IV.

Special Proceedings

Q: An heir/oppositor in a probate proceeding filed a motion to remove the administrator on the grounds of
neglect of duties as administrator and absence from the country. On his part the heir/oppositor served
written interrogatories to the administrator preparatory to presenting the latter as a witness. The
administrator objected, insisting that the modes of discovery apply only to ordinary civil actions, not special
proceedings. Rule on the matter. (4%) (2008 Bar Question)

SUGGESTED ANSWER:

The administrator’s contention that the modes of discovery apply only to ordinary civil actions and not to
special proceedings is not correct. Section 2, Rule 72 of the Rules of Court provides that: “In the absence of
special provisions, the rules provided for in ordinary civil actions shall be, as far as practicable, applicable in
special proceedings.” There is no provision to the contrary that would preclude the application of the modes
of discovery, specifically Interrogatories to Parties under Rule 25 of the Rules, to probate proceedings.

A. Settlement of estate of deceased persons, venue and process

1. Which court has jurisdiction

Q: A, a resident of Malolos, Bulacan, died leaving an estate located in Manila, worth P200,OOO.OO. In what
court, taking into consideration the nature of jurisdiction and of venue, should the probate proceeding on
the estate of A be instituted? (2003 Bar Question)

SUGGESTED ANSWER:

The probate proceeding on the estate of A should be instituted in the Municipal Trial Court of Malolos,
Bulacan which has jurisdiction, because the estate is valued at P200,000.00, and is the court of proper
venue because A was a resident of Malolos at the time of his death. (Sec. 33 of BP 129 as amended by RA
7691; Sec. 1 of Rule 73).

Q: Josefa filed in the Municipal Circuit Trial Court of Alicia and Mabini, a petition for the probate of the will of
her husband, Martin, who died in the Municipality of Alicia, the residence of the spouses. The probable value
of the estate which consisted mainly of a house and lot was placed at P95.000.00 and in the petition for the
allowance of the will, attorney's fees in the amount of P10,000.00, litigation expenses in the amount of
P5,000.00 and costs were included. Pedro; the next, of kin of Martin, filed an opposition to the probate of
the will on the ground that the total amount included in (he relief of the petition is more than P100,000.00,
the maximum Jurisdictional amount for municipal circuit trial court. The court overruled the opposition and
proceeded to hear the case.

Was the municipal circuit trial court correct in its ruling? Why? (5%) (2001 Bar Question) SUGGESTED
ANSWER:

Yes, the Municipal Circuit Trial Court was correct in proceeding to hear the case. It has exclusive jurisdiction
in all matters of probate, both testate and intestate, where the value of the estate does not exceed
P100,000,00 (now (P200.000.00). The value in this case of P95.000.00 is within its jurisdiction. In
determining the jurisdictional amount, excluded are attorney's fees, litigation expenses and costs; these are
considered only for determining the filing fees. (B.P. Big. 129, sec. 33, as amended)

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2. Venue in judicial settlement of estate

Q: State the rule on venue in judicial settlement of estate of deceased persons. (2%)(2005 Bar Question)

SUGGESTED ANSWER:

The rule on venue in judicial settlement of estate of deceased persons may be stated as follows: If the
decedent is an inhabitant of the Philippines at the time of his death/whether a citizen or an alien, the venue
shall be in the Regional Trial Court in the province in which he resides at the time of his death. It cannot be
in the place where he used to live (Jao v. Court of Appeals, 382 SCRA 407 [2002]}. If he is an inhabitant of
a foreign country, the Regional Trial Court of any province in which he had estate, is the proper venue. The
court first taking cognizance of the case shall exercise jurisdiction to the exclusion of all other courts. When
the marriage is dissolved by the death of the husband or wife, the community property shall be inventoried,
administered, and liquidated, and the debts thereof paid, in the testate or intestate proceedings of the
deceased spouse. If both spouses have died, the conjugal partnership shall be liquidated in the testate or
intestate proceedings of either. (Secs. 1 and 2, Rule 73, Rules of Court.)

B. Summary settlement of estates

1. Extrajudicial settlement by agreement between heirs, when allowed

Q: The heirs of H agree among themselves that they will honor the division of H’s estate as indicated in her
Last Will and Testament. To avoid the expense of going to court in a Petition for Probate of the Will, can
they instead execute an Extrajudicial Settlement Agreement among themselves? Explain briefly. (5%) (2007
Bar Question)

SUGGESTED ANSWER:

The heirs of H cannot validly agree to resort to extrajudicial settlement of his estate and do away with the
probate of H’s last will and testament. Probate of the will is mandatory (Guevarra v. Guevarra, 74 Phil. 479
[1943]). The policy of the law isrto respect the will of the testator as manifested in the other dispositions in
his last will and testament, insofar as they are not contrary to law, public morals and public policy.
Extrajudicial settlement of an estate of a deceased is allowed only when the deceased left no last will and
testament and all debts, if any, are paid (Rule 74, Sec. 1, Rules of Court).

Q: Nestor died intestate in 2003, leaving no debts. How may his estate be settled by his heirs who are of
legal age and have legal capacity? Explain. (2%)(2005 Bar Question)

SUGGESTED ANSWER:

If the decedent left no will and no debts, and the heirs are all of age, the parties may, without securing
letters of administration, divide the estate among themselves by means of a public instrument or by
stipulation in a pending action for partition and shall file a bond with the register of deeds in an amount
equivalent to the value of the personal property involved as certified to under oath by the parties concerned.
The fact of extrajudicial settlement shall be published in a newspaper of general circulation once a week for
three consecutive weeks in the province. (Section 1, Rule 74, Rules of Court).

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Q: The rules on special proceedings ordinarily require that the estate of the deceased should be judicially
administered thru an administrator or executor.

What are the two exceptions to said requirement? (5%) (2001 Bar Question) SUGGESTED ANSWER:
The two exceptions to the requirement are:

(a) Where the decedent left no will and no debts and the heirs are all of age, or the minors are represented
by their judicial or legal representatives duly authorized for the purpose, the parties may without securing
letters of administration, divide the estate among themselves by means of a public instrument filed in the
office of the register of deeds, or should they disagree, they may do so in an ordinary action of partition. If
there is only one heir, he may adjudicate to himself the entire estate by means of an affidavit filed in the
office of the register of deeds. The parties or the sole heir shall file simultaneously a bond with the register
of deeds, in an amount equivalent to the value of the personal property as certified to under oath by the
parties and conditioned upon the payment of any just claim that may be filed later. The fact of the
extrajudicial settlement or administration shall be published in a newspaper of general circulation in the
province once a week for three consecutive weeks. (Sec. 1 of Rule 74, Rules of Court)

(b) Whenever the gross value of the estate of a deceased person, whether he died testate or intestate, does
not exceed ten thousand pesos, and that fact is made to appear to the Regional Trial Court having
jurisdiction of the estate by the petition of an interested person and upon hearing, which shall be held not
less than one (1) month nor more than three (3) months from the date of the last publication of a notice
which shall be published once a week for three consecutive weeks in a newspaper of general circulation in
the province, and after such other notice to interested persons as the court may direct, the court may
proceed summarily, without the appointment of an executor or administrator, to settle the estate. (Sec. 2 of
Rule 74, Rules of Court)

Q: Rene died intestate, leaving several heirs and substantial property here in the Philippines. (1994 Bar
Question)

1) Assuming Rene left no debts, as counsel lor Rene’s heirs, what steps would you suggest to settle Rene’s
estate in the least expensive manner?

2) Assuming Rene left only one heir and no debts, as counsel for Rene’s lone heir, what steps would you
suggest?

3) Assuming that the value of Rene’s estate does not exceed P10,000.00, what remedy is available to obtain
a speedy settlement of his estate?

Answer:

1) To settle Rene’s estate in the least expensive manner, an extrajudicial settlement of the estate by
agreement of the parties should be made through a public instrument to be filed with the Register of Deeds,
together with a bond in an amount equivalent to the value of the personal property involved as certified to
under oath by the parties concerned and conditioned upon payment of any just claim that may be filed
within two (2) years by an heir or other person unduly deprived of participation in the estate. The fact of
extrajudicial settlement or administration shall be published in a newspaper of general circulation once a
week for three (3) consecutive weeks. (Sec. I, Rule 74).

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2) If Rene left only one heir, then the heir may adjudicate to himself the entire estate by means of an
affidavit of self-adjudication to be filed also with the Register of Deeds, together with the other requirements
abovementioned. [Id.)

3) Since the value of Rene’s estate does not exceed P 10,000.00, the remedy available is to proceed to
undertake a summary settlement of estates of small value by filing a petition in court and upon hearing,
which shall be held not less than one (1) month nor more than three (3) months from the date of the last
publication of a notice which shall be published once a week for three (3) consecutive weeks in a newspaper
of general circulation in the province and after such other notice to interested persons as the court may
direct. The court may proceed summarily without the appointment of an executor or administrator, and
without delay, grant, if proper, allowance of the will, if any, to determine the persons legally entitled to
participate in the estate, and to apportion and divide it among them after payment of such debts of the
estate as the court shall then find to be due. The order of partition if it involves real estate, shall be recorded
by the proper register's office. (Sec. 2, Rule 74).

2. Summary settlement of estates of small value, when allowed

Q: The rules on special proceedings ordinarily require that the estate of the deceased should be judicially
administered thru an administrator or executor.

What are the two exceptions to said requirement? (5%) (2001 Bar Question) SUGGESTED ANSWER:
The two exceptions to the requirement are:

a) Where the decedent left no will and no debts and the heirs are all of age, or the minors are represented
by their judicial or legal representatives duly authorized for the purpose, the parties may without securing
letters of administration, divide the estate among themselves by means of a public instrument filed in the
office of the register of deeds, or should they disagree, they may do so in an ordinary action of partition. If
there is only one heir, he may adjudicate to himself the entire estate by means of an affidavit filed in the
office of the register of deeds. The parties or the sole heir shall file simultaneously a bond with the register
of deeds, in an amount equivalent to the value of the personal property as certified to under oath by the
parties and conditioned upon the payment of any just claim that may be filed later. The fact of the
extrajudicial settlement or administration shall be published in a newspaper of general circulation in the
province once a week for three consecutive weeks. (Sec. 1 of Rule 74, Rules of Court)

b) Whenever the gross value of the estate of a deceased person, whether he died testate or intestate, does
not exceed ten thousand pesos, and that fact is made to appear to the Regional Trial Court having
jurisdiction of the estate by the petition of an interested person and upon hearing, which shall be held not
less than one (1) month nor more than three (3) months from the date of the last publication of a notice
which shall be published once a week for three consecutive weeks in a newspaper of general circulation in
the province, and after such other notice to interested persons as the court may direct, the court may
proceed summarily, without the appointment of an executor or administrator, to settle the estate. (Sec. 2 of
Rule 74, Rules of Court)

3. Remedies of aggrieved parties after extrajudicial settlement of estate

Q: Pinoy died without a will. His wife, Rosie, and three children executed a deed of

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extrajudicial settlement of his estate. The deed was properly published and registered with the Office of the
Register of Deeds. Three years thereafter, Suzy appeared, claiming to be the illegitimate child of Pinoy. She
sought to annul the settlement alleging that she was deprived of her rightful share in the estate. Rosie and
the three children contended that (1) the publication of the deed constituted constructive notice to the
whole world, and should therefore bind Suzy; and (2) Suzy’s action had already prescribed. Are Rosie and
the three children correct? Explain. (4%) (2009 Bar Question)

SUGGESTED ANSWER:

NO, the contention is not correct. Suzy can file a complaint to annul the extrajudicial settlement and she can
recover what is due her as such heir if her status as an illegitimate child of the deceased has been
established. The publication of the settlement does not constitute constructive notice to the heirs who had
no knowledge or did not take part in it because the same was notice after the fact of execution. The
requirement of publication is intended for the protection of creditors and was never intended to deprive heirs
of their lawful participation in the decedent’s estate. She can file the action therefor within four (4) years
after the settlement was registered.

C. Production and probate of will

1. Nature of probate proceeding
2. Who may petition for probate; persons entitled to notice

Q: Czarina died single. She left all her properties by will to her friend Duqueza. In the will, Czarina stated
that she did not recognize Marco as an adopted son because of his disrespectful conduct towards her.

Duqueza soon instituted an action for probate of Czarina's will. Marco, on the other hand, instituted intestate
proceedings. Both actions were consolidated before the RTC of Pasig. On motion of Marco, Duqueza's
petition was ordered dismissed on the ground that the will is void for depriving him of his legitime. Argue for
Duqueza. (5%) (2010 Bar Question)

SUGGESTEDANSWER:

The petition for probate of Czarina's will, as filed by Duquesa should not be dismissed on mere motion of
Marco who instituted intestate proceedings.

The law favors testacy over intestacy, hence, the probate of the will cannot be dispensed with. (See Sec. 5,
Rule 75) Thus, unless the will – which shows the obvious intent to disinherit Marco – is probated, the right of
a person to dispose of his property maybe rendered nugatory (See Seangio v. Reyes, G.R. Nos. 140371-72,
Nov. 27, 2006). Besides, the authority of the probate court is generally limited only to a determination of the
extrinsic validity of the will. In this case, Marco questioned the intrinsic validity of the will.
Q: Sergio Punzalan, Filipino, 50 years old, married, and residing at Ayala Alabang Village, Muntinlupa City, of
sound and disposing mind, executed a last will and testament in English, a language spoken and written by
him proficiently. He disposed of his estate consisting of a parcel of land in Makati City and cash deposit at
the City Bank in the sum of D300 Million. He bequeathed P50 Million each to his 3 sons md PI 50 Million to
his wife. He devised a piece of land worth a100 Million to Susan, his favorite daughter-in-law. He lamed his
best friend, Cancio Vidal, as executor of the will without bond. (2006 Bar Question)

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1. Is Cancio Vidal, after learning of Sergio’s death, obliged to file with the proper court a petition for probate
of the latter’s last will and testament? 2%

SUGGESTED ANSWER:

No, Cancio Vidal is not obliged to file a petition for probate because under Sec. 3, Rule 75, he is only obliged
to deliver the will within twenty (20) days after he knows of the death of the testator.

2. Supposing the original copy of the last will and testament was lost, can Cancio compel Susan to produce a
copy in her possession to be submitted to the probate court? 2%

SUGGESTED ANSWER:

Yes, as a person having custody of the will, Susan has the duty to deliver the will to the court having
jurisdiction or to the executor named in the will within twenty (20) days upon learning the death of the
testator (Sec. 2, Rule 75 of the Rules of Court).

3. xxx

4. Can the widow and her children settle extrajudicially among themselves the estate of

the deceased? 2%

SUGGESTED ANSWER:

No, an extrajudicial settlement of estate by agreement between or among the heirs of the deceased may be
had only when the decedent left no will (Sec. 1, Rule 75 of the Rules of Court).

5. Can the widow and her children initiate a separate petition for partition of the estate pending the probate
of the last will and testament by the proper court? 2% (2006 Bar Question)

SUGGESTED ANSWER:

No, the widow and her children cannot file a separate petition for partition pending the probate of the Will
(Sec. 1, Rule 75 of the Rules of Court; Vda. de Kilayko v. Tengco, 207 SCRA 600, [1992]). Partition is part of
the testate estate proceeding.

D. Allowance or disallowance of will

1. Contents of petition for allowance of will

Q: In the Special Proceedings for the settlement of the intestate estate of the deceased Johnny, his widow
by his second marriage, Carmelita, moved for her appointment as Administratrix of the estate. This was
opposed by Manda, the son of Johnny by his first wife, who moved for his appointment instead. The court
appointed Carmelita, the widow, as Administratrix.

(a) How may Manda contest that appointment of Carmelita?

Instead of Administratrix, Carmelita was appointed Special Administratrix.
(b) Is the same remedy available to the oppositor, Manda? Why or why not?
(c) If Johnny left a holographic will, how may it be probated? Explain. (1988 Bar Question)

183

Answer:

. (a) By appeal, because the appointment of an administrator is a final order under Rule 109.

. (b) No, because no appeal is allowed from the appointment of a special administrator. (Sec.1(e)

of Rule 109)

(c) A holographic will may be probated by filing a petition for the allowance of said will. If it is not contested,
at least one competent witness who knows the handwriting and signature of the testator should explicitly
declare that the will and the signature are in the handwriting of the testator. In the absence of any such
competent witness, and if the court deem it necessary, expert testimony may be resorted to. If it is
contested, at least three witnesses who know the handwriting of the testator should explicitly declare that
the will and the signature are in the handwriting of the testator. In the absence of any competent witness,
and if the court deem it necessary, expert testimony may be resorted to. (Secs. 1,5 and 11 of Rule 76)

2. Grounds for disallowing a will

Q: A will containing three pages was written in two leaves of paper. The will was written on the first page of
the first leaf, the second page on the reverse side of said first leaf, and the third page on the second leaf.
The signature of the testatrix as well as of the instrumental witnesses were written on the left margin of the
first page or first folio and on the third page or second folio but not on the second page or reverse side of
the first leaf.

May the will be admitted to probate? Explain. (1996 Bar Question)

Answer:

No, because the law requires that each and every page of the will should be signed by the testator and his
instrumental witnesses. (Art. 808 Civil Code; Caneda vs. Court of Appeals, 222 SCRA 781)

3. Effects of probate

Q: After Lulu’s death, her heirs brought her last will to a lawyer to obtain their respective shares in the
estate. The lawyer prepared a deed of partition distributing Lulu’s estate in accordance with the terms of her
will.

Is the act of the lawyer correct? Why? (2%) (2005 Bar Question)

SUGGESTED ANSWER:

No. No will shall pass either real or personal estate unless it is proved and allowed in the proper court.
(Section 1, Rule 75, Rules of Court.)

Q: Pedrillo, a Fil-Am permanent resident of Los Angeles, California at the time of his death, bequeathed to
Winston a sum of money to purchase an annuity.

184

Upon Pedrillo's demise, his will was duly probated in Los Angeles and the specified sum in the will was in
fact used to purchase an annuity with XYZ of Hong Kong so that Winston would receive the equivalent of
US$1,000 per month for the next 15 years.

Wanting to receive the principal amount of the annuity, Winston files for the probate of Pedrillo's will in the
Makati RTC. As prayed for, the court names Winston as administrator of the estate. Winston now files in the
Makati RTC a motion to compel XYZ to account for all sums in its possession forming part of Pedrillo's estate.
Rule on the motion. (5%) (2010 Bar Question)

SUGGESTED ANSWER:

The motion should be denied. Makati RTC has no jurisdiction over XYZ of Hong Kong. The letters of
administration granted to Winston only covers all Pedrillo's estate in the Philippines. (Rule 77, Sec. 4) This
cannot cover the annuities in Hongkong.

At the outset, Makati RTC should not have taken cognizance of the petition filed by Winston, because the
will does not cover any property of Pedrillo located here in the Philippines.

Q: (1999 Bar Question)

a. What are the requisites in order that a lost or destroyed Will may be allowed? (2%)

b. A’s Will was allowed by the Court. No appeal was taken from its allowance. Thereafter, Y, who was
interested in the estate of A, discovered that the Will was not genuine because A’s signature was forged by
X. A criminal action for forgery was instituted against X. May the due execution of the Will be validly
questioned in such criminal action? (2%)

SUGGESTED ANSWER:

a. In order that a lost or destroyed will may be allowed, the following must be complied with:

. (1) the execution and validity of the same should be established;

. (2) the will must have been in existence at the time of the death of the testator, or shown
to have been fraudulently or accidentally destroyed in the lifetime of the testator without his
knowledge; and

. (3) its provisions are clearly and distinctly proved by at least two credible witnesses. (Sec.
6, Rule 76 of the Rules of Court)

b. No. The allowance of the will from which no appeal was taken is conclusive as to its due

execution. (Sec. 1 of Rule 75.) Due execution includes a finding that the will is genuine and not a forgery.
Accordingly, the due execution of the will cannot again be questioned in a subsequent proceeding, not even
in a criminal action for forgery of the will.

Q: The last will and testament of the deceased was presented in the proceeding to settle his estate, and in
due course, hearing was set for the probate of the will. Before evidence, thereon could be presented, the
legal heirs of the deceased, his widow and two surviving daughters, filed a manifestation that the probate of
the will would no longer be necessary since they had already agreed to divide the net estate differently in
accordance with a project of partition attached to their manifestation. Consequently, they moved that the
project of partition be approved and forthwith implemented without probate of the

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decedent’s will.

Should the court grant the heirs motion and accordingly approve their project of partition without probate of
the will? Explain. (192 Bar Question)

Suggested Answer:

No. the court may not approve the project of partition without probate of the will, because no will shall pass
either real or personal estate unless it is proved and allowed in the proper court. (Sec. 1 of Rule 75) The law
and public policy require the probate of the will because otherwise, the right of a person to dispose of his
property by will may be rendered, nugatory. (Ralla vs. Untalan, 172 SCRA 858)

E. Letters testamentary and of administration

1. When and to whom letters of administration granted

Q: Sergio Punzalan, Filipino, 50 years old, married, and residing at Ayala Alabang Village, Muntinlupa City, of
sound and disposing mind, executed a last will and testament in English, a language spoken and written by
him proficiently. He disposed of his estate consisting of a parcel of land in Makati City and cash deposit at
the City Bank in the sum of D300 Million. He bequeathed P50 Million each to his 3 sons md PI 50 Million to
his wife. He devised a piece of land worth a100 Million to Susan, his favorite daughter-in-law. He lamed his
best friend, Cancio Vidal, as executor of the will without bond. (2006 Bar Question)

1. xxx

2. xxx

3. Can the probate court appoint the widow as executor of the will? 2%

SUGGESTED ANSWER:

Yes, the probate court can appoint the widow as an executor of the will if Cancio Vidal is found to be
incompetent, refuses the trust, or fails to give a bond, provided that she is competent and willing to serve
(Sec. 6, Rule 78 of the Rules of Court).

4. xxx

5. xxx

Q: A, claiming to be an illegitimate child of the deceased D, instituted an intestate proceeding to settle the
estate of the latter. He also prayed that he be appointed administrator of said estate. S, the surviving
spouse, opposed the petition and A's application to be appointed the administrator on the ground that he
was not the child of her deceased husband D. The court, however, appointed A as the administrator of said
estate. Subsequently, S. claiming to be the sole heir of D, executed an Affidavit of Adjudication, adjudicating
unto herself the entire estate of her deceased husband D. S then sold the entire estate to X.

1. Was the appointment of A as administrator proper? (2%)

2. Was the action of Sin adjudicating the entire estate of her late husband to herself

legal? (3%) (1998 Bar Question) SUGGESTEDANSWER:

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1. Yes, unless it is shown that the court gravely abused its discretion in appointing the illegitimate child as
administrator, instead of the spouse. While the spouse enjoys preference, it appears that the spouse has
neglected to apply for letters of administration within thirty (30) days from the death of the decendent. (Sec.
6, Rule 78, Rules of Court; Gaspay, Jr. vs. Court of Appeals, 238 SCRA 163.)

ALTERNATIVEANSWER:

S, the surviving spouse, should have been appointed administratrix of the estate, in as much as she enjoys
first preference in such appointment under the rules. (Sec. 6(a) of Rule 78, Rules of Court.)

SUGGESTEDANSWER:
2. No. An affidavit of self-adjudication is allowed only if the affiant is the sole heir of the deceased. (Sec. 1,
Rule 74, Rules of Court). In this case, A also claims to be an heir. Moreover, it is not legal because there is
already a pending Juridical proceeding for the settlement of the estate.

Q: Domenico and Gen lived without benefit of marriage for twenty years, during which time they purchased
properties together. After Domenico died without a will, Gen filed a petition for letters of administration.
Domenico’s siblings opposed the same on the ground that Gen has no legal personality. Decide. (4%)(2008
Bar Question)

SUGGESTED ANSWER:

Gen has the legal personality to file the petition for letters of administration because she is an “interested
person” in contemplation of Section 2, Rule 79 of the Rules of Court, being a co-owner of the properties
acquired through joint efforts with Domencio during their cohabitation for 20 years. She, therefore, has
direct interest as co-owner to such properties forming part of the estate of Domencio (.Arts. 147-148, Family
Code; San Luis v. San Luis, 514 SCRA 294 [2007]).

2. Opposition to issuance of letters testamentary; simultaneous filing ofpetition for administration

Q: Sal Mineo died intestate, leaving a P1 billion estate. He was survived by his wife Dayanara and their five
children. Dayanara filed a petition for the issuance of letters of administration. Charlene, one of the children,
filed an opposition to the petition, alleging that there was neither an allegation nor genuine effort to settle
the estate amicably before the filing of the petition. Rule on the opposition. (5%) (2010 Bar Question)

SUGGESTED ANSWER:

The opposition should be overruled for lack of merit. The allegation that there was a genuine effort to settle
the estate amicably before the filling of the petition is not required by the Rules. Besides, a petition for
issuance of letters of administration may be contested on either of two grounds: (1) the incompetency of the
person for whom letters are prayed therein; and (2) the contestant's own right to the administration. (Sec.
4, Rule 79).

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F. Claims against the estate

Q: A filed a complaint against Y with the RTC of Argao, Cebu, for payment of a promissory note in the- sum
of P50.000.00, for liquidated damages of P5.000.00 and attorney’s fees of P5.000.00. After he filed his
answer, Y died, but his lawyer did not file a motion to dismiss. In the meantime, Y*s widow filed with the
above court a special proceeding for the settlement of the intestate estate of Y. The widow, Z, was
appointed the administratrix of the estate. A filed in the civil case a motion to have Y substituted by the
administratrix; the latter did not object. The court granted the motion. Trial on the merits was had. In due
course, the court rendered a decision in favor of A. At the time it was rendered, the period to file claims in
the intestate estate of Y had already lapsed. The administratrix, X, did not appeal from the decision; and
after it became final. A moved for the execution of judgment, Z opposed the motion contending that the
decision is void because the claim does not survive. The case should have been dismissed upon the death of
Y since upon his death, the court lost jurisdiction over the case. (1991 Bar Question)

a) Rule on the issue.

Answer:

a) Since Y died before final Judgment in the RTC, the action for money should have been dismissed and
prosecuted as a money claim against his estate. However, since the widow. Z, who was appointed
administratrix of the estate, did not object to the trial on the merits and did not appeal from the decision,
she is deemed to have waived the right to have the claim litigated in the estate proceedings. Moreover, she
is estopped from questioning the court's jurisdiction. Hence, the decision is valid. (Sec. 21 of Rule 3; Ignacio
v. Pambusco, 20 SCRA 126; Echaus u. Blanco. 179 SCRA 704)

(b) If the opposition is without merit, can the writ of execution be validly issued?
Answer:

(b) No, because a Judgment for money cannot be enforced by a writ of execution against the estate of the
deceased which is in custodia legis. (Sec. 7 of Rule 39; Paredes v. Moya, 61 SCRA 527)

(c) If it cannot be issued, what is the remedy of A?

Answer:

(c) His remedy is to file a money claim against the estate of Y based on the judgment. Although the period
for filing money claims has already lapsed, the same may be allowed before an order of distribution is
entered. (Secs. 2 and 5 of Rule 86; Echaus v. Blanco, supra)

1. Claim of executor or administrator against the estate

Q: X filed a claim in the intestate proceedings of D. D's administrator denied liability and filed a counterclaim
against X. X's claim was disallowed.

(1) Does the probate court still have jurisdiction to allow the claim of D's administrator by way of offset?
Why? (2%)

(2) Suppose D's ‘administrator did not allege any claim against X by way of offset, can D’s administrator
prosecute the claim in an independent proceeding? Why? (3%) (2002 Bar

188

Question) SUGGESTED ANSWER:

A. (1) No, because since the claim of X was disallowed, there is no amount against which to offset the claim
of D’s administrator.

(2) Yes, D’s administrator can prosecute the claim In an Independent proceeding since the claim of X was
disallowed. If X had a valid claim and D’s administrator did not allege any claim against X by way of offset,
his failure to do so would bar his claim forever. (Rule OS, sec. 10).

G. Actions by and against executors and administrators

Q: PJ engaged the services of Atty. ST to represent him in a civil case filed by OP against him which was
docketed as Civil Case No. 123. A retainership agreement was executed between PJ and Atty. ST whereby PJ
promised to pay ST a retainer sum of P24,000.00 a year and to transfer the ownership of a parcel of land to
ST after presentation of PJ's evidence. PJ did not comply with his undertaking. Atty. ST filed a case against
PJ which was docketed as Civil Case No. 456. During the trial of Civil Case No. 456, PJ died.

j) Is the death of PJ a valid ground to dismiss the money claim of Atty. ST in Civil Case No. 456? Explain.
(2%)

ii) Will your answer be the same with respect to the real property being claimed by Atty. ST in Civil Case No.
456? Explain. (2%) (2000 Bar Question)

SUGGESTED ANSWER:

(i) No. Undo: Sec. 20. Rule 3, 1997 Rules of Civil Procedure, when the action is for recovery of money
arising from contract, express or Implied, and the defendant dies before entry of final judgment in the court
in which the action is pending at the time of such death, it shall not be dismissed but shall instead be
allowed to continue until entry of final Judgment. A favorable judgment obtained by the plaintiff shall be
enforced in the manner especially provided in the Rules for prosecuting claims against the estate of a
deceased person.

(ii) Yes, my answer is the same. An action to recover real property In any event survives the death of the
defendant (Sec. 1, Rule 87, Rules of Court). However, a favorable Judgment may be enforced in accordance
with Sec. 7(b) Rule 39 (1997 Rules of Civil Procedure) against the executor or administrator or successor in
interest of the deceased.

H. Distribution and Partition

Q: A, B and C, the only heirs in D’s intestate proceedings, submitted a project of partition to the probate
court (RTC-Manila). Upon the court’s approval of the partition, two lots were assigned to C, who immediately
entered into the possession of the lots. Thereafter, C died and proceedings for the settlement of his estate
were filed in the RTC-Quezon City. D’s administrator then filed a motion in the probate court (RTC-Manila),
praying that one of the lots assigned to C in the project of partition be turned over to him to satisfy debts
corresponding to C's portion. The motion was opposed by the administrator of C’s estate. How should the
RTC- Manila resolve the motion of D’s administrator? Explain. (3%) (2002 Bar Question)

SUGGESTED ANSWER:

Atty.

Atty.

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The motion of D’s administrator should be granted. The assignment of the two lots to C was premature
because the debts of the estate had not been fully paid. [Rule 90, sec. 1; Reyes v. Barreto-Datu, 19 SCRA
85 (1967)].

Q: Sammy Magdalo, executor of the estate of the deceased Rolando Aceron, submitted an inventory which
includes a ten-hectare lot occupied by Carlos Domingo. Domingo opposed inclusion in the inventory of the
property claiming ownership thereof. The probate court directed the executor and Domingo to present
evidence of ownership. Domingo refused to participate in the proceedings, asserting lack of jurisdiction on
the part of the probate court. The probate court nonetheless proceeded with the hearing, and rendered
judgment declaring the deceased to be the owner of the questioned property. The probate court directed
Domingo to vacate' the premises.

Is the said Judgment correct? Explain your answer. (1990 Bar Question) Answer:

No, because the probate court has no jurisdiction to adjudicate title to properties claimed to be part of the
estate of the deceased and also claimed by third parties. (Cuison v. Ramolete, 129 SCRA 495). It may only
make a provisional determination for the purpose of inclusion in the inventory of the estate. (Bolisay v. Alcid,
85 SCRA 213)

I. Escheat

Q: Give the proper venue for the following special proceedings: (1997 Bar Question)

(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) x x x

. (c) x x x

Answer:

(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, Rules of Court).

(b) xxx (c) xxx

1. Remedy of respondent against petition; period for filing a claim

Q: Suppose the property of D was declared escheated on July 1, 1990 in escheat proceedings brought by
the Solicitor General. Now, X, who claims to be an heir of D, files an action to recover the escheated
property. Is the action viable? Why? (2%) (2002 Bar Question)

SUGGESTED ANSWER:

No, the action is not viable. The action to recover escheated property must be filed within five years from
July 1,1990 or be forever barred. (Rule 91, sec. 4).

190

J. Guardianship

Q: Give the proper venue for the following special proceedings: (1997 Bar Question)

a. xxx

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 an American court.

c. x x x Answer:
a. xxx

b. The venue for the appointment of an administrator over land and building of an American citizen residing
in California, declared incompetent by an American Court, is the Regional Trial Court of the place where his
property or part thereof is situated. (Sec. 1, Rule 92).

c. xxx

1. Rule on guardianship over minor

Q: (1999 Bar Question)

a. xxx

b. xxx

c. xxx

d. In a case, the property of an incompetent under guardianship was in custodia legis,

can it be attached? Explain. (2%)

SUGGESTED ANSWER:

a. xxx b. xxx c. xxx

d. Although the property of an incompetent under guardianship is in custodia legis, it may be attached as in
fact it is provided that in such case, a copy of the writ of attachment shall be filed with the proper court and
notice of the attachment served upon the custodian of such property. (Sec. 7, last par., Rule 57, 1997 Rules
of Civil Procedure.)

K. Adoption

Q: Give the proper venue for the following special proceedings: (1997 Bar Question)
 a. xx x

b. xx x

c. A petition for the adoption of a minor residing in Pampanga.

Answer:
a. xxx

191

b. xxx
c. The venue of a petition for the adoption of a minor residing in Pampanga is the Regional

Trial Court of the place in which the petitioner resides. (Sec. l, Rule 99).

L. Writ of habeas corpus

Q: Mariano was convicted by the Regional Trial Court for raping Victoria and meted the penalty of reclusion
perpetua. While serving sentence at the National Penitentiary, Mariano and Victoria were married. Mariano
filed a motion in said court for his release from the penitentiary on his claim that under Republic Act no.
8353, his marriage to Victoria extinguished the criminal action against him for rape, as well as the penalty
imposed on him. However, the court denied the motion on the ground that it had lost jurisdiction over the
case after its decision had become final and executory. (2005 Bar Question)

SUGGESTED ANSWER:

a) No. The court can never lose jurisdiction so long as its decision has not yet been fully implemented and
satisfied. Finality of a judgment cannot operate to divest a court of its jurisdiction to execute and enforce the
judgment. (Echegaray v. Secretary of Justice, 301SCRA 96 [1999]). Besides, there is a supervening event
which renders execution unnecessary. (So v. 388 SCRA 107 [2002]).

b) What remedy/remedies should the counsel of Mariano take to secure his proper and most expeditious
release from the National Penitentiary? Explain. (7%)

SUGGESTED ANSWER:

b) To secure the proper and most expeditious release of Mariano from the National Penitentiary, his counsel
should file (a) a petition for habeas corpus regarding the illegal confinement of Mariano, or (b) a motion in
the court which convicted him, to nullify the execution of his sentence or the order of his commitment on
the ground that a supervening development had despite the finality of the judgment occurred (Melo v.
People, 85 Phil. 766 11950]).

1. Contents of the petition

Q: In. 1978, Pete was convicted by the then Court of First Instance of Cavite on the sole basis of his
extrajudicial confession. The decision soon became final and Pete has since been serving sentence until now,
although to this day, he insists that he is innocent and that his confession had been coerced. He later
learned of the Supreme Court’s decision in. People v. Galit in which the Court reversed a conviction that had
been based solely on an uncounselled confession. He forthwith caused a petition for habeas corpus to be
filed, alleging that his confinement has all along been illegal. The Government opposed the petition on the
ground that the decision of conviction had long become final and may no longer be reopened and that he is
in fact serving sentence.

Will habeas corpus lie? Reasons. (1988 Bar Question) Answer:

192
Yes, because once a deprivation of a constitutional right is shown to exist, the court that rendered the
judgment is deemed ousted of jurisdiction and habeas corpus is the appropriate remedy to assail the legality
of the detention. (Gumabon vs. Director of Prisons, 37 SCRA 420).

