FILING OF CRIMINAL COMPLAINT CHECK LIST

1. Is the complainant the proper party?
2. Are the necessary documents, objects or witnesses available?
3. Where is the jurisdiction of the crime?
4. Are all the elements alleged in the complaint?
5. Is there no lapse in the prescriptive period of the crime?
6. Are the jurisdictional requirements such as barangay conciliation complied with?
7. Is the cover letter complete?
8. Is the investigation data sheet completely filled up, signed by the complainant and subscribed by the fiscal?
9. Are the copies of the complaint and its annexes complete? (7 copies per case. B.P. 22 7 copies per check.)
10. Are the necessary certification complied with?

RPC 246 Parricide

CRIME: PARRICIDE

ELEMENTS:

(1) a person is killed;
(2) the deceased is killed by the accused;
(3) the deceased is the father, mother, or child, whether legitimate or illegitimate, or a legitimate other ascendant or other descendant, or the legitimate spouse of accused.”

PENALTY:

reclusion perpetua to death

PERIOD TO PREPARE COMPLAINT WHEN ARRESTED WITHOUT A WARRANT:

36 hours

Relevant Cases:

“Parricide is committed when: (1) a person is killed; (2) the deceased is killed by the accused; (3) the deceased is the father, mother, or child, whether legitimate or illegitimate, or a legitimate other ascendant or other descendant, or the legitimate spouse of accused.” People v.Sales October 3, 2011 G.R. No. 177218

"The imposition of parental discipline on children of tender years must always be with the view of correcting their erroneous behavior. A parent or guardian must exercise restraint and caution in administering the proper punishment. They must not exceed the parameters of their parental duty to discipline their minor children. It is incumbent upon them to remain rational and refrain from being motivated by anger in enforcing the intended punishment. A deviation will undoubtedly result in sadism." People v. Sales

"Parricide is differentiated from murder and homicide by the relationship between the killer and his or her victim. Even without the attendant circumstances qualifying homicide to murder, the law punishes those found guilty of parricide with reclusion perpetua to death, prior to the enactment of Republic Act No. (RA) 9346 (An Act Prohibiting the Imposition of the Death Penalty in the Philippines). The commission of parricide is punished more severely than homicide since human beings are expected to love and support those who are closest to them. The extreme response of killing someone of one’s own flesh and blood is indeed unnatural and tragic." 

"Parricide is the most terrible and unnatural of crimes." People v. Tibon. G.R. No. 188320 June 29, 2010

"It is said that, in Romulus’ time, there was no penalty for parricide because it was considered a crime too evil ever to be committed. While parricide in those days referred to the murder of one’s own parent or ascendant, the killing of one’s own offspring, which the term’s modern meaning now includes, is equally horrendous and deserving of the stiffest penalty." People v. Tibon. G.R. No. 188320 June 29, 2010

"The relationship between the offender and the victim is a key element in the crime of parricide, which punishes any person “who shall kill his father, mother, or child, whether legitimate or illegitimate, or any of his ascendants or descendants, or his spouse.”  The relationship between the offender and the victim distinguishes the crime of parricide from murder or homicide.However, the issue in the annulment of marriage is not similar or intimately related to the issue in the criminal case for parricide. Further, the relationship between the offender and the victim is not determinative of the guilt or innocence of the accused.

         The issue in the civil case for annulment of marriage under Article 36  of the Family Code  is whether petitioner is psychologically incapacitated to comply with the essential marital obligations.  The issue in parricide is whether the accused killed the victim.  In this case, since petitioner was charged with frustrated parricide, the issue is whether he performed all the acts of execution which would have killed respondent as a consequence but which, nevertheless, did not produce it by reason of causes independent of petitioner’s will. At the time of the commission of the alleged crime, petitioner and respondent were married.  The subsequent dissolution of their marriage, in case the petition in Civil Case No. 04-7392 is granted, will have no effect on the alleged crime that was committed at the time of the subsistence of the marriage.  In short, even if the marriage between petitioner and respondent is annulled, petitioner could still be held criminally liable since at the time of the commission of the alleged crime, he was still married to respondent." Pimentel v. People G.R. No. 172060  September 13, 2010        

Five Questions You Need To Ask When You Are Buying Real Estate Property

In the course of one's excitement in buying a house or a piece of land, buyers tend to easily part with their hardearned money. They tend to forget asking a few basic questions that spare buyers the pitty party that comes with buying a dud. Here are a few questions to ask when you are buying real estate property:

1. Do you own this property?

Yep there are people who buy a piece of real estate without even asking if the seller is the owner. Some people sell properties that are not even theirs. Married individuals sell property without the consent of their spouses. Siblings sell inherited property without the consent of their other siblings.

In the Philippines, a person selling real estate property who is not an owner must have a special power of attorney from the real owner, generally, a spouse not in the forefront of negotiating the sale of their property must give his/her marital consent and siblings must execute an extrajudicial settlement with deed of sale if the properties of their deceased parents are not yet partitioned among them heirs.


2. What is your proof of ownership?

A deed of sale, a will, a deed of donation, a waiver of rights or a title, all these are proof of ownership.

The easiest document to peruse is a title. Once the title is in the name of the seller without marks of encumbrance at the back, it is one clear proof of ownership.

