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SAN BEDA COLLEGE OF LAW

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PRE-WEEK

REMEDIAL LAW
CIVIL PROCEDURE
1. Ellaine filed an action against Boyet, driver of the truck, Michelle, owner of said
truck, and Ruth, insurer of the truck, for damages when the truck rammed her car.
Ellaine and Ruth entered into a compromise agreement upon an amount lower
than that sued upon by Ellaine against all three defendants. Accordingly, the court
dismissed the case against Ruth. Boyet and Michelle moved to dismiss the case
against them on the ground that, being an indispensable party under a common
cause of action, non-inclusion of Ruth would not make the case prosper.
How would you resolve the motion?
I would deny the motion. Ruth is not an indispensable party. The liability of Ruth
is based on the contract of insurance whereas the liability of the Boyet and Michelle is
based on quasi-delict. Hence, the plaintiff does not have a common cause of action
against all the defendants and the dismissal of the complaint against Ruth will not affect
the complaint against Boyet and Michelle. (Inson vs. Court of Appeals, 239 SCRA 58)
2. Ellen filed an action against Leila for recovery of possession of a piece of land.
Leila in her answer specifically denied Ellens claim and interposed as
counterclaim the amount of P150,000.00, arising from another transaction,
consisting of the price of the cars he sold and delivered to Ellen and which the
latter failed to pay.
Is Leilas counterclaim allowed under the rules? Explain.
Yes. Leilas counterclaim is a permissive counterclaim inasmuch as it arises out
of a transaction not the subject matter of Ellens complaint. It is allowed if it is within the
jurisdiction of the court. (Sec 8 of Rule 6) Note: Ellens action is cognizable by RTC or
MTC depending upon the assessed value of the land.
3. Robert filed an action for damages against Howie arising from the latters
tortious act. Howie filed his answer with a counterclaim for damages suffered and
expenses incurred on account of Roberts suit. Thereafter, Robert moved to
dismiss the case since he lost interest in the case. Howie did not object. The court
dismissed the action without prejudice. Howie moved immediately to set the
reception of his evidence to prove his counterclaim.
If you were the judge, how would you resolve the motion? Explain.
I would grant the motion. Howie need not object to a dismissal upon plaintiffs
own motion after the answer is filed. The dismissal does not affect the counterclaim.
(Sec. 2 of Rule 17).
4. Rex assembles an owner-type jeep for Alvin who in turn rents it to Eric. Due to
faulty brakes, Eric figures in a vehicular accident causing severe injuries. Eric
files an action for damages against Rex and Alvin.
May Alvin file a third-party complaint against Rex for indemnity? Explain.

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No, because Rex is not a stranger to the case. What Alvin should file is a
crossclaim against his co-defendant Rex.
5. X filed an action for reconveyance against Y. Y forthwith filed his answer and
served it on X. A week later, X filed a motion to withdraw the action since he could
not avail of the services of counsel. The court dismissed the complaint based on
failure to prosecute. A month later, X instituted the very same action against Y. Y
moved to dismiss the case invoking res judicata. He alleged that dismissal of the
first case had the effect of adjudication upon the merits since the courts Order
had no condition that it was without prejudice. The Court dismissed the
subsequent case on the ground of res judicata.
Was the trial court correct? Explain.
No, because the dismissal of the complaint on motion of X is without prejudice
under Sec. 2 of Rule 17. The Court erred in dismissing the complaint for failure to
prosecute under Sec. 3 of Rule 17.
6. What is the purpose of provisional remedies?
The purpose of provisional remedies is to preserve or protect the rights or
interest of the parties during the pendency of the principal action. (Calo vs. Roldan, 76
Phil. 445)
7. In a case for sum of money, the trial court granted ex parte the prayer for
issuance of a writ of preliminary attachment. The writ was immediately
implemented by the sheriff. The defendant filed a motion to discharge the writ of
preliminary attachment on the ground that it was issued and implemented prior to
service of summons. Plaintiff opposed arguing that under the Rules of Court, the
writ can be applied for and granted at the commencement of the action or at any
time thereafter. In any event, plaintiff argues that the summons which was
eventually served cured whatever irregularities that might have attended the
enforcement of the writ.
How would you rule on the conflicting contentions of the parties?
The issuance of the writ of preliminary attachment ex parte was valid but the
implementation thereof was not effective without prior or simultaneous service of
summons. The subsequent service of summons did not cure the irregularities that
attended the enforcement of the writ. The writ of attachment should be re-served after
the service of summons. (Davao Light and Power Co., Inc. vs. Court of Appeals, 204
SCRA 343; Oate vs. Abrogar, 241 SCRA 659)
8. Is the failure to file a motion for reconsideration in the lower court as a
condition precedent for the granting of the writ of certiorari or prohibition always
fatal? Explain.
No, because there are exceptions, such as the following:
a) The question of jurisdiction was squarely raised before and decided by the
respondent court.
b) Public interest is involved.
c) Cases of urgency.
d) Order is patent nullity.
e) Issue is purely of law.
f) Deprivation of right to due process. (Cochingyan vs. Cloribel, 76 SCRA 361;
Palea vs. PAL, 111 SCRA 215)

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9. What is the principle of estoppel to question jurisdiction?


Jurisdiction is conferred by law and cannot be conferred by consent of the parties
or by their failure to object to the lack of it. It may be raised at any stage of the
proceedings. However, a party cannot invoke jurisdiction of the court to secure
affirmative relief against his opponent and after obtaining or failing to obtain such
relief, repudiate or question the same jurisdiction.
10. What are the exceptions to the rule of adherence to jurisdiction?
As a rule, jurisdiction, once it attaches, cannot be ousted by the happening of
subsequent events although of such character which would have prevented
jurisdiction from attaching in the first instance.
Exceptions:
1) Where a subsequent statute expressly prohibits the continued exercise of
jurisdiction;
2) Where the law penalizing an act is repealed by a subsequent law;
11. What is the so-called residual jurisdiction of the court?
It means that in appeals prior to the transmittal of the record to the appellate
court or before the appeal is given due course, the trial court retains jurisdiction:
1) to issue orders for the preservation of rights of the parties which do not
involve any matter litigated by appeal;
2) to approve compromise prior to transmittal of record;
3) to permit appeals by an indigent;
4) to order execution pending appeal in accordance with Sec.2, Rule 39,
meaning that the motion for execution was filed before the expiration of
the period to appeal; and
5) to allow withdrawal of appeals.
12. What is the two-dismissal rule?
When the same complaint had been dismissed by the plaintiff twice by filing a
notice of dismissal, the second dismissal operates as an adjudication on the merits.
13. Distinguish between claim preclusion and issue preclusion.
Claim preclusion or the so-called bar by prior judgement refers to the effect of a
judgement as a bar to the prosecution of a second action upon the same claim, demand
or cause of action while issue preclusion or the so-called conclusiveness of judgement
precludes the re-litigation of a particular fact or issue in another action between the
same parties for a different cause of action.
14. What is the difference between misjoinder of parties and non-joinder of
parties?
Misjoinder of parties is not a ground for dismissal (Rule 3, Sec. 11) while non-joinder
of parties may result to dismissal as when an indispensable party is not joined (Rule 3,
Sec. 9 (2)).