Another Answer:

Yes, habeas corpus will lie. Firstly, the judgment has no sufficient inasmuch a judgment of conviction cannot
be based solely on an extrajudicial confession without evidence of corpus delicti.

Secondly, Supreme Court has applied retroactively the galit ruling even to cases decided prior to said ruling.
There being no valid judgment, the detention becomes unlawful.

Alternative Answer:

No, because the judgment of conviction had long become final and has become the law of the case. The writ
of habeas corpus can issue only for want of jurisdiction of the sentencing court. The doctrine laid down in
People vs. Galit has only prospective operation and does not apply to cases previously decided. (Pomeroy vs.
Director of Prisons, 107 Phil. 50).

2. Distinguish peremptory writ from preliminary citation

Q: Douglas, married to but separated from Ellen, one day fetched from school his daughter. 5-year old
Susan, and never returned heir to Ellen under whose custody the child was placed by the Regional Trial
Court of Manila in a suit for custody of the child After searching for her daughter for days Ellen learned that
Douglas had been moving the girl from one place to another within Metro Manila the last being the
residence of his sister Mary in Paranaque. Ellen’s current residence is Pasig.

1. x x x
2. (a) What is meant by a preliminary citation in cases involving deprivation of personal

liberty? Explain.
(b) How is a preliminary citation distinguished from a peremptory writ of habeas

corpus? Explain. (1995 Bar Question) Answer:

1. xxx

2. A preliminary citation merely requires the respondent to appear and show cause why the peremptory writ
of habeas corpus should not be granted. (Lee Yick Hon. vs. Collector of Customs, 41 Phil. 548)

On the other hand, the peremptory writ of habeas corpus directs the officer to have the body of the person
restrained of his liberty before the court or judge designated in the writ at the time and place therein
specified. (Sec. 6. Rule 102)

3. When writ disallowed/discharged

Q: After Alma had started serving her sentence for violation of Batas Pambansa Big. 22 (BP 22), she filed a
petition of writ of habeas corpus, citing Vaca vs. CA where the sentence of

193

imprisonment of a party found guilty of violation of BP 22 was reduced to a fine equal to double the amount
of the check involved. She prayed that her sentence be similarly modified and that she be immediately
released from detention. In the alternative, she prayed that pending determination on whether the Vaca
ruling applies to her, she be allowed to post bail pursuant to Rule 102, Sec. 14, which provides that if a
person is lawfully imprisoned or restrained on a charge of having committed an offense not punishable by
death, he may be admitted to bail in the discretion of the court. Accordingly, the trial court allowed Alma to
post bail and then ordered her release. In your opinion, is the order of the trial court correct? (2008 Bar
Question)

a) Under Rule 102? (2%)

SUGGESTED ANSWER:

a) No. Section 4, Rule 102 of the Rules of Court (Habeas Corpus) does not authorize a court to discharge by
writ of habeas corpus a person charged with or convicted of an offense in the Philippines, or of a person
suffering imprisonment under lawful judgment.

b) Under the Rules of Criminal Procedure? (2%)

SUGGESTED ANSWER:

b) No. The trial court’s order releasing Alma on bail even after judgment against her has become final and in
fact she has started serving sentence, is a brazen disregard of the mandate in Section 24, Revised Rules of
Criminal Procedure that: “In no case shall bail be allowed after the accused has commenced to serve
sentence.” (People v. Fitzgerald, 505 SCRA 573 [2006]).

4. Rules on Custody of Minors and Writ of Habeas Corpus in relation to Custody of Minors (A.M. No. 03-04-
04-SC)

Q: A was arrested on the strength of a warrant of arrest issued by the RTC In connection with an
Information for Homicide. W, the live-in partner of A filed a petition for habeas corpus against A's jailer and
police investigators with the Court of Appeals.

1. Does W have the personality to file the petition for habeas corpus? 12%)

2. Is the petition tenable? (3%) (1998 Bar Question)

SUGGESTED ANSWER:

1. Yes. W, the live-in partner of A, has the personality to file the petition for habeas corpus because it may
be filed by “some person in his behalf. (Sec. 3, Rule 102, Rules of Court.)

2. No. The petition is not tenable because the warrant of arrest was issued by a court which had jurisdiction
to issue it (Sec. 4, Rule 102, Rules of Court.)

Q: While Marietta was in her place of work in Makati City, her estranged husband Carlo barged into her
house in Paranaque City, abducted their six-year old son, Percival, and brought the child to his hometown in
Baguio City. Despite Marietta's pleas, Carlo refused to return their child. Marietta, through counsel, filed a
petition for habeas corpus against Carlo in the Court of Appeals in Manila to compel him to produce their son
before the court and for

194

her to regain custody. She alleged in the petition that despite her efforts, she could no longer locate her son.

In his comment, Carlo alleged that the petition was erroneously filed in the Court of Appeals as the same
should have been filed in the Family Court in Baguio City which, under Republic Act no. 8369. has exclusive
jurisdiction over the petition. Marietta replied that under Rule 102 of the Rules of Court, as amended, the
petition may be filed in the Court of Appeals and if granted, the writ of habeas corpus shall be enforceable
anywhere in the Philippines.

Whose contention is correct? Explain. (5%) (2005 Bar Question)

SUGGESTED ANSWER:

Marietta's contention is correct. The Court of Appeals has concurrent jurisdiction with the family courts and
the Supreme Court in petitions for habeas corpus where the custody of minors is at issue, notwithstanding
the provision in the Family Courts Act (Republic Act No. 8369) that family courts have exclusive jurisdiction
in such cases. (Thornton v. Thornton, 436 SCRA 550 [2004]).
Sec. 20, par. 6 of SC AM No. 03-04-04 [2003] provides: "the petition may likewise be filed with the Supreme
Court, Court of Appeals, or with any of its members and, if so granted, the writ shall be enforceable
anywhere in the Philippines. The writ may be made returnable to a Family Court or to any regular court
within the region where the petitioner resides or where the minor may be found for hearing and decision on
the merits."

Q: Husband H files a petition for declaration of nullity of marriage before the RTC of Pasig City. Wife W files
a petition for habeas corpus before the RTC of Pasay City, praying for custody over their minor child. H files
a motion to dismiss the wife’s petition on the ground of the pendency of the other case. Rule. (2007 Bar
Question)

SUGGESTED ANSWER:

The motion to dismiss the petition for habeas corpus should be granted to avoid multiplicity of suits. The
question of who between the spouses should have custody of their minor child could also be determined in
the petition for declaration of nullity of their marriage which is already pending in the RTC of Pasig City. In
other words, the petition filed in Pasig City, praying for custody of the minor child is unnecessary and
violates only the cardinal rule of procedure against multiplicity of suits. Hence, the latter suit may be abated
by a motion to dismiss on the ground of litis pendentia (Yu v. Yu, 484 SCRA485 [2006]).

Q: Widow A and her two children, both girls, aged 8 and 12 years old, reside in Angeles City, Pampanga. A
leaves her two daughters in their house at night because she works in a brothel as a prostitute. Realizing the
danger to the morals of these two girls, B, the father of the deceased husband of A, files a petition for
habeas corpus against A for the custody of the girls in the Family Court in Angeles City. In said petition, B
alleges that he is entitled to the custody of the two girls because their mother is living a disgraceful life. The
court issues the writ of habeas corpus. When A learns of the petition and the writ, she brings her two
children to Cebu City. At the expense of B, the sheriff of the said Family Court goes to Cebu City and serves
the writ on A. A files her comment on the petition raising the following defenses:

. (a) The enforcement of the writ of habeas corpus in Cebu City is illegal; and

. (b) B has no personality to institute the petition.

195

Resolve the petition in the light of the above defenses of A. (2003 Bar Question)

SUGGESTED ANSWER:

(a) The writ of habeas corpus issued by the Family Court in Angeles City may not be legally enforced in Cebu
City, because the writ is enforceable only within the judicial region to which the Family Court belongs, unlike
the writ granted by the Supreme Court or Court of Appeals which is enforceable anywhere in the Philippines.
(Sec. 20 of Rule on Custody of Minors and Writ of Habeas. Corpus in Relation to Custody of Minors. (A.M.
No. 03-04-04-SC; see also Sec. 4 of Rule 102, Rules of Court.)

(b) B, the father of the deceased husband of A, has the personality to institute the petition for habeas
corpus of the two minor girls, because the grandparent has the right of custody as against the mother A
who is a prostitute. (Sections 2 and 13, Id.)

M. Writ of Amparo (A.M. No. 07-9-12-SC)

Q: Marinella is a junior officer of the Armed Forces of the Philippines who claims to have personally
witnessed the malversation of funds given by US authorities in connection with the Balikatan exercises.

Marinella alleges that as a result of her expose, there are operatives within the military who are out to kill
her. She files a. petition for the issuance of a writ of amparo against, among others, the Chief of Staff but
without alleging that the latter ordered that she be killed.
Atty. Daro, counsel for the Chief of Staff, moves for the dismissal of the Petition for failure to allege that his
client issued any order to kill or harm Marinella. Rule on Atty. Daro's motion. Explain. (3%) (2010 Bar
Question)

SUGGESTED ANSWER:

The motion to dismiss must be denied on the ground that it is a prohibited pleading under Section 11(a) of
the Rule on the Writ of Amparo. Moreover, said Rule does not require the petition therefor to allege a
complete detail of the actual or threatened violation of the victim's rights. It is sufficient that there be an
allegation of real threat against petitioner's life, liberty and/ or security (Gen. A. Razon, Jr. v. Tagitis, G.R.
No. 182498, Dec. 03, 2009).

1. Coverage

2. Distinguish from habeas corpus and habeas data

Q: What is the writ of amparo? How is it distinguished from the writ of habeas corpus? (2%) (2009 Bar
Question)

SUGGESTED ANSWER:

The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security
is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a
private individual or entity. The writ shall cover extralegal killings and enforced disappearances or threats
thereof.

The writ of amparo differs from a writ of habeas corpus in that the latter writ is availed of as a remedy
against cases of unlawful confinement or detention by which any person is deprived of his

196

liberty, or cases by which rightful custody of any person is withheld from another who is lawfully entitled
thereto (Sec 1, Rule 102, Rules of Court).

N. Writ of Habeas Data (A.M. No. 08-1-16-SC)

1. Scope of writ
Q: What is the writ of habeas data? (1%) (2009 Bar Question) SUGGESTED ANSWER:

The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security
is violated or threatened by an unlawful act or omission of a public official or employee, or of a private
individual or entity engaged in the gathering, collecting or storing of data or information regarding the
person, family, home and correspondence of the aggrieved party.

Q: Azenith, the cashier of Temptation Investments, Inc. (Temptation, Inc.) with principal offices in Cebu
City, is equally hated and loved by her co-employees because she extends cash advances or "vales" to her
colleagues whom she likes. One morning, Azenith discovers an anonymous letter inserted under the door of
her office threatening to kill her.

Azenith promptly reports the matter to her superior Joshua, who thereupon conducts an internal
investigation to verify the said threat.

Claiming that the threat is real, Temptation, Inc. opts to transfer Azenith to its Palawan Office, a move she
resists in view of the company's refusal to disclose the results of its investigation.

Decrying the move as a virtual deprivation of her employment, Azenith files a petition for the issuance of a
writ of habeas data before the Regional Trial Court (RTC)to enjoin Temptation, Inc. from transferring her on
the ground that the company's refusal to provide her with a copy of the investigation results compromises
her right to life, liberty and privacy.

Resolve the petition. Explain. (5%) (2010 Bar Question) SUGGESTED ANSWER:
Azenith's petition for the issuance of a writ of habeas data must be dismissed as there is no showing that
her right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission. Neither
was the company shown to be engaged in the gathering, collecting nor storing of data or information
regarding the person, family, home and correspondence of the aggrieved party (Sec. 1, Rule on the Writ of
Habeas Data).

O. Absentees
1. Purpose of the rule
2. Who may file; when to file

Q: Frank and Gina were married on June 12, 1987 in Manila. Barely a year after the wedding, Frank
exhibited a violent temperament, forcing Gina, for reasons of personal safety, to live with her parents. A
year thereafter, Gina found employment as a domestic helper in Singapore, where she worked for ten
consecutive years. All the time she was abroad, Gina had absolutely no communications with Frank, nor did
she hear any news about him. While

197

in Singapore, Gina met and fell in love with Willie.

On July 4, 2007, Gina Filed a petition with the RTC of Manila to declare Frank presumptively dead, so that
she could marry Willie. The RTC granted Gina’s petition. The Office of the Solicitor General (OSG) filed a
Notice of Appeal with the RTC, stating that it was appealing the decision to the Court of Appeals on
questions of fact and law.

[a] Is a petition for Declaration of Presumptive Death a special proceeding? Why or why not? (2%) (2009
Bar Question)

SUSGESTEDANSWER:

NO. The petition for Declaration of Presumptive Death provided in Art. 41 of the “Family Code” is not the
special proceeding governing absentees under Rule 107 of the Rules of Court whose rules of procedure will
not be followed (Republic v. CA, 458 SCRA [2005]). Said petition for Declaration of Presumptive Death under
Article 41 of the Family Code is a summary proceeding, authorized for purposes only of remarriage of the
present spouse, to avoid incurring the crime of bigamy. Nonetheless, it is in the nature of a special
proceeding, being an application to establish a status or a particular fact in court.

ALTERNATIVEANSWER:

A petition for declaration of presumptive death may be considered a special proceeding, because it is so
classified in the Rules of Court (Rule 107, Rules of Court), as differentiated from an ordinary action which is
adversarial. It is a mere application or proceeding to establish the status of a party or a particular fact, to
viz: that a person has been unheard of for a long time and under such circumstance that he may be
presumed dead.

[a] As the RTC judge who granted Gina’s petition, will you give due course to the OSG’s Notice of Appeal?
Explain. (3%)

SUGGESTED ANSWER:

NO. Appeal is not a proper remedy since the decision is immediately final and executory upon notice to the
parties under Art. 247 of the Family Code (Republic v. Bermudes-Lorino, 449 SCRA 57 [2005]). The OSG
may assail RTC’s grant of the petition only on the premise of grave abuse of discretion amounting to lack or
excess of jurisdiction. The remedy should be by certiorari under Rule 65 of the Rules of Court.

P. Cancellation or correction of entries in the Civil Registry

1. Entries subject to cancellation or correction under Rule 108, in relation to R.A. No. 9048
Q: B files a petition for cancellation of the birth certificate of her daughter R on the round of the falsified
material entries therein made by B’s husband as the informant. The RTC sets the case for hearing and
directs the publication of the order once a week for three consecutive weeks in a newspaper of general
circulation. Summons was served on the Civil Registrar but there was no appearance during the hearing.
The RTC granted the petition. R filed a petition for annulment of judgment before the Court of Appeals,
saying that she was not notified of the petition and hence, the decision was issued in violation of due
process. B opposed saying that the publication of the court order was sufficient compliance with due
process. Rule. (5%) (2007 Bar Question)

198

SUGGESTED ANSWER:

R’s petition for annulment of judgment before the Court of Appeals should be granted. Although there was
publication of the court order acting the petition to cancel the birth certificate, reasonable notice still has to
be served on R as she has an a interest affected by the cancellation. (Secs. 3 and 4, Rule 108, Rules of
Court) She is an indispensable party (Republic v. Benemerito, 425 SCRA 488 [2004]), and notice has to be
served on her, not for the purpose of vesting the court with jurisdiction, but to comply with the requirements
of fair play and due process (Ceruila v.Delantar, 477 SCRA 134 [2005]).

ALTERNATIVE ANSWER:

The petition for annulment of judgment should not be granted. While R is an indispensable party, it has
been held that the failure to serv£ notice on indispensable parties is cured by the publication made because
the action is one in rem (Alba v. Court of Appeals, 465 SCRA 495 [2005]; Barco v. Court of Appeals, 420
SCRA 39 [2005]).

Q: Helen is the daughter of Eliza, a Filipina, and Tony, a Chinese, who is married to another woman living in
Chin Her birth certificate indicates that Helen is the legitima child of Tony and Eliza and that she is a Chinese
citizen, j

Helen wants her birth certificate corrected by changing her filiation from “legitimate" to “illegitimate" and her
citizenship from ""Chinese” to “Filipino" because her parents were not married.

What petition should Helen file and what procedural requirements must be observed? Explain. (5%) (2005
Bar Question)

SUGGESTED ANSWER:

A petition to change the record of birth by changing the filiation from "legitimate" to “illegitimate" and
petitioner's citizenship from "Chinese" to “Filipino because her parents were not married, does not involve a
simple summary correction of her certificate of birth, which could otherwise be done under the authority of
Republic Act No. 9048. A petition has to be filed in an adversarial proceeding under Rule 108 of the Rules of
Court, which has now been interpreted to be adversarial in nature 141 SCRA 462, [1986); Gupit, Jr., Rules of
Procedure in

2005 ed., p. 407.) Procedural requirements include: (a) filing a verified petition; (b) naming as parties all
persons who have or claim any interest which would be affected; (c) issuance of an order fixing the time
and place of hearing; (d) giving reasonable notice to the parties named in the petition; and (e) publication of
the order once a week for three consecutive weeks in a newspaper of general circulation. (Rule 108, Rules
of Court); Co. v. The Civil Registrar of Manila, 423 SCRA 420 [2004]).

Q: On May 12, 1990, Roman Agcaoili filed a petition in the Regional Trial Court to correct his birth certificate
by changing his citizenship from “Chinese" to “Filipino" and his status from “legitimate" to “illegitimate". The
Local Civil Registrar was named respondent in the petition.

Copy of the notice of hearing was served on the Solicitor General. The notice was published in a newspaper
of general circulation once a week for three consecutive weeks.

Before the scheduled hearing, the Solicitor General entered his appearance as counsel for
Family Law Annotated,

(Republic v. Valencia,

199

the Republic of the Philippines and authorized the Provincial Prosecutor to appear in the case. However, the
prosecutor did not file an opposition to the petition. Instead, he appeared at/ and participated in. the trial
and even cross-examined Agcaoili and his witnesses.

There was a full-blown trial where Agcaoili presented testimonial and documentary evidence proving that he
is a Filipino citizen, being an illegitimate child of Tan Keh (Chinese) and Cayetana Agcaoili (Filipino) who
were never married. However, the Republic presented no evidence.

After hearing, the trial court ordered the Local Civil Registrar to make the corrections sought by Agcaoili.

The Solicitor General appealed. He argued that substantial changes in the civil registry cannot be made
under Rule 108 of the Rules of Court. Is the contention correct? Why?

Answer:

No. because proceedings under Rule 108 of the Rules of Court may be either summary or adversary in
nature. If the correction sought to be made in the civil registry is clerical, then the procedure is summary. If
the rectification affects the civil status, citizenship or nationality of a party, it is deemed substantial and the
procedure adopted is adversary. In this case, the procedure was adversary. The proper notice was published
and served on the Solicitor General. There was a full-blown trial where Agcaoili presented testimonial and
documentary evidence proving that he is a Filipino Citizen. The prosecutor authorized by the Solicitor
General to appear in the case participated in the trial and even cross-examined Agcaoili and his witnesses.
Consequently, the court correctly ordered the Local Civil Registrar to make the corrections sought. (Republic
vs. Bautista, 155 SCRA 1)

Q. Appeals in special proceedings

Q: In the Special Proceedings for the settlement of the intestate estate of the deceased Johnny, his widow
by his second marriage, Carmelita, moved for her appointment as Administratrix of the estate. This was
opposed by Manda, the son of Johnny by his first wife, who moved for his appointment instead. The court
appointed Carmelita, the widow, as Administratrix.

a) How may Manda contest that appointment of Carmelita?

Instead of Administratrix, Carmelita was appointed Special Administratrix.

. b) Is the same remedy available to the oppositor, Manda? Why or why not?

. c) If Johnny left a holographic will, how may it be probated? Explain. (1988 Bar

Question)

Answer:

. a) By appeal, because the appointment of an administrator is a final order under Rule 109.

. b) No, because no appeal is allowed from the appointment of a special administrator. (Sec.1(e)

of Rule 109)

c) A holographic will may be probated by filing a petition for the allowance of said will. If it is 200
not contested, at least one competent witness who knows the handwriting and signature of the testator
should explicitly declare that the will and the signature are in the handwriting of the testator. In the absence
of any such competent witness, and if the court deem it necessary, expert testimony may be resorted to. If
it is contested, at least three witnesses who know the handwriting of the testator should explicitly declare
that the will and the signature are in the handwriting of the testator. In the absence of any competent
witness, and if the court deem it necessary, expert testimony may be resorted to. (Secs. 1,5 and 11 of Rule
76)

V. Criminal Procedure
A. General matters
1. Distinguish jurisdiction over subject matter from jurisdiction over person of the accused

Q: Jose, Alberto and Romeo were charged with murder. Upon filing of the information, the RTC judge issued
the warrants for their arrest. Learning of the issuance of the warrants, the three accused jointly filed a
motion for reinvestigation and for the recall of the warrants of arrest. On the date set for hearing of their
motion, none of the accused showed up in court for fear of being arrested. The RTC judge denied their
motion because the RTC did not acquire jurisdiction over the persons of the movants. Did the RTC rule
correctly? (4%) (2008 Bar Question)

SUGGESTED ANSWER:

The RTC ruled correctly in denying the motion for reinvestigation and for the recall of the warrants of arrest,
because the accused have not surrendered their persons to the court.

Jurisdiction over the person of the accused can only be obtained through arrest or voluntary surrender.
(Dimatulac v. Villon, 297 SCRA 679 [1998])

ANOTHER SUGGESTED ANSWER:

No, the court acquired jurisdiction over the person of the accused when they filed the aforesaid motion and
invoked the court's authority over the case, without raising the issue of jurisdiction over their person. Their
filing the motion is tantamount to voluntary submission to the court's jurisdiction and contributes voluntary
appearance (486 SCRA 377[2006]).

Q: (1999 Bar Question)

a. Distinguish a Complaint from Information. (2%) SUGGESTED ANSWER:

a. In criminal procedure, a complaint is a sworn written statement charging a person with an offense, sub-
scribed by the offended party, any peace officer or other peace officer charged with the enforcement of the
law violated. (Sec. 3, Rule 110, 1985 Rules of Criminal Procedure); while an information is an accusation in
writing charging a person with an offense subscribed by the pros- ecutor and filed with the court. (Sec. 4,
Id.)

2. Jurisdiction of criminal courts

Q: In complex crimes, how is the jurisdiction of a court determined? (2003 Bar Question)

201

SUGGESTED ANSWER:

In a complex crime, jurisdiction over the whole complex crime must be lodged with the trial court having
jurisdiction to impose the maximum and most serious penalty imposable on an offense forming part of the
complex crime. (Cuyos v. Garcia, 160 SCRA 302 [1988]).

3. When injunction may be issued to restrain criminal prosecution

Q: Will injunction lie to restrain the commencement of a criminal action? Explain. (2%) (1999 Bar Question)

SUGGESTED ANSWER:
As a general rule, injunction will not lie to restrain a criminal prosecution except:

(1) (2)

(3) (4) (5)

To afford adequate protection to the constitutional rights of the accused;

When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions;

When double jeopardy is clearly apparent;

Where the charges are manifestly false and motivated by the lust for vengeance;

Where there is clearly no prima facie case against the accused and a motion to quash on that ground has
been denied.

(See cases cited in Roberts, Jr., vs. Court of Appeals, 254 SCRA 307 [1996] and Brocka v. Enrile, 192 SCRA
183 [1990].)

B. Prosecution of offenses

1. Criminal actions, how instituted

Q: A filed with the Office of the Fiscal a Complaint for estafa against B. After the preliminary investigation,
the Fiscal dismissed the Complaint for lack of merit. May the Fiscal be compelled by mandamus to file the
case in court? Explain. (2%) (1999 Bar Question)

SUGGESTED ANSWER:

No. The public prosecutor may not be compelled by mandamus to file the case in court because the
determination of probable cause is within the discretion of the prosecutor. The remedy is an appeal to the
Secretary of Justice. (Sec. 4 Rule 112.)

Q: On May 20. 1992, the police charged accused before the prosecutor’s office with violation of a municipal
ordinance which carries a penalty of six months imprisonment. The offense was allegedly committed on May
11, 1990.

On October 2.1992, the corresponding information was filed with the Municipal Trial Court.

Accused moved to quash the information on the ground that the crime had prescribed for the reason that
the information was filed beyond the two-month period from the date of the alleged offense.

For its part, the prosecution contended that the prescriptive period was suspended upon the

202

filing of the complaint against accused with the Office of the Prosecutor. Who is correct? Explain. (1993 Bar
Question)
Answer:

The accused is correct. The offense charged, violation - of a municipal ordinance, is governed by the Rule on
Summary Procedure. Under the 1988 amendment Of Section 1, Rule 110, of the 1985 Rules on Criminal
Procedure; the filing of a complaint- with the prosecutor’s office interrupts the period of prescription of the
offense charged. However, this provision applies to "offenses not subject to the rule on summary procedure
in. special cases", according to the opening phrase in said Section 1 of Rule 110. Consequently, when the
corresponding information was filed* with the Municipal Trial Court, the offense had already prescribed.
(Zaldivia us. Reyes, 211 SCRA 277).

Alternative Answer:
The Prosecutor is correct. The filing of the complaint by the police with the Prosecutor’s office on May 20.
1993 interrupted the period of prescription of the offense charged. It was clearly the intention of the 1988
amendment to apply the same to all offenses, including those subject to the rule of Summary Procedure.

2. Who may file them, crimes that cannot be prosecuted de officio

Q: After an information for homicide was filed by the city prosecutor in the Regional Trial Court of Quezon
City, the accused asked the prosecutor for a reinvestigation, which he granted. After the reinvestigation, the
prosecutor filed a motion in court to withdraw the information having found no sufficient evidence to
continue with the prosecution of the case.

Considering that the prosecutor has the direct control and supervision over the prosecution of the case, are
the steps undertaken by him proper under the circumstances? Decide with reasons. (1990 Bar Question)

Answer:

Yes, the prosecutor may file a motion to withdraw the information. However the motion may be denied by
the Court, in which case the prosecutor will be required to present whatever evidence he has.
151 SCRA 462) If the Court gravely abuses its discretion, certiorari lies.
149 SCRA 110)

Q: Magdalena Campos, a married woman and Santiago Mendoza, a married man, were indicted for adultery
in an Information filed by the Prosecutor of Bataan upon a sworn complaint filed by Mrs. Cynthia Mendoza,
wife of Santiago. Both accused filed a motion to quash alleging that the trial court has not acquired
Jurisdiction over the case because no complaint has been filed by the husband of Magdalena Campos. They
cite Section 5, Rule 110 of the Revised Rules of Court which provides, among others, that the crime of
adultery "... shall not be prosecuted except upon a complaint filed by the offended spouse." How would you
resolve the motion to quash? (2003 Bar Question)

Answer:

Motion to quash granted. The offended spouse who should have filed the sworn complaint for adultery was
the husband of Magdalena Santos, not the wife of Santiago Mendoza. Adultery is

(Crespo v. Mogol

(Quizo v. Sandiganbayan,

203

committed by any married woman who shall have sexual intercourse with a man not her husband and by the
man who has carnal knowledge of her knowing her to be married. (Art. 333, RPC)

3. Criminal actions, when enjoined

Q: May the prosecution of a criminal case be enjoined? Explain.

Answer:

The prosecution of a criminal case may be enjoined in the following exceptional cases:

. 1) For the orderly administration of justice;

. 2) To prevent the use of the strong arm of the law in an oppressive or vindictive manner;

. 3) To avoid multiplicity of suits;

. 4) To afford adequate protection to constitutional rights;

 . 5) In proper cases, when the statute relied upon is unconstitutional. (Primicias vs. Municipality of
Urdaneta, 93 SCRA 462).

4. Control of prosecution

Q: Your friend YY, an orphan, 16years old, seeks your legal advice. She tells you that ZZ, 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 ZZ, their son. Feeling very much aggrieved, she asks you how her uncle ZZ
can be made to answer for his crime.

. (a) What would your advice be? Explain. (3%)

. (b) Suppose the crime committed against YY by her uncle ZZ is rape, witnessed by your

mutual friend XX. But this time, YY was prevailed upon by her grandparents not to file charges. XX asks you
if she can initiate the complaint against ZZ. Would your answer be the same? Explain. (2%) (2000 Bar
Question)

SUGGESTED ANSWER:

(a) I would advise the minor, an orphan of 16 years of age, to file the complaint herself Independently of
her grandparents, because she Is not Incompetent or Incapable of doing so upon grounds other than her
minority. (Sec. 5, Rule 110, Rules of Criminal Procedure).

(b) Since rape is now classified as a Crime against Persons under the Anti-Rape Law of 1997 (RA 8353), 1
would advise XX to initiate the complaint against ZZ.

5. Designation of offense

Q: The prosecution filed an information against Jose for slight physical injuries alleging the acts constituting
the offense but without anymore alleging that it was committed after Jose's unlawful entry in the
complainant's abode.

Was the information correctly prepared by the prosecution? Why? (5%) (2001 Bar Question)

SUGGESTED ANSWER:

204

No. The aggravating circumstance of unlawful entry in the complainant's abode has to be specified in the
information; otherwise, it cannot be considered as aggravating. (Sec. 8 of Rule 110, Revised Rules of
Criminal Procedure)

ALTERNATIVE ANSWER:

The information prepared by the prosecutor is not correct because the accused should have been charged
with qualified trespass to dwelling.

Q: Fernando was charged with the crime of rape pursuant to the information alleging that by means of
force, violence and intimidation, he had carnal knowledge of Elaine, a 13- year old girl.

After trial, the court found that the theory of force and involuntariness in the sexual interlude between
Fernando and Elaine was disproven and that, on the contrary, it was a consensual affair. It. therefore,
concluded that Fernando cannot be held liable for rape.

Nevertheless, the court found that Fernando committed deceit, through promise of marriage, in successfully
persuading Elaine to give up her virginity.
Supposing that the evidence overwhelmingly shows that the crime of simple seduction had been committed
by Fernando, can he be convicted for that crime? Explain. (1993 Bar Question)

Answer:

No. because Fernando was not charged with simple seduction. He was charged with having carnal
knowledge of Elaine by means of force, violence and intimidation. There was no allegation of deceit in the
information. Rape does not necessarily include simple seduction. Hence, he could not be convicted of simple
seduction. (Sec. 4, Rule 120; Barba vs. People. 89 SCRA 112).

6. Amendment or Substitution of complaint or information

Q: Within the context of the rule on Criminal Procedure, distinguish an amendment from a substitution of an
information. (1994 Bar Question)

Answer:

An amendment may be made in substance and form, without leave of court, at any time before an accused
pleads, and thereafter and during the trial as to all matters of form, by leave and at the discretion of the
court, when the same can be done without prejudice to the rights of the accused. Substitution may be made
if it appears at any time before Judgment that a mistake has been made in charging the proper offense, in
which case, the court shall dismiss the complaint or information upon filing of a new one charging the proper
offense in accordance with Rule 119, Sec. 11, provided that the accused would not be placed thereby in
double jeopardy and may also require the witnesses to give ball for their appearance at the trial. (Sec. 14,
Rule 110; Teehankee. Jr. v. Madayag, 207 SCRA 134)

205

Q: Pedrito and Tomas, Mayor and Treasurer, respectively, of the Municipality of San Miguel, Leyte, are
charged before the Sandiganbayan for violation of Section 3 (e), Republic Act No. 3019 (Anti-Graft and
Corrupt Practices Act). The information alleges, among others, that the two conspired in the purchase of
several units of computer through personal canvass instead of a public bidding, causing undue injury to the
municipality.

Before arraignment, the accused moved for reinvestigation of the charge, which the court granted. After
reinvestigation, the Office of the Special Prosecutor filed an amended information duly signed and approved
by the Special Prosecutor, alleging the same delictual facts, but with an additional allegation that the
accused gave unwarranted benefits to SB Enterprises owned by Samuel. Samuel was also indicted under the
amended information. Before Samuel was arraigned, he moved to quash the amended information on the
ground that the officer who filed the same had no authority to do so. Resolve the motion to quash with
reasons. (3%) (2009 Bar Question)

SUGGESTED ANSWER:

The motion to quash filed by Samuel should be granted.

There is no showing that the special prosecutor was duly authorized or deputized to prosecute Samuel.
Under R.A. No. 6770) also known as the Ombudsman Act of 1989, the Special Prosecutor has the power and
authority, under the supervision and control of the Ombudsman, to conduct preliminary investigation and
prosecute criminal cases before the Sandiganbayan and perform such other duties assigned to him by the
Ombudsman (Calingin v. Desierto, 529 SCRA 720 [2007])

Absent a clear delegation of authority from the Ombudsman to the Special Prosecutor to file the information,
the latter would have no authority to file the same. The Special Prosecutor cannot be considered an alter
ego of the Ombudsman as the doctrine of qualified political agency does not apply to the Office of the
Ombudsman. In fact, the powers of the Office of the Special Prosecutor under the law may be exercised
only under the supervision and control and upon the autority of the Ombudsman (Perez v. Sandiganbayan,
503 SCRA 252[2006]).

ALTERNATIVE ANSWER:
The-motion to quash should be denied for lack of merit. The case is already filed in court which must have
been done with the approval of the Ombudsman, and thus the Special Prosecutor’s Office of the
Ombudsman takes over. As it is the court which ordered the reinvestigation, the Office of the Special
Prosecutor which is handling the case in court, has the authority to act and when warranted, refile the case.
The amendment made is only a matter of form which only particularized the violation of the same provision
of Rep. Act 3019, as amended.

Q: (2002 Bar Question)

A. D and E were charged with homicide in one information. Before they couid be arraigned, the prosecution
moved to amend the information to exclude E therefrom. Can the court grant the motion to amend? Why?
(2%)

B. On the facts above stated, suppose the prosecution, instead of filing a motion to amend, moved to
withdraw the information altogether and its motion was granted. Can the prosecution re- file the information
although this time for murder? Explain (3%)

C. If an information was filed in the RTC-Manila charging D with homicide and he was 206

arrested in Quezon City, in what court or courts may he apply for bail? Explain. (3%)

D. D was charged with theft of an article worth P15,000.00. Upon being arraigned, he pleaded not guilty to
the offense charged. Thereafter, before trial commenced, he asked the court to allow him to change his plea
of not guilty to a plea of guilty but only to estafa involving P5,000.00. Can the court allow D to change his
plea? Why? (2%)

SUGGESTEDANSWER:

A. Yes, provided notice is given to the offended party and the court states its reasons for granting the same.
(Rule 110, sec. 14).

B. Yes, the prosecution can re-file the information for murder in substitution of the information for homicide
because no double jeopardy has as yet attached. [Galvez v. Court of Appeals, 237 SCRA 685 (1994)].

C. D may apply for bail in the RTC-Manila where the Information was filed or in the RTC- Quezon City were
he was arrested, or if no judge thereof is available, with any metropolitan trial judge, municipal trial judge or
municipal circuit trial judge therein. (Rule 114, sec. 17).

D. No, because a plea of guilty to a lesser offense may be allowed If the lesser offense is necessarily
included in the offense charged. (Rule 116, sec. 2). Estafa involving P5,000.00 is not necessarily included In
theft of an article worth P15,000.00

Q: Amando was charged with frustrated homicide. Before he entered his plea and upon the advice of his
counsel, he manifested his willingness to admit having committed the offense of serious physical injuries.
The prosecution then filed an amended information for serious physical Injuries against Amando.

What steps or action should the prosecution take so that the amended information against Amando which
downgrades the nature of the offense could be validly made? Why? (5%) (2001 Bar Question)

SUGGESTED ANSWER:

In order that the amended information which downgrades the nature of the offense could be validly made,
the prosecution should file a motion to ask for leave of court with notice to the offended party. (Sec. 14 of
Rule 110, Revised Rules of Criminal Procedure). The new rule is for the protection of the interest of the
offended party and to prevent possible abuse by the prosecution.

