply with her essential marital obligation. The RTC of Caloocan has already rendered a decision declaring his marriage to Tina null and void which became final on May 28, 2006.

Using this final judgment declaring his first marriage to Tina null and void, Charlie claimed that there is no bigamy to speak of because there is in effect no such first marriage to Tina. He tried to differentiate between a previously valid but voidable marriage and a marriage null and void from the beginning (ab initio) and contended that while a voidable marriage requires a judicial dissolution before one can validly contract a second marriage, a void marriage need not be judicially determined.

Opinion ( Article MRec ), pagematch: 1, sectionmatch: 1

But the RTC nevertheless convicted Charlie of the crime of bigamy and sentenced him to suffer the penalty of imprisonment of 4 years, 2 months and 1 day, minimum to 6 years and 1 day as maximum. Was the trial court correct?

Yes. A judicial declaration of absolute nullity of a previous marriage is necessary before a person can contract a second marriage. Parties to a marriage should not be allowed to assume that their marriage is void even if such be the fact but must first secure a judicial declaration of the nullity of that marriage before they can be allowed to marry again.

In this case, Charlie legally married Tina on Oct. 25, 1992. He contracted a second and subsequent marriage with Nena on Nov. 12, 2001. At the time of his second marriage to Nena, his first marriage to Tina was still legally subsisting. The decision declaring his first marriage to Tina became final only on May 28, 2006 or about 5 years after his second marriage to Nena. It is evident therefore that he has committed the crime charged. Criminal culpability attaches to the offender upon commission of the offense.

If Charlie’s contention will be allowed, a person who commits bigamy can simply evade prosecution or conviction by immediately filing a petition for declaration of nullity of his earlier marriage and hope that a favorable decision is rendered therein before anyone institutes a complaint against him or before he is convicted of the crime charged (Teves vs. People, et. al. G.R. 18775, August 24, 2011, 656 SCRA 307).

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E-mail: attyjosesison@gmail.com

A LAW EACH DAY(KEEPS TROUBLE AWAY) By Jose C. Sison (The Philippine Star) 

Supreme Court denies militants’ court protection

THE SUPREME COURT (SC) has denied lawmakers from the progressive Makabayan bloc protection from alleged state-sanctioned harassment.

SC Public Information Office Chief Theodore O. Te said in a briefing the petition for writ of amparo and habeas data by nine militant activists was dismissed for “lack of merit.”

The petitioners have cited their inclusion in the Criminal Investigation and Detection Group’s (CIDG) “rogues gallery,” which they claimed indicated they were subject to state surveillance in violation of their rights to life and liberty.

But the full court said they failed to show how their right to privacy was violated “given that the information contained in the rogues gallery is only their photographs, their names, and their position in their respective organizations.”

“All these data are of public knowledge, and are readily accessible to anyone as petitioners are known personalities,” read an excerpt of the decision reached during Tuesday’s en banc session.

Incumbent Representatives Carlos Isagani T. Zarate (Bayan Muna party-list) and Emerenciana A. de Jesus (Gabriela Women’s Party) as well as former representatives Rafael V. Mariano (Anakpawis) and Teodoro A. Casiño (Bayan Muna) led the petitioners.

Other petitioners were Karapatan Secretary-General Cristina Palabay, Sr., Mary Francis Añover of the Rural Missionaries of the Philippines, Rev. Irma M. Balaba of the National Council of Churches of the Philippines, Children’s Rehabilitation Center executive director Jacquiline Ruiz, and the family of the late activist and labor leader Crispin B. Beltran.

They said they have been subject to trumped-up charges for taking up the rights of Mindanao’s lumad (indigenous peoples) evacuees in Davao City, who fled their homes in Talaingod, Davao del Norte, to escape militarization and paramilitary harassment.

The respondents were President Benigno S. C. Aquino III, Defense Secretary Voltaire T. Gazmin, Gen. Hernando Delfin Carmelo A. Iriberri, AFP Deputy Commander for Intelligence Maj. Gen. Virgilio A. Hernandez, Intelligence Service of the AFP (ISAFP) Chief Brig. Gen. Arnold M. Quiapo, Philippine Army Commanding General Maj. Gen. Eduardo M. Año, AFP Deputy Commanding General for Personnel Brig. Gen. Honorato S. delos Reyes, Philippine National Police Director Ricardo C. Marquez, and PNP Criminal Investigation and Detection Group Director Chief Supt. Victor P. Deona.

