Sample - Legal Memorandum

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MEMORANDUM To: Professor Dante B. Gatmaytan From: Garcia, Hanna Keila H. (1-D) Re: Possible case of parricide and murder against Shiela Macapugay Date: September 23, 2011
This memorandum is issued pursuant to an inquiry regarding the possible criminal liability of one Shiela Macapugay after a reported gun shooting that happened in a shopping mall in Metro Manila. STATEMENT OF FACTS Police reported that around 7:30pm on September 14, 2011, a woman shot and killed her husband and an on-duty guard in a popular shopping mall in Quezon City. Shiela Macapugay left her family home in Bulacan to confront her husband, 32-year-old Abel Macapugay, who was then working as a promo merchandiser in an appliance store in the basement of SM North Edsa. Reports said that Shiela confronted her husband with regards to his failure in providing financial support for her and their five-year-old child. Some witness accounts stated that after the couple talked, Shiela left, but returned hours after and she shot her husband. Other accounts stated that as soon as Abel turned his back on her to signal the end of their conversation, Shiela took out a gun from her bag and shot him. [1] Shiela then pointed the gun to her temple and pulled the trigger twice, but nothing happened. QCPD Station 2 commander, Superintendent Audie Madrideo, was quoted saying, Tinutok niya baril sa ulo, inawat siya ng gwardya. [N]abaril siya. [2]
[1]
K. Boncocan 2 Dead in QC Mall Shooting, Inquirer News < http://newsinfo.inquirer.net/59125/2-dead-in-qc-mall-shooting >, September, 15, 2011 Wife shoots husband in QC Mall, GMA News TV < http://www.gmanews.tv/story/232420/nation/wife-shoots-husband-in-qc-mall-guard-killed >, September 15, 2011 P. Endozo Woman Scorned kills husband, AsiaOne News <http://news.asiaone.com/News/Latest%2BNews/Asia/Story/A1Story20110916299802.html >, September 16, 2011 [2] Wife shoots husband in QC Mall, GMA News TV < http://www.gmanews.tv/story/232420/nation/wife-shoots-husband-in-qc-mall-guard-killed >, September 15, 2011
The security guard, identified as Ricardo Inamac III, who was assigned to SM North Edsa at the time, tried to prevent Shiela from shooting herself by intervening. He grappled for the firearm from Shielas hold, but the gun went off and hit him instead on his back and leg. After that, another security guard grabbed Shiela and proceeded to take the gun from her and turn her over to the police. [3] Both Abel Macapugay and Ricardo Inamac were rushed to the Quezon City General Hospital but were declared dead on arrival, according to SPO2 Roldan Dapat of the Criminal Investigation and Detection Unit (CIDU) of the Quezon City Police District (QCPD) Station 2. [4] While Shiela may face charges of parricide (as filed by the sister of Abel, the husband) and murder (as filed by the family of Inamac, the security guard), Superintendent Madrideo hinted that she may also face charges of illegal possession of firearms. According to Madrideo, Mrs. Macapugay used a .38 caliber revolver bought in Sta. Rita, Bulacan, to which the officer said they supposed was unlicensed. The initial investigation also showed how Shiela may have been able to get the gun past the security of the mall. They said that it was possible she hid the firearm in the lining of her bag. Sa visual search, di makikita and baril kasi nasa ilalim ng bag (pero) kung may metal detector siguro [baka nakita yun], were the words of Madrideo in explaining how the firearm may not have been visible in the security search without the use of a metal detector. [5] On Premeditation Chief Inspector Rodelio Marcelo, chief of the QCPD CIDU said that based on letters Shiela wrote and left in her house, there were clear indications that she had planned to kill her husband, and then take her own life after. One of the letters included Shiela asking for her mothers forgiveness and begging her mother to take care of her daughter. Initially, Shiela denied that she had meant to kill her husband. She claimed that what happened was self-defense. She stated that that day, she went to see her husband because he promised that he would be giving her money for financial support for their daughter. She even claimed that she had already accepted that he had a mistress but what she could not take was how easily he turned his back on his responsibilities on their child.