Q: A was accused of homicide for the killing of B. During the trial, the public prosecutor received a copy of
the marriage certificate of A and B. (1997 Bar Question)
(a) Can the public prosecutor move for the amendment of the information to charge A with the crime of
parricide?

(b) Suppose instead of moving for the amendment of the information, the public prosecutor presented in
evidence the marriage certificate without objection on the part of the defense, could A be convicted of
parricide?

207

Answer:

(a) No. The information cannot be amended to change the offense charged from homicide to parricide.
Firstly, the marriage is not a supervening fact arising from the act constituting the charge of homicide. (Sec.
7(al of Rule 117). Secondly, after plea, amendments may be done only as to matters of form. The
amendment is substantial because it will change the nature of the offense. (Sec. 14 of Rule 110; Dionaldo
us. Dacuycuy, 108 SCRA 736).

(b) No. A can be convicted only of homicide not of parricide which is a graver offense. The accused has the
constitutional rights or due process and to be informed of the nature and the cause of the accusation against
him. (Secs. 1, 14 (1) and (2) Art. Ill, 1387 Constitution).

Q: In an action for reconveyance of a parcel of land filed in the Regional Trial Court, the defendant, through
his lawyer, filed an answer therein admitting the averment in the com- plaint that the land was acquired by
the plaintiff through inheritance from his parents, the former owners thereof.

Subsequently, the defendant changed his lawyer and, with leave of court, amended the answer. In the
amended answer, the abovementioned admission no longer appears; instead, the alleged ownership of the
land by the plaintiff was denied coupled with the allegation that the defendant is the owner of the land for
the reason that he bought the same from the plaintiff’s parents during their lifetime.

After trial, the Regional Trial Court rendered a decision upholding the defendant’s ownership of the land.

On appeal, the plaintiff contended that the defendant is bound by the admission contained in his original
answer.

Is the contention of plaintiff correct? Why? (1993 Bar Question) Answer:

No, because pleadings that have been amended disappear from the record, lose their status as pleadings
and cease to be judicial admissions. While they mav nonetheless be utilized as against the pleader as
extrajudicial admissions, they must, in order to have such effect, be formally offered in evidence. [Director
of Lands vs. Court of Appeals, 196 SCRA 94)

Alternative Answer:

Yes, because an admission in the original pleading does not cease to be a judicial admission simply because
it was deleted in an amended pleading. The original answer, although replaced by an amended answer does
not cease to be part of a judicial record, not having been expunged therefrom. (Dissenting opinion in Torres
vs. Court of Appeals, 131 SCRA 24).

7. Venue of criminal actions

Q: Where is the proper venue for the filing of an information in the following cases? (1997 Bar Question)

(a) The theft of a car in Pasig City which was brought to Obando. Bulacan, where it was cannibalized.

208

(b) The theft by X. a bill collector of ABC Company, with main offices in Makati City, of his collections from
customers in Tagaytay City. In the contract of employment, X was detailed to the Calamba branch office,
Laguna, where he was to turn in his collections.
(c) The malversation of public funds by a Philippine consul detailed in the Philippine Embassy in London.

Answer:

(a) The proper venue is in Pasig City where the theft of the car was committed, not in Obando where it was
cannibalized. Theft is not a continuing offense (People v. Mercado, 65 Phil 665).

(b) If the crime changed is theft, the venue is in Calamba where he did not turn in his collections, if the
crime of X is estafa, the essential ingredients of the offense took place in Tagaytay City where he received
his collections, in Calamba where he should have turned in his collections, and in Makati City where the ABC
Company was based. The information may therefore be filed in Tagaytay City or Calamba or Makati which
have concurrent territorial Jurisdiction. (Catingub vs. Court of Appeals, 121 SCRA 106).

(c) The proper court is the Sandiganbayan which has jurisdiction over crimes committed by a consul or
higher official in the diplomatic service. (Sec. 4 (c), PD 1606, as amended by RA. No. 7975). The
Sandiganbayan is a national court. (Nunez Sandiganbayan, 111 SCRA 433 (1982). It has only one venue at
present, which is in Metro Manila, until RA. No. 7975, providing for two other branches in Cebu and in
Cagayan de Oro, is implemented.

Alternative Answers:

(b) The information may be filed either in Calamba or in Makati City, not in Tagaytay City where no offense
had as yet been committed.

(c) Assuming that the Sandiganbayan has no Jurisdiction, the proper venue is the first Regional Trial Court in
which the charge is filed (Sec. 15(d), Rule 110, Rules of Court).

8. Intervention of offended party

Q: X, driver of Y Bus Co. was charged with homicide, serious physical injuries and damage to property
through reckless imprudence. Y Bus Co., as employer of X. intervened and filed a third party complaint
against Z, the insurer of the bus, for subrogation and/or contribution in the event X is convicted and Y Bus
Co is made subsidiarily liable for damages.

May Y Bus Co. intervene and file said complaint? Explain. (1996 Bar Question) Answer:

No, Y Bus Co. may not intervene in the criminal action because it is not the offended party and it cannot be
impleaded as an accused together with X. Its remedy is to file a separate action against Z, the insurer of the
bus in the event X is convicted and Y Bus Co. is made subsidiarily liable.

209

Alternative Answer:

Yes, Y Bus Co. may be allowed to intervene inasmuch as if X were convicted it would be subsidiarily liable
for damages. Under the ruling in Pajarito us. Seneris (87 SCRA 275), the judgment against X for damages
may be enforced by execution against Y Bus Co.

C. Prosecution of civil action

1. Rule on implied institution of civil action with criminal action

Q: While cruising on a highway, a taxicab driven by Mans hit an electric post. As a result thereof, its
passenger, Jovy, suffered serious injuries. Mans was subsequently charged before the Municipal Trial Court
with reckless imprudence resulting in serious physical injuries.

Thereafter. Jovy filed a civil action against Lourdes, the owner of the taxicab, for breach of contract, and
Mans for quasi-delict. Lourdes and Mans filed a motion to dismiss the civil action on the ground of litis
pendentia, that is, the pendency of the civil action impliedly instituted in the criminal action for reckless
imprudence resulting in serious physical injuries.
Resolve the motion with reasons. (4%) (2005 Bar Question) SUGGESTED ANSWER:

Being a distinct cause of action, the action for breach of contract against the taxicab owner cannot be barred
by the criminal action against the taxicab driver, although the taxicab owner can be held subsidiarily liable in
the criminal case if the driver is insolvent. On the other hand, the civil action for quasi-delict against the
driver is an independent civil action under Article 33 of the Civil Code and Sec. 3, Rule 111 of the Rules of
Court, which can be filed separately and can proceed independently of the criminal action and regardless of
the result of the latter. (Samson v. Daway, 434 SCRA612 [2004]) and other cases.

Q: In an action for violation of Batas Pambansa Big. 22, the court granted the accused's demurrerto
evidence which he filed without leave of court. Although he was acquitted of the crime charged, he,
however, was required by the court to pay the private complainant the face value of the check. The accused
filed a Motion for Reconsideration regarding the order to pay the face value of the check on the following
grounds:

(a) the demurrer to evidence applied only to the criminal aspect of the case; and
(b) at the very least, he was entitled to adduce controverting evidence on the civil

liability.
Resolve the Motion for Reconsideration. (2003 Bar Question) SUGGESTED ANSWER:

(a) The Motion for Reconsideration should be denied. The ground that the demurrer to evidence applied only
to the criminal aspect of the case was not correct because the criminal action for violation of Batas
Pambansa Big. 22 included the corresponding civil action. (Sec. 1(b) of Rule 111).

(b) The accused was not entitled to adduce controverting evidence on the civil liability, 210

because he filed his demurrer to evidence without leave of court. (Sec. 23 of Rule 119).

Q: Saturnino filed a criminal action against Alert for the latter1 s bouncing check. On the date of the hearing
after the arraignment, Saturnino manifested to the court that he is reserving his right to file a separate civil
action. The court allowed Saturnino to file a civil action separately and proceeded to hear the criminal case.
Alex filed a motion for reconsideration contending that the civil action is deemed included in the criminal
case. The court reconsidered its order and ruled that Saturnino could not file a separate civil action.

Is the court's order granting the motion for reconsideration correct? Why? (5%) (2001 Bar Question)

SUGGESTED ANSWER:

Yes, the court's order granting the motion for reconsideration is correct. The Rules provide that the criminal
action for violation of B.P. Big. 22 shall be deemed to include the corresponding civil action, and that no
reservation to file such civil action separately shall be allowed. [Sec. 1(b), Rule 111, Revised Rules of
Criminal Procedure)

Modesto was accused of seduction by Virginia, a poor, unemployed young girl, who has a child by Modesto.
Virginia was in dire need of pecuniary assistance to keep her child, not to say of herself, alive. The criminal
case is still pending in court and although the civil liability aspect of the crime has not been waived or
reserved for a separate civil action, the trial for the case was foreseen to take two long years because of the
heavily clogged court calendar before the Judgment may be rendered.

Q: If you were the lawyer of Virginia, what action should you take to help Virginia in the meantime especially
with the problem of feeding the child? (5%) (2001 Bar Question)

SUGGESTED ANSWER:

To help Virginia in the meantime, her lawyer should apply for support pendente lite as provided in the Rules.
In criminal actions where the civil liability includes support for the offspring as a consequence of the crime
and the civil aspect, thereof has not been waived or reserved for a separate civil action, the accused may be
ordered to provide support pendente lite to the child bora to the offended party. (Sec. 6 of Rule 61,1997
Rules of Civil Procedure)
Q: An information for frustrated homicide failed to allege the damages incurred by the offended party. At the
trial, the court upon objection of the accused, barred the prosecution from proving the damages suffered by
complainant for the reason that it was not alleged in the information. Accused presented evidence to prove
his innocence. After trial, the court convicted the accused sentencing him to imprisonment without any
award of damages.

Was the court correct in disallowing the prosecution from presenting proof relative to accused’s civil liability?
Explain briefly. (1996 Bar Question)

Answer:

No. in a criminal case, the civil action for recovery of civil liability is impliedly instituted with the criminal
action, unless the offended party waives the civil action, reserves his right to institute it separately, or
institutes the civil action prior to the criminal action. Consequently, the prosecution has the right to present
evidence of damages suffered even if it was not alleged. (Sec. 1

211

of Rule 111)

Q: Is the rule on the payment of docket fees in ordinary civil actions the same as that for the claim of
damages which are impliedly instituted in criminal cases? (1991 Bar Question)

Answer:

No, because in criminal cases, docket fees are required to be paid only if the complaint or information filed
in Court for trial alleges the amount of damages other than actual. (Sec. 1 of Rule 111 as amended)

Q: Qn February 21, 1990, Enrique Magno was stabbed on the right arm by Armando Reyes at Balara,
Quezon City. A complaint for slight physical injuries was filed against Reyes' with the office of the City
Prosecutor on February 28, 1990 as the injuries required five (5) days of medical attendance. The
information for slight physical injuries was filed on May 12, 1990 with the Quezon Metropolitan Trial Court.
Reyes moved to quash the information on the ground of prescription as it was filed on the 80th day.
whereas the prescriptive period for slight physical injuries is 60 days.

Should the motion to quash be granted? Decide with reasons. (1990 Bar Question) Answer:

No. because under the 1988 Amendments to the Rules on Criminal Procedure, the filing of the complaint
with the Office of the City Prosecutor on February 28, 1990 interrupted the prescription of the offense
charged. (Sec. 1 of Rule 110)

2. When separate civil action is suspended

Q: (2002 Bar Question)

A. Delia sued Victor for personal injuries which she allegedly sustained when she was struck by a car driven
by Victor. May the court receive in evidence, over proper and timely objection by Delia, a certified true copy
of a judgment of acquittal in a criminal prosecution charging Victor with hit-and-run driving in connection
with Delia’s injuries? Why? (3%)

B. Is this question on direct examination objectionable: “What happened on July 12, 1999”? Why? (2%)

SUGGESTED ANSWER:

A. If the judgment of acquittal in the criminal case finds that the act or omission from which the civil liability
may arise does not exist, the court may receive it in evidence over the objection by Delia. [Rule 111, sec. 2,
last paragraph].

ALTERNATIVE ANSWER:
A. If the judgment of acquittal is bases on reasonable doubt, the court may receive it in evidence because in
such case, the civil action for damages which may be instituted requires only a preponderance of the
evidence. (Art. 29, Civil Code)

212

SUGGESTED ANSWER:

B. The question is objectionable because it has no basis, unless before the question is asked the proper
basis is laid.

3. Effect of death of the accused or convict on civil action

Q: Donald was convicted of serious physical injuries inflicted on his househelp Paula. He appealed but died
during the pendency of his appeal.

1. What is the effect of the death of Donald on his criminal liability? Explain.

2. What is the effect of his death on his civil liability based solely on his criminal act?

Explain.

3. What is the effect of his death on his civil liability based on a quasi-delict or tort? Explain.

4. What is the effect of his death if in the criminal case Paula did not make the necessary reservation to file
a separate civil action for damages? Explain.

5. What is the effect of his death if Paula reserved her right to file a separate civil action but had not yet
done so when Donald died? Explain. (1995 Bar Question)

SUGGESTED ANSWER:

1. Donald’s criminal liability is extinguished by his death. (Art. 89(1). RPC)

2. The death of Donald pending appeal extinguishes not only his criminal liability but also the

civil liability based solely thereon. (People vs. Bayolas, 236 SCRA 239)

3. His death does not affect his civil liability based on quasi-delict or tort, (Id.)

4. If Paula did not make the necessary reservation to file a separate civil action for damages, she could still
file a separate civil action against the executor/administrator or heirs of the estate of the accused. (Id.)

ALTERNATIVE ANSWER:

Despite the dismissal of the criminal action, the appeal shall continue with respect to the civil liability for
damages of the accused who will be substituted by his executor/ administrator or heirs. Since despite the
acquittal of an accused he can be made civilly liable under Sec. 2 of Rule 120 (Roy Padilla vs. CA.
129SC&A588; People vs. Jalandoni 131 SCRA 454, etc.) a similar rule should be applied in case of death of
an accused.

5. The death of Donald will not affect Paula’s right to file a separate civil action against the
executor/administrator or heirs of Donald.

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4. Prejudicial Question

Q: What is a prejudicial question? (2%) (1999 Bar Question) SUGGESTED ANSWER:

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 of Rule 111.)

ANOTHER ANSWER:

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 the accused. (Padilla, Civil Code Annotated,
1984 ed. p. 197.)

Q: CX is charged with estafa in court for failure to remit to MMsums of money collected by him (CX) for MM
in payment for goods purchased from MM,by depositing the amounts in his (CX’s) personal bank account. CX
files a motion to suspend proceedings pending resolution of a civil case earlier filed in court by CX against
MM for accounting and damages involving the amounts subject of the criminal case. As the prosecutor in the
criminal case, briefly discuss your grounds in support of your opposition to the motion to suspend
proceedings. (5%) (2000 Bar Question)

SUGGESTED ANSWER:

As the prosecutor, I will argue that the motion to suspend is not in order for the following reasons: (a) The
civil case filed by CXagainst MMfor accounting and damages does not involve an issue

similar to or intimately related to the issue of estafa raised in the criminal action.

(b) The resolution of the issue in the civil case for accounting will not determine whether or not the criminal
action for estafa may proceed. (Sec. 5, Rule 111, Rules of Criminal Procedure.)

Q: Jenny charged her husband Alex with bigamy alleging that when she married him he already had a prior
valid and existing marriage with Evita, a fact Jenny did not know until lately. Subsequently Alex also filed a
case for declaration of nullity of his marriage with Jenny claiming that his marriage with her was an absolute
nullity since he discovered that when he contracted marriage with Jenny she had a prior valid and existing
marriage with Brando.

Alex moved to suspend proceedings in his bigamy case on the ground of prejudicial question alleging that in
the event his marriage to Jenny was declared void ab initio there would be no second marriage to speak of
and the bigamy charge against him would fail for want of factual and legal bases.

1. If you were the judge, how would you resolve the motion? Explain.
2. Suppose that Alex filed a complaint for nullity of his marriage with Jenny on the

ground that his consent was obtained at gunpoint, would your answer be the same? Explain.

3. Suppose that after Alex was charged with bigamy he filed a complaint for declaration of nullity of his
marriage with Evita. Could Alex have the bigamy proceedings suspended by

214

invoking prejudicial question claiming that the outcome of the bigamy case would depend on whether there
was a prior valid and existing marriage, which constitutes an element of the crime? Explain. (1995 Bar
Question)

Answer:

1. I would deny the motion of Alex. When Alex married Jenny despite his existing marriage with Evita, he
was guilty of bigamy. His subsequent action for declaration of nullity when he discovered that Jenny had a
prior valid and existing marriage with Brando cannot be raised as a prejudicial question in the bigamy case.

2. No, the complaint of Alex for nullity of his marriage with Jenny, on the ground that his consent was
obtained at gunpoint, is a valid prejudicial question. (Prado vs. People, 133 SCRA 602)
3. No, because the fact that he married Jenny before his former marriage with Evita had been legally
dissolved makes him guilty of bigamy. (Art. 347, RPC)

Alternative Answer:
Yes, because if the first marriage of Alex is declared void ab initio he did not commit bigamy.

5. Rule on filing fees in civil action deemed instituted with the criminal action

Q: Name two instances where the trial court can hold the accused civilly liable even if he is acquitted. (2%)
(2010 Bar Question)

SUGGESTED ANSWER:

The Instances where the civil, liability is not extinguished despite acquittal of the accused where: 1. The
acquittal is based on reasonable doubt;

2. Where the court expressly declares that the liability of the accused is not criminal but only civil in nature;
and

3. Where the civil liability is not derived from or based on the criminal act of which the accused is acquitted
(Remedios Nota Sapiera v. Court of Appeals, September 14,1999).

Q: X was driving the dump truck of Y along Cattleya Street in Sta. Maria, Bulacan. Due to his negligence, X
hit and injured V who was crossing the street: Lawyer L, who witnessed the incident, offered his legal
services to V.

V, who suffered physical injuries including a fractured wrist bone, underwent surgery to screw a metal plate
to his wrist bone. On complaint of V, a criminal case for Reckless Imprudence Resulting in Serious Physical
Injuries was filed against X before the Municipal Trial Court (MTC) of Sta. Maria. Atty. L, the private
prosecutor, did not reserve the filing of a separate civil action.

V subsequently filed a complaint for Damages against X and Y before the Regional Trial Court of Pangasinan
in Urdaneta where he resides. In his "Certification against Forum

215

Shopping” V made no mention of the pendency of the, criminal case in Sta. Maria. (2010 Bar Question)

A. Is V guilty of forum shopping? (2%) SUGGESTED ANSWER:

No, V is not 'guilty of forum shopping because the case In Sta. Maria, Bulacan, Is a criminal action rued in
the name of the People of the Philippines, where civil liability arising from the crime is deemed also
instituted therewith; whereas the case rued in Urdaneta, Pangasinan, is a civil action for quasi-delict in, the
name of V and against both X and Y for all damages caused by X and Y to V, which may be beyond the
jurisdiction of MTC. Hence, the tests of forum shopping, which is res adjudicata or litis pendencia, do not
obtain here.

Moreover, substantive law (Art. 33 Civil Code) and Sec. 3, Rule III, Revised Rules of Criminal Procedure,
expressly authorize the filing. Such, action for damages entirely separate and distinct from the criminal
action.

B. Instead of filing an Answer, X and Y move to dismiss the complaint for damages on the ground of litis
pendentia. Is the motion meritorious? Explain. (2%)

SUGGESTED ANSWER:

No, the motion' to dismiss base on alleged litis pendencia is without merit because there is no identity of
parties and subject matter in the two cases. Besides, Art. 33 of the Civil Code and Rule III, Sec. 3 of the
Rules of Criminal Procedure authorize the separate civil action for damages arising from physical injuries to
proceed independently.

C. Suppose only X was named as defendant in the complaint for damages, may he move for the dismissal of
the complaint for failure of V to implead Y as an indispensable party? (2%)

SUGGESTED ANSWER:

No, X may not move for dismissal of the civil action for damages on the contention that Y is an indispensable
party who should be impleaded. Y is not an indispensable party but only a necessary party. Besides, non-
joinder and' misjoinder of parties is not a ground for dismissal of actions (Rule 3, Sec. 11, Rules of Court.)

D. X moved for the suspension of the proceedings in the criminal case to await the decision in the civil case.
For his part. Y moved for the suspension of the civil case to await the decision in the criminal case. Which of
them is correct? Explain. (2%)

SUGGESTED ANSWER:

Neither of them is correct. Both substantive law (Art.33 of the Civil Code) and procedural law (Rule III, Sec.
3, and Rules of Criminal Procedure) provide for the two actions to proceed independently of each other,
therefore, no suspension of action is authorized.

216

D. Preliminary investigation

1. Nature of right

Q: A criminal information is filed in court charging Anselmo with homicide. Anselmo files a motion to quash
the information on the ground that no preliminary investigation was conducted. Will the motion be granted?
Why or why not? (3%) (2006 Bar Question)

SUGGESTED ANSWER:

NO, the motion to quash will not be granted. The lack of preliminary investigation is not a ground for a
motion to quash under the Rules of Criminal Procedure. Preliminary investigation is only a statutory right and
can be waived. The accused should instead file a motion for reinvestigation within five (5) days after he
learns of the filing in Court of the case against him (Sec. 6, Rule 112, as amended).

2. Purposes of preliminary investigation

Q: Governor Pedro Mario of Tarlac was charged with indirect bribery before the Sandiganbayan for accepting
a car in exchange of the award of a series of contracts for medical supplies. The Sandiganbayan, after going
over the information, found the same to be valid and ordered the suspension of Mario. The latter contested
the suspension claiming that under the law (Sec. 13 of R.A. 3019) his suspension is not automatic upon the
filing of the information and his suspension under Sec. 13, R.A. 3019 is in conflict with Sec. 5 of the
Decentralization Act of 1967 (R.A. 5185). The Sandiganbayan overruled Mario's contention stating that
Mario's suspension under the circumstances is mandatory.

Is the court's ruling correct? Why? (5%) (2001 Bar Question) SUGGESTED ANSWER:

Yes, Mario's suspension is mandatory, although not automatic, (Sec. 13 of R.A. No. 3019 in relation to Sec. 5
of the Decentralization Act of 1967 (RA No. 5185). It is mandatory after the determination of the validity of
the information in a pre -suspension hearing. [Sepfovia v. Sandiganbayan, 288 SCRA 328 (1988) and other
cases]. The purpose of suspension is to prevent the accused public officer from frustrating or hampering his
prosecution by intimidating or influencing witnesses or tampering with evidence or from committing further
acts of malfeasance while in office. (Id.)

3. Resolution of investigation prosecutor

Q: A filed with the Office of the Fiscal a Complaint for estafa against B. After the preliminary investigation,
the Fiscal dismissed the Complaint for lack of merit. May the Fiscal be compelled by mandamus to file the
case in court? Explain. (2%) (1999 Bar Question)

SUGGESTED ANSWER:

No. The public prosecutor may not be compelled by mandamus to file the case in court because the
determination of probable cause is within the discretion of the prosecutor. The remedy is an appeal to the
Secretary of Justice. (Sec. 4 Rule 112.)

217

E. Arrest
1. Arrest, how made
2. Arrest without warrant, when lawful

Q: As Cicero was walking down a dark alley one midnight, he saw an "owner-type jeepney" approaching
him. Sensing that the occupants of the vehicle were up to no good, he darted into a corner and ran. The
occupants of the vehicle- elements from the Western Police District - gave chase and apprehended him.

The police apprehended Cicero, frisked him and found a sachet of 0.09 gram of shabu tucked in his waist
and a Swiss knife in his secret pocket, and detained him thereafter. Is the arrest and body-search legal?
(3%) (2010 Bar Question)

SUGGESTED ANSWER:

The arrest and body-search was legal. Cicero appears to be alone "walking down a dark alley" and at
midnight. There appears probable cause for the policemen to check him, especially when he darted into a
corner (presumably also dark) and run under such circumstance. Although the arrest came after the body-
search where Cicero was found with shabu and a Swiss knife, the body search is legal under the "Terry
search" rule or the "stop and frisk" rule. And because the mere possession, with animus, of dangerous drug
(the shabu) is a violation of the law (Rep. Act 9165), the suspect is in a continuing state of committing a
crime while he is illegally possessing the dangerous drug, thus making the arrest tantamount to an arrest in
flagrante: so the arrest is legal and correspondingly, the search and seizure of the shabu and the concealed
knife may be regarded as incident to a lawful arrest.

ALTERNATIVE ANSWER:

No. The arrest and the body-search were not legal. In this case, Cicero did not run because the occupant’s o
of the vehicle identified themselves as police officers. He darted into the corner and ran upon the belief that
the Occupants of the vehicle were up to no good. Cicero's act of running does not show any reasonable
ground to believe that a crime has been committed or is about to be committed for the police officers to
apprehend him and conduct body search. Hence, the arrest was illegal as it does not fall under any of the
circumstances for a valid warrantless arrest provided in Sec. 5 of Rule 113 of the Rules of Criminal
Procedure.

Q: AX swindled RY in Lhe amount of P10,000 sometime in mid-2003. On the strength of the sworn
statement given by RY personally to SPOl Juan Ramos sometime in mid- 2004, and without securing a
warrant, the police officer arrested AX. Forthwith the police officer filed with the City Prosecutor of Manila a
complaint for estafa supported by RTs sworn statement and other documentary evidence. After due inquest,
the prosecutor filed the requisite information with the MM Regional Trial Court. No preliminary investigation
was conducted either before or after the filing of the information and the accused at no time asked for such
an investigation. However, before arraignment:, the accused moved to quash the information on the ground
that the prosecutor suffered from a want of authority to file the information because of his failure to conduct
a preliminary investigation before filing the information, as required by the Rules of Court.

Is the warrantless arrest of AX valid? Is he entitled to a preliminary investigation before the filing of the
information? Explain. (5%) (2004 Bar Question)
218

SUGGESTEDANSWER:

No. The warrantless arrest is not valid because the alleged offense has not just been committed. The crime
was allegedly committed one year before the arrest. (Sec. 5 (b) of Rule 113).

Yes, he is entitled to a preliminary investigation because he was not lawfully arrested without a warrant.
(See Sec. 7 of Rule 112). He can move for a reinvestigation.

ALTERNATIVEANSWER:

He is not entitled to a preliminary investigation because the penalty for estafa is the sum of PIO.OOO does
not exceed 4 years and 2 months. Under Sec. 1, second par., Rule 112, a preliminary investigation is not
required. (Note: The penalty is not stated in the question.)

Q: PG was arrested without a warrant by policemen while he was walking in a busy street. After preliminary
Investigation, he was charged with rape and the corresponding information was filed In the Regional Trial
Court. On arraignment, he pleaded not guilty. Trial on the merits ensued. The court rendered Judgment
convicting him. On appeal, FG claims that the judgment is void because he was illegally arrested. If you
were the Solicitor General, counsel for the People of the Philippines, how would you refute said claim? (5%)
(2000 Bar Question)

SUGGESTED ANSWER:

Any objection to the illegality of the arrest of the accused without a warrant is deemed waived when he
pleaded not guilty at the arraignment without raising the question. It is too late to complain about a
warrantless arrest after trial is commenced and completed and a Judgment of conviction rendered against
the accused. (People v. Cabiles, 284 SCRA 199,(1999])

Q: 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 struck 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 latter’s 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 inquired whether accused had a license to possess or permit to carry the
gun, and when the latter answered in the negative, the Barangay Captain arrested him and confiscated the
firearm. From the record of the local PNP, It was ascertained that the subject revolver was not registered
licensed in the name of 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. (1996 Bar Question)

Answer:

219

The arrest of the accused Y without warrant was lawful pursuant to Section 5(b). not (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.

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.

Q: (1988 Bar Question)

. (a) May a person be arrested without warrant?

. (b) x x x

. (c) x x x

Answer:

a)

A person may be arrested without warrant in the following cases:

1) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting
to commit an offense;

2) When an offense has in fact just been committed and he has personal knowledge of the facts indicating
that the person to be arrested has committed it; and

3) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where
he is serving final judgment or temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another. (Sec. 5 of Rule 113)

3. Method of arrest (By officer with warrant, By officer without warrant, By private person)

Q: On his way home, a member of the Caloocan City police force witnesses a bus robber in Pasay City and
effects the arrest of the suspect. Can he bring the suspect to Caloocan City for booking since that is where
his station is? Explain briefly. (5%) (2007 Bar Question)

SUGGESTED ANSWER:

No, the arresting officer may not take the arrested suspect from Pasay City to Caloocan City. The arresting
officer is required to deliver the person arrested without a warrant “to the nearest police station or jail” (Rule
112, sec. 5, 2000 Rules of Criminal Procedure). To be sure, the nearest police station or jail is in Pasay City
where the arrest was made, and not in Caloocan City.

F. Bail

1. Nature

Q: Claudio Ty was charged with murder in an information filed with the Regional Trial Court in Dumaguete
City. Through counsel, he filed #an application for ball. Without conducting a

220

hearing on said application and without giving the prosecution an opportunity to comment thereon, the
Judge granted bail to Ty after examining the complaint and the affidavit attached to the bail application
which, in the evaluation of the judge, tend to show that the evidence of guilt is not strong. The prosecution
moved for reconsideration of the order granting ball, contending that the procedure followed by the judge
was irregular. (1991 Bar Question)

(a) Was the procedure followed by the judge in granting bail correct? Answer:

(a) No. because the prosecution should have been given an opportunity to comment on the application and
to present strong evidence of guilt. (People v. Sola, 103 SCRA 393)
(b) If the judge denies the prosecution’s motion for reconsideration, what remedy or remedies may the
prosecution pursue if it wishes to assail the order before the appellate court?

Answer:

(b) The prosecution may file a petition for certiorari and mandamus with the Court of Appeals or the
Supreme Court in order to nullify the order of the RTC and to compel it to hold a hearing. It may also ask for
a writ of preliminary injunction against the order granting bail.

(c) Supposing that Ty, after trial, was found guilty of murder and was sentenced to reclusion perpetua, and
he appealed to the Supreme Court, is he entitled to bail during the pendency of such appeal?

Answer:

(c) No, Ty is not entitled to bail as a matter of right because the evidence of his guilt is so strong that it
resulted in his conviction by the trial court. However, on exceptional grounds, he may be granted ball on
appeal at the discretion of the court. (Teehankee v. Director of Prisons, 76 Phil. 756)

(d) Supposing that Ty was convicted of the lesser offense of homicide and was sentenced to a penalty, the
maximum of which is within the range of reclusion temporal and he appealed to the Court of Appeals is he
entitled to bail during the pendency of such appeal?

Answer:

(d) No. he is not entitled to bail as a matter of right, because he may on appeal be found guilty of murder
and sentenced to reclusion perpetua.

(e) In relation to (d) above, the Court of Appeals did not affirm or modify the judgment. Instead, it
expressed the opinion that the crime committed is murder, and that the penalty should be reclusion
perpetua, and, accordingly certified the case to the Supreme Court for final determination. Did it act
properly?

Answer:

(e) No.

the Court of Appeals should have rendered judgment imposing the penalty of reclusion reframed from
entering Judgment, and certified the entire record to the Supreme Court

perpetua

221

for review. (People v. Daniel 86 SCRA 367; Sec. 13 of Rule 124)

2. When a matter of right; exceptions

3. When a matter of discretion

Q: When is bail a matter of right and when is it a matter of discretion? 5% (2006 Bar Question)

SUGGESTED ANSWER:

Bail is a matter of right: (a) before or after conviction by the Metropolitan Trial Court, Municipal Trial Court,
Municipal Trial Court in Cities, or Municipal Circuit Trial Court; (b) before conviction by the Regional Trial
Court of an offense not punishable by death, or
life imprisonment
charge involves a capital offense and the evidence of guilt is not strong
7, Revised Rules on Criminal
Procedure).

and (c) if the Bail is a matter of discretion upon conviction by the Regional Trial Court of an dffense not

(Sec. 4, Rule 114 of the 2000 Revised Rules on Criminal Procedure);

reclusion perpetua,

(Sec.

Rule 114 of the 2000

punishable by death, or life imprisonment (Sec. 5, Rule

114 of the 2000 Revised

Q: (1999 Bar Question)

a. When is bail a matter of right and when is it a matter of discretion? (2%)

b. In what forms may bail be given? (2%0

c. When the accused is entitled as a matter of right to bail, may the Court refuse to grant

him bail on the ground that there exists a high degree of probability that he will abscond or escape? Explain.
(2%)

d. May the Court require a witness to post bail? Explain your answer. (2%) SUGGESTED ANSWER:
a. When Bail is a matter of right:

All persons in custody shall (a) before or after conviction by the metropolitan and municipal trial courts, and
(b) before conviction by the RTC of an offense not punishable by death, reclusion perpetua or life
imprisonment, be admitted to bail as a matter of right, with sufficient sureties, or be released on
recognizance as prescribed by law or Rule 114. (Sec. 4, Rule 114, Rules of Court, as amended by Circular
No. 12-94.)

When bail is a matter of discretion:

Upon conviction by the RTC of an offense not punishable by death, reclusion perpetua or life im-
prisonment, on application of the accused. If the penalty of imprisonment exceeds six years but not more
than 20 years, bail shall be denied upon a showing by the prosecution, with notice to the accused, of the
following or other similar circumstances:

(a) That the accused is a recidivist, quasi-recidivist or habitual delinquent, or has committed the crime
aggravated by the circumstance of reiteration;

(b) That the accused is found to have previously escaped from legal confinement, 222

reclusion perpetua,

Rules on Criminal Procedure).

b.

(c) (d) (e)

evaded sentence, or has violated the conditions of his bail without valid justification;

That the accused committed the offense while on probation, parole, or under conditional pardon;

That the circumstances of the accused or his case indicate the probability of flight if released on bail; or

That there is undue risk that during the pendency of the appeal, the accused may commit another crime.
(Sec. 1, Id.)

Bail may be given by a corporate surety, or through a property bond, cash deposit or recognizance. (Sec. 1,
Id.)

c. If bail is a matter of right, it cannot be denied on the ground that there exists a high degree of probability
that the accused will abscond or escape. What the court can do is to increase the amount of the bail. One of
the guidelines that the judge may use in fixing a reasonable amount of bail is the probability of the accused
appearing in trial. Sec 9[g], Id.)

d. Yes. The court may require a witness to post bail if he is a material witness and bail is needed to secure
his appearance. The rules provide that when the court is satisfied, upon proof or oath, that a material
witness will not testify when required, it may, upon motion of either party, order the witness to post bail in
such sum as may be deemed proper. Upon refusal to post bail, the court shall commit him to prison until he
complies or is legally discharged after his testimony is taken. (Sec. 6, Rule 119, Rules of Court)

Q: Accused was charged with the crime of kidnapping with murder. The information recommended no bail,
the charge being a capital offense which is non-bailable.

After entering a plea of not guilty, accused filed an application for bail. The application was opposed by the
prosecution.

While the prosecution was still presenting evidence in support of its opposition to the application for bail, the
trial judge issued an order fixing bail of P 100,000.00 for the provisional liberty of accused. The order reads.

"After due consideration of the testimonial and documentary evidence presented by the prosecution, this
Court finds reasonable ground to believe that no strong evidence exists against accused.

WHEREFORE, the application for bail is granted. Accused is granted bail, which is fixed P 100,000.00, for his
provisional liberty."