Also impleaded were the following Mindanao military and police authorities: Eastern Mindanao Command Commanding General Lt. Gen. Aurelio B. Baladad, 60th Infantry Division Commanding Officer Lt. Col. Roberto Bunagan, Eastern Mindanao CIDG Regional Director Police Senior Supt. Joel C. Pernito, Davao City Criminal Investigation Division Team Leader Police Chief Insp. Warren E. Dablo, and several John Does and Jane Does.

Although the activists in the rejected petition failed in their request for court protection, the SC had previously granted the writ of amparo to 22 union leaders on Aug. 4, and to 11 activists from health workers and youth groups on Sept. 8. -- Vince Alvic Alexis F. Nonato

source:  Businessworld

‘Criminal’-Negligence

By Amado P. Macasaet

November 12, 2015

The Government Service Insurance System is arguing with the wrong reason the demand of damages from an  aging member for  the annotation of the title he pledged for a loan way back 42 years ago. 

The reply to his first letter of demand was delayed because the management of the GSIS said it would have the matter studied by its legal department. The reply to the second letter was signed by Apollo M. Escarez, head of the real estate asset distribution and management office. Escarez could very well be a lawyer but his title does not seem to give him authority to approve or deny demands for damages. 

His reply admits guilt by negligence. Escarez said: “We regret that we are not in a position to accede to this demand for damages. The transaction ... dates back to back in July 13 or 43 years ago. The GSIS personnel involved in the annotation of adverse claim is no longer connected with GSIS and, thus, except for averments in the Affidavit of Adverse Claim, we are unable to ascertain the circumstances leading to the annotation ... of the title.” 

The allegation of inability to ascertain the circumstances “leading to the annotation” is most telling. Escarez was practically saying he or the GSIS does not know how the adverse claim was annotated on the back of the title of the property of the claimant. It could not even produce documents such as a stern warning the borrower an adverse claim would be annotated on title of the property if “overdue” obligation  is not paid within the time the GSIS itself is duty bound to specify. 

Yet, the records of the GSIS clearly show said annotation was made after the borrower paid the loan in full. He paid more than the value of the loan, suggesting he went into deep arrears and like all borrowers, had to be penalized for it with a bigger obligation. The borrower never argued that point. The record shows full payment was made during a period when the GSIS was implementing a program we might call condonation of penalties and other charges. 

The claim for damages arose from what the borrower now claims to be embarrassment and shame the GSIS subjected him to with a buyer of the   property. The borrower was never informed of such annotation believing his payment in full settled everything. 

Sensibly the buyer of the property went to the register of deeds to verify whether the asset is encumbered or clean. He got the surprise of his life when he was shown by the Register of Deeds the title of the property had an adverse claim by the GSIS. How can a lender like the GSIS annotate the title of a borrower with an adverse claim when the records show the loan has been paid in full? 

The buyer went to the GSIS and was told that indeed, there was an adverse claim on title of the property he was buying. He backed out. In fairness, the GSIS lifted the annotation but not before the word went around the property owner was trying to sell a piece of land that had an encumbrance.

Beyond admitting the title was indeed annotated and full payment was accepted, the GSIS cannot recall the circumstances that led to the annotation. Such inability is now being used by the GSIS as its defense for denying the claim for damages.

There must be other reasons acceptable to a common mind. The borrower claims there could be no valid reason for the adverse claim. His argument is simple. He paid the obligations in full many years before the annotation was made. 

Strangely, the GSIS put the cart before the horse when it caused the annotation after full payment. 

The GSIS said it does not know what was inscribed on the back of the title. Its lame argument is the person who caused the annotation has long resigned. The GSIS now makes it appear the person was or is the only one who knew the circumstances. He must have left some documents. If he did, GSIS cannot find them. 

Escarez now says “....there is nothing in the records that would explain the circumstances leading to the annotation of the adverse claim itself, signed and executed by Mr. Dela Vega on Jan. 12, 1981.” For 34 long years, the borrower having fully paid his obligation, continued to believe he could do whatever he wanted including selling the asset. 