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Wife shoots husband in QC Mall, GMA News TV < http://www.gmanews.tv/story/232420/nation/wife-shoots-husband-in-qc-mall-guard-killed >, September 15, 2011
Her initial claim had been that the gun was not hers, but her husbands, and that after they talked, when she saw her husband carrying a gun, she tried to take it away from him and it misfired. [6] However, later on, Shiela started expressing regret for her actions, but claimed that she shot her husband because she could no longer stand the physical and emotional abuse she had suffered from him.
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The Battered Woman Defense According to womens rights expert and professor from the University of the Philippines College of Law Attorney Rowena Guanzon, under Republic Act No. 9262, or the Anti-Violence Against Women and their Children Act of 2004 (AVAWC), any woman proven to have been suffering from the Battered Woman Syndrome does not incur criminal liability for the death or injury she inflicts on her spouse or partner who had committed violence against her or battered her. As such, if Shiela is found to be suffering from the Battered Woman Syndrome, which drove her to killing her husband, her actions may be justified and would render her not criminally liable for his death. However, this defense would not apply to the death of the mall security guard, according to Atty. Guanzon. [8] ISSUES PRESENTED 1. Whether or not Shiela Macapugay may be charged with the crime of parricide for the death of her husband. 2. Whether or not Shiela Macapugay may be charged with the special aggravating circumstance of illegal possession of firearms, pursuant to PD No. 1866, as amended by RA No. 8294. 3. Whether or not Shiela Macapugay may be absolved from criminal liability on the death of her husband if she is granted the justifying circumstance of Battered Woman Syndrome, pursuant to Sec. 26 of RA No. 9262, or the Anti-Violence Against Women and their Children Act of 2004. 4. Whether or not Shiela Macapugay may be charged with the crime of murder for the death of the security guard.
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BRIEF ANSWERS 1. Yes. All the elements of parricide have been satisfied and there is no contention that Shiela is the wife of the victim, Abel. 2. Yes. According to PD No. 1866, the use of an unlicensed firearm in the commission of homicide or murder is considered an aggravating circumstance. 3. Yes. If she is proven through evidence to have been suffering from Battered Woman Syndrome, her action is considered justified and she does not incur criminal liability. 4. No. There was no intent to kill the security guard. She may be charged instead with reckless imprudence resulting to homicide. DISCUSSION Parricide The following is the provision found in the Revised Penal Code parricide: 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 or reclusion perpetua to death. (As amended by RA No. 7659; emphasis added) [10]
[9]
defining the crime of
The elements of the crime of parricide are: (1) a person is killed; (2) the deceased is killed by the accused; and (3) the deceased is the father, mother, or child, whether legitimate or illegitimate, of the accused or any of his ascendants or descendants, or his spouse. [11] All the elements of the crime of parricide are found in the case at hand. There is no disputing that the victim died from gunshot, which satisfies the first element. Although Shiela Macapugays initial statement had been to deny that she had intended to kill the deceased, her voluntary admission later on
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that she had been the one to shoot her husband, which caused his death, clearly satisfies the second element. The essential element of parricide which differentiates it from other crimes against persons, specifically murder and homicide, is the relationship of the offender with the victim.
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As mentioned
in the provision of the Revised Penal Code, spousal relationship between offender and victim makes the offender liable for the crime of parricide. There was never any contention with regards to Shielas relationship as the wife of the victim. In fact, the reason behind her going to SM North Edsa the victims place of work that night was to ask for financial support from him for her and their daughter, an obligation of members of the family to each other as provided in the Family Code. [13] Furthermore, the offender herself admits to being the legal wife of the victim, her and her child with him being abandoned and not given support, while her husband cavorts with a mistress. This is an admission against her penal interest. It becomes a confirmation of the latin maxim semper praesumitur matrimonio, and the presumption that a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage. [14] As with the crimes of murder and homicide, the intent to take a life must also be proven in the crime of parricide with the same degree of certainty as required as to the other elements.