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15. Carmelo filed a complaint for ejectment with damages amounting to P 350,000
against Bal in the MTC of Pasay. Bal filed an answer with the counterclaim
amounting to P 500,000 as moral damages for the alleged filing of a malicious
action against him by Carmelo. Carmelo filed a motion to dismiss the
counterclaim of Bal on the ground that it is beyond the jurisdiction of the lower
court. Bal opposed claiming that it is a compulsory counterclaim, hence, if not
pleaded in the answer, it is deemed waived. Judge Carullo dismissed the
counterclaim.
Is the dismissal of the counterclaim proper?
The dismissal of the counterclaim is proper. The counterclaim is permissive.
16. Bok instituted an action against Boyet before the RTC of Caloocan. Boyet filed
a motion to dismiss the complaint. Can Bok still amend his complaint as a matter
of right even if a motion to dismiss was already filed?
Yes. Bok can amend the complaint as a matter of right because a motion to
dismiss is not a responsive pleading. Under Rule 10, Sec. 2, a party may amend his
pleading once as a matter of right at anytime before a responsive pleading is served.
17. Allans answer admits the material allegation of Wengs complaint. May the
court motu proprio render judgment on the pleadings? Explain?
No, a motion must be filed by the plaintiff. (Sec.1, Rule 34 of the 1997 Rules) The court
cannot motu proprio render judgment on the pleadings except during the pre-trial.
18. What are the available remedies of a party declared in default:
1. Before the rendition of judgment?
2. After judgment but before its finality? and
3. After finality of judgment?
1. Before the rendition of judgment (a) he may file a motion under oath to set aside the
order of default on the grounds of fraud, accident, mistake or excusable negligence
and that he has meritorious defense; and if it is denied, he may move to reconsider,
and if reconsideration is denied, he may file the special civil action of certiorari for
grave abuse of discretion amounting to lack or excess of the lower courts jurisdiction
or, (b) he may file a petition for certiorari if he has been illegally declared in default,
e.g. during the pendency of his motion to dismiss or before the expiration of the time
to answer.
2. After judgment but before finality, he may file a motion for new trial on the grounds of
fraud, accident, mistake, excusable negligence, or a motion for reconsideration on
the ground of excessive damages, insufficient evidence or a decision or final order
being contrary to law and thereafter, if the motion is denied, he can appeal.
3. After finality of the judgment, there are three ways to assail the judgment, which are:
(a) a petition for relief under Rule 38 on the grounds of fraud, accident, mistake or
excusable negligence; (b0 annulment of judgment under Rule 47 for extrinsic fraud
or lack of jurisdiction; or (c) certiorari if the judgment is void on its face by judicial
record.

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19. Cause of action from action.


A cause of action is an act or omission in violation of the right or rights of another.
An action is an ordinary suit in a court of justice by which one party prosecutes another
for the enforcement or protection of a right, or the prevention or redress of a wrong.
20. For failure of Kathy to file an answer within the reglementary period, the Court,
upon motion of Zoilo, declared Kathy in default. In due time, Kathy filed an
unverified motion to lift the order of default without an affidavit of merit attached
to it. Kathy attached to the motion her answer under oath, stating in said answer
the reasons for her failure to file an answer on time, as well as her defenses. Will
the motion to lift the order of default prosper? Explain.
Yes, there is substantial compliance with the rule. Although the motion is unverified, the
answer attached to the motion is verified. The answer contains what the motion to lift the
order of default and the affidavit of merit should contain, which are the reasons for
movants failure to answer as well as his defenses.
21. When is reply necessary?
Where the answer is based on an actionable document in which case a verified reply is
necessary otherwise the genuineness and due execution of said actionable document
are generally deemed admitted.
22. In an admirality case filed by A against Y Shipping Lines (whose principal
offices are in Manila) in the RTC, Davao City, the court issued a subpoena duces
tecum directing Y, the president of the shipping company, to appear and testify at
the trial and to bring with him several documents.
(a) On what valid ground can Y refuse to comply with the subpoena duces tecum?
(b) How can A take the testimony of Y and present the documents as exhibits
other than through the subpoena form the RTC?
(a) Y can refuse to comply with the subpoena duce tecum on the ground that he resides
more than 100 kilometers from the place where he is to testify. (Sec. 10, Rule 23)
(b) A can take the testimony of Y and present the documents as exhibits by taking his
deposition through oral examination or written interrogatories. He may also file a
motion for the production or inspection of documents. (Rule 27)
23. Describe briefly the five modes of discovery under the Rules of Court.
1. Deposition. By leave of court after jurisdiction has been obtained over any defendant
or over property which is the subject of the action, or without such leave after an
answer has been served, the testimony of any person, whether a party or not, may
be taken, at the instance of any party, by deposition upon oral examination or written
interrogatories. (Rule 23, Sec 1)
2. Interrogatories to parties. Under the same conditions specified in Section 1 of Rule
23, any party shall file and serve upon any adverse party written interrogatories
regarding material and relevant facts to be answered by the party served. (Sec. 1,
Rule 25)
3. Admission by adverse party. At any time after issues have been joined, a party may
file and serve upon any other party a written request for the admission by the latter
of the genuineness of any material and relevant document or the truth of ant material
and relevant matter of fact. (Rule 26, Sec. 1)

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4. Production or inspection of documents or things. Upon motion of any party showing


good cause therefor, a court may order any party to produce and permit the
inspection and copying or photographing of any designated documents, etc. or order
any party to permit entry upon designated land or property for inspecting, measuring,
surveying, or photographing the property or any designated relevant object or
operation thereon. (Sec.1 Rule 27)
5. Physical and mental examination of persons. In an action in which the mental or
physical condition of a party is in controversy, the court in which the action is pending
may in its discretion order him to submit to a physical or mental examination by a
physician.

EVIDENCE
24. (a) Give three instances when a Philippine court can take judicial notice of a
foreign law?
(b) How do you prove a written foreign law?
(c) Suppose a foreign law was pleaded as part of the defense of defendant but no
evidence was presented to prove the existence of said law, what is the
presumption to be taken by the court as to the wordings of said law?
(a) The three instances when a Philippine court can take judicial notice of a foreign law
are: (1) when the Philippine courts are evidently familiar with the foreign law; (2)
when the foreign law refers to the law of nations; and (3) when it refers to a
published treatise, periodical or pamphlet on the subject of law if the court takes
judicial notice of the fact that the writer thereof is recognized in his profession or
calling as expert on the subject. (Sec. 46, Rule 130).
(b) A written foreign law may be evidenced by an official publication thereof or by a copy
attested by the officer having the legal custody of the record, or by his deputy, and
accompanied, if the record is not kept in the Philippines, with a certificate that such
officer has the custody. If the office in which the record is kept is in a foreign country,
the certificate may be made by the secretary of the embassy or legation, consul
general, consul, vice-consul, or consular agent or by any officer in the foreign service
of the Philippines stationed in the foreign country in which the record is kept, and
authenticated by the seal of his office.
(c) The presumption is that the wordings of the foreign law are the same as the local
law. This is known as processual presumption.
25. Distinguish extrajudicial admission from extrajudicial confession in criminal
offense.
An extrajudicial admission is a statement of fact which does not directly involve
an acknowledgment of guilt, while an extrajudicial confession is a declaration of an
accused that he has committed or participated in the commission of a crime.
26. In the examination of witnesses, what is meant by laying the predicate?
Laying the predicate is the procedure of impeaching a witness by evidence of
prior inconsistent statements. Before such a witness can be impeached, the prior
statements must be related to him, with the circumstances of the times and places and
the persons present, and he must be asked whether he made such statements, and if
so, allowed to explain them. If the statements be in writing they must be shown to him
before any question is put to him concerning them. (Sec. 13 of Rule 132)