Did the trial judge act correctly? Why? (1993 Bar Question) Answer:

No, because since the accused was charged with an offense punishable by reclusion perpetua or higher, he
is not entitled to bail as a matter of right when evidence of guilt is strong. It was premature for the court to
grant bail while the prosecution was still presenting evidence in support of its opposition to the application
for bail. The prosecution had the right to present all

223

evidence to show the guilt of the accused before the court resolved the motion for bail. (People vs.
Sandiego. 26 SCRA 522)

Q: In an Information charging them of Murder, policemen A, B and C were convicted of Homicide. A

appealed from the decision but Band C did not. B started serving his sentence but C escaped and is at large.
In the Court of Appeals, A applied for bail but was denied. Finally, the Court of Appeals rendered a decision
acquitting A on the ground that the evidence pointed to the NPA as the killers of the victim.

1. Was the Court of Appeal's denial of A’s application for bail proper? [2%]

2. x x x (1998 Bar Question)

SUGGESTED ANSWER:
1. Yes, the Court of Appeals properly denied A is application for bail. The court had the discretion to do so.
Although A was convicted of homicide only, since he was charged with a capital offense, on appeal he could
be convicted of the capital offense. (Obosa vs. Court of Appeals, 266 SCRA 281.)

ALTERNATIVE ANSWER:

Under Circular No. 2-92, A is entitled to bail because he was convicted of homicide and hence the evidence
of guilt of murder is not strong.

4. Hearing of application for bail in capital offenses

Q: D was charged with murder, a capital offense. After arraignment, he applied for bail. The trial court
ordered the prosecution to present its evidence in full on the ground that only on the basis of such
presentation could it determine whether the evidence of D's guilt was strong for purposes of bail. Is the
ruling correct? Why? (3%) (2002 Bar Question)

SUGGESTEDANSWER:

No, the prosecution is only required to present as much evidence as is necessary to determine whether the
evidence of D’s guilt is strong for purposes of bail. (Rule 114, sec. 8)

Q: 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 prosecutor’s 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 prosecution’s evidence.

As Judge, how would you resolve the contention of the defense? Explain. (1996 Bar Question) Answer:

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.

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Q: (1995 Bar Question)

1. May bail be granted even if what is charged is a capital offense and the evidence of guilt is strong?
Explain.

2. Boyet was bom on 6 January 1979. On 15 February 1995 he was arrested on a charge of raping on 14
February 1995 his first cousin Loma, a 13-year old girl. While the prosecution recommended no bail for
Boyet since the evidence against him was strong. Boyet nevertheless applied for bail.

Should Boyet be granted bail. Explain.

Answer:

1. Although bail is not a matter of right when the accused is charged with a capital offense and the evidence
of guilt is strong, there are rulings that in exceptional cases, the court has discretion to grant bail on such
cases. (Barinaga vs. Tamin. 226 SCRA 206)

2. Yes, because a privileged mitigating circumstance will be considered in determining whether an offense is
bailable or not. (Bravo vs. Botja, 134 SCRA 466)

Q: Abraham was charged with homicide in the Regional Trial Court of Manila, Branch 10. The trial judge
issued the corresponding warrant of arrest and fixed the bail at P30,000. Before Abraham could be arrested,
he filed the fixed bail with the Metropolitan Trial Court of Manila, Branch 3, and the judge thereof approved
the same. Was the approval of the bail irregular? Is the bail invalid? Explain your answers. (1989 Bar
Question)
Answer:

No, because the bail should have been filed with the Regional Trial Court of Manila, Branch 10, where the
case was pending, or, in the absence or unavailability, of the judge thereof, with another branch of the same
court in Manila. The Metropolitan Trial Court of Manila had no authority to approve the bail. (Sec. 14 and 16
of Rule 114)

Q: Florentino was charged with bigamy in the Regional Trial Court of Manila, Branch 15. The trial judge
issued the corresponding warrant of arrest and fixed the bail at P12,000. Subsequently, Florentino was
arrested in San Fernando, Pampanga, and detained in the municipal jail of the said town. He requested the
judge of the Municipal Trial Court of San Fernando, Pampanga, to order his release on a reduced bail. The
Municipal Trial Court judge agreed to reduce the amount of the bail to PI,000 provided that the same be
posted in cash, which the accused did. Was the reduction of the bail proper? Explain. (1989 Bar Question)

Answer:

No, because the Municipal Trial Judge of San Fernando, Pampanga, had no authority to approve the bail,
much less to reduce the amount thereof even if posted in cash. Since Florentino was arrested in San
Fernando, Pampanga, he should have filed the bail with any Regional Trial Court of said place, and only if
there was no judge thereof available could he have filed it with the Municipal Trial Judge of San Fernando,
Pampanga. (Id.)

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5. Guidelines in fixing amount of bail

A. D and E were charged with homicide in one information. Before they couid be arraigned, the prosecution
moved to amend the information to exclude E therefrom. Can the court grant the motion to amend? Why?
(2%)

B. On the facts above stated, suppose the prosecution, instead of filing a motion to amend, moved to
withdraw the information altogether and its motion was granted. Can the prosecution re- file the information
although this time for murder? Explain (3%)

C. If an information was filed in the RTC-Manila charging D with homicide and he was arrested in Quezon
City, in what court or courts may he apply for bail? Explain. (3%)

D. D was charged with theft of an article worth P15,000.00. Upon being arraigned, he pleaded not guilty to
the offense charged. Thereafter, before trial commenced, he asked the court to allow him to change his plea
of not guilty to a plea of guilty but only to estafa involving P5,000.00. Can the court allow D to change his
plea? Why? (2%) (2002 Bar Question)

SUGGESTEDANSWER:

A. Yes, provided notice is given to the offended party and the court states its reasons for granting the same.
(Rule 110, sec. 14).

B. Yes, the prosecution can re-file the information for murder in substitution of the information for homicide
because no double jeopardy has as yet attached. [Galvez v. Court of Appeals, 237 SCRA 685 (1994)].

C. D may apply for bail in the RTC-Manila where the Information was filed or in the RTC- Quezon City were
he was arrested, or if no judge thereof is available, with any metropolitan trial judge, municipal trial judge or
municipal circuit trial judge therein. (Rule 114, sec. 17).

D. No, because a plea of guilty to a lesser offense may be allowed If the lesser offense is necessarily
included in the offense charged. (Rule 116, sec. 2). Estafa involving P5,000.00 is not necessarily included In
theft of an article worth P15,000.00

6. Hold departure order & Bureau of Immigration watch list

Q: While window-shopping at the mall on August 4, 2008, Dante lost his organizer including his credit card
and billing statement. Two days later, upon reporting the matter to the credit card company, he learned that
a. one-way airplane ticket was purchased online using his credit card for a flight to Milan in mid-August
2008. Upon extensive inquiry with the airline company, Dante discovered that the plane ticket was under the
name of one Dina Meril. Dante approaches you for legal advice.

A. What is the proper procedure to prevent Dina from leaving the Philippines? (2%) (2010 Bar Question)

SUGGESTED ANSWER:

I would advise:

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(1) The filing of an appropriate criminal action cognizable by the RTC against Dina and the filing in said
criminal action a Motion for the issuance of a Hold Departure Order; (2) thereafter, a written request with
the Commissioner of the Bureau of Immigration for a Watch List Order pending the issuance of the Hold
Departure Order should be filed; (3) then, the airline company should be requested to cancel the ticket
issued to Dina.

Q: After Alma had started serving her sentence for violation of Batas Pambansa Big. 22 (BP 22), she filed a
petition of writ of habeas corpus, citing Vaca vs. CA where the sentence of imprisonment of a party found
guilty of violation of BP 22 was reduced to a fine equal to double the amount of the check involved. She
prayed that her sentence be similarly modified and that she be immediately released from detention. In the
alternative, she prayed that pending determination on whether the Vaca ruling applies to her, she be
allowed to post bail pursuant to Rule 102, Sec. 14, which provides that if a person is lawfully imprisoned or
restrained on a charge of having committed an offense not punishable by death, he may be admitted to bail
in the discretion of the court. Accordingly, the trial court allowed Alma to post bail and then ordered her
release. In your opinion, is the order of the trial court correct?

. a) x x x

. b) Under the Rules of Criminal Procedure? (2%)

SUGGESTED ANSWER:

b) No. The trial court’s order releasing Alma on bail even after judgment against her has become final and in
fact she has started serving sentence, is a brazen disregard of the mandate in Section 24, Revised Rules of
Criminal Procedure that: “In no case shall bail be allowed after the accused has commenced to serve
sentence.” (People v. Fitzgerald, 505 SCRA 573 [2006]).

G. Rights of the accused

1. Rights of accused at the trial

2. Rights of persons under custodial investigation

Q: What are the requirements in order that an admission of guilt of an accused during a custodial
investigation be admitted in evidence? 2.5% (2006 Bar Question)

SUGGESTED ANSWER:

An admission of guilt during a custodial investigation is a confession. To be admissible in evidence, the

requirements are:

1) the confession must be voluntary

2) the confession must be made with the assistance of competent and independent counsel 3) the
confession must be express
4) the confession must be in writing (People v. Principe, 381 SCRA 642 [2002]).
Q: X was arrested for the alleged murder of a 6-year Old lad. He was read his Miranda rights immediately
upon being apprehended.

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In the course of his detention, X was subjected to three hours of non-stop interrogation. He remained quiet
until, on the 3rd hour, he answered "yes" to the question of whether "he prayed for forgiveness for shooting
down the boy." The trial court) interpreting X's answer as an admission of guilt, convicted him.

On appeal, X's counsel faulted the trial court in its interpretation of his client's answer, arguing that X
invoked his Miranda rights when he remained quiet for the first two hours of questioning. Rule on the
assignment of error. (3%) (2010 Bar Question)

SUGGESTED ANSWER:

The assignment of error invoked by X's counsel is impressed with merit since there has been no express
waiver of X's Miranda rights. In order to have a valid waiver of the Miranda rights, the same must be in
writing and made in the presence of his counsel. The uncounseled extrajudicial confession of X being
without a valid waiver of his Miranda rights, is inadmissible, as well as any information derived therefrom.

Q: Policemen brought Lorenzo to the Philippine General Hospital (PGH) and requested one of its surgeons to
immediately perform surgery on him to retrieve a packet of 10 grams of shabu which they alleged was
swallowed by Lorenzo. Suppose the PGH agreed to, and did perform the surgery, is the package of shabu
admissible in evidence? Explain. (3%) (2010 Bar Question)

SUGGESTED ANSWER:

No, the package of shabu extracted from the body of Lorenzo is not admissible in evidence because it was
obtained through surgery which connotes forcible invasion into the body of Lorenzo without his consent and
absent due process. The act of the policemen and the PGH surgeon involved, violate the fundamental rights
of Lorenzo, the suspect.

SUGGESTED ANSWER:

Yes, it is admissible in evidence because the constitutional right against self-incrimination is addressed only
to extracting admission of guilt from the lips of the suspect where otherwise no incriminating evidence
exists. In the past, the Supreme Court has already declared many invasive and involuntary procedures (i.e.
examination of women's genitalia, expulsion of morphine from one's mouth, DNA testing) as constitutionally
sound (See Agustin v. Court o/Appeals, G.R. No. 162571, June 15, 2005).

Q: TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your
answer in not more than two (2) sentences. (5%)

[a] The accused in a criminal case has the right to avail of the various modes of discovery. (2009 Bar
Question)

SUGGESTED ANSWER:

TRUE. The accused has the right to move for the production or inspection of material evidence in the
possession of the prosecution. It authorizes the defense to inspect, copy or photograph any evidence of the
prosecution in its possession after obtaining permission from the court (Rule 116, Sec. 10; Webb v. De Leon,
247 SCRA 652 [1995]).

228

Q: The mutilated cadaver of a woman was discovered near a creek. Due to witnesses attesting that he was
the last person seen with the woman when she was still alive, Carlito was arrested within five hours after the
discovery of the cadaver and brought to the police station. The crime laboratory determined that the woman
had been raped. While in police custody, Carlito broke down in the presence of an assisting counsel and
orally confessed to the investigator that he had raped and killed the woman, detailing the acts he had
performed up to his dumping of the body near the creek. He was genuinely remorseful. During the trial, the
State presented the investigator to testify on the oral confession of Carlito. Is the oral confession admissible
as evidence, of guilt? (4%) (2008 Bar Question)

SUGGESTED ANSWER:

No, the oral confession is not admissible as evidence of guilt of Carlito because he was already under arrest
and in police custody when he made the extrajudicial confession but the mandates of Rep. Act No. 7438,
particularly Sections 2, par. (d), have not been complied with. Noncompliance with said par. (d) of the law
expressly renders the extrajudicial confession inadmissible as evidence in any proceeding.

He was not informed of his right to be warned and he was not informed of the Miranda right particularly the
right to remain silent. Additionally, it does not appear that counsel present is his counsel of his choice.

Q: L was charged with illegal possession of shabu before the RTC. Although bail was allowable under his
indictment, he could not afford to post bail, and so he remained in detention at the City Jail. For various
reasons ranging from the promotion of the Presiding Judge, to the absence of the trial prosecutor, and to
the lack of notice to the City Jail Warden, the arraignment of L was postponed nineteen times over a period
of two years. Twice during that period, L’s counsel filed motions to dismiss, invoking the right of the accused
to a speedy trial. Both motions were denied by the RTC. Can L file a petition for mandamus? Reason briefly.
(2007 Bar Question)

SUGGESTED ANSWER:

Yes, L can file a petition for mandamus to enforce his ' "institutional right to a speedy trial which was
capriciously denied to him.

There is absolutely no justification for postponing an arraignment of the accused nineteen (19) times and
over a period of two (2) years. The numerous, unreasonable postponements of the arraignment
demonstrate an abusive exercise of discretion (Lumanlaw v. Peralta, 482 SCRA 396 [2006]). Arraignment of
an accused would not take thirty minutes of the precious time of the court, as against the preventive
imprisonment and deprivation of liberty of the accused just because he does not have the means to post bail
although the crime charged is bailable.

The right to a speedy trial is guaranteed by the Constitution to every citizen accused of a crime, more so
when he is under preventive imprisonment. L, in the given case, was merely invoking his constitutional right
when a motion to dismiss the case was twice filed by his counsel. The RTC is virtually enjoined by the
fundamental law to respect such right; hence a duty. Having refused or neglected to discharge the duty
enjoined by law whereas there is no appeal nor any plain, speedy and adequate remedy in the ordinary
course of law, the remedy of mandamus may be availed of.

229

Q: Are the rights of the accused to be presumed innocent of the crime charged, to privacy, and against
incrimination violated by such compulsory testing? Explain.(2005 Bar Question)

SUGGESTED ANSWER:

No. The court may compel the accused to submit himself to a blood test to determine whether he has HIV
under Sec. 17(a) of Republic Act No. 8054. His rights to be presumed innocent of the crime charged, to
privacy and against self-incrimination are not violated by such compulsory testing. In an action in which the
physical condition of a party is in controversy, the court may order the accused to submit to a' physical
examination. The right against self-incrimination refers to compulsory testimonial compulsion and does not
include the body of the accused as evidence when it may be material (U.S. v. TanTeng, 23 Phil. 145 [1912];
Villaflor v. Summers, 41 Phil. 62 [1920]; Section 1, Rule 28, 1997 Rules of Civil Procedure).

Under Republic Act No. 8353, one may be charged with and found guilty of qualified rape if he knew on or
before the commission of the crime that he is afflicted with Human Immuno- Deficiency Virus (HIV)/Acquired
Immune Deficiency Syndrome (AIDS) or any other sexually transmissible disease and the virus or disease is
transmitted to the victim.

Under Section 17(a) of Republic Act No. 8504 the court may compel the accused to submit himself to a
blood test where blood samples would be extracted from his veins to determine whether he has HIV.

Q: If the result of such test shows that he is HIV positive, and the prosecution offers such result in evidence
to prove the qualifying circumstance under the information for qualified rape, should the court reject such
result on the ground that it is the fruit of a poisonous tree? Explain. (8%)(2005 Bar Question)

SUGGESTED ANSWER:

The fruits of the poisonous tree doctrine applies only where the primary source is shown to have been
unlawfully obtained or was the result of an illegal act (People v. Alicando, G.R. No. 117487, 251 SCRA 293
[1995]) Since the rights of the accused are not violated because the compulsory testing is authorized by law,
the result of the testing cannot be considered to be the fruit of a poisonous tree and can be offered in
evidence to prove the qualifying circumstance under the information for qualified rape under Republic Act
No. 8353.

Q: At the scene of a heinous crime, police recovered a man's shorts with blood stains and strands of hair.
Shortly afterwards, a warrant was issued and police arrested the suspect, AA. During his detention, a
medical technician extracted blood sample from his finger and cut a strand from his hair, despite AA’s
objections.

During AA’s trial for rape with murder, the prosecution sought to introduce DNA (deoxyribonucleic acid)
evidence against AA, based on forensic laboratory matching of the materials found at the crime scene and
AA’s hair and blood samples. AA’s counsel objected, claiming that DNA evidence is inadmissible because the
materials taken from AA were in violation of his constitutional right against self-incrimination as well as his
right of privacy and personal integrity.

Should the DNA evidence be admitted or not? Reason. (5%) SUGGESTED ANSWER:

230

Yes. The DNA evidence should be admitted. It is not in violation of the constitutional right against self-
incrimination or his right of privacy and personal integrity. The right against self- incrimination is applicable
only to testimonial evidence. Extracting a blood sample and cutting a strand from the hair of the accused are
purely mechanical acts that do not involve his discretion nor require his intelligence. (Tijing v. Court of
Appeals, 354 SCRA 17 [2001]).

Q: Sgt. GR of WPD arrested two NPA suspects, Max and Brix, both aged 22, in the act of robbing a grocery
in Ermita. As he handcuffed them he noted a pistol tucked in Max's waist and a dagger hidden under Brix’s
shirt, which he promptly confiscated.

At the police investigation room. Max and Brix orally waived their right to counsel and to remain silent. Then
under oath, they freely answered questions asked by the police desk officer. Thereafter they signed their
sworn statements before the police captain, a lawyer. Max admitted his part in the robbery, his possession
of a pistol and his ownership of the packet of shabu found in his pocket. Brix admitted his role in the robbery
and his possession of a dagger. But they denied being NPA hit men. In due course, proper charges were
filed by the City Prosecutor against both arrestees before the MM Regional Trial Court.

May the written statements signed and sworn to by Max and Brix be admitted by the trial court as evidence
for the prosecution? Reason. (5%) (2004 Bar Question)

SUGGESTEDANSWER:

No. The sworn written statements of Max and Brix may not be admitted in evidence, because they were not
assisted by counsel. Even if the police captain before whom they signed the statements was a lawyer, he
was not functioning as a lawyer, nor can he be considered as an independent counsel. Waiver of the right to
a lawyer must be done in writing and in the presence of independent counsel. (People v. Mahinay, 302 SCRA
455 [1999]; People v. Espiritu, 302 SCRA 533 [1999]).

Q: Acting on a tip by an informant, police officers stopped a car being driven by D and ordered him to open
the trunk. The officers found a bag containing several kilos of cocaine. They seized the car and the cocaine
as evidence and placed D under arrest. Without advising him of his right to remain silent and to have the
assistance of an attorney, they questioned him regarding the cocaine. In reply, D said, “I don’t know
anything about it. It isn’t even my car.” D was charged with illegal possession of cocaine, a prohibited drug.
Upon motion of D, the court suppressed the use of cocaine as evidence and dismissed the charges against
him. D commenced proceedings against the police for the recovery of his car. In his direct examination, D
testified that he owned the car but had registered it in the name of S friend for convenience. On cross-
examination, the attorney representing the police asked,” After your arrest, did you not tell the arresting
officers that it wasn't your car?” If you were D’s attorney, would you object to the question? Why? (5%)

SUGGESTEDANSWER:

Yes, because his admission made when he was questioned after he was placed under arrest was in violation
of his constitutional right to be informed of his right to remain silent and to have competent and
independent counsel of his own choice. Hence, it is inadmissible in evidence. [Constitution, Art. Ill, sec. 12;
R.A. 7438 (1992), sec. 2; People v. Mahinay, 302 SCRA 455].

231

ALTERNATIVE ANSWER:

Yes, because the question did not lay the predicate to justify the cross-examination question.

Q: 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 Counsel. Individually rule on the
admissibility in evidence of the:

. a) xx x

. b) Sworn Statement; and (2%]

. c) Waiver of Right to Counsel of X. [1%] (1998 Bar Question)

SUGGESTED ANSWER: 1. xxx

Waiver of Right to

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. (People vs. Januario, 267 SCRA 608.)

3. The waiver of his right to counsel is not admissible because it was made without the assistance of counsel
of his choice. {People vs. Gomez, 270 SCRA433.)

Q: A was accused of homicide for the killing of B. During the trial, the public prosecutor received a copy of
the marriage certificate of A and B. (1997 Bar Question)

a) Can the public prosecutor move for the amendment of the information to charge A with the crime of
parricide?
b) Suppose instead of moving for the amendment of the information, the public prosecutor presented in
evidence the marriage certificate without objection on the part of the defense, could A be convicted of
parricide?

Answer:

a) No. The information cannot be amended to change the offense charged from homicide to parricide.
Firstly, the marriage is not a supervening fact arising from the act constituting the charge of homicide. (Sec.
7(al of Rule 117). Secondly, after plea, amendments may be done only as to matters of form. The
amendment is substantial because it will change the nature of the offense. (Sec. 14 of Rule 110; Dionaldo
us. Dacuycuy, 108 SCRA 736).

b) No. A can be convicted only of homicide not of parricide which is a graver offense. The accused has the
constitutional rights or due process and to be informed of the nature and the cause of the accusation against
him. (Secs. 1, 14 (1) and (2) Art. Ill, 1387 Constitution).

232

Q: Accused was charged with 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? (1996 Bar Question)

Answer:

I would object to any further postponement, insist on a trial and move 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.

Q: X, the accused, was called by the prosecution as the first witness to testify for the government. X refused
to take the stand invoking his privilege against self-incrimination. On the other hand, the prosecution
contends that X may be compelled to take the witness stand and claim the privilege only as each question,
requiring an incriminatory answer is put to him.

Can the court order X to testify? Explain. (1996 Bar Question) Answer:

No, the court cannot order X to testify because he is the accused and he is exempt from being compelled to
be a witness against himself (Sec. 1-E of Rule 115; Cabal vs. Kapunan, 6 SCRA 1059; Chavez vs. Court of
Appeals 24 SCRA 663). If he were an ordinary witness, not an accused, he could be ordered to testify and
he could claim the privilege against self-incrimination only as each question requiring an incriminatory
answer is put to him. (Badiong vs. Gonzales, 94 SCRA 906)

Q: At the homicide trial, the prosecution proposed that accused Joey undergo a series of paraffin tests to
determine whether he fired his service pistol at the time the victim, Lyn, was shot to death. The defense
objected on the ground that Joey's submission of his hands for paraffin test, or the Inspection of any part of
his body for that matter, would violate his right against self-incrimination. (1994 Bar Question)

. 1) How would you rule on the objection?

. 2) Is the result of the paraffin test admissible in evidence?

Answer:

1) The objection should be overruled. Submission to the paraffin test is not a violation of the right against
self-incrimination because it involves only an examination of a part of the body. What violates the right
against self-incrimination is testimonial compulsion.
2) The result of the paraffin test is admissible in evidence although it is not conclusive and is not the only
evidence that should be considered.

Q: During custodial investigation at the Western Police District, Mario Margal was informed of his
constitutional right to remain silent and to have competent and independent counsel. He decided to waive
his right to counsel and proceeded to make a statement admitting

233

commission of a robbery. In the same statement, he Implicated Antonio Carreon, his co- conspirator in the
crime. (1991 Bar Question)

(a) Is Margal’s statement admissible in evidence against him?

Answer:

(a) No, because under the Constitution, the right of Margal to remain silent and to counsel during custodial
investigation cannot be waived except in writing and in the presence of counsel, and any confession or
admission in violation of this provision is inadmissible in evidence against him. (Sec. 12 of Art. Ill)

(b) Is it admissible against Carreon as an exception to the res inter alios acta rule? Answer:

No, because even assuming that the conspiracy is shown by evidence other than the statement of Margal,
the statement was made after the conspiracy had ceased. (Sec. 30 of Rule 130; People v. Cabrera. 57 SCRA
714)

Q: Felipe Arenas, an employee of ABC Corp., appeared to be involved, in irregularities in the sale of the
corporation’s products. He was asked to account for some undeclared sales amounting to PI50.000.00 and,
for that purpose, he was asked to appear on a specified date at an administrative investigation, to be
conducted in accordance with the corporation’s collective bargaining agreement with the employee’s union.
Two (2) days before the scheduled investigation. Arenas gave to his superiors a signed handwritten note
stating that he was willing to settle the irregularities allegedly charged against him in the amount of
PI50.000.00 subject to conditions which the corporation may impose. On the day of the investigation,
Arenas did not show up and has failed to report for work since then. The corporation charged him with
estafa. At the trial, the prosecution offered in evidence the aforesaid handwritten note as Exhibit “A". The
defense counsel objected to the admission of the note on the ground that the same was executed without
the accused having been informed of his constitutional right to remain silent and to have counsel nor was he
then assisted by counsel. If you were the judge, would you admit the evidence? (1991 Bar Question)

Answer:

Yes, the signed handwritten note of Arenas, given two days before the scheduled administrative
investigation, is admissible in evidence against him, because he was not under custodial investigation when
he executed the same. Hence, the constitutional right to remain silent and to have counsel was not
applicable to him. (People v. Ayson, 175 SCRA 216)

Q: During the custodial investigation of Jose Zafra, a murder suspect, he was informed of his right to be
assisted by counsel, among other constitutional rights. Zafra requested the assistance of Atty. Donato Saldi
who was present when Zafra gave his confession. When the case for murder was filed against him. Zafra
objected to the admission of his confession on the ground that he had inadequate assistance of counsel as
Atty. Saldi did not advise him to remain silent during the Investigation.

Is the said objection tenable? Explain your answer. (1990 Bar Question)

234

Answer:
No, because Jose Zafra was already informed of his right to be assisted by counsel, among other
constitutional rights which include the right to remain silent. Atty. Saldi had no obligation to advise him to
remain silent during his investigation.

H. Arraignment and plea

1. Arraignment and plea, how made

Q: X was charged with murder attended by treachery and evident premeditation. During arraignment X,
assisted by counsel, pleaded guilty with the qualification “Hindi ko sinadya patayin”. X’s 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 prosecution’s 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. (1996 Bar Question) Answer:

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 of culpability of the
accused. (Id.)

2. When may accused enter a plea of guilty to a lesser offense

A. D and E were charged with homicide in one information. Before they couid be arraigned, the prosecution
moved to amend the information to exclude E therefrom. Can the court grant the motion to amend? Why?
(2%)

B. On the facts above stated, suppose the prosecution, instead of filing a motion to amend, moved to
withdraw the information altogether and its motion was granted. Can the prosecution re- file the information
although this time for murder? Explain (3%)

C. If an information was filed in the RTC-Manila charging D with homicide and he was arrested in Quezon
City, in what court or courts may he apply for bail? Explain. (3%)

D. D was charged with theft of an article worth P15,000.00. Upon being arraigned, he pleaded not guilty to
the offense charged. Thereafter, before trial commenced, he asked the court to allow him to change his plea
of not guilty to a plea of guilty but only to estafa involving P5,000.00. Can the court allow D to change his
plea? Why? (2%) (2002 Bar

235

Question)

SUGGESTEDANSWER:

A. Yes, provided notice is given to the offended party and the court states its reasons for granting the same.
(Rule 110, sec. 14).

B. Yes, the prosecution can re-file the information for murder in substitution of the information for homicide
because no double jeopardy has as yet attached. [Galvez v. Court of Appeals, 237 SCRA 685 (1994)].
C. D may apply for bail in the RTC-Manila where the Information was filed or in the RTC- Quezon City were
he was arrested, or if no judge thereof is available, with any metropolitan trial judge, municipal trial judge or
municipal circuit trial judge therein. (Rule 114, sec. 17).

D. No, because a plea of guilty to a lesser offense may be allowed If the lesser offense is necessarily
included in the offense charged. (Rule 116, sec. 2). Estafa involving P5,000.00 is not necessarily included In
theft of an article worth P15,000.00

3. Accused pleads guilty to capital offense, what the court should do

Q: Crisanto Is charged with murder. At his arraignment the prosecution witnesses appeared in court
together with the heirs of the victim. Realizing the gravity of the offense and the number of witnesses
against him Crisanto consulted his counsel de oficio who explained to him the nature of the charge and the
consequences of his plea. Crisanto then manifested his readiness for arraignment. The Information was read
to him in a language he clearly understood after which he pleaded guilty. To be sure, the judge forthwith
asked him if indeed he fully understood the implications of his plea and Crisanto readily and without
hesitation answered in the affirmative. The judge, fully convinced that the plea of the accused was made
with the tatter's full knowledge of the meaning and consequences of his plea, then pronounced sentence on
the accused.

1. Comment on the action of the judge. Explain.

2. Suppose Crisanto with the assistance of counsel waives the presentation of evidence

by the prosecution saying that, after all, he has already entered his plea, may the court insist on the
presentation of the evidence for the prosecution? Explain.

3. Suppose upon plea bargaining Crisanto decides to plead guilty to the lesser offense of homicide, may the
court still require presentation of evidence? Explain.

4. After the Information was read to Crisanto upon arraignment and he pleaded guilty to the charge but the
facts did not sufficiently constitute an offense, did his plea of guilt, which has already been entered in the
records, have the effect of supplying what was not alleged in the Information to complete the elements of
the offense to Justify his conviction? Explain. (1995 Bar Question)

Answer:

The Judge erred in pronouncing sentence on the accused without previously conducting a searching inquiry
into the voluntariness and full comprehension of the consequences of the plea of

236

guilty and requiring the prosecution to prove the guilt and the precise degree of culpability. (Sec. 3, Rule
116)

1. Yes, in accordance with the above rule.

2. Although Crisanto pleads guilty to a non-capital offense the court may still require evidence

to determine the penalty to be imposed. (Sec. 4, Rule 116)

3. No, his plea of guilty did not have the effect of supplying what was not alleged In the Information to
complete the elements of the offense to justify his conviction. His plea merely admits the truth of the facts
alleged in the information.

4. Searching inquiry

Q: Charged with the crime of murder before the Regional Trial Court of Bulacan, the accused, assisted by
counsel, pleaded guilty to the charge. Thereupon, the trial court rendered a judgment convicting the
accused for the crime of murder and sentencing him to suffer reclusion perpetua and to pay civil indemnity
to the heirs of the victim.

Did the trial court act properly? Why? (1993 Bar Question) Answer:

Yes, because it is only when the accused is charged with a capital offense punishable with death that the
court shall conduct a searching inquiry Into the voluntariness and full comprehension of the consequences of
the plea of guilty and require the prosecution to prove his guilt and the precise degree of culpability. The
crime charged of murder is not a capital offense, because the death penalty cannot be imposed under the
Constitution.

I. Motion to quash

1. Grounds

Q: (1998 Bar Question)

1. Give two (2) grounds to quash an Information. [2%]

2. If the Information is not accompanied by a certification that a preliminary

investigation has been conducted, is the Information void? [3%]

SUGGESTED ANSWER:

1. Two grounds to quash an Information are:

. (a) That the facts charged do not constitute an offense; and

. (b) That the court trying the case has no jurisdiction over the offense charged or the person of the
accused.

Note: The other grounds are:

(c) That the officer who filed the Information had no authority to do so; (d) That It does not conform
substantially to the prescribed form;

237

2.

(e)

(f) (g)

(h)

That more than one offense Is charged except In those cases in which existing laws prescribe a single
punishment for various offenses;

That the criminal action or liability has been extinguished;

That It contains averments which. If true, would constitute a legal excuse or Justifi- cation; and

That the accused has been previously convicted or In Jeopardy of being convicted, or acquitted of the
offense charged. (Sec. 3, Rule 117, Rules of Criminal Procedure.)

No. The certification which is provided In Sec. 4, Rule 112, Rules of Criminal Procedure, Is not an
indispensable part of the information. (People us. Lapura, 255 SCRA 85.)
Q: The information filed against A charged more than one offense. A 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. (1996 Bar
Question)

Answer:

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)

Q: Rodolfo is charged with possession of unlicensed firearms in an information filed in the Regional Trial
Court. It was alleged therein that Rodolfo was in possession of two unlicensed firearms: a .45 caliber and a
.32 caliber.

Under Republic Act No. 8294, possession of an unlicensed 45 caliber gun is punishable by prision mayorin its
minimum period and a fine of P30.00Q.00. while possession of an unlicensed .32 caliber gun is punishable
by prision correctional in its maximum period and a fine of not less than PI 5,000.00.

As counsel of the accused, you intend to file a motion to quash the Information. What ground or grounds
should you invoke? Explain. (4%) (2005 Bar Question)

SUGGESTED ANSWER:

The ground for the motion to quash is that more than one offense is charged in the information (Sec. 3[f],
Rule 117, 2000 Rules of Criminal Procedure). Likewise, the RTC has no jurisdiction over the second offense
of possession of an unlicensed .32 caliber gun, punishable by prision correccional in its maximum period and
a fine of not less than P15,000.00, It is the MTC that has exclusive and original jurisdiction over offenses
punishable by imprisonment not exceeding six years. (Sec. 2, Republic Act No. 7691 [1994], amending Sec.
32, B.P. Big. 129) [1980]

Q: The information filed against A charged more than one offense. A 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. (1996 Bar
Question)

Answer:

I would file a motion to quash on the ground that more than one offense is charged. (Sec. 1-e 238

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)

Q: Mario, a resident of Quezon City, sued for libel the editor, publisher and columnist of Ang Bagong Pilipino,
a newspaper of general circulation, with principal office at Binondo, Manila. He claimed that because his
reputation had been badly besmirched by the offensive article he suffered damages estimated at 1 Million.
The case was filed before the Regional Trial Court of Quezon City.

The accused moved to quash the Information on the ground that the RTC had no jurisdiction to try the case
considering that under Sec. 2 of RA. 7691 Metropolitan Trial Courts exercise exclusive original jurisdiction
over all offenses punishable with imprisonment not exceeding six (6) years (of which libel is one)
irrespective of the amount of fine, accessory or other penalties or civil liability arising from the offense. The
accused also claimed that the offensive article was printed and first published in Manila so that the case
should have been filed with the Metropolitan Trial Court of Manila. Decide. Discuss fully. (1995 Bar Question)

Answer:

The motion to quash should be granted on two grounds, namely:

1. Since the libelous article was printed and first published in Manila, the Regional Trial Court of Quezon City
has no jurisdiction over the offense. (Art. 360, RPC as amended; Agbayani vs. Sayo, 89 SCRA 699; Soriano
vs. IAC, 167 SCRA 222)
2. Since the penalty provided by law for libel does not exceed six (6) years, the Metropolitan Trial Court of
Manila has exclusive jurisdiction.

Alternative Answer:

Art. 360, RPC as amended, expressly vests the RTC with jurisdiction over libel cases. This special provision
should prevail over RA. 7691.

Q: Chato is charged with the murder of Velay. Before arraignment, you, as counsel de oficio of Chato,
discovered that the information failed to allege any qualifying circumstances.

1) How may you properly object to the Insufficiency of the information, and on what ground?

. 2) May you still avail of that remedy after Chato has entered her plea?

. 3) What course or courses of action may the court take if it sustains the remedy you

seek? (1994 Bar Question)

Answer:

1) As counsel de oficio for the accused, I can file a motion to quash based on the ground that the facts
charged do not constitute the crime of murder there being no qualifying circumstances alleged. (Sec. 3(a),
Rule 117)

Alternative Answer:

239

As counsel de oficio for the accused, I will not file a motion to quash because it will only aggravate the crime
charged. As it is charged, Chato can be convicted only of homicide.

2) After Chato has entered her plea, she may no longer move to quash because she is barred from doing so.
(Sec. 1, Rule 117).