Manolo A. Dela Vega was the GSIS personnel involved in the annotation. He retired on Dec. 29, 1985. His retirement does not free the GSIS from the responsibility of knowing the circumstances that led to the annotation. Dela Vega caused the annotation long after the loan was fully paid. The GSIS does not seem to have a paper trail of Dela Vega’s decisions but acted swiftly to correct his mistake by telling the Register of Deeds to remove the adverse claim. 

If the borrower had not decided to sell the property knowing his title was “quieted” by full payment, the annotation would have stayed on the back of the title forever. Or, as it happened, if he sold the land used to secure the loan. In which case, as repeatedly explained, the buyer would verify the status of the title before he parts with his money in payment of the sale. 

The annotation was lifted not because the GSIS realized it committed a shameful mistake that embarrassed the borrower with a prospective buyer. The annotation would have stayed on the title if the borrower did not find a buyer who instinctively verified the title. The discovery of the annotation was made not by the ower but by the GSIS itself when a complaint was filed.

The GSIS aborted the sale when the buyer learned the title has an adverse claim. The action of the GSIS in removing the annotation is admission of an unnecessary, in fact willful error the owner now claims he is paying for with the unnecessary tainting of his reputation. 

If the GSIS had a valid reason to cause the annotation it would argue its case to kingdom come. Its defense that it does not know  the circumstances that led to the annotation is admission of guilt. The GSIS does not find any obligation to restore the integrity and reputation of a borrower whose name is said to be known name in the world of business and among powerful politicians maybe including President Aquino, although he is not a businessman.

The law punishes such negligence especially when it puts in doubt the reputation of a person.

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email: amadomacasaet@yahoo.com

source:  Malaya

Threatening to inflict harm on a person a crime

Dear PAO,
During an argument with the second husband of my mother, I heard him utter the words: “Magpatayan na lang tayo!” and from the corner of my eye I could see him approaching me. My mother was in the middle of us and eventually sent him to the other direction. Can this be considered as grave threat?

My mother suffered multiple physical injuries from him when I was a child, but my mother would not do anything about it. Do I need to go to the barangay (village) authorities or straight to the police station in our place?
J.L.

Dear J.L.,
The crime of grave threat is punishable under Article 282 of the Revised Penal Code (RPC). It is stated therein that any person who shall threaten another with the infliction upon the person, honor or property of the latter or his family is committing a wrong amounting to a crime. The threat is considered to be grave if the offender shall have made the threat demanding money or imposing any other condition, even though not unlawful, and that the offender shall have attained his purpose. The crime shall also be grave threat even if the threat of infliction of harm upon a person, his honor or property was not made subject to a condition.

The second husband of your mother may be liable for the crime of grave threat considering that he has uttered, “Magpatayan na lang tayo!” These are words that have threatened you with the infliction upon your person of harm amounting to a crime, which may be homicide or murder. The penalty for this crime is merely arresto mayor or imprisonment of one (1) month and one (1) day to six (6) months and fine not exceeding 500 pesos because the threat was not subject to a condition.

Considering that the maximum penalty for grave threat is six (6) months, you need to go to your barangay to file a complaint in order that the officials therein could exert efforts for possible amicable settlement (Section 408, Local Government Code). It is only after a failed settlement in the barangay and after the issuance of a Certificate to File Action that you can pursue your complaint at the higher office or the Office of the Prosecutor (Section 18, Rules on Summary Procedure).

We hope that we have answered your query. Our legal opinion may vary if other facts are stated 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

Reference:

PROCEDURE IN THE MUNICIPAL TRIAL COURTS; SUMMARY PROCEDURE

RESOLUTION  OF  THE  COURT  EN  BANC  DATED  OCTOBER  15,  1991 PROVIDING  FOR  THE  REVISED  RULE  ON  SUMMARY  PROCEDURE FOR METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS IN CITIES,  MUNICIPAL   TRIAL  COURTS  AND   MUNICIPAL  CIRCUIT TRIAL COURTS. 
 