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27. At As trial for Bs murder, the defense attempts to present as its witness Bs
widow, X. She is to testify that just before B died, she approached her sprawled
and bloodied husband and asked who stabbed him. B, conscious of his
impending death, named Y as his assailant. The prosecution moves to stop X from
testifying because her testimony (1) is hearsay, and (2) will be violative of the rule
on privileged marital communication.
Rule on the prosecutions motion. Explain.
I will deny the prosecutions motion. The testimony of X is admissible as a dying
declaration, which is an exception to the hearsay rule. (Sec. 37 of Rule 130)
Moreover, it is not a privileged marital communication. (Sec. 24-A of Rule 130).
28. X sued Y, a shipping co., based on a contract of carriage in a bill of lading, an
actionable document, was pleaded and attached to the complaint. Y, without
alleging anything else, merely assailed the validity of the agreement in the bill of
lading for being contrary to public policy. X did not formally offer for admission
the bill of lading. The court ruled for X. On motion for reconsideration, Y alleged
that X failed to prove his action as the bill of lading was not formally offered.
Decide.
Motion for reconsideration is denied. There was no need to formally offer the bill
of lading, because the failure to Y to deny under oath the genuineness and due
execution of the bill of lading, which was an actionable document, constituted a judicial
admission thereof. (Sec. 8 of Rule 8)
29. X, charged with rape with homicide, offered P100,000.00 as amicable
settlement to the family of the victim. The family refused. During the trial, the
prosecution presented as evidence Xs offer of compromise.
What is the legal implication of such offer. Explain.
The offer of P100,000.00 as amicable settlement in a criminal case for rape with
homicide is an implied admission of guilt. It does not fall within the exceptions of quasioffenses or those allowed by law to be compromised. (Sec. 27 of Rule 130)
30. Aside from the testimonies of three witnesses positively identifying accused X
as having stabbed to death Y, the prosecution seeks to present another witness,
A, which it believes as material and competent to prove its case. Xs counsel
object to As proposed testimony as being irrelevant. The court sustained the
objection.
If you were the prosecutor, what course of action would you pursue to the
end that the proposed testimony of A would form part of the record for purposes
of review? Explain.
I would make a tender of excluded evidence by stating for the record the name
and other personal circumstances of the witness and the substance of the proposed
testimony. (Sec. 40 of Rule 132)
31. Atlantic Gulf and Pacific Co. filed a claim to recover P63,868.67 against the
estate of Fitzsimmons. During the trial, the claimant corporation called as
witnesses Mr. Belden and Mr. Garmezy, vice-president treasurer and president,
respectively, of said claimant corporation, to testify on the status of the personal
account of the deceased Fitzsimmons; but upon objection of the administrator of
the estate of Fitzsimmons, the trial court refused to admit their testimony on that
point on the ground that said witnesses were incompetent under the Rule of
Survivorship.

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Is the trial court correct in refusing to admit the testimony of the


witnesses?
No. Sec. 23, Rule 130 of the Rules of Court, disqualifies only parties. The
officers and/or stockholders of a corporation are not disqualified from testifying, for or
against the corporation which is a party to claim or demand against the estate of a
deceased person, as to any matter of fact occurring before the death of such deceased
person. (Lichauco vs. Atlantic Gulf and Pacific Co. of Manila, 84 Phil. 330)
32. After the accused himself had testified in his defense in a murder case, the
trail judge, over the objection of the public prosecution, allowed the defense
counsel to file and merely submit the affidavit of the other witnesses of the
accused in lieu of their direct testimony but subject still to cross-examination by
the prosecution
The public prosecutor thus filed with the Supreme Court for certiorari and
prohibition to nullify the order of the trial judge allowing such a procedure.
Should said petition be granted? Reasons.
Yes, inasmuch as Section 1 of Rule 132 clearly requires that the testimony of a
witness shall be given orally in open court.
The trial judge, in issuing his questioned order, acted with grave abuse of
discretion correctible by certiorari.
33. Mario Tandoy was convicted of violating R.A. 6425 after he was caught in a
buy-bust operation for selling 2 foils of marijuana for P20.00 in marked money. He
was sentenced to life imprisonment.
On appeal to the Supreme Court, he contends that the lower court erred in
admitting in evidence merely a Xerox copy of the P10.00 bill allegedly used as a
buy-bust money, in violation of the Best Evidence Rule.
Is the contention of Mario Tandoy tenable?
No. The best evidence rule applies only when the contents of the document are
the subject of inquiry. Where the issue is only as to whether or not such document was
actually executed, or exists, or in the circumstances relevant to or surrounding its
execution, the best evidence rule does not apply and testimonial evidence is admissible.
Since the aforesaid marked money was presented by the prosecution solely for the
purpose of establishing its existence and not its contents, other substitutionary evidence,
like a Xerox copy thereof, is therefore admissible without the need of accounting for the
original. (People vs. Tandoy 192 SCRA 28)
34. When a party is called either by law or the court as a witness, may the witness
be impeached by the proponent? Cite an illustration.
Yes, he may be impeached even by the proponent.
If either party is, by law, under the circumstances of the case compelled to call a
particular person to prove any fact, the party calling him cannot be said to vouch for this
witness that the law forces upon him. Accordingly, a party who is compelled to call an
indispensable witness either by law or the order of the court, is not concluded by the
answers of such witness. He may impeach him.
An example is: In case of opposition to the probate of a will the proponent must
introduce all the subscribing witnesses, if available; and he is not concluded by their
testimony to the same extent that a litigant is bound by the testimony of witnesses
introduced in ordinary course. It follows that proponent of the will may avail himself of
other proof or additional proof to establish the instrument, even contrary to the testimony
of some the subscribing witnesses, or all of them.

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35. Semilla, upon being informed that his uncle Catalino had cried for help, rushed
home and found Catalino lying wounded and the house in disarray and a certain
amount of money missing from a container. Catalino ordered Semilla to fetch a
policeman. When SPO1 Fuentes arrived, Fuentes asked that victim who had
hacked him and the latter answered that it was Papu Sabio, the accused. When
further asked why Papu Sabio hacked him, the victim answered that Papu
demanded money from him. Fuentes also asked how much money he had lost but
the latter was not able to answer that question.
Sensing that the wound was serious since it was bleeding profusely, SPO1
Fuentes decided to take down the answers of the victim to the questions
previously propounded by the policeman. Fuentes had it thumb marked by the
victim with the latters own blood. Three days later, Catalino died.
Thus, Rodulfo Sabio alias Papu was charged and subsequently
convicted by the trial court of the crime of Robbery with Homicide. On appeal the
the accused contended, among others, (1) that he could not be convicted of the
said crime as only the crime of homicide was proven; and (2) that the antemortem
declaration of the victim should not have been admitted as evidence because the
declarant was not under a consciousness of an impending death when the said
declaration was made.
Rule on the contentions
(1) Only homicide was committed.
Plainly, the evidence supportive of the charge is at best circumstantial and does
not establish beyond reasonable doubt that the accused carried away personalty
belonging to the offended party. There was no eye witness to the alleged robbery, nor
was any party of the alleged missing object recovered. A conviction for robbery with
homicide requires that robbery itself be proven as conclusively as any other essential
element of the crime, it not being enough to infer said robbery from mere suspicion and
presumption.
Nor can the dying declaration of the victim be admitted to establish the fact of
robbery. The admission of dying declarations has always been strictly limited to criminal
prosecutions for homicide or murder as evidence of the cause and surrounding
circumstances of death.
(2) The dying declaration is admissible to prove that only homicide was
committed.
The seriousness of the injury on the victims forehead; the spontaneous answer of
the victim that only Papu Sabio is responsible for my death; and his subsequent
demise from the direct effects of the wound on his forehead, strengthen the conclusion
that the victim must have known that his end was inevitable. That death did not ensue till
3 days after the declaration was made will not alter its probative force since it is not
indispensable that a declarant expires immediatelty thereafter. It is the belief in
impending death and not the rapid succession of death, in point of fact, that renders the
dying declaration admissible. (People vs Sabio)
36. Ignacio Calvario, one of the robbers, was willing to testify against his coconspirators provided that he be utilized as a government witness. After his
arrest, an agreement had been reached, for he was brought to sitio Balibayon
where he reenacted the commission of the crime. The next day, Calvario was
brought to the poblacion of Placer where he pointed to Cpl. Desoloc the
perpetrators of the crime. Thereafter, he executed his extra-judicial confession
after which he was released from custody. The prosecution listed Calvario as one
of its witnesses.
After the preliminary investigation, the case was filed with the Regional
Trial Court for trial. However, a reinvestigation was conducted, during which time
Ignacio Calvario turned hostile and indicted that he would no longer testify for the
government.
Is the extra-judicial confession of Calvario admissible in evidence?