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It must then
be proven that the accused had really intended to kill her husband. In this case, the police are confident in their declarations that the letters Shiela wrote and left before meeting her husband on the day the crime was committed are strong evidence pointing to Shielas intention to kill her husband and then kill herself after. Thus, with the fulfillment of the elements of parricide and the evidence gathered showing the accuseds intent to kill her husband, Shiela Macapugay may be charged, and even convicted of parricide. Illegal Possession of Firearms Superintendent Madrideo stated that Shiela Macapugay may also be facing charges of illegal possession of firearms because of her use of a handgun in the alleged shooting of her husband, Abel. However, Sec. 1, par. 3 of PD No. 1866, as amended by RA No. 8294, or the Decree Codifying the Laws on Illegal/Unlawful Possession, Manufacture, Dealing In, Acquisition or Disposition, of Firearms, Ammunition or Explosives states that:
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xxx If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. (emphasis added) It is clear by the language of the law that in the commission of crimes of murder and homicide, the illegal possession of firearms does not count for a separate charge against the offender, but merely as an aggravating circumstance. By the doctrine of necessary implication, it would also follow that if proven liable in a crime of parricide, the illegal possession and use of firearms in the commission of the crime would also serve as an aggravating circumstance. The Court has also held in a number of cases that there can be no separate conviction of the crime of illegal possession of firearm where another crime, as indicated in RA No. 8294, is committed.
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In fact, even in a case of parricide, ruling has been made that a violation of RA No. 8294 is no longer
a separate offense, but is counted merely as a circumstance which aggravated the crime. However, since the penalty for parricide is reclusion perpetua to death, and the death penalty has already been repealed as per RA No. 9346, the penalty of reclusion perpetua if found guilty of parricide may not anymore be increased.[17] Two requisites are necessary to establish illegal possession of firearms: (1) the existence of the subject firearm; and (2) the fact that the accused who owned or possessed the gun did not have the corresponding license or permit to carry it outside his residence.[18] The first element has already been established since the authorities were able to come into possession and identify the gun used in the commission of the crime. They were able to identify the firearm as a .38 caliber handgun, which in a previous case has been identified as a firearm that satisfies the requirement for the violation of PD No. 1866 such.[20] With regards to the second element, it has not been clearly established whether or not the firearm used was really unlicensed or not. However this requisite, and as such the violation of the law, is once again clearly defined in Sec. 5(2) of Republic Act No. 8294 or An Act Amending the Provisions of Presidential Decree No. 1866, as Amended Entitled Codifying the Laws on Illegal/Unlawful Possession, Manufacture, Dealing In, Acquisition or Disposition of Firearms, Ammunition or Explosives or Instruments Used in the Manufacture of Firearms, Ammunition or Explosives, and
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, and which the law also specifically enumerates as
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Imposing Stiffer Penalties for Certain Violations Thereof, and for Relevant Purposes, which states that: Section 5. Coverage of the Term Unlicensed Firearm.The term unlicensed firearm shall include: 1) firearms with expired licenses; or 2) unauthorized use of licensed firearm in the commission of the crime. (emphasis added) Pursuant to RA No. 8294, the firearm used in an unauthorized manner shall be considered an aggravating circumstance. Even if the firearm was properly licensed, its unauthorized use shall be cause for the aggravation of the offense. [21] Given these, if the accused is found liable of the crime of parricide for the death of her husband, then the offense may also be aggravated by her illegal possession of firearms as a violation of PD No. 1866, as amended by RA No. 8294. However, as already mentioned, since the maximum penalty for parricide which is death has already been repealed as a possible penalty, the only penalty for someone guilty of the crime is reclusion perpetua, which is the minimum penalty. So, even if her crime may be aggravated by the illegal possession of firearms, the penalty for the accused cannot be increased anymore.