3) If the court sustains the motion to quash, the court may order that another information be filed. If the
accused is in custody, he shall remain so unless he shall be admitted to bail. If the information is not filed
within the time specified, or within the time specified in the order, or within such further time as the court
may allow for good cause shown, the accused, if in custody, shall be discharged therefrom, unless he is also
in custody on some other charge. (Sec. 5. Rule 117).

Q: An information was filed, in the proper court against Arturo charging him with theft of 300 blocks of
industrial aluminum worth P999.000.00 allegedly committed “on or about the period from January 1986 to
December 23,1991. Arturo filed a motion to quash the information on the ground that it was grossly
insufficient and fatally defective since there is such a great gap in the inclusive period of the alleged
commission of the offense. He is, in effect, being deprived of a reasonable opportunity to defend himself.

In resolving the motion to quash, what basic and ancillary rulings should the court make so that it can
extend to the accused optimum and adequate relief. Discuss fully. (1992 Bar Question)

Suggested Answer:

The court may grant the motion to quash on the ground that the allegation of the time of commission of the
offense is defective because the period from January 1986 to December 23. 1991, or almost six years, is too
indefinite to give the accused an opportunity to prepare-his defense; or the court may order the amendment
of the information or the submission of a bill of particulars so as to allege the actual date or at least as near
to it as possible in order not to surprise and substantially prejudice the accused.

2. Exception to the rule that sustaining the motion is not a bar to another prosecution
Q: On October 14, 1990, Julie was charged before the Metropolitan Trial Court of Quezon City with the crime
of serious slander allegedly committed on May 12, 1990.

After trial, the court found that Julie had committed the crime oflight-not serious-slander. Accordingly, it
convicted Julie of light slander and sentenced her to pay a fine of P100.00 plus moral damages, attorney’s
fees and costs.

On appeal, Julie contended that she may not be convicted of the crime of light slander because it has
already prescribed.

However, the prosecution countered that as Julie did not move for the quashal of the information on the
ground of prescription, she is deemed to have waived such defense.

How should the appeal be resolved? Explain. (1993 Bar Question) Answer:

240

The appeal should be resolved in favor of Julie. Under the 1985 Rules on Criminal Procedure as amended,
prescription is not deemed waived for failure of the accused to assert such ground of a motion to quash
before he pleads to a complaint or information and such ground may be raised on appeal.. (Damasco us.
Laqut 166 SCRA 214)

Alternative Answer:

The appeal should be resolved against Julie because the filing of the complaint with the fiscal’s office in 1990
interrupted the period of prescription of the offense charged. (Note: This was before the case of SCRA 277).

3. Double jeopardy

Q: What is “res judicata in prison grey"? (2%) SUGGESTED ANSWER:

“Res judicata in prison grey" is the criminal concept of double jeopardy, as “res judicata" is the doctrine of
civil law (Trinidad v. Office of the Ombudsman, GR No. 166038, December 4, 2007).

Described as “res judicata in prison grey,” the right against double jeopardy prohibits the prosecution of a
person for a crime of which he has been previously acquitted or convicted. The .purpose is to set the effects
of the first prosecution forever at rest, assuring the accused that he shall not thereafter be subjected to the
danger and anxiety of a second charge against him for the same offense (Joel B. Caes v. Intermediate
Appellate Court, November 6, 1989).

Q: When a criminal case is dismissed on nolle prosequi, can it later be refiled? (2003 Bar Question)

SUGGESTED ANSWER:

As a general rule, when a criminal case is dismissed on nolle prosequi before the accused is placed on trial
and before he is called on to plead, this is not equivalent to an acquittal and does not bar a subsequent
prosecution for the same offense. (Galvez v. Court of Appeals, 237 SCRA 685 [1994]).

Q: In a case of a prosecution of an accused for estafa after his acquittal of the crime of illegal recruitment,
but which Involves the same set of facts as the first case, can the accused raise the defense of double
Jeopardy? How about res adjudicata? (1994 Bar Question)

Answer:

No. The accused cannot raise the defense of double jeopardy because the offenses of estafa and illegal
recruitment are separate offenses even though they involve the same set of facts.

Res adjudicata is not applicable in the case at bar.

Q: For the multiple stab wounds sustained by the victim, Noel was charged with frustrated homicide in the
Regional Trial Court. Upon arraignment, he entered a plea of guilty to said crime. Neither the court nor the
prosecution was aware that the victim had died two days earlier on account of his stab wounds.

Zaldivia v. Reyes.

211

241

Because of his guilty plea, Noel was convicted of frustrated homicide and meted the corresponding penalty.
When the prosecution learned of the victim’s death, it filed within fifteen {15) days therefrom a motion to
amend the Information to upgrade the charge from frustrated homicide to consummated homicide. Noel
opposed the motion claiming that the admission of the amended Information would place him in double
jeopardy.

Resolve the motion with reasons. (4%) (2005 Bar Question) SUGGESTED ANSWER:

Amending the information from frustrated homicide to consummated homicide does not place the accused in
double jeopardy. The conviction of the accused shall not be a bar to another prosecution for an offense
which necessarily includes the offense charged in the former complaint or information when (a) the graver
offense developed due to supervening facts arising from the same act or omission constituting the former
charge; or (b) the facts constituting the graver charge became known or were discovered only after a plea
was entered in the former complaint or information. (Sec. 7, second par., Rule 117,2000 Rules of Criminal
Procedure). Here, when the plea to frustrated homicide was made, neither the court nor the prosecution
was aware that the victim had died two days earlier on account of his stab wounds.

The case falls under (b), since the facts constituting the graver charge became known or were discovered
only after a plea was entered in the former complaint or information.

Q: D was charged with slight physical injuries in the MTC. He pleaded not guilty and went to trial. After the
prosecution had presented its evidence, the trial court set the continuation of the hearing on another date.
On the date scheduled for hearing, the prosecutor failed to appear, whereupon the court, on motion of D,
dismissed the case. A few minutes later, the prosecutor arrived and opposed the dismissal of the case. The
court reconsidered its order and directed D to present his evidence. Before the next date of trial came,
however, D moved that the last order be set aside on the ground that the reinstatement of the case had
placed him twice in jeopardy. Acceding to this motion, the court again dismissed the case. The prosecutor
then filed an information in the RTC, charging D with direct assault based on the same facts alleged in the
information for slight physical injuries but with the added allegation that D inflicted the injuries out of
resentment for what the complainant had done in the performance of his duties as chairman of the board of
election inspectors. D moved to quash the second information on the ground that its filing had placed him in
double jeopardy. How should D's motion to quash be resolved? (4%) (2002 Bar Question)

SUGGESTEDANSWER:

D’s motion to quash should be granted on the ground of double jeopardy because the first offense charged
is necessarily included in the second offense charged. [Draculan v. Donato, 140 SCRA 425 (1985)].

ALTERNATIVE ANSWER:

D’s motion to quash should be denied because the two dismissals of the case against him were on his
motion (hence with his express consent) and his right to a speedy trial was not violated.

Q: For firing a machine gun which caused panic among the people present and physical

242
injuries to one, two separate informations (one for serious public disturbance and the other for reckless
imprudence resulting in physical injuries) were filed against the accused.

As he pleaded guilty to the charge of reckless imprudence resulting in physical injuries, the accused was
convicted and sentenced accordingly.

Later, the accused sought to dismiss the charge of serious public disturbance-on the ground of double
jeopardy.

Is there double Jeopardy? Why? (1993 Bar Question) Answer:

No, because the protection against double Jeopardy is only for the same offense. A single act may be an
offense against two different provisions of law and if one provision requires proof of an additional fact which
the other does not, an acquittal, or conviction under one does not bar prosecu- tion under the other.

In this case, the act of firing a machine gun violated two articles of the Revised Penal Code. Consequently,
conviction for one does not bar prosecution for the other. (People vs. Bacolod, 89 Phil. 621)

Alternative Answer:

Yes, because only one offense of reckless imprudence resulting in physical injuries and serious public
disturbance was committed.

Q: George was charged with falsification. On the date of initial trial, the fiscal moved for postponement on
the ground that the case had been assigned to a special prosecutor of the Department of Justice who was
out of town to attend to an urgent case, and who had wired him to request for postponement. The fiscal
manifested that he was not ready for trial because he was unfamiliar with the case. The judge then asked
the accused as well as his counsel whether they were amenable to a postponement. Both George and his
counsel insisted on a trial. The judge ordered the case dismissed.

Upon learning thereof, the special prosecutor filed a petition for certiorari under Rule 65 of the Rules of
Court alleging that the dismissal was capricious and deprived the Government of due process. George
opposed the petition, invoking double jeopardy.

. (a) Is double jeopardy a bar to the petition? Explain.

. (b) Suppose that trial on the merits had in fact proceeded and the trial judge, finding the

evidence to be insufficient, dismissed the case, would your answer be the same? Explain. (1988 Bar
Question)

Answer:

(a) No, because this is not an appeal by the prosecution asserting a dismissal to be erroneous. It is a
petition for certiorari which assails the order of dismissal as invalid and a nullity because it was capricious
and deprived the Government of due process. Considering that this was the first motion for postponement of
the trial filed by the fiscal and the ground was meritorious, the judge gravely abused his discretion in
ordering the case dismissed. If there is no valid dismissal or termination of the case, there is no basis for
invoking double jeopardy. (People vs. Gomez, 20 SCRA 293)

243

(b) No, because in such a case, the order of dismissal would be valid, even if erroneous, and would be
tantamount to an acquittal.

Q: The accused pleaded not guilty to the charge of less serious physical injuries. Before judgment, the fiscal
moved that he be allowed to file a new information against the accused for the graver crime of frustrated
murder it appearing that the injuries were inflicted with intent to kill. The defense objected upon the ground
that the charge for less serious physical injuries is included in the offense of frustrated murder and since he
had already pleaded to the lesser charge, the filing of a new information would constitute second jeopardy.
The prosecution replied that there would be no double jeopardy as the complaint will be dismissed upon the
filing of the information for frustrated murder, pursuant to Sec. 11, Rule 119 of the 1985 rules on Criminal
Procedure relevant to situations when mistake has been made in charging the proper offense. The fiscal
argued that the fact of the accused's intent to kill was discovered by the prosecution and the complainant
only during the trial of the case.

(a) Resolve the motion. Reasons.

(b) Suppose the intent to kill is indicated in the affidavits of the witnesses for the complainant which were
the basis for the filing of the complaint, would your resolution be different and if so, why? (1987 Bar
Question)

Answer:

(a) Motion denied. The charge of less serious physical injuries is necessarily included in the offense of
frustrated murder and under Sec. 11 of Rule 119 of the 1985 Rules on Criminal Procedure, the dismissal of
the original case upon the filing of the new one can only be done if the accused cannot be convicted of the
offense charged. In this case the accused can be convicted of less serious physical injuries. Moreover, the
dismissal of the original complaint upon the filing of a new one charging the proper offense can only be
done provided the accused would not be placed in double jeopardy. In this case the accused would be
placed in double jeopardy. (Sec. 14 of Rule 110; People vs. Mogul, 131 SCRA 296)

(b) Motion denied. With more reason should the motion be denied if the intent to kill is indicated in the
affidavits which were the basis for the filing of the complaint, because not only is the intent to kill not a new
supervening fact, but it is not even a subsequently discovered fact. (Sec. 7 of Rule 117)

Another Alternative Answer:

(a) Motion granted. While intent to kill is not a new supervening fact which constitutes an exception to the
rule on identity of offenses in double jeopardy (People vs. Besa, 74 Phil. 57), an additional exception has
been added in the 1985 Rules on Criminal Procedure; namely, when the facts constituting the graver charge
became known or were discovered only after the filing of the former complaint or information. In this case,
the intent to kill was discovered only during the trial of the case, and hence, a new complaint may be filed
for frustrated murder without placing the accused in double jeopardy* (Sec. 7 (b) of Rule 117)

244

(b) Motion denied. The resolution would be different, because in such case the intent to kill would not fall
under the additional exception of subsequently discovered fact.

4. Provisional dismissal

Q: Before the arraignment for the crime of murder, the private complainant executed an Affidavit of
Desistance stating that she was not sure if the accused was the man who killed her husband. The public
prosecutor filed a Motion to Quash the Information on the ground that with private complainant’s
desistance, he did not have evidence sufficient to convict the accused. On 02 January 2001, the court
without further proceedings granted the motion and provisionally dismissed the case. The accused gave his
express consent to the provisional dismissal of the case. The offended party was notified of the dismissal but
she refused to give her consent.

Subsequently, the private complainant urged the public prosecutor to refile the murder charge because the
accused failed to pay the consideration which he had promised for the execution of the Affidavit of
Desistance. The public prosecutor obliged and refiled the murder charge against the accused on 01 February

2003. The accused filed a Motion to Quash the Information on the ground that the provisional dismissal of
the case had already become permanent.

. (a) Was the provisional dismissal of the case proper?

. (b) Resolve the Motion to Quash. (2003 Bar Question)

SUGGESTED ANSWER:

(a) The provisional dismissal of the case was proper because the accused gave his express consent thereto
and the offended party was notified. It was riot necessary for the offended party to give her consent
thereto. (Sec. 8 of Rule 117).

(b) The motion to quash the information should be denied because, while the provisional dismissal had
already become permanent, the prescriptive period for filing the murder charge had not prescribed. There
was no double jeopardy because the first case was dismissed before the accused had pleaded to the charge.
(Sec. 7 of Rule 117).

ANOTHER ANSWER:

(b) The motion to quash the information should be denied because the dismissal has become permanent.
Provisional dismissal shall become permanent two years after issuance of the order and two years have
lapsed in this case (Sec. 8, Rule 117).

Q: After the requisite proceedings, the Provincial Prosecutor filed an Information for homicide against X. The
latter, however, timely filed a Petition for Review of the Resolution of the Provincial Prosecutor with the
Secretary of Justice who, in due time, issued a Resolution reversing the resolution of the Provincial
Prosecutor and directing him to withdraw the Information.

Before the Provincial Prosecutor could comply with the directive of the Secretary of Justice, the court issued
a warrant of arrest against X.

245

The Public Prosecutor filed a Motion to Quash the Warrant of Arrest and to Withdraw the Information,
attaching to it the Resolution of the Secretary of Justice. The court denied the motion.

(a) Was there a legal basis for the court to deny the motion?
(b) If you were the counsel for the accused, what remedies, if any, would you pursue?

(2003 Bar Question) SUGGESTED ANSWER:

a. Yes, there is a legal basis for the court to deny the motion to quash the warrant of arrest and to
withdraw the information. The court is not bound by the Resolution of the Secretary of Justice.
(Crespo v. Mogul, 151 SCRA 462 [1987]).

b. If I were the counsel for the accused, I would surrender the accused and apply for bail because the
offense is merely homicide, a non-capital offense. At the pre-trial, I would make a stipulation of
facts with the prosecution which would show that no offense was committed.

Q: In a prosecution for robbery against D, the prosecutor moved for the postponement of the first scheduled
hearing on the ground that he had lost his records of the case. The court granted the motion but, when the
new date of trial arrived, the prosecutor, alleging that he could not locate his witnesses, .moved for the
provisional dismissal of the case. If D's counsel does not object, may the court grant the motion of the
prosecutor? Why? (3%) (2002 Bar Question)

SUGGESTEDANSWER:

A. No, because a case cannot be provisionally dismissed except upon the express consent of the accused
and with notice to the offended party. (Rule 117, sec. 8).

Q: BC is charged with illegal possession of firearms under an Information signed by a Provincial Prosecutor.
After arraignment but before pre-trial, BC found out that the Provincial Prosecutor had no authority to sign
and file the information as it was the City Prosecutor who has such authority. During the pre-trial, BC moves
that the case against him be dismissed on the ground that the Information is defective because the officer
signing it lacked the authority to do so. The Provincial Prosecutor opposes the motion on the ground of
estoppel as BC did not move to quash the Information before arraignment. If you are counsel for BC. What
is your argument to refute the opposition of the Provincial Prosecutor? (5%) (2000 Bar Question)

SUGGESTED ANSWER:

I would argue that since the Provincial Prosecutor had no authority to file the information, the court did not
acquire Jurisdiction over the person of the accused and over the subject matter of the offense charged.
(Cudia v. Court of Appeals, 284 SCRA 173 [1999]. Hence, this ground is not waived if not raised in a motion
to quash and could be raised at the pre-trial. (Sec 8, Rule 117, Rules of Court).

246

J. Pre-trial

Q: Is pre-trial mandatory in all trial courts? Explain. (1989 Bar Question) Answer:

Pre-trial is mandatory in all trial courts in civil cases. (Sec. 1 of Rule 30). However, in criminal cases, pre-trial
may be held only when the accused and his counsel agree. (Sec. 1 of Rule 118).

In summary procedure, a preliminary conference is held in both civil and criminal cases. (Sec. 6 and 13)

1. Pre-trial agreement

Q: Bembol was charged with rape. Bembol’s father, Ramil, approached Artemon, the victim’s father, during
the preliminary investigation and offered P1 Million to Artemon to settle the case. Artemon refused the offer.

a) x x x

a) During the pre-trial, Bembol personally offered to settle the case for P1 Million to the private prosecutor,
who immediately put the offer on record in the presence of the trial judge. Is Bembol’s offer a judicial
admission of his guilt? (3%)(2008 Bar Question)

SUGGESTED ANSWER:

No. The offer is not a judicial admission of guilt because it has not been reduced in writing or signed by the
accused. The Rule on pre-trial in criminal cases (Rule 118, Sec. 2, Rules of Court) requires that all
agreements or admissions made or entered during the pre-trial conference shall be reduced in writing and
signed by the accused and counsel, otherwise, they cannot be used against the accused.

K. Trial
1. Trial in absentia

Q: Enumerate the requisites of a "trial in absentia" (2%) and a promulgation of judgment in absentia" (2%).
(2010 Bar Question)

SUGGESTED ANSWER:

The requisites of a valid trial in absentia are: (1) accused's arraignment; (2) his due notification of the trial;
and (3) his unjustifiable failure to appear during trial (Bemardo v. People, G.R. No. 166980, April 4, 2007).

The requisites for a valid promulgation of judgment are:

a) A valid notice of promulgation of judgment,

b) Said notice was duly furnished to the accused, personally or thru counsel;

c) Accused failed to appear on the scheduled date of promulgation of judgment despite due notice;

d) Such judgment be recorded in the criminal docket; and

e) Copy of said judgment had been duly served upon the accused or his counsel
247

Q: (1998 Bar Question)

1. What are the requisites of a trial in absentia? [2%]

2. If an accused who was sentenced to death escapes, is there still a legal necessity for

the Supreme Court to review the decision of conviction? (3%)

SUGGESTED ANSWER:

1. The requisites of trial in absentia are: (a) the accused hat already been arraigned; b) he has been duly
notified of the trial; and (c) his failure to appear is unjustifiable. (Sec. 14 (2], Article m, Constitution: Parada
us. Veneration, 269 SCRA 371 [1997].)

2. Yes. There is still a legal necessity for the Supreme Court to review the decision of conviction sentencing
the accused to death, because he is entitled to an automatic review of the death sentence. (Secs. 3(e) and
10, Rule 122, Rules of Criminal Procedure; People vs. Espargas, 260 SCRA 539.)

2. Remedy when accused is not brought to trial within the prescribed period

Q: Louise is being charged with the frustrated murder of Roy. The prosecution's lone witness. Mariter,
testified to having seen Louise prepare the poison which she later surreptitiously poured into Roy’s wine
glass. Louise sought the disqualification of Mariter as witness on account of her previous conviction for
perjury. (1994 Bar Question)

. 1) x x x

. 2) Can Mariter be utilized as state witness if she is a co-accused in the criminal case?

Answer:
1) xxx

2) Mariter, however, cannot be utilized as a state witness if she is a co-accused in a criminal case because
an accused can be discharged as a state witness if among five requirements, the accused has not at any
time been convicted of any offense involving moral turpitude. (Sec. 9, Rule 119).

3. Requisites for discharge of accused to become a state witness

Q: As counsel of an accused charged with homicide, you are convinced that he can be utilized as a state
witness. What procedure will you take? Explain. 2.5% (2006 Bar Question)

SUGGESTED ANSWER:

As counsel for the accused, I will advise my client to ask for a reinvestigation and convince the prosecutor
for him to move for the discharge of my client as a state witness, or the accused can apply as a state
witness with the Department of Justice pursuant to Rep. Act No. 6981, The Witness Protection, Security and
Benefit Act. The right to prosecute vests the prosecutor with a wide range of discretion, including what and
whom to charge (Soberano v. People, 472 SCRA 125 [2005]).

Q: Ana is the lone eyewitness to the brutal murder of Bruno allegedly committed by accused

248

Carlo. She deliberately refuses to appear on the scheduled dates for the taking of her testimony for fear of
reprisal from Carlo’s die-hard followers. (1994 Bar Question)

. 1) May Ana be ordered to post bail?

 . 2) May the court motu proprio order her to post bail?

. 3) How shall Ana be proceeded against if she refuses to give bail?

. 4) What protection may Ana avail if in case she decides to testify at the trial?

Answer:

1) Yes. Ana may be ordered to post bail. When the court is satisfied, upon proof or oath, that a material
witness will not testily when required, it may upon motion of either party order the witness to post ball in
such sum as may be deemed proper. (Sec. 14, Rule 119).

. 2) No. The rules require that the order to post bail is upon motion of either party. (Id.)

. 3) If Ana refuses to post bail, the court shall commit her to prison until she complies or is

legally discharged after her testimony has been taken. (Id.)

4) In case Ana decides to testify, she may avail of the benefits under the Witness Protection Act.

Q: Leo Cruz, Domingo Pablo and Manuel Galino are all charged with the crime of murder for the killing of
Bernardo Samis. The prosecutor moved for the discharge of Leo Cruz so that he may be utilized as a state
witness. The court denied the motion to discharge because while it found that there was compliance with
the requirements under subparagraphs a, b, c, and d. Section 9 of Rule 119, the court found non-
compliance with subparagraph e, it appearing that Cruz was convicted of theft three (3) months earlier by
the Municipal Court in Biñan, Laguna, which is an offense involving moral turpitude. The conviction is on
appeal before the Regional Trial Court in Calamba, Laguna.

Is the trial court correct in denying the motion to discharge on this ground? Decide with reasons. (1990 bar
Question)

Answer:

No, because the conviction of Cruz is still pending appeal before the Regional Trial Court of Laguna. Hence,
he is not disqualified from being discharged in order to be a state witness. (Mangubat v. Sandiganbayan,
143 SCRA 681)

4. Effects of discharge of accused as state witness

Q: (1988 Bar Question)

(a) A complaint was filed by the offended party against three persons for homicide in the Municipal Trial
Court. The fiscal filed with the Municipal Court a motion to discharge one of the defendants to be utilized as
witness in the preliminary investigation and at the trial of the case on the merits.

As the Municipal Trial Judge, rule on the motion with reasons.

(b) Raulo, accused of falsification of a public document, testified in his own behalf. On cross-examination, he
was asked to take dictation in his own writing for the purpose of

249

comparison. He refused.
May he be compelled to take the dictation? Explain. Answer: Answer:

(a) No, because the Municipal Trial Judge may only conduct a preliminary investigation of the homicide case.
Such a motion to discharge one of the defendants to be utilized as a witness for the prosecution may be
acted upon only by the court having jurisdiction to try the case on the merits. (U.S. vs. Inductivo, 40 Phil.
84)
(b) Yes, since Raulo voluntarily testified in his own behalf, he is subject to cross-examination on matters
covered by direct examination. (Sec. 1(d) of Rule 115) Whenever a defendant testifying in his own behalf,
denies that a certain writing or signature is in his own hand, he may on cross- examination be compelled to
writ in open court for the purpose of comparison. (Beltran vs. Samson, 53 Phil. 580, 574)

5. Demurrer to evidence

Q: State the rule on demurrer to evidence in the trial of criminal cases. (1989 Bar Question)

Answer:

After the prosecution has rested its case, the court may dismiss the case on the ground of insufficiency of
evidence: (1) on its own. motion after giving the prosecution an opportunity to be heard; or (2) on motion
of the accused filed with prior leave of court. If the court denies the motion for dismissal, the accused may
adduce evidence in his defense. When the accused files such motion to dismiss without express leave of
court, he waives the right to present evidence and submits the case for judgment on the basis of the
evidence for the prosecution. (Sec. 15 of Rule 119)

Q: Compare the effects of a denial of demurrer to evidence in a civil case with those of a denial of demurrer
to evidence in a criminal case. (2003 Bar Question)

SUGGESTED ANSWER:

In a civil case, the defendant has the right to file a demurrer to evidence without leave of court. If his
demurrer is denied, he has the right to present evidence. If his demurrer is granted and on appeal by the
plaintiff, the appellate court reverses the order and renders judgment for the plaintiff, the defendant loses
his right to present evidence. (Rule 33).

In a criminal case, the accused has to obtain leave of court to file a demurrer to evidence. If he obtains
leave of court and his demurrer to evidence is denied, he has the right to present evidence in his defense. If
his demurrer to evidence is granted, he is acquitted and the prosecution cannot appeal.

If the accused does not obtain leave of court and his demurrer to evidence is denied, he waives his right to
present evidence and the case is decided on the basis of the evidence for the prosecution.

The court may also dismiss the action on the ground of insufficiency of the evidence on its own initiative
after giving the prosecution the opportunity to be heard. (Sec. 23 of Rule 119)

250

A. After the prosecution rested its case in a criminal action for rape, the accused filed a demurrer to the
evidence.

a) If the court denies said motion, may the accused adduce evidence in his defense?

Answer:

A. (a) If the accused had obtained prior leave of court to file a demurrer to the evidence, he may adduce
evidence in his defense upon denial of his motion for dismissal.

However, if he had not obtained prior leave of court, he waives the right to present evidence and submits
the case for judgment on the basis of the evidence for the prosecution. (Sec. 15 of Rule 19 as amended)

b) Is the rule on demurrer to evidence the same in civil actions?

Answer:

b) No. In civil cases, the defendant has the right to adduce evidence if his motion for dismissal is denied.
However, if the motion is granted and the order of dismissal is reversed on appeal, he loses his right to
present evidence. (Sec. 1 of Rule 35)
Q: In an action for violation of Batas Pambansa Big. 22, the court granted the accused's demurrerto
evidence which he filed without leave of court. Although he was acquitted of the crime charged, he,
however, was required by the court to pay the private complainant the face value of the check. The accused
filed a Motion for Reconsideration regarding the order to pay the face value of the check on the following
grounds:

a) the demurrer to evidence applied only to the criminal aspect of the case; and
b) at the very least, he was entitled to adduce controverting evidence on the civil

liability.
Resolve the Motion for Reconsideration. (2003 Bar Question) SUGGESTED ANSWER:

a) The Motion for Reconsideration should be denied. The ground that the demurrer to evidence applied only
to the criminal aspect of the case was not correct because the criminal action for violation of Batas
Pambansa Big. 22 included the corresponding civil action. (Sec. 1(b) of Rule 111).

b) The accused was not entitled to adduce controverting evidence on the civil liability, because he filed his
demurrer to evidence without leave of court. (Sec. 23 of Rule 119).

Q: X and Y were charged with murder. Upon application of the prosecution, Y was discharged from the
Information to be utilized as a state witness. The prosecutor presented Y as witness but forgot to state the
purpose of his testimony much less offer it in evidence. Y testified that he and X conspired to kill the victim
but it was X who actually shot the victim. The testimony of Y was the only material evidence establishing the
guilt of X. Y was thoroughly cross- examined by the defense counsel. After the prosecution rested its case,
the defense filed a motion for demurrer to evidence based on the following grounds:

251

a) The testimony of Y should be excluded because its purpose was not initially stated and it was not formally
offered in evidence as required by Section 34, Rule 132 of the Revised Rules of Evidence: and

b) Y’s testimony is not admissible against X pursuant to the rule on “res inter alios acta", Rule on the motion
for demurrer to evidence on the above grounds. (2003 Bar Question) SUGGESTED ANSWER:
The demurrer to the evidence should be denied because:

a) The testimony of Y should not be excluded because the defense counsel did not object to his testimony
despite the fact that the prosecutor forgot to state its purpose or offer it in evidence. Moreover, the defense
counsel thoroughly cross-examined Y and thus waived the objection.

b) The res inter alios acta rule does not apply because Y testified in open court and was subjected to cross
examination.

Q: Carlos, the accused in a theft case, filed a demurrer to evidence without leave of court. The court denied
the demurrer to evidence and Carlos moved to present his evidence. The court denied Carlos' motion to
present evidence and instead rendered Judgment on the basis of the evidence for the prosecution.

Was the court correct in preventing Carlos from presenting his evidence and rendering judgment on the
basis of the evidence for the prosecution? Why? (5%) (2001 Bar Question)

SUGGESTED ANSWER:

Yes, because the demurrer to the evidence was filed without leave of court. The Rules provide that when
the demurrer to evidence is filed without leave of court, the accused waives the right to present evidence
and submits the case for judgment on the basis of the evidence for the prosecution. (Sec. 23 of Rule 119,
Revised Rules of Criminal Procedure)

Q: After the government has rested its case of Raul s trial for Qualified Theft. Raul, with leave of court, filed
a “Motion to Acquit" on the ground of lack of evidence proving his guilt beyond reasonable doubt. The
motion was denied on the ground that Raul should have filed a demurrer to evidence, not a “Motion to
Acquit.” On the same day, without giving him the opportunity to present his defense, Raul was convicted on
the basis of the evidence adduced by the prosecution. (1994 Bar Question)

. 1) Did the trial court correctly deny Raul's motion?

. 2) Was Raul’s conviction proper?

Answer:

1) No. The Court did not correctly deny Raul’s motion to acquit. Demurrer to the evidence and motion to
acquit are one and the same thing. Demurrer to the evidence is actually a motion to dismiss the case based
on the insufficiency of the evidence of the prosecution. If the court finds that the evidence is insufficient, it
may dismiss the case on that ground, and that amounts to an acquittal of the accused. (Sec. 15. Rule 119).

2) No. Raul’s conviction was not proper because he was not given the opportunity to present 252

his defense. The rule is that if the court denies the motion for dismissal filed with prior leave of court, the
accused may adduce evidence in his defense. It is only when the accused files such motion to dismiss
without express leave of court that he waives the right to present evidence and submits the case for
judgment on the basis of the evidence for the prosecution. (Id.)

Q: The information for illegal possession of firearm filed against the accused specifically alleged that he had
no license or permit to possess the caliber .45 pistol mentioned therein. In its evidence-in-chief, the
prosecution established the fact that the subject firearm was lawfully seized by the police from the
possession of the accused, that is, while the pistol was tucked at his waist in plain view, without the accused
being able to present any license or permit to possess the firearm. The prosecution on such evidence rested
its case and within a period of five days therefrom, the accused filed a demurrer to evidence, in sum
contending that the prosecution evidence has not established the guilt of the accused beyond reasonable
doubt and so prayed that he be acquitted of the offense charged.

The trial court denied the demurrer to evidence and deemed the accused as having waived his right to
present evidence and submitted the case for judgment on the basis of the prosecution evidence. In due
time, the court rendered judgment finding the accused guilty of the offense charged beyond reasonable
doubt and accordingly imposing on him the penalty prescribed therefor.

Is the judgment of the trial court valid and proper? Reason. (5%) (2004 Bar Question) SUGGESTED
ANSWER:

Yes. The judgment of the trial court is valid. The accused did not ask for leave to file the

demurrer to evidence. He is deemed to have waived his right to present evidence.

7 However, the judgment is not proper or is erroneous because there was no showing from the proper office
like the Firearms Explosive Unit of the Philippine National Police that the accused has a permit to own or
possess the firearm, which is fatal to the conviction of the accused. (Mallari

v. Court of Appeals & People ,265 SCRA 456[1996]).

Q: Facing a charge of Murder, X filed a petition for bail. The petition was opposed by the prosecution but
after hearing, the court granted ball to X. 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. X 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%]

2. If the answer to the preceding question is in the affirmative, can X adduce evidence in his defense after
the denial of his demurrer to evidence? [1%]
3. Without further proceeding and on the sole basis of the evidence of the prosecution, can the court legally
convict X for Murder? [2%] (1998 Bar Question)

SUGGESTED ANSWER:

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.

119; People v. Flores, 269 SCRA 62 [1997]; Bernardo v. Court of Appeals,

(Sec. 23 of Rule

2 78 SCRA

82

[1997]).

253

2. No. Because he filed the demurrer to the evidence without leave. (Sec. 15, Rule 119, Rules of Criminal
Procedure.) 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 for the accused. (People us. Flores, 269 SCRA 62.)

3. Yes. Without any evidence from the accused, the prima facie evidence of the prosecution has been
converted to proof beyond reasonable doubt.

ALTERNATIVE ANSWER:

If the evidence of guilt is not strong and beyond reasonable doubt then the court cannot legally convict X for
murder.

Q: A was charged with the crime of kidnapping with murder. After the prosecution rested its case, A filed a
demurrer to evidence on ground of Insufficiency of evidence to sustain his conviction. The prosecution filed
an opposition. The trial court denied the demurrer and the motion for reconsideration thereafter filed. A filed
a petition for certiorari with the Court of Appeals alleging that the denial of the demurrer to evidence, when
there is no evidence against him, constitutes grave abuse of discretion, and prayed that the Court of Appeals
render judgment acquitting him.

May the trial court's denial of the demurrer to evidence be properly assailed by a petition for certiorari in the
Court of Appeals? Explain. (1996 Bar Question)

Answer:

The question does not state that A had obtained prior leave of court to file a demurrer to evidence. Without
such leave of court, A has waived his right to present evidence and has submitted the case for judgment on
the basis of the evidence for the prosecution. (Sec. 15 of Rule 119)

Alternative Answer:

No, because the question of sufficiency of evidence to sustain a conviction may not be raised in a petition for
The remedy of A is to present his evidence and in the event of conviction to appeal.
89 SCRA 824)
Q: Geronimo was charged with homicide in the Regional Trial Court of Pasay City. After his plea of not
guilty, the prosecution presented its evidence and formally offered several exhibits. Before admitting or
objecting to the exhibits offered by the prosecution, Geronimo moved that the case be dismissed on the
ground of insufficiency of evidence. The court denied the motion. Thereafter, Geronimo called his first
witness to the stand. The prosecution objected, contending that Geronimo waived his right to present
evidence since he never asked leave of court to demur to the evidence presented by the prosecution.
Decide. (1989 Bar Question)

Answer:

certiorari.

[Joseph vs. Villaluz,

254

Objection overruled. The rule on waiver does not apply because the prosecution had not yet rested its case
when Geronimo moved to dismiss on the ground of insufficiency of evidence.

Q: After the prosecution had rested and made its formal offer of evidence, with the court admitting all of the
prosecution evidence, the accused filed a demurrer to evidence with leave of court. The prosecution was
allowed to comment thereon. Thereafter, the court granted the demurrer, finding that the accused could not
have committed the offense charged. If the prosecution files a motion for reconsideration on the ground that
the court order granting the demurrer was not in accord with the law and jurisprudence, will the motion
prosper? Explain your answer. (3%) (2009 Bar Question)

SUGGESTED ANSWER:

NO, the motion will not prosper. With the granting of the demurrer, the case shall be dismissed and the legal
effect is the acquittal of the accused. A judgment of acquittal is immediately executory and no appeal can be
made therefrom. Otherwise the Constitutional protection against double jeopardy would be violated.

L. Judgment

Q: AX was charged before the YY Regional Trial Court with theft of jewelry valued at P20.000, punishable
with imprisonment of up to 10 years of prision mayor under the Revised Penal Code. After trial, he was
convicted of the offense charged, notwithstanding that the material facts duly established during the trial
showed that the offense committed was estafa, punishable by imprisonment of up to eight years of prision
mayor under the said Code. No appeal having been taken therefrom, said judgment of conviction became
final.