I. Applicability 
 
Section 1.  Scope. — This rule shall govern the summary procedure in the Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal Trial Courts, and the Municipal Circuit Trial Courts in 
the following cases falling within their jurisdiction: 
 
xxx xxx xxx 
 
B.  Criminal Cases: 
  
(1)  Violations of traffic laws, rules and regulations; 
 
(2)  Violations of the rental law; 
 
(3)  Violations of municipal or city ordinances; 
  
(4)    All  other  criminal  cases  where  the  penalty  prescribed  by  law for the offense charged is imprisonment not exceeding six months, or a fine not exceeding (P1,000.00), or both, irrespective of other imposable penalties, accessory or otherwise, or of the civil liability arising  therefrom:  Provided,  however,  that  in  offenses  involving damage  to  property  through  criminal  negligence,  this  Rule  shall 
govern  where  the  imposable  fine  does  not  exceed  ten  thousand pesos (P10,000.00). 
 
This Rule shall not apply to a civil case where the plaintiffs cause of action  is  pleaded  in  the  same  complaint  with  another  cause  of action  subject  to  the  ordinary  procedure;  nor  to  a  criminal  case where  the  offense   charged  is  necessarily   related  to  another criminal case subject to the ordinary procedure.

Sec. 2.  Determination of applicability. — Upon the filing of a civil or criminal action, the court shall issue an order declaring whether or not the case shall  be governed by this Rule. A  patently erroneous 
determination  to  avoid  the  application  of  the  Rule  on  Summary Procedure is a ground for disciplinary action.

HOW   IS   A   CRIMINAL   CASE   COMMENCED   IN   A   SUMMARY PROCEDURE?

     The  filing  of  criminal  cases  falling  within  the  scope  of  this  Rule shall be either by complaint or by information: Provided, however, that  in  Metropolitan  Manila  and  in  Chartered  Cities,  such  cases shall be commenced only by information, except when the offense cannot be prosecuted de oficio. 

     The  complaint  or  information  shall  be  accompanied  by  the affidavits of the compliant and of his witnesses in such number of copies  as  there  are  accused  plus  two  (2)  copies  for  the  court's files.  If this requirement is not complied with within five (5) days from date of filing, the case may be dismissed

Sec.  12.  Duty of court. —  
 
(a)  If commenced by compliant. — On the  basis of  the compliant and the affidavits and other evidence accompanying the same, the court  may  dismiss  the  case  outright  for  being  patently  without 
basis or merit and order the release of the accused if in custody. 
 
(b)  If commenced by information. — When the case is commenced by information, or is not dismissed pursuant to the next preceding paragraph,  the  court  shall  issue  an  order  which,  together  with 
copies  of  the  affidavits  and  other  evidence  submitted  by  the prosecution,  shall  require  the  accused  to  submit  his  counter-affidavit and the affidavits of his witnesses as well as any evidence 
in  his  behalf,  serving   copies  thereof  on  the  complainant  or prosecutor not later than ten (10) days from receipt of said order. The prosecution may file reply affidavits within ten (10) days after receipt of the counter-affidavits of the defense. 

Sec.    13.    Arraignment  and  trial.  —  Should  the  court,  upon  a consideration  of  the  complaint  or  information  and  the  affidavits submitted  by  both  parties,  find  no  cause  or  ground  to  hold  the  accused for trial, it shall order the dismissal of the case; otherwise, the court shall set the case for arraignment and trial. 
 
If  the  accused  is  in  custody  for  the  crime  charged,  he  shall  be immediately  arraigned  and  if  he  enters  a  plea  of  guilty,  he  shall forthwith be sentenced. 
 
Sec.  14.  Preliminary conference. — Before conducting the trial, the court shall call the parties to a preliminary conference during which a  stipulation  of  facts  may  be  entered  into,  or  the  propriety  of 
allowing  the  accused  to  enter  a  plea  of  guilty  to  a  lesser  offense may  be  considered,  or  such  other  matters  may  be  taken  up  to clarify  the  issues  and  to  ensure  a  speedy  disposition  of  the  case. However,  no  admission  by  the  accused  shall  be  used  against  him unless  reduced  to  writing  and  signed  by  the  accused  and  his counsel.    A  refusal  or  failure  to  stipulate  shall  not  prejudice  the accused.