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Yes. This Court has earlier held that where one of several co-defendants turns
States evidence on a promise of immunity by the prosecuting attorney, but later retracts
and fails to keep his part of the agreement, his confession made under such a promise
may then be used against him, provided that he was assisted by counsel. (People vs.
Beberino, 79 SCRA 694)
37. What is the concept of Self-Authenticating Documents? Give three examples
of such documents.
Self-Authenticating documents are certain kinds of documents or records which
require no independent proof of authenticity. Their nature is such that merely producing
the document establishes prima facie its own authentication. The burden then shifts to
the adverse party to prove that the document is not what it purports to be or otherwise is
not authentic.
Examples are:
a) official records under seal (Sec. 24, Rule 132)
b) Notarized documents (Sec. 30, Rule 132)
c) Certified copies of public records (Sec. 27, Rule 132)
38. State the Good Samaritan Rule under the Rules of Evidence.
The Good Samaritan rule provides that an offer to pay or the payment of
medical, hospital or other expenses occasioned by an injury is not admissible in
evidence as proof of civil or criminal liability for the injury. (Sec. 27, Rule 130)
The rationale here is that such payment may have been prompted solely by
humanitarian motives.
39. Enumerate the different kinds of Vicarious Admissions.
The different kinds of vicarious admission are:
a) Admissions by co-partner or agent or co-owner (Sec. 29. Rule 130);
b) Admission by a co-conspirator (Sec. 30, Rule 130); and
c) Admission by privies (Sec. 31, Rule 130)
40. When are self- serving declarations made by a party admissible in his own
behalf?
Self-serving declarations made by a party are admissible in his own behalf in the
following cases:
a) When they form part of the res gestae, including spontaneous statements,
and verbal acts;
b) When they are in the form of complaint and exclamations of pain and
suffering;
c) When they are part of a confession offered by the prosecution;
d) Where they are offered by the opponent;
e) When they are offered without objection, the evidence cannot afterward be
objected, to as incompetent.
41. What is a leading question?
question allowed?

A misleading question?

When is a leading

A leading question is a question which suggests to the witness the answer which
the examining party desires. It is allowed in the following cases:
a) On cross-examination;
b) On preliminary matters;

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c) When there is difficulty in getting direct and intelligible answers from a


witness who is ignorant, or a child of tender years, or is of feeble mind, or a
deaf-mute;
d) Of an unwilling or hostile witness; or
e) Of a witness who is an adverse party or an officer, director, or managing
agent of a public or private corporation or of a partnership or association
which is an adverse party.
A misleading question is one which assumes as true a fact not yet testified to by
the witness, or contrary to that which he has previously stated. It is not allowed. (Sec.
10, Rule 132)
42. What is a Bursting Bubble theory or Thayerian Rule? What is the effect of
this rule?
The Bursting Bubble theory or Thayerian rule provides that when opposing
evidence comes into the case, the presumption, having served its purpose, is no longer
operative and the issue is determined on the evidence just as though no presumption
had ever existed.
The effect of this rule is to continue the burden of persuasion on him who initially
had the benefit of the presumption.
43. If the trial court rejects an evidence offered by a party, what is the remedy of
such party? State the purpose and the procedure for such remedy.
The remedy is for the party to make a formal offer of proof or tender of excluded
evidence.
If the evidence excluded by the court consists of documents or things, the offeror
may have the same attached to or made part of the record.
If the evidence excluded is oral, the offeror may state for the record the same
and other personal circumstances of the witness and the substance of the proposed
testimony (Sec. 40, Rule 132).
The reason for such remedy is to preserve for the appeal the evidence excluded
by the trial court, so that the appellate court may be able to examine the evidence
excluded and to judge whether or not their rejection was erroneous (Velez vs. Chavez,
50 Phil. 676)
44. Enumerate the matters which need not be proved.
The following matters need not be proved:
1) Immaterial allegations
2) Facts admitted or not denied provided they have been sufficiently alleged
3) Agreed and admitted facts
4) Facts subject to judicial notice
5) Facts legally presumed.
45. Ron overheard Bal call Ernie a thief. In an action for defamation filed by Ernie
against Bal, is the testimony of Ron offered to prove the fact of utterance i.e; that
Bal called Ernie a thief, admissible in evidence?
Yes. The testimony of Ron who overheard Bal called Ernie a thief is admissible in
evidence as an independently relevant statement. It is offered in evidence only to prove
the tenor thereof, not to prove the truth of the facts asserted therein. Independently
relevant statements include statements which are on the very facts in issue are those
which are circumstantial evidence thereof. The hearsay rule does not apply.

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46. The barangay captain reported to the police that X was illegally keeping in his
house in the barangay an armalite M16 rifle. On the strength of that information,
the police conducted a search of the house of X and indeed found said rifle. The
police raiders seized the rifle and brought X to the police station. During the
investigation, he voluntarily signed a Sworn Statement that he was possessing
said rifle without license or authority to possess, and a Waiver of Right to
Counsel. During the trial of X for illegal possession of firearm, the prosecution
submitted in evidence the rifle, Sworn Statement and Waiver of Right to Counsel.
Individually rule on the admissibility in evidence of the :
a. Rifle
b. Sworn Statement
c. Waiver of right to counsel
1. The rifle is not admissible in evidence because it was seized without a proper search
warrant. A warrantless search is not justified. There was time to secure a search
warrant.
2. The sworn statement is not admissible in evidence because it was taken without
informing him of his custodial rights and without the assistance of counsel which
should be independent and competent and preferably of the choice of the accused.
3. The waiver of his right to counsel is not admissible because it was made without the
assistance of counsel of his choice.
47. Explain the equipose doctrine in the law of evidence and cite its constitutional
and procedural bases.
Equipose is the equivalent of equiponderance of evidence. When the scale shall
stand upon an equipose and there is nothing in the evidence which shall incline it to one
side or the other, the court will find for the defendant.
The Constitution provides that no person shall be deprived of life, liberty or property
without due process of law, nor shall any person be denied the equal protection of the
law. (Sec.1, Art. III)
Burden of proof is the duty of a party to present evidence on the facts in issue necessary
to establish his claim or defense by the amount of evidence required by law. (Rule 131,
Sec. 3).
In a criminal case its constitutional basis is the presumption of innocence and the
requirement of proof beyond reasonable doubt for conviction.
48. What is the difference between a broadside objection and a specific
objection to the admission of documentary evidence?
A broadside objection is one which does not specify the ground objection or is a general
objection such as incompetent, irrelevant and immaterial, while a specific objection is
limited to a particular ground.
49. Vida and Romeo are legally married. Romeo is charged in court with the crime
of serious physical injuries committed against Selmo, son of Vida, step-son of
Romeo. Vida witnessed the infliction of the injuries of Selmo by Romeo. The
public prosecutor called Vida to the witness stand and offered her testimony as an
eyewitness. Counsel for Romeo objected on the ground of the marital
disqualification rule under the Rules of Court.
(a) Is the objection valid?
(b) Will your answer be the same if Vidas testimony is offered in a civil case for
recovery of personal property filed by Selmo against Romeo?