The rest needs additional proof, a deed of sale for example will need a photocopy of the title showing that the person who is currently selling the lot to you was also the buyer from the person whose name appears in the title.

It is also necessary that documents showing transfer of rights over a piece of real estate is notarized.

3. I am getting a certified true copy of this title, can you wait for a while while I verify?

The answer of a bonafide seller to this question must be a yes.

Any self-respecting seller would allow the buyer to exercise due diligence and due diligence starts with getting a copy of the ctc for titled properties.

A recent ctc will tell you whether the property is mortgaged or not, whether the property is under litigation or not and whether there is an adverse claim over the property (indicates if someone else is exercising a claim over the property) or not.

4. Who pays the taxes?

Be very wary of this especially if the property is an inherited one. Estate tax or tax that those who are left behind are supposed to pay over a property bequeathed to them could be costly. This should be paid by the seller but some buyers are compelled to pay them because non payment of this tax means no clearance from the BIR for titling and sellers often wash their hands of this responsibility once they have the purchase price.

Capital gains and documentary stamp tax costs 7.5% of the total purchase price or the market value whichever is higher. This tax should be paid by the seller but when the sellers indicates that she is getting net of the purchase price, this usually means that the buyer is shouldering the taxes.


5. Who pays for titling and lawyer's fees?

Yup lawyers charge 3% of the purchase price for notarization. Surveys and geodetic engineers charge a fee too when the parcel of land is not yet subdivide. The Register of Deeds charge fees for titling.

Sellers often assume that the buyers will shoulder these while buyers assume that the purchase price is what they will only cash out.

It is always best to ask these questions least you be feeling like you brought a 1000 square meter lot for a measly 150k only to find out that you will be paying taxes for 350k and titling expenses of 50k or worse you brought a property from a person who has zero authority to sell the piece of land.

How to Make Sure that Tolerated Occupants in a Vacant Lot will Not Cause a Headache in the Future

Question:

Hi attorney Psyche. Ask po ako if mag patira kami ng tao sa vacant lot namin may habol ba sila if ever na gusto na namin si lang paalisin?

Answer:

Tolerated occupants of a vacant lot have no right to claim ownership over the said property. The rules only provide that they should be given a thirty day notice to vacate. The moment that they refuse to vacate after the said notice, the owner of the land may initiate an ejectment proceedings against them. In the case of Pe v. Tong G.R. No. 151369 decided on March 23, 2011 the court stated that, "A person who occupies the land of another at the latter's tolerance or permission, without any contract between them, is necessarily bound by an implied promise that he will vacate upon demand, failing which a summary action for ejectment is the proper remedy against him."

It is always best that a written contract between the parties are drafted. This is to ensure that the tolerated occupants are appraised of their limited rights and to make sure that the right of the owner will not be abused. 

The worst kind of scenario that could happen is the prolonged tolerance of the occupants who would place improvements on the property and would claim ownership of the said portion directly or through their heirs who are not aware of the extent of the verbal agreement  signed by their predecessors.

The contract would ensure that the tolerated occupants understood that they are expected to vacate anytime and the provisions of the contract could also include the treatment of the improvements. The contract could indicate that the improvements will be refunded by the owner of the land or it could be appropriated by the land owner without payment to the occupant as a form of payment for the tolerated stay in the land.

Co-maker and Checks

Q. I am a co-maker in a loan agreement where the debtor used checks of other people as collateral.The debtor is no longer paying his debts and the checks bounced. What is my liability?

A. There are two possible cases that may be filed here.

One is collection of sum of money for the debt per se and violation of B.P. 22  or issuing check that bounced or not funded when encashed or deposited. 

In the civil case for collection of sum of money, the debtor is the one who is primarily liable. The case will be filed against him. However, if the debtor is incapable of paying, as a co-maker, the lender may run after you. This however would only be possible if all sources of payment by the debtor had already been exhausted, if he is still capable of paying or has properties that the lender can still run after, the lender has no business suing you. 

Violation of the Bouncing Checks law on the other hand is a criminal offense and liability is a personal to the owner of the check. Thus you and the debtor will not be included in the lawsuit.

Unsa Ang Arraignment?

Isa ito sa kalimitang tinatanong sa akin sa aming programang Straight To The Point sa Radio Mindanao Network 927 ni Kasamang Bong Gonzales.

Ang arraignment ay isang proseso sa husgado kung saan binabasa sa akusado ang kasong inaakusa sa kanya. Ito  rin ang panahon kung kailan nya pwedeng sabihin na may kasalanan sya o wala. Nirerehistro ng akusado ang kanyang plea na GUILTY (may kasalanan) o NOT GUILTY (walang kasalanan) sa tulong ng kanyang piniling abogado.

Kalimitang ang court interpreter, ang akusado at ang kanyang abogado lamang ang nagsasalita sa parte ng proseso sa korte na ito.

Maaring hindi rin muna mag pa arraign ang akusado lalo na kung kinakailangan pa ng iba pang proseso katulad na lang ng paghain ng motion to quash of di kaya ay motion for reinvestigation na kung papaboran ng korte ay magreresulta sa pagpapawalang bisa ng akusasyon at pagpapawalang sala sa akusado.