Is the judgment of conviction valid? Is the said judgment reviewable thru a special civil action for certiorari?
Reason. (5%) (2004 Bar Question)

SUGGESTEDANSWER:

Yes, the judgment of conviction for theft upon an information for theft is valid because the court had
jurisdiction to render judgment. However, the judgment was grossly and blatantly erroneous. The variance
between the evidence and the judgment of conviction is substantial since the evidence is one for estafa
while the judgment is one for theft. The elements of the two crimes are not the same. (Lauro Santos v.
People, 181 SCRA 487). One offense does not necessarily include or is included in the other. (Sec. 5 of Rule
120).

The judgment of conviction is reviewable by certiorari even if no appeal had been taken, because the judge
committed a grave abuse of discretion tantamount to lack or excess of his jurisdiction in convicting the
accused of theft and in violating due process and his right to be informed of the nature and the cause of the
accusation against him, which make the judgment void. With the mistake in charging the proper offense, the
judge should have directed the filing of the proper information and thereafter dismissed the original
information. (Sec. 19 of Rule 119).
1. Promulgation of judgment; instances of promulgation of judgment in absentia

Q: X, the accused in a homicide case before the Regional Trial Court, Dagupan City, was personally notified
of the promulgation of judgment in his case set for 10 December 1996. On said dale, X was not present as
he had to attend to the trial of another criminal case

255

against him in Tarlac, Tarlac. The trial court denied the motion of the counsel of X to postpone the
promulgation.

. (a) How shall the court promulgate the judgment in the absence of the accused?

. (b) Can the trial court also order the arrest of X? (1997 Bar Question)

Answer:

(a) In the absence of the accused, the promulgation shall be made by recording, the Judgment in the
criminal docket and a copy thereof served upon the accused or counsel. (Sec. 6, third par., Rule 120)

(b) No. the trial court cannot order the arrest of X if the Judgment is one of acquittal and. in any event, his
failure to appear was with Justifiable cause since he had to attend to another criminal case against him. (Id.)

Q: The accused was duly notified of the date set for the promulgation of the decision in the case filed
against him. The accused failed to appear but his counsel was present. The judge ordered the cancellation
of the bailbond posted by the accused and issued a warrant for his arrest. The judge further ordered that
the promulgation of the decision be held' in abeyance until the accused is taken into custody. Was the action
taken by the judge proper? Explain fully. (1989 Bar Question)

Answer:

The judge correctly ordered the cancellation (forfeiture) of the bailbond posted by the accused and the
issuance of a warrant for his arrest upon his failure to appear for the promulgation of the decision in the
case filed against him.

However, the judge erred in holding in abeyance the promulgation of the decision until the accused is taken
into custody, because in such case the promulgation shall be made by recording the judgment in the
criminal docket and a copy shall be served upon the accused or counsel. (Sec. 6 of Rule 120)

Another acceptable Answer:

If the judgment was of conviction for a light offense, the promulgation should be made in the presence of
the counsel.

M. New trial or reconsideration

1. Requisites before a new trial may be granted on ground of newly-discovered evidence

Q: Give the requisites of: (1998 Bar Question)

1. Newly Discovered Evidence; and [3%]

2. xxx

SUGGESTED ANSWER:

1. The requisites of newly discovered evidence are: (a) the evidence was discovered after the trial; (b) such
evidence could not have been discovered and produced at the trial with reasonable

256
diligence; and (c) that it is material, not merely cumulative, corrobarative or impeaching, and is of such
weight that, if admitted, will probably change the judgment. (Commissioner of Internal Revenue vs. A.
Soriano Corporation, 267 SCRA 313.)

ALTERNATIVE ANSWER:

New and material evidence has been discovered which the accused could not with reasonable diligence have
discovered and produced at the trial, and which if introduced and admitted, would probably change the
judgment. (Sec. 2[b] of Rule 121.)

N. Appeal

1. Effect of appeal by any of several accused

Q: In an Information charging them of Murder, policemen A, B and C were convicted of Homicide. A

appealed from the decision but Band C did not. B started serving his sentence but C escaped and is at large.
In the Court of Appeals, A applied for bail but was denied. Finally, the Court of Appeals rendered a decision
acquitting A on the ground that the evidence pointed to the NPA as the killers of the victim.

1. xxx

2. Can B and C be benefited by the decision of the Court of Appeals? [13%] (1998 Bar

Question) SUGGESTED ANSWER: 1. xxx

2. B, who did not appeal, can be benefited by the decision of the Court of Appeals which is favorable and
applicable to him. (Sec. 11 [a]. Rule 122, Rules of Criminal Procedure.) The benefit will also apply to C even
if his appeal is dismissed because of his escape.

2. Grounds for dismissal of appeal

Q: After receiving the adverse decision rendered against his client, the defendant; Atty. Sikat duly filed a
notice of appeal. For his part, the plaintiff timely filed a motion for partial new trial to seek an increase in the
monetary damages awarded. The RTC instead rendered an amended decision further reducing the monetary
awards. Is it necessary for Atty. Sikat to file a second notice of appeal after receiving the amended decision?
(3%) (2008 Bar Question)

SUGGESTED ANSWER:

Yes, it is necessary for Atty. Sikat to file a second notice of appeal to the amended decision because a
substantial change was made to the original decision when the monetary awards were reduced in the
amended decision and in effect the amended decision superseded the original decision. A new notice of
appeal is required to comply with the required contents thereof in respect of the amended decision

Magdelana Estates, Inc. v. Caluag, 11 SCRA 333 [1964]).

(Pacific Life Assurance Corporation v. Sison, 299 SCRA 16 [1998];

257

O. Search and seizure

1. Nature of search warrant

Q: Bener was the driver of the car that the police searched and from where they seized a rifle and a number
of shells. Bener assails the legality of the search and seizure on the ground that he is not the owner of the
car nor of the seized items.
Rule on Bener’s contention? (1994 Bar Question) Answer:

Bener’s contention is not correct. The mere fact that he is not the owner of the car nor of the seized items
does not have any effect on the legality of the search. If Bener is accused of Illegal possession of firearms,
his defense would be that he is only the driver of the car and knows nothing of the seized items, and if the
seizure of the items was made without a search warrant, he can say that they were illegally obtained and
cannot be admissible in court.

2. Distinguish from warrant of arrest

Q: A was killed by B during a quarrel over a hostess in a nightclub. Two days after the incident, and upon
complaint of the widow of A, the police arrested B without a warrant of arrest and searched his house
without a search warrant.

(a) Can the gun used by B in shooting A. which was seized during the search of the house of B, be admitted
in evidence?

. (b) Is the arrest of B legal?

. (c) Under the circumstances, can B be convicted of homicide? (1997 Bar Question)

Answer:

(a) No. The gun seized during the search of the house of B without a search warrant is not admissible in
evidence. (Secs. 2 and 3(2). Art. III of Constitution). Moreover, the search was not an Incident to a lawful
arrest of a person under Sec. 12 of Rule 126.

(b) No. A warrantless arrest requires that the crime has in fact just been committed and the police arresting
has personal knowledge of facts that the person to be arrested has committed it. (Sec. 5, Rule 113). Here,
the crime has not just been committed since a period of two days had already lapsed, and the police
arresting has no such personal knowledge because he was not present when the incident happened. (Go us.
Court of Appeals, 206 SCRA 138).

(c) Yes. The gun is not indispensable in the conviction of A because the court may rely on testimonial or
other evidence.

Q: (1988 Bar Question)

. a) x x x

. b) May a house be searched without a search warrant?

. c) How about a person, may he be searched without warrant? Explain.

258

Answer:

a) xxx

b-c) A house may not be searched without a warrant in view of the constitutional prohibition against
unreasonable searches and seizures. However, a person who has lawfully been arrested may be searched
without a warrant, inasmuch as the search is incidental to a lawful arrest. (Sec. 12 of Rule 126)

Alternative Answer:

(b) A house may be searched without a search warrant:

. 1) with the consent of the owner;

 . 2) when the search is incidental to a lawful arrest but the scope shall be limited to the area

where the arrestee can reach for a weapon or for evidence in order to destroy it; and

3) when the object to be seized is within plain view of the arresting officer and possession thereof is illegal.

3. Particularity of place to be searched and things to be seized

Q: Police operatives of the Western Police District, Philippine National Police, applied for a search warrant in
the Regional Trial Court for the search of the house of Juan Santos and the seizure of an undetermined
amount of shabu. The team arrived at the house of Santos but failed to find him there. Instead, the team
found Roberto Co.

The team conducted a search in the house of Santos in the presence of Roberto Co and barangay officials
and found ten (10) grams of shabu. Roberto Co was charged in court with illegal possession of ten grams of
shabu.

Before his arraignment, Roberto Co filed a motion to quash the search warrant on the following grounds: (a)
he was not the accused named in the search warrant; and (b) the warrant does not describe the article to
be seized with sufficient particularity.

Resolve the motion with reasons. (4%) (2005 Bar Question) SUGGESTED ANSWER:

The motion to quash should be denied. The name of the person in the search warrant is not important. It is
not even necessary that a particular person be implicated (Mantaring v. Roman, 259 SCRA 158 [1996]), so
long as the search is conducted in the place where the search warrant will be served. Moreover, it is
sufficient to describe the shabu in an undetermined amount. Notably, what is to be seized is a particular
drug and an undetermined amount thereof particularizes the things to be seized. (People v. Tee, 395 SCRA
419 [2003]; People v. Dichoso, 223 SCRA 174, 184 [1993]).

4. Personal property to be seized

Q: In the course of serving a search warrant, the police finds an unlicensed firearm. Can the police take the
firearm even if it is not covered by the search warrant? If the warrant is subsequently quashed, is the police
required to return the firearm? Explain briefly. (5%)(2007 Bar Question)

259

SUGGESTED ANSWER:

Yes, the police may take with him the “unlicensed” firearm although not covered by the search warrant.
Possession of an “unlicensed firearm” is a criminal offense and the police officer may seize an article which is
the “subject of an offense.” This is especially so considering that the “unlicensed firearm” appears to be in
“plain view” of the police officer when he conducted the search.

Even if the warrant was subsequently quashed, the police is not mandated to return the “unlicensed
firearm.” The quashal of the search warrant did not affect the validity of the seizure of the “unlicensed
firearm.” Moreover, returning the firearm to a person who is not otherwise allowed by law to possess the
same would be tantamount to abetting a violation of the law.

Q: 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 Counsel. Individually rule on the
admissibility in evidence of the:
 . d) Rifle; [2%]

. e) x x x

. f) x x x (1998 Bar Question)

SUGGESTED ANSWER:

Waiver of Right to

4. 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. (People us. Encinada, G.R.
No. 116720, October 2, 1997 and other cases.)

5. xxx 6. xxx

5. Exceptions to search warrant requirement

a. Search incidental to lawful arrest

Q: In a buy-bust operation, the police operatives arrested the accused and seized from him a sachet of
shabu and an unlicensed firearm. The accused was charged in two Informations, one for violation of the
“Dangerous Drugs Act", as amended, and another for illegal possession of firearms.

The accused filed an action for recovery of the firearm in another court against the police officers with an
application for the issuance of a writ of replevin. He alleged in his Complaint that he was a military informer
who had been issued a written authority to carry said firearm. The police officers moved to dismiss the
complaint on the ground that the subject firearm was in custodia legis. The court denied the motion and
instead issued the writ of replevin.

(a) Was the seizure of the firearm valid? 260

(b) Was the denial of the motion to dismiss proper? (2003 Bar Question)

SUGGESTED ANSWER:

(a) Yes, the seizure of the firearm was valid because it was seized in the course of a valid arrest in a buy-
bust operation. (Sec. 12 and 13 of Rule 126) A search warrant was not necessary. {People v. Salazar, 266
SCRA 607 [1997]).

(b) The denial of the motion to dismiss was not proper. The court had no authority to issue the writ of
replevin whether the firearm was in custodia legis or not. The motion to recover the firearm should be filed
in the court where the criminal action is pending.

b. Plain view situation

Q: The search warrant authorized the seizure of “undetermined quantity of shabu.” During the service of the
search warrant, the raiding team also recovered a kilo of dried marijuana leaves wrapped in newsprint. The
accused moved to suppress the marijuana leaves as evidence for the violation of Section 11 of the
Comprehensive Dangerous Drugs Act of 2002 since they were not covered by the search warrant. The State
justified the seizure of the marijuana leaves under the “plain view” doctrine. There was no indication of
whether the marijuana leaves were discovered and seized before or after the seizure of the shabu. If you
are the judge, how would you rule on the motion to suppress? (4%) (2008 Bar Question)

SUGGESTED ANSWER:

The motion to suppress filed by the accused should be granted. The search warrant violates the
constitutional and statutory requirement that it should particularly describe the person or things to be seized
(Sec. 2, Art. Ill, Constitution; Sec. 2, Rule 126, Revised Rules of Criminal Procedure). The “plain view”
doctrine cannot be invoked because the marijuana leaves were wrapped in newsprint. Besides the marijuana
leaves are not the subject of the search warrant. There was no evidence as to whether the marijuana leaves
were discovered and seized before or after the seizure of the shabu. If they were discovered after the
seizure of the shabu, then they could not have been seized in plain view (Cf. People vs. Musa, GR No.
96177, January 27, 1997). The confiscation of the marijuana leaves must be upheld, (People v. Salunguit
Roberto y Ko, 356 SCRA 683 [200l]), hence rendering the same inadmissible in evidence against the
accused.

c. Stop and frisk situation

Q: What is a Terry search (or so-called “stop and frisk")? Is it justified under existing law and jurisprudence?
Explain. (1995 Bar Question)

Answer:

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.
(Aniag, Jr. vs. Comelec, 237 SCRA 424)

Alternative Answer:

261

A Terry search is one conducted without a search warrant and is designed either to determine the identity of
a suspicious individual or to maintain the status quo while the police officer is obtaining more information.
(Posadas vs. CA, 188 SCRA 288).

VI. Evidence

A. General principles

Q: Give the reasons underlying the adoption of the following rules of evidence: (1997 Bar Question)

. (a) Dead Man Rule?

. (b) Parol Evidence Rule

. (c) Best Evidence Rule

. (d) The rule against the admission of illegally obtained extrajudicial confession

. (e) The rule against the admission of an oiler of compromise in civil cases

Answer:
The reasons behind the following rules are as follows:

(a) Dead Man Rule: If death has closed the lips of one party, the policy of the law is to close the lips of the
other. (Goni v. Court of Appeals, L-77434. September 23.1986.144 SCRA 222). This is to prevent the
temptation to perjury because death has already sealed the lips of the party.

(b) Parol Evidence Rule: It is designed to give certainty to a transaction which has been reduced to writing,
because written evidence is much more certain and accurate than that which rests on fleeting memory only.
(Francisco, Revised Rules of Court, Vol. VII, Part I. p. 154)

(c) Best Evidence Rule: This Rule is adopted for the prevention of fraud and is declared to be essential to
the pure administration of Justice. (Moran, Vol. 5, p. 12.) If a party is in possession of such evidence and
withholds it, the presumption naturally arises that the better evidence is with- held for fraudulent purposes.
(Francisco, Revised Rules of Court vol. VII, Part I, pp. 121,122)

(d) An illegally obtained extrajudicial confession nullifies the intrinsic validity of the confession and renders it
unreliable as evidence of the truth. (Moran, vol. 5. p. 257). It is the fruit of a poisonous tree.
(e) The reason for the rule against the admission of an offer of compromise in civil case as an admission of
any liability is that parties are encouraged to enter into compromises. Courts should endeavor to persuade
the litigants in a civil case to agree upon some fair compromise. (Art. 2029, Civil Code). During pre-trial,
courts should direct the parties to consider the possibility of an amicable settlement. (Sec. 1 (a) of former
Rule 20: Sec. 2 (a) of new Rule 18).

Alternative Answer:

262

(b) The reason rests on a presumption of integration of jural acts which advocates that a written contract
merges or integrates all prior and contemporaneous negotiations and that the instrument has incorporated
all terms that the parties have agreed upon. (9 Wigmore,Sec. 2425 p. 75(1981 ed)

(a) This provides the constitutional right of the accused to protect himself against self- incrimination because
of the police dominated atmosphere.

Q: If the result of such test shows that he is HIV positive, and the prosecution offers such result in evidence
to prove the qualifying circumstance under the information for qualified rape, should the court reject such
result on the ground that it is the fruit of a poisonous tree? Explain. (8%)(2005 Bar Question)

SUGGESTED ANSWER:

The fruits of the poisonous tree doctrine applies only where the primary source is shown to have been
unlawfully obtained or was the result of an illegal act (People v. Alicando, G.R. No. 117487, 251 SCRA 293
[1995]) Since the rights of the accused are not violated because the compulsory testing is authorized by law,
the result of the testing cannot be considered to be the fruit of a poisonous tree and can be offered in
evidence to prove the qualifying circumstance under the information for qualified rape under Republic Act
No. 8353.

1. Admissibility of evidence

Q: Arrested in a buy-bust operation, Edmond was brought to the police station where he was informed of his
constitutional rights. During the investigation, Edmond (refused to give any statement. However, the
arresting officer asked Edmond to acknowledge in writing that six (6) sachets of “shabu” were confiscated
from him. Edmond consented and also signed a receipt for the amount of P3,000.00, allegedly representing
the “purchase price of the shabu.” At the trial, the arresting officer testified and identified the documents
executed and signed by Edmond. Edmond’s lawyer did not object to the testimony. After the presentation of
the testimonial evidence, the prosecutor made a formal offer of evidence which included the documents
signed by Edmond.

Edmond’s lawyer objected to the admissibility of the documents for being the “fruit of the poisoned tree.”
Resolve the objection with reasons. (3%) (2009 Bar Question)

SUGGESTED ANSWER:

The objection to the admissibility of the documents which the arresting officer asked Edmond to sign without
the benefit of counsel, is well-taken. Said documents having been signed by the accused while under
custodial investigation, imply an “admission” without the benefit of counsel, that the shabu came from him
and that the P3,000.00 was received by him pursuant to the illegal selling of the drugs. Thus, it was
obtained by the arresting officer in clear violation of Sec. 12(3), Art. Ill of the 1987 Constitution, particularly
the right to be assisted by counsel during custodial investigation.

Moreover, the objection to the admissibility of the evidence was timely made, i.e., when the same is formally
offered.

263

Q: The mutilated cadaver of a woman was discovered near a creek. Due to witnesses attesting that he was
the last person seen with the woman when she was still alive, Carlito was arrested within five hours after the
discovery of the cadaver and brought to the police station. The crime laboratory determined that the woman
had been raped. While in police custody, Carlito broke down in the presence of an assisting counsel and
orally confessed to the investigator that he had raped and killed the woman, detailing the acts he had
performed up to his dumping of the body near the creek. He was genuinely remorseful. During the trial, the
State presented the investigator to testify on the oral confession of Carlito. Is the oral confession admissible
as evidence, of guilt? (4%) (2008 Bar Question)

SUGGESTED ANSWER:

No, the oral confession is not admissible as evidence of guilt of Carlito because he was already under arrest
and in police custody when he made the extrajudicial confession but the mandates of Rep. Act No. 7438,
particularly Sections 2, par. (d), have not been complied with. Noncompliance with said par. (d) of the law
expressly renders the extrajudicial confession inadmissible as evidence in any proceeding.

He was not informed of his right to be warned and he was not informed of the Miranda right particularly the
right to remain silent. Additionally, it does not appear that counsel present is his counsel of his choice.

Q: 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 Counsel. Individually rule on the
admissibility in evidence of the:

. a) Rifle; [2%]

. b) Sworn Statement; and (2%]

. c) Waiver of Right to Counsel of X. [1%] (1998 Bar Question)

SUGGESTED ANSWER:

Waiver of Right to

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. (People us. Encinada, G.R.
No. 116720, October 2, 1997 and other cases.)

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. (People vs. Januario, 267 SCRA 608.)

3. The waiver of his right to counsel is not admissible because it was made without the assistance of counsel
of his choice. {People vs. Gomez, 270 SCRA433.)

264

Q: A sued for annulment of his marriage with B. During trial, A offered in evidence cassette tapes of alleged
telephone conversations o£ B with her lover. The tapes were recordings made by tapping A’s telephone line,
with A’s consent and obviously without B's or her lover's. B vehemently objected to their admission, on the
ground that neither B nor her lover consented to the wire tap. The court admitted the tapes, ruling that the
recorded conversations are nonetheless relevant to the issues involved.

Was the court correct in admitting the cassette tapes in evidence? Explain. (1996 Bar Question)

Answer:
No, because the tape recordings made by tapping A’s telephone line without the consent of B or that of her
lover was a violation of the Anti-Wire Tapping Law. (RA No. 4200; Salcedo-Ortanez vs. Court of Appeals, 235
SCRA 111)

Q: At the homicide trial, the prosecution proposed that accused Joey undergo a series of paraffin tests to
determine whether he fired his service pistol at the time the victim, Lyn, was shot to death. The defense
objected on the ground that Joey's submission of his hands for paraffin test, or the Inspection of any part of
his body for that matter, would violate his right against self-incrimination. (1994 Bar Question)

. 1) How would you rule on the objection?

. 2) Is the result of the paraffin test admissible in evidence?

Answer:

1) The objection should be overruled. Submission to the paraffin test is not a violation of the right against
self-incrimination because it involves only an examination of a part of the body. What violates the right
against self-incrimination is testimonial compulsion.

2) The result of the paraffin test is admissible in evidence although it is not conclusive and is not the only
evidence that should be considered.

a. Relevance of evidence and collateral matters

Q: On the basis of the testimonies of Narcom agents, James and Tony, who spearheaded the “buy-bust"
operation by posing as buyers after a tip from a civilian informer, Steve, Bob was convicted of violation of
the Dangerous Drugs Act. On appeal. Bob claims that he is entitled to an acquittal as the prosecution
willfully suppressed evidence in not presenting the informer, Steve, in court.

Decide Bob’s contention. (1994 Bar Question) Answer:

Bob’s contention is not correct. The prosecution could not be considered to have willfully suppressed
evidence in not presenting in court the informer in the buy-bust operation. The informer’s testimony is not
necessary in convicting Bob of violation of the Dangerous Drugs Act because there were the testimonies of
two (2) Narcom agents who spearheaded the operation.

265

2. Burden of proof and burden of evidence

Q: Distinguish clearly but briefly between:

1. Burden of proof and burden of evidence. (2004 Bar Question) SUGGESTED ANSWER:

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. (Sec. 1 of Rule 131), while burden of evidence
is the duty of a party to go forward with the evidence to overthrow primafacie evidence established against
him. (See

Q: Explain the equipoise doctrine in the law of evidence and cite its constitutional and procedural bases.
(1995 Bar Question)

Answer:

Equipoise is the equivalent of equiponderance of evidence. When the scale shall stand upon an equipoise
and there is nothing in the evidence which shall incline it to one side or the other, the court will find for the
defendant. (Moran, Vol. 6, p. 134)

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. (Sec. 1, Rule 131)

In a criminal case its constitutional basis is the presumption of innocence and the requirement of proof
beyond reasonable doubt for conviction.

3. Presumptions (Conclusive presumptions, Disputable presumptions)

Q: (1995 Bar Question)

1. In an illegal detainer case the Municipal Trial Court ruled in favor of plaintiff-lessor who, not being
satisfied with the increase of rentals granted him by the court, appealed praying for further increase thereof.
Defendant-lessee did not appeal.

. a) Can plaintiff-lessor, as appellant, move for execution pending appeal? Explain.

. b) Can defendant-lessee, as appellee, validly resist the immediate execution of

the judgment? Explain.

2. In his appellee's brief, defendant-lessee not only controverted the issue on rentals raised by plaintiff-
lessor but also assailed the judgment of the trial court on the ground that the same was totally contrary to
the admitted evidence showing him to be the owner of the property entitled to possession of the premises.

Can the appellate court consider the issue of ownership raised by the appellee? Discuss fully.

Answer:

1. a) Yes, if defendant fails to pay or deposit the amount of rentals adjudged by the court within the
reglementary period. (City of Manila vs. CA, 149 SCRA 143)

b) Yes, as long as he pays or deposits the amount of rental adjudged. 266

Bautista v. Sarmiento, 138 SCRA 587 [1985]).

2. No, because a lessee he is estopped from raising the question of ownership. (Art. 1456, Civil Code; Sec.
2(b), Rule 131; Fije vs. CA, 233 SCRA 587)

4. Liberal construction of the rules of evidence

Q: How shall the Rules of Court be construed? [2%] (199 Bar Question) Answer:

The Rules of Court should be liberally constructed in order to promote their objective of securing a Just,
speedy and inexpensive disposition of every action and proceeding. (Sec. 6, Rule 1, 1997 Rules of Civil
Procedure.)

Additional Answer:

However, strict observance of the rules is an imperative necessity when they are considered indispensable to
the prevention of needless delays and to the orderly and speedy dispatch of judicial business. (Alvero vs.
Judge de la Rosa. 76 Phil. 428 and other cases.)

5. Quantum of evidence (weight and sufficiency of evidence) a. Proof beyond reasonable doubt
b. Preponderance of evidence
c. Substantial evidence

d. Clear and convincing evidence

Q: Distinguish preponderance of evidence from substantial evidence. (2003 Bar Question) SUGGESTED
ANSWER:
Preponderance of evidence means that the evidence as a whole adduced by one side is superior to that of
the other. This is applicable in civil cases. (Sec. 1 of Rule 133; Municipality of Moncada v. Cajuigan, 21 Phil.
184 [1912]).

Substantial evidence is that amount of relevant evidence which a reasonable mind might accept as adequate
to justify a conclusion. This is applicable in cases filed before administrative or quasi-judicial bodies. (Sec. 5
of Rule 133)

B. Judicial notice and judicial admissions

1. Matters of judicial notice (Mandatory, Discretionary)
Q: (1997 Bar Question)
a) Give three instances when a Philippine court can take judicial notice of a foreign law. Answer:

(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 (Moran, Vol. 5, p. 34,1980 edition): (2) when the
foreign law refers to the law of nations (Sec. 1 of Rule 129) and, (3) when it

267

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. 4(5,
Rule 130).

2. Judicial admissions

a. How judicial admissions may be contradicted

Q: In an action for reconveyance of a parcel of land filed in the Regional Trial Court, the defendant, through
his lawyer, filed an answer therein admitting the averment in the com- plaint that the land was acquired by
the plaintiff through inheritance from his parents, the former owners thereof.

Subsequently, the defendant changed his lawyer and, with leave of court, amended the answer. In the
amended answer, the abovementioned admission no longer appears; instead, the alleged ownership of the
land by the plaintiff was denied coupled with the allegation that the defendant is the owner of the land for
the reason that he bought the same from the plaintiff’s parents during their lifetime.

After trial, the Regional Trial Court rendered a decision upholding the defendant’s ownership of the land.

On appeal, the plaintiff contended that the defendant is bound by the admission contained in his original
answer.

Is the contention of plaintiff correct? Why? (1993 Bar Question) Answer:

No, because pleadings that have been amended disappear from the record, lose their status as pleadings
and cease to be judicial admissions. While they mav nonetheless be utilized as against the pleader as
extrajudicial admissions, they must, in order to have such effect, be formally offered in evidence. [Director
of Lands vs. Court of Appeals, 196 SCRA 94)

Alternative Answer:

Yes, because an admission in the original pleading does not cease to be a judicial admission simply because
it was deleted in an amended pleading. The original answer, although replaced by an amended answer does
not cease to be part of a judicial record, not having been expunged therefrom. (Dissenting opinion in Torres
vs. Court of Appeals, 131 SCRA 24)

3. Judicial notice of foreign laws, law of nations and municipal ordinance

Q: In rendering a decision, should a court take into consideration the possible effect of its verdict upon the
political stability and economic welfare of the nation? (2003 Bar Question)
SUGGESTED ANSWER:

No, because a court is required to take into consideration only the legal issues and the evidence admitted in
the case. The political stability and economic welfare of the nation are extraneous to the case. They can
have persuasive influence but they are not the main factors that should be considered in deciding a case. A
decision should be based on the law, rules of procedure, justice and equity. However, in exceptional cases
the court

268

may consider the political stability and economic welfare of the nation when these are capable of being
taken into judicial notice of and are relevant to the case.

Q: Explain briefly whether the Regional Trial Court may, the following: (2005 Bar Question)

a) The street name of methamphetamine hydrochloride is shabu: SUGGESTED ANSWER:

The Regional Trial Court may take judicial notice of name of is considering the
chemical

222 SCRA 630 (1993]).

judicial notice of

fact that the street of shabu

motu proprio,

take

methamphetamine hydrochloride

motu proprio

shabu,

b) Ordinances approved by municipalities under its territorial jurisdiction; SUGGESTED ANSWER:

The RTC may take judicial notice of ordinances approved by municipalities under its territorial jurisdiction in
absence of statutory authority, except on appeal from the municipal trial courts which took judicial notice of
the ordinance in question. (U.S. 37 Phil. 126 [1917]; U.S. v. Hernandez, 31 Phil. 342 [1915]).

c) Foreign laws: SUGGESTED ANSWER:

The RTC may not generally take judicial notice of foreign laws (In re Estate of Johnson, 39 Phil. 156
[1918]); 54 Phil. 610 [1930]), which must be proved like any other matter of 16 Phil. 137 [1910]) except in
a few instances, when the court in the exercise of its sound judicial discretion, may take notice of foreign
laws where Philippine courts are evidently familiar with them, such as the Spanish Civil Code, which had
taken effect in the Philippines, and other allied legislation (Pardo v. Republic, 85 Phil. 324 [19507;Delgado v.
Republic, L-2546, [January 28, 1950]).

d) Rules and Regulations issued by quasi-judicial bodies implementing statutes; SUGGESTED ANSWER:

The RTC may take judicial notice of Rules and Regulations issued by quasi-judicial bodies implementing
statutes, because they are capable of unquestionabledemonstration. (Lalchand Chattamalv. Insular Collector
of Customs, G.R. No. 16347 [Nov. 3, 1920J).

e) Rape may be committed even in public places.

SUGGESTED ANSWER:

The RTC may take judicial notice of the fact that rape may be committed even in public places. The “public
setting" of the rape is not an indication of consent (People u. Tongson, 194 SCRA 257 [1991]). The Supreme
Court has taken judicial notice of the fact that a man overcome by perversity and beastly passion chooses
neither the time, place, occasion nor victim. (People v.

composition

(People v. Macasling,

not

Fluemerv. Hix,

the

v. Blanco,

fact (Sy Joe Lieng v. Sy Quia,

269

the

Barcelona, 191 SCRA 100 [1990]). Q: (1997 Bar Question)

a)

b)

c)

Answer:

Give three instances when a Philippine court can take judicial notice of a foreign law.

How do you prove a written foreign law?

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 (Moran, Vol. 5, p. 34,1980 edition): (2) when the
foreign law refers to the law of nations (Sec. 1 of Rule 129) 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. 4(5, 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 a 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 (Sec. 24, Rule
132, Zalamea v. CA, 228 SCRA 23).

c)

The presumption is that, the wordings of the foreign law are the same as the local law. 241 SCRA 192;
Moran, Vol. 6, page 34, 1980 edition; , 36 Phil. 472). This is known as the
processual

presumption.

(Northwest Orient Airlines v. Court of Appeals.

Urn v. Collector of Customs

Alternative Answers:

a) The Philippine court can also take judicial notice of a foreign law: 1) when the foreign statute is accepted
by the Philippine government. (Rep. v. Guanzon, 61 SCRA 360); 2) when a foreign judgment containing
foreign law is recognized for enforcement (Sec. 48, Rule 39); and 3) if it refers to common law doctrines and
rules from which many of our laws were derived (Alzua v. Johnson (21 Phil. 308]).

b) A written foreign law is proved by presenting a published treatise, periodical or pamphlet on said foreign
law if the court may take judicial notice, or a witness expert in the subject testifies, that the writer of the
statement in the treatise, periodical or pamphlet is recognized in his profes- sion or calling as expert in the
subject (Sec. 46, Rule 130).

270

C. Object (real) evidence

1. Nature of object evidence

Q: May a private document be offered and admitted in evidence both as documentary evidence and as
object evidence? Explain. (2005 Bar Question)

SUGGESTEDANSWER:

Yes. A private document may be offered and admitted in evidence both as documentary evidence and as
object evidence. A document can also be considered as an object for purposes of the case. Objects as
evidence are those addressed to the senses of the court. (Sec. 1, Rule 130, Rules of Court.) Documentary
evidence consists of writings or any material containing letters, words, numbers, figures, symbols or other
modes of written expressions, offered as proof of their contents. (Sec. 2, Rule 130, Rules of Court) A
tombstone may be offered in evidence to prove what is written on it and if the same tombstone is found on
a tomb, then it is object evidence. It can be considered as both documentary and object evidence. (See
Gupit, Jr., Revised Rules of Evidence, 1989, p. 12.)

Q: At the trial of Ace for violation of the Dangerous Drugs Act, the prosecution offers in evidence a
photocopy of the marked P100.00 bills used in the "buy-bust" operation. Ace objects to the introduction of
the photocopy on the ground that the Best Evidence Rule prohibits the introduction of secondary evidence in
lieu of the original. (1994 Bar Question)

. 1) Is the photocopy real (object) evidence or documentary evidence?

. 2) Is the photocopy admissible in evidence?

Answer:
1) The photocopy of the marked bills is real (object) evidence not documentary evidence, because the
marked bills are real evidence.

2) Yes, the photocopy is admissible in evidence, because the best evidence rule does not apply to object or
real evidence. [People v. Tandoy, 192 SCRA 28).

2. Rule on DNA Evidence (A.M. No. 06-11-5-SC)

a. Assessment of probative value of DNA evidence and admissibility

Q: In a prosecution for rape, the defense relied on Deoxyribonucleic Acid (DNA) evidence showing that the
semen found in the private part of the victim was not identical with that of the accused's. As private
prosecutor, how will you dispute the veracity and accuracy of the results of the DNA evidence? (3%)

SUGGESTED ANSWER:

As private prosecutor, I shall try to discredit the results of the DNA test by questioning and possibly
impugning the integrity of the DNA profile by showing a flaw/error in obtaining the biological sample, or in
the chain of custody of the biological sample obtained; the testing methodology employed; the scientific
standard observed; the forensic DNA laboratory which conducted the test; and the qualification, training and
experience of the forensic laboratory personnel who conducted the DNA testing.

271

Q: TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your
answer in not more than two (2) sentences. (5%)

(a) The Vallejo standard refers to jurisprudential norms considered by the court in assessing the probative
value of DNA evidence. (2009 Bar Question)

SUGGESTED ANSWER:

TRUE. In People v. Vallejo, 382 SCRA192 (2002), it was held that in assessing the probative value of DNA
evidence, courts should consider, among others things, the following data: how the samples were collected,
how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing
the samples, whether the proper standards and procedures were followed in conducting the tests, and the
qualification of the analyst who conducted the tests.

D. Documentary evidence

1. Meaning of documentary evidence

Q: May a private document be offered and admitted in evidence both as documentary evidence and as
object evidence? Explain. (2005 Bar Question)

SUGGESTEDANSWER:

Yes. A private document may be offered and admitted in evidence both as documentary evidence and as
object evidence. A document can also be considered as an object for purposes of the case. Objects as
evidence are those addressed to the senses of the court. (Sec. 1, Rule 130, Rules of Court.)

Documentary evidence consists of writings or any material containing letters, words, numbers, figures,
symbols or other modes of written expressions, offered as proof of their contents. (Sec. 2, Rule 130, Rules
of Court) A tombstone may be offered in evidence to prove what is written on it and if the same tombstone
is found on a tomb, then it is object evidence. It can be considered as both documentary and object
evidence. (See Gupit, Jr., Revised Rules of Evidence, 1989, p. 12.)