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(a) No. While neither the husband nor the wife may testify for against the other without
the consent of the affected spouse, one exception is if the testimony of the spouse is
in a criminal case for a crime committed by one against the other or the latters direct
descendants or ascendants.(Rule 130, Sec.20). The case falls under this exception
because Selmo if the direct descendant of the spouse Vida.
(b) No. The marital disqualification rule applies this time. The exception provided by the
rules is in a civil case by one spouse against the other. The case here involves a
case by Selmo for the recovery of personal property against Vidas spouse, Romeo.
50. What is an Electronic Document under the (2000) e-commerce law?
It refers to information or representation of information, data, figures, symbols by
which a right is established or an obligation extinguished, or by which a fact may be
proved and affirmed which is received, recorded, transmitted, stored, processed,
retrieved or procedured electronically. (R.A. 8792, Sec.5 (f)).
51. How may an electronic document be considered as written document and
original document for purposes of evidence?
R.A. 8792, Sec.7 provides:
Electronic Documents shall have the legal effect, validity or enforceability as any
other document or legal writing and
(a) Where the law requires a document to be in writing, that requirement is met by
an electronic document if the said electronic document maintains its integrity
and reliability and can be authenticated so as be usable for subsequent
reference.
(i.)

(ii.)

The electronic document has remained complete and unaltered, apart


from the addition of any endorsement and any authorized change or
any change which arises in the normal course of communication,
storage and display; and
The electronic document is reliable in the light of the purpose for
which it was generated and in the light of all relevant circumstances.

(b) Paragraph (a) applies whether the requirement therein is in the form of an
obligation or whether the law simply provides consequences for the document
not being presented or retained in its original form.
(c) Where the law requires that the document be presented or retained its original
form, that requirement is met by an electronic document if
(i.)

There exist a reliable assurance as to the integrity of the document


from the time it was first generated in its final form; and
(ii.)
That document is capable of being displayed to the person to whom it
is to be presented: Provided that no provision of this act shall apply to
vary any and all requirements of existing laws on formalities required
in the execution of documents for their validity.
For evidentiary purposes, an electronic document shall be the functional
equivalent of a written document under existing laws.
52. What is the rule on admissibility of electronic document?
Sec. 12 provides: In any legal proceedings, nothing in the application of the rules
on evidence shall deny the admissibility of an electronic data message or electronic
document in evidencea. On the sole ground that it is in electronic form; or

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b. On the ground that it is not in the standard written form, and the electronic
data message or electronic documents meeting and complying with the
requirements under sec. 6 or 7 hereof shall be the best evidence of the
agreement and transaction contained therein.
In assessing the evidential weight of an electronic document, the reliability of
the manner in which it was generated, stored or communicated, the reliability
of the manner in which it was identified and other relevant facts shall be given
due regard.
53. Distinguish presumption of innocence from reasonable doubt.
Presumption of innocence is a conclusion drawn from law in favor of citizens. It is
considered as evidence introduced by the law to be considered by the court
Reasonable doubt is a condition of mind produced by proof resulting from
evidence in the case. It is a result of insufficient proof.
54. Who is a hostile witness?
One who manifest so much hostility or prejudice under examination-in chief that
the party who has called him, or his representative, is allowed to cross-examine him, that
is to treat him as though he has been called by the opposite party.
55. What is an ancient Document Rule?
The document which appears to be of the age of at least 30 years, which is found
in the proper custody, and which is unblemished by alterations and is otherwise free
from suspicion is admissible in evidence without direct proof of its execution on the
theory that, under the circumstances, the instrument proves itself. (Rule 132 Sec.21)
56. What is meant by Falsus in uno, falsus in omnibus?
Where a witness has willfully falsified the truth in one point, his testimony in other
points maybe disregarded unless corroborated by circumstances or other unimpeached
evidence. This principle is not necessarily adhered to by our courts.
57. When may judicial records be impeached?
Any judicial record may be impeached by evidence of:
a.) want of jurisdiction in the court or judicial officer
b.) collusion between the parties
c.) fraud in the party offering the record, in respect to the proceeding (Rule
132 Sec.29).
58. In an action for injuries sustained by the Jaja, may Jajas statement as to how
and who injured her, made 10 minutes after the incident in response to the
questions made by the witness who had run to her assistance upon hearing her
cries for help admissible in evidence?
Yes, the statement may be considered competent as part of res gestae. Although it
was made in response to questions by the witness who ran to his assistance, 10 minutes
after the incident, it was spontaneous impulsive statement of fact while the plaintiff was
suffering intense and excruciating pain and under the excitement of the incident where
the natural prompting would be to state the truth.

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59. Pedro was tried for statutory rape, set a defense of sweetheart theory, and that
Karen the victim was already beyond 12 years old as corroborated by testimonies
of his witnesses and the late registration of Karens birth which took place during
the pendency of the case. Karen and her mother however testified as to the
veracity of the victims age. Which contention is tenable?
In terms of evidentiary value, we accord greater weight to the birth certificate.
Under Rule 130, Section 44 of the Revised Rules on Evidence, a birth certificate is the
best evidence of a person's date of birth. It is an entry in the official record made in the
performance of his duty by a public officer of the Philippines and is considered prima
facie evidence of the facts stated therein. The evidentiary value of the birth certificate is
not affected by the late registration by the mother of the birth of her child.
"It is long settled, that the testimony of a person as to his age is admissible
although hearsay and though a person can have no personal knowledge of the date of
his birth as all the knowledge a person has of his age is acquired from what he is told by
his parents he may testify as to his age as he had learned it from his parents and
relatives and his testimony in such case is an assertion of family The testimony of the
prosecution witnesses, the victim and her own mother, as to the fact that the victims
date of birth fall under the exception to the hearsay rule as provided under Section 40 of
Rule 130 of the Revised Rules on Evidence.
60. Andrew was accused for murder. During the custodial investigation, hair
samples were forcibly taken from his head for comparison from those found in the
crime scene. Andrew now contends that the act is violative of his right against
self-incrimination. Is the contention tenable?
The rules set forth in the Constitution as recognition of the fact that the
psychological if not physical atmosphere of custodial investigations in the absence of
procedural safeguards is inherently coercive in nature.
It bears emphasis, however, that under the constitution, what is actually proscribed is
the use of physical or moral compulsion to extort communication from the accusedappellant and not the inclusion of his body in evidence when it may be material. For
instance, substance emitted from the body of the accused may be received as evidence
in prosecution for acts of lasciviousness and morphine forced out of the mouth of the
accused may also be used as evidence against him. Consequently, although the hair
samples were forcibly taken from him and submitted for forensic examination, the hair
samples may be admitted in evidence against him, for what is proscribed is the use of
testimonial compulsion or any evidence communicative in nature acquired from the
accused under duress.
61. On account of by-bust operation, Hansel the alleged drug dealer was
apprehended possessing the marked money used in the purchase of the illegal
drugs. During the trial he raised a defense of Frame-up, and his testimony was
the only evidence presented before the court. Rule on the case.
The contention that the marked money was wiped on his hands and pocket was
supported by nothing more than his bare allegation. It has been stated that allegation
that one was framed can be made with ease. That allegation must therefore be proved
by clear and convincing evidence. The presumption that law enforcers have regularly
performed their duties requires that proof of a frame-up must be strong.
62. Frankie, charged for killing Paul interposed as a defense an Alibi, that he was
at home which is 2 municipalities away from the crime scene. He likewise
presented witnesses corroborating his defense. On the other hand, the
prosecution presented witnesses directly identifying Frankie, and it was