Sec.  15.  Procedure of trial. — At the trial, the affidavits submitted by  the  parties  shall  constitute  the  direct  testimonies  of  the witnesses who executed the same. Witnesses who testified may be 
subjected  to  cross-examination,  redirect  or  re-cross  examination. Should   the   affiant   fail   to   testify,   his   affidavit   shall   not   be considered  as  competent  evidence  for  the  party  presenting  the affidavit,  but  the  adverse  party  may  utilize  the  same  for  any admissible purpose. 
 
Except  in  rebuttal  or  surrebuttal,  no  witness  shall  be  allowed  to testify unless his affidavit was previously submitted to the court in accordance with Section 12 hereof. 
  
However,  should  a  party  desire  to  present  additional  affidavits  or counter-affidavits  as  part  of  his  direct  evidence,  he  shall  so manifest  during  the  preliminary  conference,  stating  the  purpose 
thereof.    If  allowed  by  the  court,  the  additional  affidavits  of  the prosecution  or  the  counter-affidavits  of  the  defense  shall  be submitted  to  the  court  and  served  on  the  adverse  party  not  later than  three  (3)  days  after  the  termination  of  the  preliminary conference.  If  the  additional  affidavits  are  presented  by  the prosecution, the accused may file his  counter-affidavits  and serve 
the  same  on  the  prosecution  within  three  (3)  days  from  such service. 
 
Sec.  16.  Arrest of accused. — The court shall not order the arrest of  the  accused  except  for  failure  to  appear  whenever  required. Release  of  the  person  arrested  shall  either  be  on  bail  or  on 
recognizance by a responsible citizen acceptable to the court.

Sec.  17.  Judgment. — Where a trial has been conducted, the court shall promulgate the judgment not later than thirty (30) days after the termination of trial. 

IV. COMMON PROVISIONS 
 
Sec.  18.  Referral to Lupon. — Cases requiring referral to the Lupon for  conciliation  under  the  provisions  of  Presidential  Decree  No. 1508   where   there   is   no   showing   of   compliance   with   such requirement,  shall  be  dismissed  without  prejudice  and  may  be revived only after such requirement shall have been complied with.   This provision shall not apply to criminal cases where the accused was arrested without a warrant. 

Sec.    19.    Prohibited  pleadings  and  motions.  —  The  following pleadings,  motions  or  petitions  shall  not  be  allowed  in  the  cases covered by this Rule: 
  
(a)  Motion to dismiss the complaint or to quash the complaint or information  except  on  the  ground  of  lack  of  jurisdiction  over  the subject matter, or failure to comply with the preceding section; 
 
(b)  Motion for a bill of particulars; 
 
(c)   Motion for new trial, or  for  reconsideration of a judgment, or for opening of trial; 
 
(d)  Petition for relief from judgment; 
 
(e)  Motion for extension of time to file pleadings, affidavits or any other paper; 
  
(f)  Memoranda; 
 
(g)    Petition  for  certiorari,  mandamus,  or  prohibition  against  any interlocutory order issued by the court; 
 
(h)  Motion to declare the defendant in default; 
  
(i)  Dilatory motions for postponement; 
 
(j)  Reply; 
 
(k)  Third party complaints; 

(l)  Interventions. 

Sec.    20.    Affidavits.  —  The  affidavits  required  to  be  submitted under this Rule shall state only facts of direct personal knowledge of  the  affiants  which  are  admissible  in  evidence,  and  shall  show their competence to testify to the matters stated therein. 
 
A violation of this requirement may subject the party or the counsel who submits the same to disciplinary action, and shall be cause to expunge  the  inadmissible  affidavit  or  portion  thereof  from  the record. 

Sec.  21.  Appeal. — The judgment or final order shall be appealable to the appropriate Regional Trial Court which shall decide the same in  accordance  with  Section  22  of  Batas  Pambansa  Blg.  129.  The 
decision of the Regional Trial Court in civil cases governed by this Rule,  including  forcible  entry  and  unlawful  detainer,  shall  be immediately executory, without prejudice to a further appeal that 
may  be  taken  therefrom.    Section  10  of  Rule  70  shall  be  deemed repealed. 
 
Sec.  22.  Applicability of the regular rules. — The regular procedure prescribed  in  the  Rules  of  Court  shall  apply  to  the  special  cases herein provided for in a suppletory capacity insofar as they are not inconsistent herewith.