Battered Woman Syndrome as a Defense The concept of the battered wife or the battered woman was introduced in the case of People v. Genosa,[22] where the accused, Marivic Genosa killed her husband in his sleep after being physically battered and beaten and psychologically violated in a continuous pattern throughout the coverture of their marriage. Through counsel, Atty. Katrina Legarda, Marivic claimed to be living in a constant state of fear for her life and at the time of the commission of the offense, for her unborn child that at a certain point, her husbands violence would lead to her death. This is what led her to kill her husband when he was at his most vulnerable. The case defined a battered woman to be a woman:
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xxx who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something he wants her to do without concern for her rights. Battered women include wives or women in any form of intimate relationship with men. Furthermore, in order to be classified as a battered woman, the couple must go through the battering cycle at least twice. Any woman may find herself in an abusive relationship with a man once. If it occurs a second time, and she remains in the situation, she is defined as a battered woman.[23] Battered women exhibit common personality traits such as low self-esteem, traditional beliefs about sex and gender roles, emotional dependence upon the abusive partner, tendency to accept responsibility for the batterers actions, and false hopes of improvement in the relationship.[24] Dr. Leonore Walker, a clinical psychologist and acknowledged expert on the Battered Woman Syndrome in the United States said that the syndrome is characterized by a cycle of violence. [25] This cycle has three phases: (1) the tension-building phase; (2) the acute battering incident; and (3) the tranquil, loving, or non-violent phase.[26] The tension-building phase is characterized by minor battering, such as verbal or slight physical abuse. The acute battering incident is considered by the batterer as an unpredictable incident characterized by brutality, destructiveness, or sometimes death. These incidents are often savage and out of control. The tranquil period is where the batterer tries to make up for his cruelty, where he begs for the womans forgiveness and promises never to do it again. The battered woman tries to convince herself that the abuse will never happen again, that her partner will change, and that the good, gentle, caring man is the real person whom she loves. [27] Although the Courts decision on the Genosa case did not absolve Marivic of criminal liability due to the limits of the law
[28]
, they eventually ruled in granting her the mitigating circumstance of
incomplete self-defense. The following were the words used by the Court in their decision: The Court, however, is not discounting the possibility of selfdefense arising from the battered woman syndrome. We now sum up our main points. First, each of the phases of the cycle of violence must be proven to have characterized at least two battering episodes between the appellant and her intimate partner. Second, the final acute battering
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episode preceding the killing of the batterer must have produced in the battered persons mind an actual fear of an imminent harm from her batterer and an honest belief that she needed to use force in order to save her life. Third, at the time of the killing, the batterer must have posed probable -- not necessarily immediate and actual -- grave harm to the accused, based on the history of violence perpetrated by the former against the latter. Taken altogether, these circumstances could satisfy the requisites of self-defense. Under the existing facts of the present case, however, not all of these elements were duly established. ( emphasis added) [29] Almost three months after the landmark decision on People v. Genosa, on March 8, 2004, RA No. 9262 or the Anti-Violence Against Women and their Children Act of 2004 was approved. This law now includes provisions taking into consideration the concept of the Battered Woman Syndrome. RA No. 9262 defines the Battered Woman Syndrome as: xxx (c) Battered Woman Syndrome refers to a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse.(emphasis added)[30] Furthermore, this law now recognizes the Battered Woman Syndrome as a viable defense which absolves a woman proven to be afflicted with the syndrome from criminal and civil liability: Sec. 26. Battered Woman Syndrome as a Defense Victimsurvivors who are found by the courts to be suffering from battered woman syndrome do not incur any criminal and civil liability notwithstanding the absence of any of the elements for justifying circumstances of self-defense under the Revised Penal Code. In the determination of the state of mind of the woman who was suffering from battered woman syndrome at the time of the commission of the crime, the courts shall be assisted by expert psychiatrists/psychologists. (emphasis added) [31]