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established that the distance of Frankies home from the crime scene can be
reached within an hours time. Rule with reason.
Alibi as a defense has an inverse relation to positive identification. As evidence, it is
regarded as being the weakest and unreliable of all defenses especially in light of clear
and precise evidence of positive identification of the accused by the prosecution witness
against whom no motive to falsely testify against the accused can be established. It can
only prosper by indubitably proving that the accused was somewhere else when the
crime was committed, and an assailable demonstration that he could not have been
physically present at the locus of the crime or its immediate vicinity at the time of its
commission. In spatial terms physical impossibility of being in two (2) places at the
same time.
63. Czar a witness for the prosecution executed a sworn affidavit stating therein
that he witnessed the murder of the victim Abet, positively identifying Nice as the
assailant who with the use of balisong stubbed Abet to death. However during
Czars testimony in open court, he stated that Nice hacked Abet to death with the
use of bolo. Rule on the discrepancy of the statements and the credibility of the
witness.
The general rule has always been that discrepancies between the statements of
the affiant in his affidavit and those made by him on the witness stand do not necessarily
discredit him because it is a matter of judicial experience that an affidavit being taken exparte, is almost always incomplete and often inaccurate. The exceptions thereto, which
impair the credibility of witnesses are: (a) when the omission in the affidavit refers to a
very important detail of the incident that one relating the incident as an eyewitness would
not be expected to fail to mention, or (b) when the narration in the sworn statement
substantially contradicts the testimony in court. The point of inquiry therefore, is whether
the omission is important or substantial.
64. Accused-appellant takes issue whether the bullet slug marked Exh. I could
be considered by the court notwithstanding the failure of the prosecution to
formally offer it in evidence. The records show that when the prosecutor offered
his evidence in court, he inadvertently skipped Exh. I After he offered Exh. H, he
proceeded to offer Exh. J thereby omitting Exh. I. The accused maintains that
under Sec.35, Rule 132 of the Rules of court, evidence not formally offered, such
as Exh. I, cannot be considered by the court. Rule on the contentions.
This is untenable. Although Exh. I- the bullet slug- was not formally offered, it
was nevertheless duly identified by a ballistician of the NBI. It was accordingly noted and
subsequently incorporated in the records. Such oversight could not be fatal to the cause
of the prosecution as its entire evidence had been recorded and the witness who was
competent to testify on the matter had properly identified the challenged exhibit. But
even without the exhibits incorporated into the records, the prosecution can still establish
its case as its principal witness properly identifies Exh.I and his testimony was
recorded.

SPECIAL PROCEEDINGS
65. ABC Cattle Corporation is the holder of a pasture lease agreement since 1990
covering 1,000 hectares of pastureland surrounded with fences. In 1992, D was
issued a pasture lease agreement covering 930 hectares of land adjacent to
ABCs. A relocation survey showed that the boundaries of Ds land extended 580
hectares into ABCs pastureland. Thereupon, D removed ABCs fence and started
to set up his own boundary fence 580 hectares into ABCs pasture area. As ABC

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persistently blocked Ds advances into its property, D filed a complaint with


preliminary injunction to enjoin ABC from restricting him in the exercise of his
lease rights.
If you were the judge, would you issue a preliminary injunction? Explain.
No, because a preliminary injunction may not be issued to take property out of
the possession and control of one party and place it in the control of another whose right
has not been clearly established.
66. Distinguish special proceeding form an ordinary action.
A special proceeding is a remedy to establish the status or right of a party or a
particular fact, while an ordinary action is one by which one party prosecutes another for
the enforcement or protection of a right or the prevention or redress of a wrong. (Secs. 1
and 2 of Rule 2).
67. Mondi was arrested on the strength of a warrant of arrest issued by the RTC in
connection with the Information for homicide. Tricia, the live-in partner of Mondi
filed a petition for habeas corpus against As jailer and police investigators with
the CA. Does Tricia have the personality to file the petition for habeas corpus?
Yes, Tricia, the live-in partner of Mondi, has the personality to file the petition for habeas
corpus because it may be filed by some person in his behalf.
67. Give the proper venue for the following special proceedings:
(a) a petition to declare as escheated a parcel of land owned by a resident of the
Philippines who died intestate and without heirs or persons entitled to the
property.
(b) A petition for the appointment of an administrator over the land and building
left by an American Citizen residing in California, who had been declared an
incompetent by the American court.
(c) A petition for the adoption of minors residing in Pampanga.
(a) The venue of the escheat proceedings of a parcel of land in this case is the place

where the deceased last resided. (Sec. 1 Rule 91)


(b) The venue for the appointment of an administrator over land and building of an
American citizen residing in California, declared incompetent by the American court,
is the RTC of the place where his property or parts thereof is situated.
(c) The venue of a petition for adoption of a minor residing in Pampanga is the RTC of
the place in which the petitioner resides.
69. Albert forcibly entered and occupied the house and lot in Quezon City owned
by hi neighbor Carissa. Carissa immediately sued Albert for forcible entry. She
also claimed damages amounting to P100,000 other undetermined losses ad a
result of the forcible entry, and attorneys fees of P25,000. Albert sets up
affirmative defenses in his answer without questioning Carissas title ovetr the
property. Is the case triable under summary procedure by the MTC of QC?Explain.
Yes, because all actions of forcible entry and unlawful detainer are subject to summary
procedure irrespective of the amount of damages claimed, but the attorneys fees should
not exceed P20,000.00.
70. Sally files a complaint for ejectment in the MTC on the ground of non-payment
of rentals against Kitchie. After two days, Kitchie files with the RTC a complaint

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against Sally for specific performance to enforce the option to purchase the parcel
of land subject of the ejectment case. What is the effect of Kitchie action on
Sallys complaint? Explain.
There is no effect. The ejectment case involves possession de facto only. The action to
enforce the option to purchase will not suspend the action of ejectment for nonpayment
of rentals.

CRIMINAL PROCEDURE
71. The information filed against Philger charged more than one offense. Philger
has not yet been arraigned. If you were the lawyer of A, would you file a motion to
quash or a motion for bill of particulars? Explain.
I would file a motion to quash on the ground that more than one offense is
charged. (Sec. 1-e of Rule 117). A motion for bill of particulars is not proper because
there are no defects or details in the information that need clarification. (Sec. 10 of Rule
116)
72. Accused was charged estafa and pleaded not guilty thereto. The prosecution
repeatedly sought and obtained postponements over the objection of the accused
who invoked his right to speedy trial. At the succeeding hearing, the prosecution
again sought postponement on the ground that the complainant, its only witness,
was out of the country.
If you were counsel of the accused, what course of action would you take
in order that the case against him will be finally dismissed by the court?
I would object to any further postponement, insist on a trial and more for
dismissal on the ground of the right of the accused to a speedy trial. The dismissal in
such a case bars a subsequent prosecution for the same offense.
73. Accused was charged with murder. At the hearing of his application for bail,
the prosecution manifested that it was ready to present evidence to prove that the
guilt of the accused is strong. The defense, however, contended that the report
and documents/papers in support of the prosecutors certification of probable
cause in the information is sufficient to determine whether the evidence of guilt is
strong, thereby dispensing with the presentation of the prosecutions evidence.
As judge, how would you resolve the contention of the defense? Explain.
I would overrule the contention of the defense because the prosecution has the
right to present evidence to prove that evidence of guilt is strong. (Sec. 8 of Rule 114) A
hearing in indispensable.
74. X, common-law wife of accused Y, sobbing, went running from her residence
just some thirty meters away, to the house of Barangay Captain Z, complaining
that accused Y stuck her on the cheek with the butt of a revolver, causing her to
bleed, and that accused Y threatened to shoot her with a gun. The Barangay
Captain, a retired veteran police officer, accompanied X to the latters residence to
investigate, but on their way they met accused Y on the road. Thereupon,
Barangay Captain Z confronted accused Y about the complaint of his common-law
wife X, but Y did not say anything nor deny it. The Barangay Captain, noticing an
object bulging in Ys waistline underneath his T-shirt, and believing that it was the
gun he used to injure X and to threaten her with death, frisked Y and grabbed the
object which turned out to be a .38 caliber paltik revolver. The Barangay Captain