2. Best Evidence Rule

a. Meaning of the rule
Q: State or explain briefly the Best Evidence Rule. (1988 Bar Question) Answer:
The Best Evidence Rule provides that there can be no evidence of a writing the contents of which is the
subject of inquiry, other than the original writing itself, except in the following cases:

. 1) When the original has been lost, destroyed, or cannot be produced in court;

. 2) When the original is in the possession of the party against whom the evidence is offered,

and the latter fails to produce it after reasonable notice;

. 3) When the original is a record or other document in the custody of a public officer;

. 4) When the original has been recorded in an existing record a certified copy of which is made

evidence by law;

5) When the original consists of numerous accounts or other documents which cannot be examined in court
without great loss of time and the fact sought to be established from them is only

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the general result of the whole. (Sec. 2 of Rule 130)

b. When applicable

Q: Why is the “Best Evidence Rule" often described as a misnomer? (1994 Bar Question) Answer:

The best evidence rule is a misnomer because it merely requires the best evidence available and. in the
absence thereof; allows the introduction of secondary evidence.

Alternative Answer:

The best evidence rule is a misnomer because it is applicable only to documentary evidence and not to
testimonial and object evidence.

Q: At the trial of Ace for violation of the Dangerous Drugs Act, the prosecution offers in evidence a
photocopy of the marked P100.00 bills used in the "buy-bust" operation. Ace objects to the introduction of
the photocopy on the ground that the Best Evidence Rule prohibits the introduction of secondary evidence in
lieu of the original. (1994 Bar Question)

. 1) x x x

. 2) Is the photocopy admissible in evidence?

Answer:

1) xxx

2) Yes, the photocopy is admissible in evidence, because the best evidence rule does not apply to object or
real evidence. [People v. Tandoy, 192 SCRA 28).

c. Requisites for introduction of secondary evidence

Q: Ajax Power Corporation, a utility company, sued in the Regional Trial Court to enforce a supposed right of
way over a property owned by Simplicio. At the ensuing trial, Ajax presented its retired field auditor who
testified that he know for a fact that a certain sum of money was periodically paid to Simplicio for some time
as consideration for a right of way pursuant to a written contract. The original contract was not presented.
Instead, a purported copy, identified by the retired field auditor as such, was formally offered as part of his
testimony. Rejected by the trial court, it was finally made the subject of an offer of proof by Ajax.
Can Ajax validly claim that it had sufficiently met its burden of proving the existence of the contract
establishing its right of way? Explain. (1992 Bar Question)

Suggested Answer:

No, Ajax had not sufficiently met its burden of proving the existence of the written contract because it had
not laid the basis for the admission of a purported copy thereof as secondary evidence. Ajax should have
first proven the execution of the original document and its loss or destruction. (Sec. 5 of Rule 130)

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Q: Defendant was declared in default by the Regional Trial Court (KTC). Plaintiff was allowed to present
evidence in support of his complaint. Photocopies of official receipts and original copies of affidavits were
presented in court, identified by plain tiff on the witness stand and marked as exhibits. Said documents were
offered by plaintiff and admitted in evidence by the court on the basis of which the RTC rendered judgment
in favor of the plaintiff, pursuant to the relief prayed for. Upon receipt of the judgment, defendant appeals
to the Court of Appeals claiming that the judgment is not valid because the RTC based its judgment on mere
photocopies and affidavits of persons not presented in court.

. a) Is the claim of defendant valid? Explain. (3%)

. b) Will your answer be the same if the photocopies of official receipts and photocopies

of affidavits were attached to the position paper submitted by plaintiff in an action for unlawful detainer filed
with the Municipal Trial Court on which basis the court rendered Judgment in favor of plaintiff? Explain.
(2%) (2000 Bar Question)

SUGGESTED ANSWER:

a) The claim of defendant is not valid because under the 1997 Rules, reception of evidence is not required.
After a defendant is declared in default, the court shall proceed to render Judgment granting the claimant
such relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit
evidence, which may be delegated to the clerk of court. (Sec. 3, Rule 9, 1997 Rules of Civil Procedure)

ALTERNATIVE ANSWER:

The claim of defendant is valid, because the court received evidence which it can order in its own discretion,
in which case the evidence of the plaintiff must pass the basic requirements of admissibility.

SUGGESTED ANSWER:

b) The claim of defendant is valid, because although summary procedure requires merely the submission of
position papers, the evidence submitted with the position paper must be admissible in evidence. (Sec. 9 of
the Revised Rule on Summary Procedure). Photocopies of official receipts and affidavits are not admissible
without proof of loss of the originals. (Sec. 3 of Rule 130)

Q: When A loaned a sum of money to B, A typed a single copy of the promissory note, which they both
signed. A made two photo (xeroxed) copies of the promissory note, giving one copy to B and retaining the
other copy. A entrusted the typewritten copy to his counsel for safekeeping. The copy with A’s counsel was
destroyed when the law office was burned.

(a) In an action to collect on the promissory note, which is deemed to be the "original" copy for the purpose
of the "Best Evidence Rule"?

(b) Can the photocopies in the hands of the parties be considered "duplicate original copies"?

(c) As counsel for A, how will you prove the loan given to A and B? (1997 Bar Question) Answer:
(a) The copy that was signed and lost is the only original" copy for purposes of the Best

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Evidence Rule. (Sec. 4[b] of Rule 130).

(b) No. They are not duplicate original copies because there are photocopies which were not signed
(Mahilum v. Court of Appeals, 17 SCRA 462). They constitute secondary evidence. (Sec. 5 of Rule 130).

(c) The loan given by A to B may be proved by secondary evidence through the xeroxed copies of the
promissory note. The rules provide that when the original document is lost or destroyed, or cannot be
produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability
without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some
authentic document, or by the testimony of witnesses in the order stated. (Sec. 5 of Rule 130).

Q: When is an electronic evidence regarded as being the equivalent of an original document under the Best
Evidence Rule? (2003 Bar Question)

SUGGESTED ANSWER:

An electronic document shall be regarded as the equivalent of an original document under the Best Evidence
Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately. (Sec.
1 of Rule 4)

3. Rules on Electronic Evidence (A.M. No. 01-7-01-SC)

a. Scope; coverage; meaning of electronic evidence; electronic data message

Q: TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your
answer in not more than two (2) sentences. (5%)

. [a] xx x

. [b] xx x

. [c] xx x

. [d] An electronic document is the equivalent of an original document under the Best

Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data
accurately. (2009 Bar Question)

SUGGESTED ANSWER:

TRUE. This statement is embodied in Sec.l, Rule 4 of A.M. No. 01-7-01-SC, re: Rules on Electronic Evidence.

Q: While window-shopping at the mall on August 4, 2008, Dante lost his organizer including his credit card
and billing statement. Two days later, upon reporting the matter to the credit card company, he learned that
a. one-way airplane ticket was purchased online using his credit card for a flight to Milan in mid-August
2008. Upon extensive inquiry with the airline company, Dante discovered that the plane ticket was under the
name of one Dina Meril. Dante approaches you for legal advice.

275

A. xxx

B. Suppose an Information is filed against Dina on August 12, 2008 and she is

immediately arrested. What pieces of electronic evidence will Dante have to secure in order to prove the
fraudulent online transaction? (2%) (2010 Bar Question)

SUGGESTED ANSWER:

He will have to present (a) his report to the bank that he lost his credit card (b) that the ticket was
purchased after the report of the lost add.(c) the purchase of one-way ticket.
Dante should bring an original (or an equivalent copy) printout of: 1)the online ticket purchase using his
credit card; 2) the phone call log to show that he already alerted the credit card company of his loss; and 3)
his credit card billing statement-bearing the online ticket transaction.

b. Probative value of electronic documents or evidentiary weight; method of proof

Q: State the rule on the admissibility of an electronic evidence. (2003 Bar Question) SUGGESTED ANSWER:

Whenever a rule of evidence refers to the term writing, document, record, instrument, memorandum or any
other form of writing, such term shall be deemed to include an electronic document as defined in these
Rules. (Sec. 1 of Rule 3, Rules on Electronic Evidence effective August 1,2001).

An electronic document is admissible in evidence if it complies with the rules on admissibility prescribed by
the Rules of Court and related laws and is authenticated in the manner prescribed by these Rules. (Sec. 2 of
Rule 3, Id.). The authenticity of any private electronic document must be proved by evidence that it had
been digitally signed and other appropriate security measures have been applied. (Sec. 2 of Rule 5, Id.).

4. Parol Evidence Rule

Q: State or explain briefly the Parol Evidence Rule. (1988 Bar Question)

The Parol Evidence Rule provide that when the terms of an agreement have been reduced to writing, it is to
be considered as containing all such terms, and, therefore, there can be, between the parties and their
successors in interest, no evidence of the terms of the agreement other than the contents of the writing,
except in the following cases:

1) Where a mistake or imperfection of the writing, or its failure to express the true intent and agreement of
parties, or the validity of the agreement is put in issue by the pleadings;

2) When there is an intrinsic ambiguity in the writing. The term “agreement” includes wills. (Sec. 7 of Rule
130)

a. Application of the parol evidence rule

Q: Pedro filed a complaint against Lucio for the recovery of a sum of money based on a promissory note
executed by Lucio. In his complaint, Pedro alleged that although the promissory note says that it is payable
within 120 days, the truth is that the note Is payable immediately after 90 days but that if Pedro is willing,
he may, upon request of Lucio give the

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latter up to 120 days to pay the note. During the hearing, Pedro testified that the truth is that the
agreement between him and Lucio is for the latter to pay immediately after ninety day's time. Also, since the
original note was with Lucio and the latter would not surrender to Pedro the original note which Lucio kept
In a place about one day's trip from where he received the notice to produce the note and in spite of such
notice to produce the same within six hours from receipt of such notice, Lucio failed to do so. Pedro
presented a copy of the note which was executed at the same time as the original and with identical
contents.

a) Over the objection of Lucio, will Pedro be allowed to testify as to the true agreement or contents of the
promissory note? Why? (2%)

b) Over the objection of Lucio, can Pedro present a copy of the promissory note and have it admitted as
valid evidence in his favor? Why? (3%) (2001 Bar Question)

SUGGESTED ANSWER:

a) Yes, because Pedro has alleged in his complaint that the promissory note does not express the true intent
and agreement of the parties. This is an exception to the parol evidence rule. [Sec. 9(b) of Rule 130, Rules
of Court)
b) Yes. The copy in the possession of Pedro is a duplicate original because it was executed at the same time
as the original and with identical contents. [Sec. 4 (b) of Rules 130). Moreover, the failure of Lucio to
produce the original of the note is excusable because he was not given reasonable notice, a requirement
under the Rules before secondary evidence may be presented. (Sec. 6 of Rule 130, Rules of Court) ,

Note: The promissory note is an actionable document and the original or a copy thereof should have been
attached to the complaint. (Sec. 7 of Rule 8, 1997 Rules of Civil Procedure) In such a case, the genuineness
and due execution of the note, if not denied under oath, would be deemed admitted. (Sec. 8 of Rule
9,1997Rules of Civil Procedure)

5. Authentication and proof of documents

a. When evidence of authenticity of a private writing is not required (ancient documents)

Q: In the trial court of a case on July 5, 1990, plaintiff offered in evidence a receipt dated July 7, 1959
issued by defendant company which was found in a cabinet for receipts of payment. It is without any
blemish or alteration. As no witness testified on the execution and authenticity of the document, defendant
moved for the exclusion of this receipt notwithstanding that it is a private writing.

Should the said motion be granted? Explain your answers. (1990 Bar Question) Answer:

No, because when a private document is more than thirty years old and is produced from custody in which it
would naturally be found if genuine and is unblemished by any alterations or circumstances of suspicion, no
other evidence of its authenticity need be given. (Sec. 21 of Rule 132)

b. Public documents as evidence; proof of official record

Q: In a civil case, plaintiff filed on April 19, 1991, an ex parte motion for execution of 277

judgment. Upon receiving it, the presiding judge examined the record and Issued on the same day an order
granting the motion since, as stated in his order, “the Judgment is now final and executory because the
sheriffs return shows that the decision was property served upon the defendant on April 3, I99i, and no
appeal was perfected on time." The defendant then filed a motion to set aside the order of execution,
contending that the order is void on two grounds: (1) it violates the rule on three-day notice for motions;
and (2) the date of service, April 3,1991, entered in the sheriffs return is a typographical error because
service was actually made on April 8. 1991, so that when the court ordered execution on April 19,1991, the
decision was not yet final and executory.

At the hearing of the motion, the defendant cited several cases on the heed to notify the adverse party
before a contentious motion can be resolved. He further argued that the sheriff’s return, being hearsay, has
to be confirmed by the sheriff on the witness stand when an entry therein is assailed, because in that
situation the proponent of the return has the burden of proving its correctness. This cannot be done unless
the sheriff testifies in court and is correspondingly subjected to cross-examination. The sheriff was not
presented in court as a witness.

Decide the motion to set aside the order of execution, with reasons. (1992 Bar Question) Suggested Answer:

Motion to set aside order of execution denied.

A motion for execution of a final and executory judgment is not a contentious motion that requires a three-
day notice before resolution. Such a motion may be granted

& Insurance Co. vs. Hernandez, 67 SCRA 256)

The sheriff’s return is a public document made in the performance of a duty by a public officer and is prima
facie evidence of the facts stated therein. (Sec. 23 of Rule 132) Hence there was no need for the sheriff to
testify unless defendant had presented evidence contradicting the sheriff’s return.

c. Proof of lack of record

Q: X was charged with robbery. On the strength of a warrant of arrest issued by the court, X was arrested
by police operatives. They seized from his person a handgun. A charge for illegal possession of firearm was
also filed against him. In a press conference called by the police, X admitted that he had robbed the victim
of jewelry valued at P500.000.00.

The robbery and illegal possession of firearm cases were tried jointly. The prosecution presented in evidence
a newspaper clipping of the report to the reporter who was present during the press conference stating that
X Admitted the robbery. It likewise presented a certification of the PNP Firearms and Explosives Office
attesting that the accused had no license to carry any firearm. The certifying officer, however, was not
presented as a witness. Both pieces of evidence were objected to by the defense.

. (a) Is the newspaper clipping admissible in evidence against X?

. (b) Is the certification of the PNP Firearm and Explosives Office without the certifying

officer testifying on it admissible in evidence against X? (2003 Bar Question)

SUGGESTED ANSWER:
(a) Yes, the newspaper clipping is admissible in evidence against X. Regardless of the truth or

ex parte.

(Far Eastern Surety

278

falsity of a statement, the hearsay rule does not apply and the statement may be shown where the fact that
it is made is relevant. Evidence as to the making of such statement is not secondary but primary, for the
statement itself may constitute a fact in issue or be circumstantially relevant as to the existence of such fact.
(Gotesco Investment Corporation vs. Chatto, 210 SCRA 18 [1992]).

(b) Yes, the certification is admissible in evidence against X because a written statement signed by an officer
having the custody of an official record or by his deputy that after diligent search no record or entry of a
specified tenor is found to exist in the records of his office, accompanied by a certificate as above provided,
is admissible as evidence that the records of his office contain no such record or entry. (Sec. 28 of Rule
132).

E. Testimonial evidence

1. Qualifications of a witness

Q: Al was accused of raping Lourdes. Only Lourdes testified on how the crime was perpetrated. On the other
hand, the defense presented Al’s wife, son and daughter to testify that A1 was with them when the alleged
crime took place. The prosecution interposed timely objection to the testimonies on the ground of obvious
bias due to the witnesses’ close relationship with the accused.

If you were the Judge:

. 1) How would you rule on the objection?

. 2) Will the fact that the version of the defense is corroborated by three witnesses suffice

to acquit Al? Why? (1994 Bar Question)

Answer:

1) If I were the Judge, I would overrule the objection. Close relationship to a party is not a ground to
disqualify a witness. (Sec. 20. Rule 130)

2) No. Witnesses are not numbered but weighed. Positive identification prevails over the defense of alibi.
Alibi is easily fabricated and must be proved clearly and convincingly. (People v. Gani. 139 SCRA 301 [1985])
Q: Louise is being charged with the frustrated murder of Roy. The prosecution's lone witness. Mariter,
testified to having seen Louise prepare the poison which she later surreptitiously poured into Roy’s wine
glass. Louise sought the disqualification of Mariter as witness on account of her previous conviction for
perjury. (1994 Bar Question)

1)
2) Answer:

1)

Rule on Louise’s contention.

Can Mariter be utilized as state witness if she is a co-accused in the criminal case?

The contention of Louise is not correct. Mariter cannot be disqualified from being a witness on account of
her previous conviction of perjury. Previous conviction is not a disqualification because, in this case, it is not
so provided by law. (Sec. 20, Rule 130).

279

2) Mariter, however, cannot be utilized as a state witness if she is a co-accused in a criminal case because
an accused can be discharged as a state witness if among five requirements, the accused has not at any
time been convicted of any offense involving moral turpitude. (Sec. 9, Rule 119).

2. Competency versus Credibility of a witness

Q: Distinguish clearly but briefly between:

1. xx x

2. Competency of the witness and credibility of the witness.

3. Legislative facts and adjudicative facts.(2004 Bar Question)

SUGGESTED ANSWER: 1. xxx

2. Competency of the witness refers to a witness who can perceive, and perceiving, can make known his
perception to others (Sec. 20 of Rule 130), while credibility of the witness refers to a witness whose
testimony is believable.

3. Legislative facts refer to facts mentioned in a statute or in an explanatory note, while adjudicative facts
are facts found in a court decision.

3. Disqualifications of witnesses
a. By reason of mental capacity or immaturity b. By reason of marriage

Q: On March 12, 2008, Mabini was charged with Murder for fatally stabbing Emilio. To prove the qualifying
circumstance of evident premeditation, the prosecution introduced on December 11, 2009 a text message,
which Mabini's estranged wife Gregoria had sent to Emilio on the eve of his death, reading: "Honey,
pa2tayin u ni Mabini. Mtgaln nyang plano i2. Mg ingat u bka ma tsugi k." (2010 Bar Question)

A. A subpoena ad testificandum was served on Gregoria. For her to be presented for the purpose of
identifying her cellphone and the text message. Mabini objected to her Presentation on the ground of marital
privilege. Resolve. (3%)

SUGGESTED ANSWER:

The objection should be sustained on the ground of the marital disqualification rule (Rule 130, Sec. 22); not
on the ground of the "marital privilege" communication rule. (Rule 130, Sec. 24). The marriage between
Mabini and Gregoria is still subsisting and the situation at bar does not come under the exceptions to the
disqualification by reason of marriage.

B. Suppose Mabini's objection in question A was sustained. The prosecution thereupon announced that it
would be presenting Emilio's wife Graciana to' identify Emilio's cellphone bearing Gregoria's text message.
Mabini objected again. Rule on the objection. (2%)

SUGGESTED ANSWER:

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The objection should be overruled. The testimony of Graciana is not covered by the said marital
disqualification rule because she is not the wife of Mabini. Besides, Graciana will identify only the cellphone
as that of her husband Emilio, not the messages therein which to her are hearsay.

Q: Leticia was estranged from her husband Paul for more than a year due to his suspicion that she was
having an affair with Manuel, their neighbor. She was temporarily living with her sister in Pasig City.

For unknown reasons, the house of Leticia's sister was burned, killing the latter. Leticia survived. She saw
her husband in the vicinity during the incident. Later, he was charged with arson in an Information filed with
the Regional Trial Court, Pasig City.

During the trial, the prosecutor called Leticia to the witness stand and offered her testimony to prove that
her husband committed arson.

Can Leticia testify over the objection of her husband on the ground of marital privilege? 5% (2006 Bar
Question)

SUGGESTED ANSWER:

Yes, Leticia can testify over the objection her husband. As a general rule, neither the husband nor the wife,
during their marriage, may testify for or against the other without the consent of the affected spouse,
except in civil case by one against the other, or in a criminal case for a crime committed by one against the
other or the latter’s direct descendants or ascendants (Rule 130t sec. 22, Revised Rules on Evidence). In a
number of cases, it has been held that the marital disqualification is aimed at protecting the harmony and
confidences of marital relations; hence, where the marital and domestic relations are so strained that there
is no more harmony to be preserved nor peace and tranquility which may be disturbed, the marital
disqualification no longer applies.

The act of Paul in setting fire to the house of his sister-in-law, knowing fully well that his wife was there, is
an act totally alien to the harmony and confidences of marital relation which the disqualification primarily
seeks to protect. The criminal act complained of had the effect of directly and vitally impairing the conjugal
relation. It underscored the fact that the marital and domestic relations between her and the accused-
husband have become so strained that there is no more harmony, peace or tranquility to be preserved
(Alvarez v. Ramirez, 473 SCRA 72 [2005]; Ordono v. Daquigan, 62 SCRA 270 [1975]).

Q: XYZ, an alien, was criminally charged ol promoting and facilitating child prostitution and other sexual
abuses under Rep. Act No. 7610. The principal witness against him was his Filipina wife, ABC. Earlier, she
had complained that XYZ’s hotel was being used as a center for sex tourism and child trafficking. The
defense counsel for XYZ objected to the testimony of ABC at the trial of the child prostitution case and the
introduction of the affidavits she executed against her husband as a violation of espousal confidentiality and
marital privilege rule. It turned out that DEF, the minor daughter of ABC by her first husband who was a
Filipino, was molested by XYZ earlier. Thus, ABC had filed for legal separation from XYZ since last year.

May the court admit the testimony and affidavits of the wife, ABC, against her husband, XYZ, in the criminal
case involving child prostitution? Reason. (5%) (2004 Bar Question)

281

SUGGESTEDANSWER:
Yes. The court may admit the testimony and affidavits of the wife against her husband in the criminal case
where it involves child prostitution of the wife's daughter. It is not covered by the marital privilege rule. One
exception thereof is where the crime is committed by one against the other or the latter’s direct descendants
or ascendants. (Sec. 22, Rule 130). A crime by the husband against the daughter is a crime against the wife
and directly attacks or vitally impairs the conjugal relation. (Ordono v. Daquigan, 62 SCRA 270 [1975]).

Q: 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 on
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? (3%)

. (b) Will your answer be the same if Vida-s testimony is offered in a civil case for

recovery of personal property filed by Selmo against Romeo? (2%) (2000 Bar Question)

SUGGESTED ANSWER:

(a) No. While neither the husband nor the wife may testify for or 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 latter’s direct descendants or ascendants. (Sec. 22, Rule 130,
Rules of Court). The case falls under this exception because Selma is 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 Vida’s spouse, Romeo.

Q: C is the child of the spouses H and W. H sued his wife W for judicial declaration of nullity of marriage
under Article 36 of the Family Code. In the trial, the following testified over the objection of W: C, H and D,
a doctor of medicine who used to treat W. Rule on W’s objections which are the following:

1. H cannot testify against her because of the rule on marital privilege; (1%)

2. C cannot testify against her because of the doctrine on parental privilege; and (2%]

3. D cannot testify against her because of the doctrine of privileged communication

between patient and physician. (12%) (1998 Bar Question)

SUGGESTEDANSWER:

1. The rule of marital privilege cannot be invoked in the annulment case under Rule 36 of the Family Code
because it is a civil case filed by one against the other. (Sec. 22, Rule 130, Rules of Court.)

2. The doctrine of parental privilege cannot likewise be invoked by W as against the testimony of C, their
child. C may not be compelled to testify but is free to testify against her. (Sec. 25, Rule 130, Rules of Court;
Art. 215, Family Code.)

282

3. D, as a doctor who used to treat W, is disqualified to testify against W over her objection as to any advice
or treatment given by him or any information which he may have acquired in his professional capacity. (Sec.
24 (c). Rule 130, Rules of Court.)

ALTERNATIVE ANSWER:
If the doctor's testimony is pursuant to the requirement of establishing the psychological incapacity of W,
and he is the expert called upon to testify for the purpose, then it should be allowed. (Republic vs. Court of
Appeals and Molina. 268 SCRA 198.)

Q: At A’s trial for B’s murder, the defense attempts to present as its witness his widow, X. She is to testify
that just before B died, she approached his 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 prosecution’s motion. Explain. (1996 Bar Question) Answer:

I will deny the prosecution's 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)

Q: Allan and Narita were married on 1 August 1989. After two months Narita told Allan in confidence that
10-year old Liza whom she claimed to be her niece was actually her daughter by a certain Basilio, a married
man.

In 1992 Narita obtained a judicial decree of nullity of her marriage with Allan on the latter’s psychological
incapacity to fulfill his marital obligations. When the decree became final, Liza, assisted by Narita, filed ten
(10) cases of rape against Allan purportedly committed in 1991. During the trial Narita was called to the
witness stand to testify as a witness against Allan who objected thereto on the ground of marital
disqualification.

1. As public prosecutor, how would you meet the objection? Explain.

2. Suppose Narila’s testimony was offered while the decision nullifying her marriage to

Allan was pending appeal, would your answer be different? Explain.

3. Suppose Narita died during the pendency of the appeal, and soon after, the legal wife of Basilio sued for
legal separation on sexual infidelity in view of Basilio's love affair with Narita. At the trial Allan was called by
Basilio’s wife to testify that Narita confided to him (Allan) during their marriage that Liza was her love child
by Basilio.

As counsel for Basilio, can you validly object to the presentation of Allan as a witness for the plaintiff?
Explain. (1995 Bar Question)

Answer:

1. The objection should be overruled because the ground of marital disqualification may be invoked only
during the marriage. When Narita was called to the witness stand, the judicial decree of nullity of her
marriage had already become final. (Sec. 22, Rule 130)

283

2. No, because this ground may not be invoked in a criminal case for a crime committed by one against the
other or the latter's direct descendants or ascendants. In this case Liza was the daughter of Narita. (Sec. 24
(a), Rule 130)

3. Yes, I could validly object to the presentation of Allan as a witness on the ground that the communication
of Narita was a privileged marital communication which could be invoked during or after the marriage.
Moreover, the testimony of Allan would be hearsay.

Q: Ody sued spouses Cesar and Baby for a sum of money and damages. At the trial, Ody called Baby as his
first witness. Baby objected, joined by Cesar, on the ground that she may not be compelled to testify against
her husband. Ody insisted and contended that after all, she would just be questioned about a conference
they had with the barangay captain, a matter which is not confidential in nature. The trial court ruled in
favor of Ody. Was the ruling proper? Will your answjer be the same if the matters to be testified on were
known- to Baby or acquired by her prior to her marriage to Cesar? Explain. (1989 Bar Question)

Answer:

No. Under the Rules on Evidence, a wife cannot be examined for or against her husband without his
consent, except in a civil case by one against the other, or in a criminal case for a crime committed by one
against the other. Since the case was filed by Ody against the spouses Cesar and Baby, Baby cannot be
compelled to testify for or against Cesar without his consent. (Lemma vs. Rodriguez, 23 SCRA 1166).

The answer would be the same if the matters to be testified on were known to Baby or acquired by her prior
to her marriage to Cesar, because the marital disqualification may be invoked with respect to testimony on
any fact. It is immaterial whether such matters were known to Baby before or after her marriage to Cesar.

Q: Before the Regional Trial Court of Pasig is Special Proceedings No. 0001, entitled, “In Re Intestate Estate
of Pedro Santos, deceased, Ana Santos, Petitioner.” The Notice to Creditors to file their claims against the
estate of the deceased was duly published. Creditor Alfredo Cruz duly filed his claim for a P10,000.00-loan to
the deceased which became due and payable before his death as evidenced by his (deceased’s) promissory
note.

At the hearing of the Creditor’s Claim of Alfredo Cruz, he (Cruz) testified and duly identified the Promissory
Note.

Counsel objected to the testimony of Mr. Cruz claiming that he (Cruz) cannot testify as to matters against
the estate of a deceased person.

. (a) Is the objection valid? Explain.

. (b) Who are the persons disqualified to testify by reason of interest or relationship, as to

matters in which they are interested, directly or indirectly? (1988 Bar Question)
Answer:
(a) xxx
(b) Parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted,

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against an executor or administrator or other representative of a deceased person, or against a person of

unsound mind, upon a claim or demand against the estate of such deceased person or against such person
of unsound mind, cannot testify as to any matter of fact occurring before the death of such deceased person
or before such person became of unsound mind. (Dead man’s Rule)

(2) A husband can not be examined for or against his wife without her consent; nor a wife for or against her
husband without his consent, except in a civil case by one against the other, or in a criminal case for a crime
committed by one against the other. (Sec. 20(a) and (b) of Rule 130 (Marital Disqualification).

c. By reason of death or insanity of adverse party

Q: True or False. If the answer is false, explain your answer briefly.

(a) The surviving parties rule bars Maria from testifying for the claimant as to what the deceased Jose had
said to her, in a claim filed by Pedro against the estate of Jose. (3%) (2007 Bar Question)

SUGGESTED ANSWER:

False. The said rule bars only parties-plaintiff and their assignors, or persons prosecuting a claim against the
estate of a deceased; it does not cover Maria who is a mere witness. Furthermore, the disqualification is in
respect of any matter of fact occurring before the death of said deceased (Sec. 23, Rule 130, Rules of Court,
Razon v. Intermediate Appellate Court, 207 SCRA 234 [1992]). It is Pedro who filed the claim against the
estate of Jose.

Q: Before the Regional Trial Court of Pasig is Special Proceedings No. 0001, entitled, “In Re Intestate Estate
of Pedro Santos, deceased, Ana Santos, Petitioner.” The Notice to Creditors to file their claims against the
estate of the deceased was duly published. Creditor Alfredo Cruz duly filed his claim for a P10,000.00-loan to
the deceased which became due and payable before his death as evidenced by his (deceased’s) promissory
note.

At the hearing of the Creditor’s Claim of Alfredo Cruz, he (Cruz) testified and duly identified the Promissory
Note.

Counsel objected to the testimony of Mr. Cruz claiming that he (Cruz) cannot testify as to matters against
the estate of a deceased person.

. a) Is the objection valid? Explain.

. b) Who are the persons disqualified to testify by reason of interest or relationship, as to

matters in which they are interested, directly or indirectly? (1988 Bar Question)

Answer:

a) The objection is not valid because the authentication of the promissory note of the deceased is not
covered by the rule on surviving parties or the dead man’s statute. Authentication is not a matter of fact on
which the claimant’s lips are sealed.

Alternative Answer:

The objection is valid because Mr. Cruz cannot testify as to any matter of fact occurring before the death of
the deceased. However, a witness other than the claimant may authenticate the

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promissory note.

d. By reason of privileged communications

Q: X was driving the dump truck of Y along Cattleya Street in Sta. Maria, Bulacan. Due to his negligence, X
hit and injured V who was crossing the street: Lawyer L, who witnessed the incident, offered his legal
services to V.

V, who suffered physical injuries including a fractured wrist bone, underwent surgery to screw a metal plate
to his wrist bone. On complaint of V, a criminal case for Reckless Imprudence Resulting in Serious Physical
Injuries was filed against X before the Municipal Trial Court (MTC) of Sta. Maria. Atty. L, the private
prosecutor, did not reserve the filing of a separate civil action.

V subsequently filed a complaint for Damages against X and Y before the Regional Trial Court of Pangasinan
in Urdaneta where he resides. In his "Certification against Forum Shopping” V made no mention of the
pendency of the, criminal case in Sta. Maria.

A. xx x

B. xx x

C. xx x

D. xx x
E. Atty. L offered in the criminal case his affidavit respecting what he witnessed during the incident. X's
lawyer wanted to cross examine Atty. L who, however, objected on the ground of lawyer client privilege.
Rule on the objection. (2%) (2010 Bar Question)

SUGGESTED ANSWER:

The objection should be overruled. Lawyer-client privilege is not involved here. The subject on which the
counsel would be examined has been made public in the counsel would be examined has been made public
in the affidavit he offered and thus, no longer privileged, aside from the fact that it is in respect of what the
counsel witnessed during the incident and not to the communication made by the client to him or the advice
he gave thereon in his professional capacity.

Q: On August 15,2008, Edgardo committed estafa against Petronilo in the amount of P3 Million. Petronilo
brought his complaint to the National Bureau of Investigation, which found that Edgardo had visited his
lawyer twice, the first time on August 14, 2008 and the second on August 16, 2008; and that both visits
concerned the swindling of Petronilo. During the trial of Edgardo, the RTC issued a subpoena ad
testificandum to Edgardo’s lawyer for him to testify on the conversations during their first and second
meetings. May the subpoena be quashed on the ground of privileged communication? Explain fully. (4%)

SUGGESTED ANSWER:

No, The subpoena may not be simply quashed on the allegation that the testimony to be elicited constitutes
privileged communication. It may be noted that the accused committed the crime of swindling on August 15,
2008, whereas he first visited his lawyer on August 14, 2008 or before he committed the swindling. Clearly
the conversations the accused had with his lawyer during such first visit, before he committed the swindling
cannot be protected by the privilege between attorney and client because the crime had not been committed
yet and it is no part of a

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lawyer’s professional duty to assist or aid in the commission of a crime; hence not in the course of
professional employment.

The second visit by accused Edgardo to his lawyer on the next day (August 16, 2008) after the swindling
was committed may also suffer from the same infirmity as the conversations had during their first meeting
inasmuch as there could not be a complaint made immediately after the estafa was committed. The privilege
covering a lawyer-client relation under Sec. 24, (par(b), Rule 130, may not be invoked, as it is not a ground
for quashal of a subpoena ad testificandum under Section 4, Rule 21 of the Rules of Court.

Although the subpoena ad testificandum may not be quashed the privilege covers conversations “with a view
to professional employment." It can be invoked at the trial but not to quash the subpoena.

Q: A tugboat owned by Speedy Port Service, Inc. (SPS) sank in Manila Bay while helping tow another vessel,
drowning five (5) of the crew in the resulting shipwreck. At the maritime board inquiry, the four (4) survivors
testified. SPS engaged Atty. Ely to defend it against potential claims and to sue the company owning the
other vessel for damages to the tug. Ely obtained signed statements from the survivors. He also interviewed
other persons, in some instance making memoranda. The heirs of the five (5) victims filed an action for
damages against SPS.

Plaintiffs counsel sent written interrogatories to Ely, asking whether statements of witnesses were obtained;
if written, copies were to be .furnished; if oral, the exact provisions were to be set forth in detail. Ely refused
to comply, arguing that the documents and information asked are privileged communication. Is the
contention tenable? Explain. (4%)(2008 Bar Question)

SUGGESTED ANSWER:

Yes, the contention of counsel for SPS is tenable considering that he was acting in his professional capacity
in bringing about the statement he obtained from witnesses and the memoranda he made. The notes,
memoranda, and writings made by counsel in pursuance of his professional duty, form part of his private
and confidential files in the cases handled by him; hence privileged (Air Philippines Corp. v. Pennswell, Inc.,
540 SCRA 215 [2007]).

ANOTHER SUGGESTED ANSWER:

The oral statements secured by the lawyer from the witnesses may not be the subject of discovery
procedure not because they are privileged communication but because of the danger of untruthfulness and
inaccuracy. The account of the lawyer is likewise hearsay evidence. Besides, plaintiffs’ counsel may obtain
transcripts of the testimonies of the four survivors before the maritime board inquiry.

On the other hand, under Rule 23, the lawyer may be examined regarding the existence of the written
statements of the survivors, including the description, nature, and custody thereof, not being privileged
communication. (Hickman v. Taylor, 329 US 495[1947]).

Q: A tugboat owned by Speedy Port Service, Inc. (SPS) sank in Manila Bay while helping tow another vessel,
drowning five (5) of the crew in the resulting shipwreck. At the maritime board inquiry, the four (4) survivors
testified. SPS engaged Atty. Ely to defend it against

287

potential claims and to sue the company owning the other vessel for damages to the tug. Ely obtained
signed statements from the survivors. He also interviewed other persons, in some instance making
memoranda. The heirs of the five (5) victims filed an action for damages against SPS.