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In the case at hand, Shiela Macapugay may use the defense of the battered woman syndrome if she is able to prove that she has been in a relationship characterized by cumulative abuse and that her actions and state of mind, especially during the commission of the crime, is part of a scientifically defined pattern of behavior. To be deemed scientifically defined, other than through the assistance of expert psychiatrists/psychologists, the Implementing Rules of RA No. 9262 also provides how assistance may be rendered by police-women, as well as what may be admissible as evidence in Court: Section 48. Duties and Functions of the Philippine National Police-Women and Children Protection Desks (PNPWCPD) For the purposes of investigation of VAWC cases, the PNP-WCPD shall have the following duties and functions: xxx (g) If victim-survivor is found to have manifestations of the Battered Woman Syndrome which is validated by past police records and testimonies from witnesses in interest, the WCPD officer shall inform the Punong barangay, the local social worker, or the concerned NGOs, local professional or civic groups in the area for appropriate psychiatric and psychological evaluation which may form part of the evidence to be presented in court; [32]
Shiela claims that her husband has been psychologically and even physically, at times, abusing her, which led her to the recourse that she did. Some of the alleged psychological and emotional abuse that she experienced from him included his abandonment of her and their daughter, his refusal to give spousal and parental support, his extramarital affair with another woman, and his continued verbal threats caused her to experience anguish both as his wife and as a woman. In RA No. 9262, acts of violence against women and their children include: Sec. 5. Acts of Violence Against Women and Their Children. The crime of violence against women and their children is committed through any of the following acts:
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(a) (b) (c) (d) (e)
Causing physical harm to the woman or her child; Threatening to cause the woman or her child physical harm; Attempting to cause the woman or her child physical harm; Placing the woman or her child in fear of imminent physical harm; Attempting to compel or compelling the woman or her child to
engage in conduct which the woman or her child has the right to desist from or desist from conduct which the woman or her child has the right to engage in, or attempting to restrict or restricting the woman's or her child's freedom of movement or conduct by force or threat of force, physical or other harm or threat of physical or other harm, or intimidation directed against the woman or child. This shall include, but not limited to, the following acts committed with the purpose or effect of controlling or restricting the woman's or her child's movement or conduct: xxx (2) Depriving or threatening to deprive the woman or her children of financial support legally due her or her family, or deliberately providing the woman's children insufficient financial support; xxx (i) Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child, including, but not limited to, repeated verbal and emotional abuse, and denial of financial support or custody of minor children or access to the woman's child/children. [33] Given that the alleged abuses by Shielas deceased husband on her are abuses clearly defined as acts of violence against women and children in RA No. 9262, Shiela may opt to pursue the defense presented through the Battered Woman Syndrome. However, before she could be granted this justifying circumstance, the accused must first show evidence that she truly is suffering from this syndrome and that the cause of such affliction is the pattern of abuse that has significantly affected her psyche and state of mind after being under her husbands control throughout their marriage. If it becomes scientifically proven that the accused suffers the Battered Woman Syndrome, she would not incur criminal and civil liability for the death of her husband.
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This defense however cannot be used to justify the death of the security guard. Murder or Reckless Imprudence resulting in Homicide? Lastly, it was alleged that the family of the security guard who was shot in the scuffle while he tried to grapple the firearm away from the accused filed a case of murder against her. The Revised Penal Code defines murder as: Art. 248. Murder. Any person who, not falling within the provisions of Article 246 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.