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inquired whether accused had a license to possess or permit to carry the gun, and
when the latter answered to the negative, the Barangay Captain arrested him and
confiscated the firearm. From the record of the local PNP, it was ascertained that
the revolver was not registered or licensed in the name of the accused Y.
Was the arrest, of accused Y without warrant lawful pursuant to Section
5(a) of Rule 113 of the Revised Rules on Criminal Procedure? Were the search
conducted and seizure of the gun likewise lawful without a search warrant
pursuant to Section 12 of Rule 126? Explain.
The arrest of the accused Y without warrant was lawful pursuant to Section 5(a)
of Rule 113, because an offense had in fact just been committed and Barangay Captain
Z has personal knowledge of facts indicating that Y had committed it. When Z,
accompanied by the complainant X, met Y on the road and confronted him on the
complaint of X, Y did not say anything nor deny it. That was sufficient ground for Z to
arrest Y and search him. Hence the search and seizure of the gun was lawful without a
search warrant under Sec. 12 of Rule 126.
Alternative Answer:
The arrest of the accused Y without warrant was lawful under Section 5 (a) of
Rule 113, because the totality of the circumstances would indicate to a veteran police
officer that a crime was being committed in his presence, and justify an arrest of Y
without warrant. Hence the search and seizure of the gun was lawful under Sec 12 of
Rule 126.
75. X was charged with murder attended by treachery band evident premeditation.
During arraignment, X, assisted by counsel, pleaded guilty with the qualification
hindi ko sinadya patayin. Xs counsel assured the court that he fully apprised X
of the information, the nature of the charge and the consequences of his plea. X
even waived the prosecutions presentation of evidence against him. the court
convicted X of murder.
a) Was the plea of guilty entered valid? Explain.
b) May the prosecution dispense with the presentation of evidence despite
the waiver of the accused? Explain.
a) No, the plea of guilty by X with the qualification hindi ko sinadya patayin was
a conditional plea of guilty and hence a plea of not guilty should be entered for him.
(Sec. 1-C of Rule 116)
Alternative Answer:
No, because when the accused pleads guilty to a capital offense, the court shall
conduct a searching inquiry into the voluntariness and full comprehension of the
consequences of his plea. The court should not rely on the assurance of the counsel of
the accused for this purpose. (Sec. 3 of Rule 116)
b) No, the court should require the prosecution to prove the guilt and precise
degree if culpability of the accused. (Id.)
76. Distinguish complaint from information.
In a criminal procedure, a complaint is a sworn written statement charging a
person with an offense, subscribed by the offended party, any peace officer or other
peace officer charged with the enforcement of the law violated. (Sec. 3, Rule 110, 1987
Rules of Criminal Procedure); while an information is an accusation in writing charging a
person with an offense subscribed by the prosecutor and filed with the court. (Sec. 4)

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77. What is a prejudicial question?


A prejudicial question is an issue involved in a civil action which is similar or
intimately related to the issue raised in the criminal action, the resolution of which
determines whether or not the criminal action may proceed. (Sec.5 Rule 111)
A prejudicial question is one based on a fact distinct and separate from the crime
but so intimately connected with it that it determines the guilt or innocence of accused.
78. What are requisites of a trial in absentia?
The requisites of a trial in absentia are (a) the accused has already been
arraigned; (b) he has been duly notified of the trial; and (c) his failure to appeal is
unjustifiable.
79. Facing a charge of Murder, Anthony filed a petition for bail. The petition was
opposed by the prosecution but after hearing, the court granted bail to Anthony.
On the first scheduled hearing on the merits, the prosecution manifested that it
was not adducing additional evidence and that it was resting its case. Anthony
filed a demurrer to evidence without leave of court but it was denied by the court.
1. Did the court have the discretion to deny the demurrer to evidence under the
circumstances mentioned above?
2. If the answer to the preceding question is in the affirmative, can Anthony
adduce evidence in his defense after the denial of his demurrer of evidence?
1. Yes. The court had the discretion to deny the demurrer to the evidence, because
although the evidence presented by the prosecution at the hearing for bail was not
strong, without any evidence for the defense, it could be sufficient for conviction.
2. No. Because he filed the demurrer to the evidence without leave. However, the trial
court should inquire as to why the accused filed the demurrer without leave and
whether his lawyer knew that the effect of filing it without leave is to waive the
presentation of the evidence of the accused.
80. What is a Terry search (or so called stop and frisk)? Is it justified under the
existing law and jurisprudence? Explain.
A Terry search is a stop-and-search without a warrant. It is justified when
conducted by police officers on the bases of prior confidential information which were
reasonably corroborated by other attendant matters.
81. Your friend Malyn, an orphan, 16 years old, seeks your legal advice. She tells
you that Carmelo, her uncle, subjected her to acts of lasciviousness; that when
she told her grandparents, they told her to just keep quiet and not to file charges
against Carmelo, their son. Feeling very much aggrieved, she asks you how her
uncle Carmelo can be made to answer for his crime.
(a) What would your advice be? Explain.
(b) Suppose the crime committed against Malyn by her uncle Carmelo is rape,
witnessed by your mutual friend Kate. But this time, Malyn has prevailed upon
by her grandparents not to file charges. Kate asks you if she can initiate the
complaint against Carmelo. Would your answer be the same? Explain.
(a) I would advise the minor, an orphan of 16 yrs of age, to file the complaint herself
independently of her grandparents, because she is not incompetent or incapable of
doing so upon the grounds other then her minority. (Sec.5 Rule 110, Rules of
Criminal Procedure)

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(b) Since rape is now is classified as a Crime Against Persons under the Anti-Rape Law
of 1997, I would advise Kate to initiate the complaint against Carmelo.
82. In an information charging them of murder, policemen A, B, and C were
convicted of Homicide. A appealed from the decision but B and C did not. B
started serving his sentence but C escaped and is at large. In the CA, A applied for
bail but was denied. Finally, the CA rendered a decision acquitting A on the
ground that the evidence pointed to the NPA as the killers of the victim.
Can B and C be benefited by the decision of the CA?
B, who did not appeal, can be benefited by the decision of the CA which is favorable
and applicable to him. The benefit will also apply to C even if his appeal is dismissed
because of his escape.
83. What are the requisites of a valid prejudicial question?
a. The civil action must be instituted prior to the criminal action.
b. The civil action involves an issue similar or intimately related to the issue
raised in the criminal action.
c. The resolution of such issue determines whether or not the criminal action
may proceed.
84. Can a counterclaim, crossclaim or 3rd party complaint be filed by the accused
in any criminal case?
No counterclaim, cross-claim or 3rd party complaint may be filed by the accused in
the criminal case, but any cause of action which could have been the subject thereof
may be litigated in a separate civil action. (Rule III, Sec.1)
85. When is a preliminary investigation required?
Except as provided in Sec.7 of Rule 112, a preliminary investigation is required to be
conducted before the filing of a complaint or information for an offense where the penalty
prescribed by law is at least four (4) years, two (2) months and one (1) day without
regard to fine. (Rule 112, Sec.1).
86. What are the grounds for a motion to quash?
a. That the facts charged do not constitute an offense;
b. That the court trying the case has no jurisdiction over the offense charged;
c. That the court trying the case has no jurisdiction over the person of the
accused;
d. That the officer who filed the information had no authority to do so;
e. That it does not conform substantially to the prescribed form;
f. That more than one offense is charged except when a single punishment for
various offenses is prescribed by law;
g. That the criminal action of liability has been extinguished;
h. That it contains averments which, if true, would constitute a legal excuse or
justification; and
i. That the accused has been previously convicted or acquitted of the offense
charged, or the case against him was dismissed or otherwise terminated
without his express consent.