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6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse. [34] To prove the felony of homicide or murder, there must also be incontrovertible evidence, direct of circumstantial, that the victim was deliberately killed, or with malice. In other words, what needs to be proven is the intent to kill. Evidence such as the use of weapons, the nature, location and number of wounds sustained by the victim, the words uttered by the accused before, during, or after the commission of the crime may be used to determined intent. If a victim dies because of a deliberate act of the malefactor, intent to kill is then conclusively presumed. [35] In the case at hand, it can be shown that on there was no intent to kill the security guard on the part of the accused. In fact, before the security guard tried to grapple the firearm away from her, Shielas obvious intent had been to commit suicide by pointing the gun to her temple and pulling the trigger twice. On the ground of lack of intent to kill alone, it can already be proven that Shiela Macapugay did not commit murder and should not be charged with the crime of murder, considering that all the other qualifying circumstances needed to prove murder cannot be proven. However, does this mean that she has no criminal liability over the death of the security guard? Both the law and the Courts interpretations of the law show that the accused still has liability over the death of the security guard. The law states that: Art. 4. Criminal liability Criminal liability shall be incurred: (1) By any person committing a felony (delito) although the wrongful act be different from that which he intended . (emphasis added) [36] Furthermore, the provision in the Revised Penal Code on the Quasi-offense of Criminal Negligence is as follows: Art. 365. Imprudence and negligence. Any person who, by reckless imprudence, shall commit any act which, had it been intentional, would constitute a grave felony, shall suffer the penalty of arresto mayor in its maximum period to prision correccional in its medium period; if it would have constituted a less grave felony, the penalty of arresto mayor in its
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minimum and medium periods shall be imposed; if it would have constituted a light felony, the penalty of arresto menor in its maximum period shall be imposed. xxx Reckless imprudence consists in voluntary, but without malice, doing or falling to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing of failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circumstances regarding persons, time and place. [37] Even though the accused had no intention to kill the security guard, the mere act of using the gun in a crowded place and even sneaking it in consists definitely of a voluntary action. Even though her original intent was not to kill the guard, but to kill herself, she cannot claim to not have been aware of the possibility of the damage that toting a gun would result to. In fact, she had already killed her husband before the security guard was shot so she obviously knew that death was a possibility in pulling the trigger of her firearm. As such, the mishap should then be classified as homicide through reckless imprudence (or reckless imprudence resulting in homicide), given that the death was still unintentional. Her act of discharging the gun counts as a voluntary and willful act but there was no proof of malice or intent to kill the deceased security guard. [38] It must be noted that reckless imprudence is not a crime in itself. It is simply a way of committing the crime and as such, determines a lower degree of criminal liability. Negligence or imprudence only becomes a punishable criminal act when it results in a crime. [39] In this case, Shielas recklessness resulted in the death of Inamac. CONCLUSION The facts and the law show that Shiela Macapugay may be charged with parricide for the death of her husband because all the elements of the crime of parricide were present when she committed the crime. There was no dispute that her husband died and she eventually admitted that she was the one who
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shot him, even if at the start, she denied committing the crime. There is also no dispute on the legality of her marriage to the deceased spouse, which is the essential element in determining that the crime committed was parricide. Intent to kill her husband can also be shown through the letters unearthed during investigation she wrote about her intention to kill him and then commit suicide; these letters, now being under police custody. Even though it hasnt been conclusively declared that the firearm she used was unlicensed, the unauthorized use of the .38 caliber gun also makes her liable for the special aggravating circumstance of illegal possession of firearms. However, since the only penalty for parricide is now reclusion perpetua after the death penalty had been repealed, if found criminally liable, being charged with this special aggravating circumstance will not anymore increase the penalty to be imposed. The accused however may use the defense of Battered Woman Syndrome since under the AntiViolence Against Women and their Children Act of 2004 or RA No.9262, if found suffering from this syndrome, she would not incur criminal liability. Shiela mentioned certain abuses she allegedly experienced from her husband during the course of their marriage and these abuses were actual violations enumerated in RA No. 9262. However, the accused still needs to scientifically prove through psychological and medical experts that she truly may considered a battered woman. The charge of murder against the accused with regards to the death of the security guard, however, may not prosper since there was no obvious intent to kill the deceased on the part of the accused. Instead, what was intended by Shiela was actually to commit suicide and kill herself. This does not mean though that she does not incur criminal liability from the death of the guard. Instead, what applies in this case is a quasi-offense, particularly reckless imprudence resulting in homicide. Using the gun and being aware of the consequences of pulling out the gun makes it a voluntary action, even without the intent or malice to cause the damage done. Shielas criminal liability on the death of the security guard may be considered to a lower degree since reckless imprudence and negligence are not crimes in themselves and are only punishable if such imprudence or negligence results in a crime.
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What charges is Shiela Macapugay facing for killing her husband?

What is Shiela Macapugay's possible defense against the charge of parricide?

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defining the crime of

, and which the law also specifically enumerates as

, they eventually ruled in granting her the mitigating circumstance of

(a) (b) (c) (d) (e)

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