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87. X Co. is a domestic corporation engaged in the trucking business. It hauls


cargo from one depot to another of Asia Brewery. One of its trucks driven by Toto
bumped a tricycle. The tricycle was totally wrecked and its driver died while its
passenger was seriously injured. In Jan.2001, the heirs of the tricycle driver and
the injured passenger filed a criminal case against Toto but reserved the filing of
separate civil actions. They then filed a civil case (quasi-delict) against X Co. for
damages. X Co. settled the claim of the drivers heirs. Later, the offended parties
withdrew their reservation to file a separate civil action ex delicto but failed to
withdraw the civil case against X Co. The court found Toto guilty and ordered him
to indemnify the offended parties. On the other hand, X Co. was also ordered to
pay damages. The offended parties moved to amend the decision in the criminal
case to hold X Co. subsidiarily liable in case of insolvency of the accused.
a. Decide on the motion.
b. Will your answer be the same if the criminal case was filed on
Nov.2000?
a. Under the Dec. 2000 amendments, Rule 111 no longer requires a reservation
to file a separate civil action to recover civil liability quasi-delicto. Only the civil liability ex
delicto is deemed instituted in the criminal action.
In this case, the filing of the civil case for damages against X Co. need not be
reserved and may proceed independently of the criminal case. However, to recover civil
liability ex delicto in a separate civil action, reservation is required .
When the offended parties reserved and filed the separate civil action ex delicto,
they in effect waived their right to recover against X Co. in case of insolvency of the
accused. They can no longer hold X Co. subsidiarily liable with the accused because
they already received relief in the civil case quasi-delicto. They cannot recover damages
twice.
b. The answer will be the same except that a reservation is required in order to
file a separate civil action quasi delicito, unlike in the present Rule.
88. X issued a check to Baba, drawn against HSBC Bank, for 8.9 million pesos as
payment for the purchase of cell phones. When Baba presented the check for
payment three months later, the check was dishonoured for insufficiency of funds.
Baba wanted to file a criminal case against X and consulted you on the matter.
a. What are the option/s available for Baba?
b. Assuming that a criminal case was eventually filed, can Baba reserve
his right to file a separate civil action to recover the sum due?
a.

Baba can either file a criminal action for estafa and also for violation for BP22.

b.
In case Baba files a case for estafa, he can reserve his right to institute a
separate civil action against X since fraud is an element of estafa. He can recover the
sum due in said civil action for collection of a sum of money.
However, if Baba files a criminal case for violation of BP22, no separate civil
action may be filed even if there is a reservation made. Under the Dec. 2000
amendments of the Rules on Civil Procedure, the civil liability arising from BP22 cannot
be filed separately.
89. Bikoy was arrested during a buy-bust operation. He was caught in possession
of 5 grams of shabu. An information for illegal possession of prohibited drugs was
filed against him in the MTC without a preliminary investigation being conducted.
The accused applied for bail but it was denied. Later, the accused filed a motion
to quash on the ground of lack of jurisdiction over the offense charged and lack of
jurisdiction over the person of the accused. The prosecutor opposed the motion
to quash on the ground that the application for bail waived such defects. Decide.

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Under section 26, Rule 14, the application for bail shall not be a bar for the
accused to challenge the validity of his arrest or for questioning the absence of a
preliminary investigation of the charge against him, provided he raises them before
entering his plea. Since Bikoy has not yet entered his plea. He may file a motion to
quash.
98. When is bail a matter of right, discretionary or not allowed?

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Matter of Right

Discretionary

Not Allowed

a.)

a.) charged of offense


punishable
by
death,
reclusion
perpetua,
life
imprisonment when
the evidence of
guilt is not strong
b.) upon conviction by
RTC of offense not
punishable
by
death,
reclusion
perpetua,
life
imprisonment

a.) charged of offense


punishable
by
death,
reclusion
perpetua, or life
imprisonment when
evidence of guilt is
strong
b.)
if
convicted
of
imprisonment
exceeding 6 yrs.
Provided
the
following
circumstances are
present:
- That he is a
recidivist, quasirecidivist,
or
habitual
delinquent, or has
committed
the
crime aggravated
by
the
circumstance of
reiteration;
- That
he
has
previously
escaped
from
legal confinement,
evaded sentence,
or violated the
conditions of his
bail without valid
justification;
- That
he
committed
the
offense
while
under probation,
parole,
or
conditional
pardon;
- That
the
circumstances of
his case indicate
the probability of
flight if released
on bail; or
- That
there
is
undue risk that he
may
commit
another
crime
during
the
pendency of the
appeal.
(Rule
114, Sec.5)

before or after
conviction
by:
MTC,
MTCC,
MCTC

b.) before conviction by


RTC if charged of
offense
not
punishable
by
death,
reclusion
perpetua or life
imprisonment

c.)

REMEDIAL LAW

when judgment of
conviction
has

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SAN BEDA COLLEGE OF LAW


CENTRALIZED BAR OPERATIONS 2001

Any form of reproduction of this copy is strictly prohibited!!!

become
final
unless
accused
applied
for
probation.

SAN BEDA COLLEGE OF LAW


2001 CENTRALIZED BAR OPERATIONS
Executive Committee
RHODALYN MONTEMAYOR,
MARICAR MARQUEZ,
LORALAINE SINGSON,
RAFAEL OCAMPO JR.,
ERNESTO ISIP JR.,

Over-all Chairperson
Over-all Vice Chair/VC-Academics
Vice Chair Secretariat

Vice Chair Finance


Vice Chair EDP

MARIA FLORITA CRUZ, Asst. Vice Chair for EDP


DIANNE AQUINO, Asst. Vice Chair for Secretariat
JONATHAN ABAS, Asst. Vice Chair for Finance
Subject Chairpersons

JOSE PANGANIBAN JR.,


JUBERT JAY ANDRION,
ZULEIKA LOPEZ,
ERIC RECALDE,
MARICRIS PAHATE,
NICEFORO AVILA JR.,
VERONICA LLADOC,
DERELA DEVERA,

Political Law

Labor Law
Civil Law
Taxation Law

Criminal Law
Commercial Law
Remedial Law
Legal Ethics and Forms

REMEDIAL LAW COMMITTEE


VERONICA N. LLADOC Chairperson
CATHLEEN LAO, MANUEL EDPSSS
JONATHAN SEE, BETH SANCHEZ

SPECIAL THANKS TO:

Dean Virgilio B. Jara

Remember Us When YOURE GREAT!


GOD BLESS!

REMEDIAL LAW

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CENTRALIZED BAR OPERATIONS 2001

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REMEDIAL LAW

26