Plaintiffs counsel sent written interrogatories to Ely, asking whether statements of witnesses were obtained;
if written, copies were to be .furnished; if oral, the exact provisions were to be set forth in detail. Ely refused
to comply, arguing that the documents and information asked are privileged communication. Is the
contention tenable? Explain. (4%)(2008 Bar Question)

SUGGESTED ANSWER:

Yes, the contention of counsel for SPS is tenable considering that he was acting in his professional capacity
in bringing about the statement he obtained from witnesses and the memoranda he made. The notes,
memoranda, and writings made by counsel in pursuance of his professional duty, form part of his private
and confidential files in the cases handled by him; hence privileged (Air Philippines Corp. v. Pennswell, Inc.,
540 SCRA 215 [2007]).

ANOTHER SUGGESTED ANSWER:

The oral statements secured by the lawyer from the witnesses may not be the subject of discovery
procedure not because they are privileged communication but because of the danger of untruthfulness and
inaccuracy. The account of the lawyer is likewise hearsay evidence. Besides, plaintiffs’ counsel may obtain
transcripts of the testimonies of the four survivors before the maritime board inquiry.

On the other hand, under Rule 23, the lawyer may be examined regarding the existence of the written
statements of the survivors, including the description, nature, and custody thereof, not being privileged
communication. (Hickman v. Taylor, 329 US 495[1947])

Q: Allan and Narita were married on 1 August 1989. After two months Narita told Allan in confidence that
10-year old Liza whom she claimed to be her niece was actually her daughter by a certain Basilio, a married
man.

In 1992 Narita obtained a judicial decree of nullity of her marriage with Allan on the latter’s psychological
incapacity to fulfill his marital obligations. When the decree became final, Liza, assisted by Narita, filed ten
(10) cases of rape against Allan purportedly committed in 1991. During the trial Narita was called to the
witness stand to testify as a witness against Allan who objected thereto on the ground of marital
disqualification.

1.
2.

3.

As counsel for Basilio, can you validly object to the presentation of Allan as a witness for the plaintiff?
Explain. (1995 Bar Question)

Answer:

xxxxxx

Suppose Narita died during the pendency of the appeal, and soon after, the legal wife of Basilio sued for
legal separation on sexual infidelity in view of Basilio's love affair with Narita. At the trial Allan was called by
Basilio’s wife to testify that Narita confided to him (Allan) during their marriage that Liza was her love child
by Basilio.

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1. xxx

2. xxx

3. Yes, I could validly object to the presentation of Allan as a witness on the ground that the communication
of Narita was a privileged marital communication which could be invoked during or after the marriage.
Moreover, the testimony of Allan would be hearsay.

4. Examination of a witness
a. Order in the examination of an individual witness

i. Direct examination
ii. Cross examination
iii. Re-direct examination iv. Re-cross examination v. Recalling the witness

Q: (1997 Bar Question)

(a) Aside from asking a witness to explain and supplement his answer in the cross- examination, can the
proponent ask in re-direct examination questions on matters not dealt with during cross-examination?

(b) Aside from asking the witness on matters stated in his re-direct examination, can the opponent in his re-
cross-examination ask questions on matters not dealt with during the re- direct?

(c) After plaintiff has formally submitted his evidence, he realized that he had forgotten to present what he
considered an important evidence. Can he recall a witness?

Answer:
a) Yes, on redirect examination, questions on matters not dealt with during the cross-

examination may be allowed by the court in its discretion. (Sec. 7 of Rule 132).

b) Yes, the opponent in his re-cross-examination may also ask questions on such other matters as may be
allowed by the court in its discretion. (Sec. 8. Rule 132).

c) Yes, after formally submitting his evidence, the plaintiff can recall a witness with leave of court. The court
may grant or withhold leave in its discretion as the interests of justice may require. (Sec. 9. Rule 132).

b. How the witness is impeached by evidence of inconsistent statements (layingthe predicate)

Q: In the examination of witnesses, what is meant by “laying the predicate"? (1996 Bar Question)

Answer:
289

“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)

c. Evidence of the good character of a witness

Q: X states on direct examination that he once knew the facts being asked but he cannot recall them now.
When handed a written record of the facts he testifies that the facts are correctly stated, but that he has
never seen the writing before.

Is the writing admissible as past recollection recorded? Explain. (1996 Bar Question) Answer:

No, because for the written record to be admissible as past recollection recorded, it must have been written
or recorded by X or under his direction at the time when the fact occurred, or immediately thereafter, or at
any other time when the fact was fresh in his memory and he knew that the same was correctly written or
recorded. (Sec. 16 of Rule 132) But in this case X has never seen the writing before.

d. Judicial Affidavit Rule (A.M. No. 12-8-8-SC)

Q: TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your
answer in not more than two (2) sentences. (5%)

(a) x x x

(b) The One-Day Examination of Witness Rule abbreviates court proceedings by having a witness fully
examined in only one day during trial. (2009 Bar Question)

SUGGESTED ANSWER:

TRUE. Par. 5(i) of Supreme Court A.M. No. 03.1.09- SC requires that a witness has to be fully examined in
one (1) day only. This rule shall be strictly adhered to subject to the courts discretion during trial on whether
or not to extend the direct and/or cross-examination for justifiable reasons. On the last hearing day allotted
for each party, he is required to make his formal offer of evidence after the presentation of his last witness
and the opposing party is required to immediately interpose his objection thereto. Thereafter, the judge shall
make the ruling on the offer of evidence in open court. However, the judge has the discretion to allow the
offer of evidence in writing in conformity with Section 35, Rule 132.

ALTERNATIVE ANSWER:

FALSE. This rule is not absolute: it will still allow the trial judge the discretion whether to extend the direct
and/or cross examination for justifiable reasons or not. The exercise of this discretion may still result in
wranglings as to the proper exercise of the trial court's discretion, which can delay the proceedings.

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5. Admissions and confessions

a. Res inter alios acta rule

Q: Bembol was charged with rape. Bembol’s father, Ramil, approached Artemon, the victim’s father, during
the preliminary investigation and offered P1 Million to Artemon to settle the case. Artemon refused the offer.

b) During trial, the prosecution presented Artemon to testify on Ramil’s offer and thereby establish an
implied admission of guilt. Is Ramil’s offer to settle admissible in evidence? (3%) (2008 Bar Question)

SUGGESTED ANSWER:
No. The offer to settle not being made by the accused or with his participation is not admissible against him
under the rule of res inters alios acta. No implied admission of guilt can be drawn from efforts to settle a
criminal case out of court, where the accused had no participation in such negotiation (People v. Godoy, 250
SCRA 676 [1995]).

ALTERNATIVE ANSWER:

It has been held, however, that the offer to settle made by relatives of the accused is admissible as an
implied admission of guilt. (People v. Salvador, 396 SCRA 298 [2003])

Q: X and Y were charged with murder. Upon application of the prosecution, Y was discharged from the
Information to be utilized as a state witness. The prosecutor presented Y as witness but forgot to state the
purpose of his testimony much less offer it in evidence. Y testified that he and X conspired to kill the victim
but it was X who actually shot the victim. The testimony of Y was the only material evidence establishing the
guilt of X. Y was thoroughly cross- examined by the defense counsel. After the prosecution rested its case,
the defense filed a motion for demurrer to evidence based on the following grounds:

(a) The testimony of Y should be excluded because its purpose was not initially stated and it was not
formally offered in evidence as required by Section 34, Rule 132 of the Revised Rules of Evidence: and

(b) Y’s testimony is not admissible against X pursuant to the rule on “res inter alios acta", Rule on the
motion for demurrer to evidence on the above grounds. (2003 Bar Question) SUGGESTED ANSWER:
The demurrer to the evidence should be denied because:

(a) The testimony of Y should not be excluded because the defense counsel did not object to his testimony
despite the fact that the prosecutor forgot to state its purpose or offer it in evidence. Moreover, the defense
counsel thoroughly cross-examined Y and thus waived the objection.

(b) The res inter alios acta rule does not apply because Y testified in open court and was subjected to cross
examination.

Q: A, while driving his car, ran over B. A visited B at the hospital and offered to pay for his hospitalization
expenses. After the filing of the criminal case against A for serious physical injuries through reckless
imprudence. A‘s Insurance carrier offered to pay for the injuries

291

and damages suffered by B. The offer was rejected because B considered the amount offered as
inadequate.

. (a) Is the offer by A to pay the hospitalization expenses of B admissible in evidence?

. (b) Is the offer by A’s insurance carrier to pay for the injuries and damages of B

admissible in evidence? (1996 Bar Question) Answer:

(a) The offer by A to pay the hospitalization expenses of B is not admissible in evidence to prove his guilt in
both the civil and criminal cases. (Rule 130, Sec. 27. fourth par.).

(b) No. It is irrelevant. The obligation of the insurance company is based on the contract of insurance and is
not admissible in evidence against the accused because it was not offered by the accused but by the
insurance company which is not his agent.

Q: During custodial investigation at the Western Police District, Mario Margal was informed of his
constitutional right to remain silent and to have competent and independent counsel. He decided to waive
his right to counsel and proceeded to make a statement admitting commission of a robbery. In the same
statement, he Implicated Antonio Carreon, his co- conspirator in the crime. (1991 Bar Question)

(a) Is Margal’s statement admissible in evidence against him?

Answer:

(a) No, because under the Constitution, the right of Margal to remain silent and to counsel during custodial
investigation cannot be waived except in writing and in the presence of counsel, and any confession or
admission in violation of this provision is inadmissible in evidence against him. (Sec. 12 of Art. Ill)

(b) Is it admissible against Carreon as an exception to the res inter alios acta rule? Answer:

No, because even assuming that the conspiracy is shown by evidence other than the statement of Margal,
the statement was made after the conspiracy had ceased. (Sec. 30 of Rule 130; People v. Cabrera. 57 SCRA
714)

b. Confessions

Q: Distinguish extrajudicial admission from extrajudicial confession in criminal cases. (1996 Bar Question)

Answer:

An extrajudicial admission is a statement of fact which does not directly involve an acknowledgment of guilt
or criminal intent, while an extrajudicial confession is a declaration of an accused that he has committed or
participated in the commission of a crime.

Q: What are the requirements in order that an admission of guilt of an accused during a custodial
investigation be admitted in evidence? 2.5% (2006 Bar Question)

292

SUGGESTED ANSWER:

An admission of guilt during a custodial investigation is a confession. To be admissible in evidence, the

requirements are:

1) the confession must be voluntary

2) the confession must be made with the assistance of competent and independent counsel 3) the
confession must be express
4) the confession must be in writing (People v. Principe, 381 SCRA 642 [2002]).

Q: X was arrested for the alleged murder of a 6-year Old lad. He was read his Miranda rights immediately
upon being apprehended.

In the course of his detention, X was subjected to three hours of non-stop interrogation. He remained quiet
until, on the 3rd hour, he answered "yes" to the question of whether "he prayed for forgiveness for shooting
down the boy." The trial court) interpreting X's answer as an admission of guilt, convicted him.

On appeal, X's counsel faulted the trial court in its interpretation of his client's answer, arguing that X
invoked his Miranda rights when he remained quiet for the first two hours of questioning. Rule on the
assignment of error. (3%) (2010 Bar Question)

SUGGESTED ANSWER:

The assignment of error invoked by X's counsel is impressed with merit since there has been no express
waiver of X's Miranda rights. In order to have a valid waiver of the Miranda rights, the same must be in
writing and made in the presence of his counsel. The uncounseled extrajudicial confession of X being
without a valid waiver of his Miranda rights, is inadmissible, as well as any information derived therefrom.

Q: A was accused of having raped X. Rule on the admissibility of the following pieces of evidence:

1. an offer of A to many X; and (3%)

2. a pair of short pants allegedly left by A at the crime which the court, over the
objection of A, required him to put on, and when he did, it fit him well. (2%) (1998 Bar Question)

SUGGESTED ANSWER:

1. A's offer to marry X is admissible in evidence as an implied admission of guilt because rape cases are not
allowed to be compromised. (Sec. 27 of Rule 130; People us. Domingo, 226 SCRA 156.)

2. The pair of short pants, which fit the accused well is circumstantial evidence of his guilt, although
standing alone it cannot be the basis of conviction. The accused cannot object to the court requiring him to
put the short pants on. It is not part of his right against self- incrimination because it is a mere physical act.

293

Q: (1998 Bar Question)

1. If the accused on the witness stand repeats his earlier uncounseled extrajudicial confession implicating his
co-accused in the crime charged, is that testimony admissible in evidence against the latter? (3%)

2. What is the probative value of a witness’ Affidavit of Recantation? (2%] SUGGESTED ANSWER:

1. Yes. The accused can testify by repeating his earlier uncounseled extrajudicial confession, because he can
be subjected to cross-examination.

2. On the probative value of an affidavit of recantation, courts look with disfavor upon recantations because
they can easily be secured from witnesses, usually through intimidation or for a monetary consideration.
Recanted testimony is exceedingly unreliable. There is always the probability that it will be repudiated.
(Molina vs. People, 259 SCRA 138.)

Q: X. charged with rape with homicide, offered P 100,000.00 as amicable settlement to the family of the
victim. The family refused. During the trial, the prosecution presented in evidence X's offer of compromise.

What is the legal implication of such offer? Explain. (1996 Bar Question) Answer:

The oiler 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 quasi-offenses or those allowed by law to be
compromised. (Sec. 27 of Rule 130)

Q: Pedro was charged with homicide for having hacked Ramon to death. Before the case could be tried, the
heirs of Ramon sought out Pedro and discussed with him the possibility of settlement of the case. Pedro
agreed to a settlement. When the heirs asked how much he was willing to pay, Pedro offered P30,000 which
the heirs accepted. Is the agreement to settle as well as the offer to pay P30,000 by Pedro admissible in
evidence against him as an implied admission of guilt? Explain. (1989 Bar Question)

Answer:

Yes. Under the Rules on Evidence, in criminal cases which are not allowed by law to be compromised, an
offer of compromise by the accused may be received in evidence as an implied admission of guilt. Since a
criminal case for homicide is not allowed by law to be compromised, Pedro’s offer of P30,000 for the
settlement of the case, which the heirs accepted, is admissible in evidence against him as an implied
admission of guilt. (Sec. 24 of Rule 130)

Another acceptable Answer:

No. Pedro’s offer was merely to buy peace. Since it was the heirs of Ramon and no Pedro who initially
offered to settle the case, and Pedro’s offer of P30,000 was in reply to the question of the heirs as to how
much he was willing to pay, which, amount the heirs accepted, said offer and agreement to settle is not
admissible in evidence against him.

294
c. Similar acts as evidence

Q: TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your
answer in not more than two (2) sentences. (5%)

. (a) x x x

. (b) x x x

. (c) x x x

. (d) Under the doctrine of adoptive admission, a third party's statement becomes the

admission of the party embracing or espousing it. (2009 Bar Question)

SUGGESTED ANSWER:

TRUE. The effect or consequence of the admission will bind also the party who adopted or espoused the
same, as applied in Estrada v. Desierto, 356 SCRA 108 [2001]). An adoptive admission is a party's reaction
to a statement or action by another person when it is reasonable to treat the party's reaction as an
admission of something stated or implied by the other person.

Q: D was prosecuted for homicide for allegedly beating up V to death with an iron pipe.

A. May the prosecution introduce evidence that V had a good reputation for peacefulness and non-violence?
Why? (2%)

B. May D introduce evidence of specific violent acts by V? Why? (3%) (2002 Bar Question)

SUGGESTIVE ANSWER:

A. The prosecution may introduce evidence of the good or even bad moral character of the victim if it tends
to establish in any reasonable degree the probability or improbability of the offense charged. [Rule 130, sec.
51 a (3)]. In this case, the evidence Is not relevant

B. Yes, D may introduce evidence of specific violent acts by V. Evidence that one did or did not do a certain
thing at one time is not admissible to prove that he did or did not do the same or a similar thing at another
time; but it may be received to prove a specific Intent or knowledge, identity, plan, system, scheme, habit,
custom or usage, and the like. (Rule 130, sec. 34).

6. Hearsay Rule
a. Meaning of hearsay
Q: What is the hearsay rule? (5%) (2007 Bar Question) SUGGESTED ANSWER:

The hearsay rule is a rule of evidence to the effect that a witness can testify only to those facts which he
knows of his own knowledge or derived from his own perceptions, except as otherwise provided in the Rules
of Court (Rule 130, Sec. 36, Rules of Court).

Q: (1999 Bar Question)

a. Define hearsay evidence? (2%)

295

b. What are the exceptions to the hearsay rule? (2%)

c. A overheard B call X a thief. In an action for defamation filed by X against B, is the

testimony of A offered to prove the fact of utterance i.e., that B called X a thief, admissible in evidence?
Explain. (2%)

d. The accused was charged with robbery and homicide. The victim suffered several stab wounds. It appears
that eleven (11) hours after the crime, while the victim was being brought to the hospital in a jeep, with his
brother and a policeman as companions, the victim was asked certain questions which he answered,
pointing to the accused as his assailant. His answers were put down in writing, but since he was a in a
critical condition, his brother and the policeman signed the statement. Is the statement admissible as a
dying declaration? Explain. (2%)

SUGGESTEDANSWER:

a. Hearsay evidence may be defined as evidence that consists of testimony not coming from personal
knowledge (Sec. 36, Rule 130, Rules of Court). Hearsay testimony is the testimony of a witness as to what
he has heard other persons say about the facts in issue.

b. The exceptions to the hearsay rule are: dying declaration, declaration against interest, act or declaration
about pedigree, family reputation or tradition regarding pedigree, common reputation, part of the res
gestae, entries in the course of business, entries in official records, commercial lists and the like, learned
treatises, and testimony or deposition at a former proceeding. (Secs. 37 to 47, Rule 130, Rules of Court)

c. Yes. The testimony of A who overheard B call X 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 or those which are circumstantial evidence thereof.
The hearsay rule does not apply. (See People vs. Gaddi, 170 SCRA 649.)

d. Yes. The statement is admissible as a dying declaration if the victim subsequently died and his answers
were made under the consciousness of impending death. (Sec. 37 of Rule 130) The fact that he did not sign
the statement point to the accused as his assailant, because he was in critical condition, does not affect its
admissibility as a dying declaration. A dying declaration need not be in writing (People v. Viovicente, 286
SCRA 1.)

Q: Distinguish clearly but briefly between:

1. xx x

2. xx x

3. xx x

4. Hearsay evidence and opinion evidence.

5. Questions of law and questions of fact. (2004 Bar Question)

SUGGESTED ANSWER:

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4. Hearsay evidence consists of testimony that is not based on personal knowledge of the person testifying,
(see Sec. 36, Rule 130), while opinion evidence is expert evidence based on the personal knowledge skill,
experience or training of the person testifying (Sec. 49, Id.) and evidence of an ordinary witness on limited
matters (Sec. 50, Id.)

5. A question of law is when the doubt or difference arises as to what the law is on a certain set of facts,
while a question of fact is when the doubt or difference arises as to the truth or falsehood of alleged facts.
(Ramos v. Pepsi-Cola Bottling Co. of the Phil., 19 SCRA 289, [1967D.
Q: In relation to the hearsay rule, what do the following rules of evidence have in common? (5%) (2007 Bar
Question)

. (1) The rule on statements that are part of the res gestae;

. (2) The rule on dying declarations;

. (3) The rule on admissions against interest.

SUGGESTED ANSWER:

The rules on the evidence specified in the question asked, have in common the following:

(a) The evidence although hearsay, are allowed by the Rules as exceptions to the hearsay rule;

(b) The facts involved are admissible in evidence for reasons of necessity and trustworthiness; and

(c) The witness is testifying on facts which are not of his own knowledge or derived from his own
perception.

Q: Romeo is sued for damages for injuries suffered by the plaintiff in a vehicular accident. Julieta, a witness
in court, testifies that Romeo told her (Julieta) that he (Romeo) heard Antonio, a witness to the accident
give an excited account of the accident immediately after its occurrence. Is Julieta’s testimony admissible
against Romeo over proper and timely objection? Why? (5%) (2002 Bar Question)

SUGGESTEDANSWER:

No, Juljeta’s testimony is not admissible against Romeo, because while the excited account of Antonio, a
witness to the accident, was told to Romeo, it was only Romeo who told Julieta about it, which makes it
hearsay.

Q: Gerry is being tried for rape. The prosecution’s evidence sought to establish that at about 9:00 P.M. of
January 20, 1994, Gerry went to complainant June’s house to invite her to watch the festivities going on at
the town plaza. June accepted the invitation. Upon reaching the public market, which was just a stone’s
throw away from June’s house,' Gerry forcibly dragged June towards the banana grove behind the market
where he was able to have carnal knowledge with June for about an hour. June did not immediately go
home thereafter, and it was only in the early morning of the following day that she narrated her ordeal to
her

297

daughter Liza. Liza testified in court as to what June revealed to her.

. 1) Is the testimony of Liza hearsay?

. 2) Is it admissible in evidence against the objection of the defense? (1994 Bar Question)

Answer:

1) Yes, Liza’s testimony is hearsay. A witness can testify to those facts which he knows of his personal
knowledge, that is, which are derived from his own perception except as otherwise provided in the rules.
(Sec. 36, Rule 130).

2) No. It is not admissible in evidence against the objection of the defense, because it is not one of the
exceptions to the hearsay rule. It is not part of the res gestae because only statements made by a person
while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the
circumstances thereof, may be given in evidence as part of the res gestae. (Sec. 42, Rule 130). She narrated
her ordeal to her daughter Liza only in the early morning of the following day, as she did not immediately go
home after the incident which occurred at 9:00 p.m. She could have made up the story. She should be
placed on the witness stand, not Liza whose knowledge of the event is hearsay. (People v. Lungayen, 162
SCRA 180).

Alternative Answer:

Liza's testimony is admissible as to the tenor but not as to the truth of what June revealed to her.

b. Exceptions to the hearsay rule

Dying declaration
Q: Give the requisites of: (1998 Bar Question)

1. xxx

2. Dying Declaration. [2%]

SUGGESTED ANSWER: 1. xxx

2. The requisites for the admissibility of a dying declaration are: (a) the declaration is made by the deceased
under the consciousness of his impending death; (b) the deceased was at the time competent as a witness;
(c) the declaration concerns the cause and surrounding circumstances of the declarant’s death; and (d) the
declaration Is offered in a (criminal) case wherein the declarant's death is the subject of inquiry. (People us.
Santos, 270 SCRA 650.)

ALTERNATIVE ANSWER:

The declaration of a dying person, made under the consciousness of an impending death, maybe received in
any case wherein his death is the subject of inquiry, as evidence of the cause and surrounding
circumstances of such death. (See. 37 of Rule 130.)

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Q: On March 12, 2008, Mabini was charged with Murder for fatally stabbing Emilio. To prove the qualifying
circumstance of evident premeditation, the prosecution introduced on December 11, 2009 a text message,
which Mabini's estranged wife Gregoria had sent to Emilio on the eve of his death, reading: "Honey,
pa2tayin u ni Mabini. Mtgaln nyang plano i2. Mg ingat u bka ma tsugi k." (2010 Bar Question)

A. xx x

B. xx x

C. If Mabini's objection in question B was 'overruled, can he 'Object to the presentation

of the text message on the ground that it is hearsay? (2%)

SUGGESTED ANSWER:

No, Gregoria's text message In Emilio's cellphone is not covered by the hearsay rule because it is regarded
in the rules of evidence as independently relevant statement: the text message is not to prove the truth of
the fact alleged therein but only as to the circumstance of whether or not premeditation exists.

D. Suppose that shortly before he expired, Emilio was able to send a text message to his wife Graciana
reading "Nasaksak ako. Dna me makahinga. SiMabiniang may gawa ni2." Is this text message admissible as
a dying declaration? Explain. (3%)

SUGGESTED ANSWER:

Yes, the text message is admissible as a dying declaration since the same came from the victim who
"Shortly" expired and it is in respect of the cause and circumstance of his death. The decisive factor that the
message was made and sent under consciousness of an impending death, is evidently attendant from the
victim's Statement: “D na me makahinga" and the fact that he died shortly after he sent the text message.
However, cellphone messages are regarded as electronic evidence, and in a recent case (Ang v. Court of
Appeals et al., GR No. 182835, April 20, 2010), the Supreme Court ruled that the Rules on Electronic
Evidence applies only to civil actions, quasi- judicial proceedings and administrative proceeding, not to
criminal actions.

SUGGESTED ANSWER:

No, the text message is not admissible as a dying declaration because it lacks indication that the victim was
under consciousness of an impending death. The statement "D na me makahinga" is still equivocal In the
Text message sent that does not imply consciousness of forth-coming death.

Q: Blinded by extreme jealousy, Alberto shot his wife, Betty, in the presence of his sister, Carla. Carla
brought Betty to the hospital. Outside the operating room, Carla told Domingo, a male nurse, that it was
Alberto w'ho shot Betty. Betty died while undergoing emergency surgery. At the trial of the parricide charges
filed against Alberto, the prosecutor sought to present Domingo as witness, to testify on what Carla told
him. The defense counsel objected on the ground that Domingo’s testimony is inadmissible for being
hearsay. Rule on the objection with reasons. (3%) (2009 Bar Question)

SUGGESTED ANSWER:

Objection overruled. The disclosure received by Domingo from Carla may be regarded as 299

independently relevant statement which is not covered by the hearsay rule; hence admissible. The
statement may be received not as evidence of the truth of what was stated but only as to the tenor thereof
and the occurence when it was said, independently of whether it was true or false. (People v. Cloud, 333
Phil. 306[1996]; People v. Malibiran, etal., G.R. No. 178301, April 24, 2009)

ALTERNATIVE ANSWER:

Objection sustained. The disclosure made by Carla has no other probative value except to identify who shot
Betty. Its tenor is irrelevant to the incident, and the same was made not to a police investigator of the
occurrence but to a nurse whose concern is only to attend to the patient. Hence, the disclosure does not
qualify as independently relevant statement and therefore, hearsay. The nurse is competent to testify only
on the condition of Betty when rushed to the hospital but not as to who caused the injury. The prosecution
should call on Carla as the best witness to the incident.

Q: In relation to the hearsay rule, what do the following rules of evidence have in common? (5%) (2007 Bar
Question)

. (1) x x x

. (2) The rule on dying declarations;

. (3) x x x

SUGGESTED ANSWER:

The rules on the evidence specified in the question asked, have in common the following:

(a) xxx

(b) The facts involved are admissible in evidence for reasons of necessity and trustworthiness; and

(c) xxx

Q: While sleeping under a tree, Kintanar was stabbed several times by a man, sustaining multiple stab
wounds on his chest with blood spurting therefrom. Bathed in his own blood, Kintanar rushed to his house
where he was met by his wife. Kintanar informed his wife that it was Gonzales who stabbed him. On the way
to the hospital, Kintanar kept on saying that it was Gonzales who stabbed him. He died while undergoing
surgery at the hospital.

Convicted for the killing of Kintanar, Gonzales questioned the admission in evidence of the ante-mortem
statement of Kintanar to his wife. He argued that from the abovecited facts, there is no indication that the
aforesaid statement was made by the victim under consciousness of an impending death.

Can the subject statement be considered a dying declaration? Why? (1993 Bar Question)

Answer:

Yes, the statement that it was Gonzales who stabbed him can be considered a dying declaration because it
concerned the crime and surrounding circumstances of declarant's death; it was made with consciousness of
impending death as shown by the fact that he

300

died while undergoing surgery at the hospital; the declarant was competent as a witness; and the
declaration was offered in a criminal case in which declarant was the victim.

Alternative Answer:

Even if the statement cannot be considered a dying declaration, it was admissible as part of the res gestae.

Q: Alejo was stabbed in the abdomen. He immediately called for help and a policeman promptly approached
him. He told the policeman that he felt he would die from the serious wound inflicted on him by Danilo who
has a grudge against him. He was brought to a hospital for treatment where, on the same day he was shot
and killed by someone whose identity could not be established by an eye-witness. Eventually. Danilo was
charged in court for the death of Alejo. The prosecution had to build its case on circumstantial evidence. At
the ensuing trial, the policeman was presented to testify on the declaration made to him by Alejo. The
defense objected. Meeting the objection, the prosecution argued for the admissiblity of the evidence as a
dying declaration (ante mortem statement) or as part of the res gestae, either of which, when deemed
competent evidence as an exception to the hearsay rule, would demonstrably be relevant to the ultimate
fact in issue, the guilt of Danilo for the death of Alejo. The defense countered by arguing that no facts
relating to the stabbing can be relevant to the shooting.

Is the contention of the prosecution with respect to relevancy and competency of evidence correct? Discuss
fully. (1992 Bar Question)

Suggested Answer:

No. the contention of the prosecution is not correct. The statement of Alejo that it was Danilo who stabbed
him is not admissible as a dying declaration, because it did not concern the cause and surrounding
circumstances of his death. Alejo did not die from the serious wound inflicted on him. The cause of his death
was the shot fired by an unknown person. Neither is the statement admissible as part of the res gestae,
because Danilo was charged with the death of Alejo and the cause of the death was not the stabbing by
Danilo. (Secs. 37 and 42 of Rule 130)

Q: One evening, at 9:00 o’clock, just as he reached the gate of his house in Apas, Cebu City, and as soon as
he alighted from his car to open the gate. Carlos was shot by Tito, who had been waiting behind a coconut
tree nearby, with a .38 caliber revolver. Carlos was hit at the sternum of the second rib. Hearing the .shot,
Marilyn, Carlos* wife ran out toward the gate and found Carlos lying on the ground, with blood splattered on
his chest. With her son, Y. she brought Carlos to the Cebu Doctors’ Hospital. In the car, although he was in a
semi-conscious state. Carlos told Marilyn that it was Tito who shot him, Carlos was brought to the
emergency room. However, two (2) hours later, he expired. Tito was then charged with murder before the
RTC of Cebu. Marilyn was presented as witness for the prosecution, but her testimony regarding the above
statement of Carlos was objected to under the hearsay rule. The court overruled the objection on the
ground that the statement may be considered as a dying declaration. (1991 Bar Question)

(a) Is the ruling correct? Answer:

301

(a) Yes, because all the requisites to admissibility of a dying declaration are present. The fact that Carlos
died two hours after he was shot shows that his statement to Marilyn while being brought to the hospital,
that it was Tito who shot him, was made under consciousness of impending death.

(b) What are the requisites to admissibility of a dying declaration?

Answer:
(b) 1) It must concern the cause and the surrounding circumstances of declarant’s death;

2) It was made under consciousness of impending death;

3) The declarant was competent as a witness;
4) The declaration is offered in a civil or criminal case in which the declarant was a victim.

(Sec. 37 of Rule 130; People v. Sagario, 14 SCRA 468)

Q: Two (2) hours after Lt. Yap of the 2nd Air Division, PAF, at the Mactan Air Base in Lapulapu City, was
shot with a .45 caliber pistol, his Division Commander, Brig. Gen. A, visited him at the Cebu Doctors’ Hospital
in Cebu City where he was immediately brought for treatment of the gunshot wound. Lt. Yap told A that it
was Jose Comen who shot him. Forthwith, A, who is a law graduate, took the initiative of taking down in
long hand the statement of Lt. Yap. The latter narrated the events surrounding the Incident and
categorically stated that it was Jose Comen who shot him. Lt. Yap signed the statement in the presence of A
and the attending nurse. Ten (10) days later, Lt. Yap died as a consequence of the gunshot wound. An
information for murder was filed against Jose Comen.

At the trial, the above statement of Lt. Yap marked as Exh. T, was presented and identified by A who did
not, however, testify that Lt. Yap read it, or that it was read to him before he (Yap) signed it. A
nevertheless, testified that, as above stated, Lt. Yap told him that it was Jose Comen who shot him. The
defense objected to the testimony of A and to the admission of Exh. “X” on the ground that they are
hearsay. The prosecution contended that both are exceptions to the hearsay rule as they are part of res
gestae. (1991 Bar Question)

Answer:

(a) No, because the statement of Lt. Yap to A, that it was Jose Comen who shot him, was given two hours
after he was shot. Hence, it could not be considered as part of the res gestae, because the' rule refers to
statements made by a person while a startling occurrence is taking into place or immediately prior or
subsequent thereto. (Sec. 36 of Rule 130)

(b) If the statement cannot be admitted as part of the res gestae, may it be considered as a dying
declaration?

Answer:

(b) Neither could it be considered as a dying declaration because it was not made under consciousness of
impending death, since he died ten days later.

Another Answer:

302

It could be considered as a dying declaration if the gravity of the wounds inflicted would indicate that the
statement was made under consciousness of impending death.

(c) If the testimony of A as to the revelation of Lt. Yap is not admissible for being hearsay, may it be
admitted as an independently relevant statement?

Answer:
(c) It may not be considered as an independently relevant statement, because the same is being presented
to establish the truth of the fact asserted therein and not merely the tenor thereof. (People vs. Gaddi, 170
SCRA 649)

Declaration against interest

Q: In relation to the hearsay rule, what do the following rules of evidence have in common? (5%) (2007 Bar
Question)

. (1) x x x

. (2) x x x

. (3) The rule on admissions against interest.

SUGGESTED ANSWER:

The rules on the evidence specified in the question asked, have in common the following:

. (a) xxx

. (b) xxx

. (c) The witness is testifying on facts which are not of his own knowledge or derived from his own
perception.

Family reputation or tradition regarding pedigree

Q: Linda and spouses Amulfo and Regina Ceres were coowners of a parcel of land. Linda died intestate and
without any issue. Ten (10) persons headed by Jocelyn, claiming to be the collateral relatives of the
deceased Linda, filed an action for partition with the Regional Trial Court praying for the segregation of
Linda’s 1/2 share, submitting in support of their petition the baptismal certificates of seven of the
petitioners, a family bible belonging to Linda in which the names of the petitioners have been entered, a
photocopy of the birth certificate of Jocelyn, and a certification of the local civil registrar that its office had
been completely razed by fire. The spouses Ceres refused to partition on the following grounds: 1) the
baptismal certificates of the parish priest are evidence only of the administration of the sacrament of
baptism and they do not prove filiation of the alleged collateral relatives of the deceased; 2) entry in the
family bible is hearsay; 3) the certification of the registrar on non- availability of the records of birth does
not prove filiation; 4) in partition cases where filiation to the deceased is in dispute, prior and separate
judicial declaration of heirship in a settlement of estate proceedings is necessary; and 5) there is need for
publication as real property is involved. As counsel for Jocelyn and her co-petitioners, argue against the
objections of the spouses Ceres so as to convince the court to allow the partition. Discuss each of the five
(5) arguments briefly but completely. (10%) (2000 Bar Question)

303

SUGGESTED ANSWER:
1) The baptismal certificate can show filiation or prove pedigree. It is one of the other means

allowed under the Rules of Court and special laws to show pedigree. (

2) Entries in the family bible may be received as evidence of pedigree. (Sec. 40, Rule 130, Rules of Court).

3) The certification by the civil registrar of the non-availability of records is needed to justify the
presentation of secondary evidence, which is the photocopy of the birth certificate of Jocelyn. (Heirs of
Ignacio Conti v. Court of Appeals, supra.)

4) Declaration of heirship in a settlement proceeding is not necessary. It can be made in the ordinary action
for partition wherein the heirs are exercising the right pertaining to the decedent, their predecessor-in-
interest, to ask for partition as co-owners (Id.).
5) Even if real property is involved, no publication is necessary, because what is sought is the mere
segregation of Linda’s share in the property. (Sec. 1 of Rule 69; Id.)

Part of the res gestae

Q: In relation to the hearsay rule, what do the following rules of evidence have in common? (5%) (2007 Bar
Question)

289 SCRA 188 11998]; Heirs of Ignacio Conti v. Court of Appeals, 300 SCRA 34511998)).

(1)
(2)
(3)
SUGGESTED ANSWER:
The rules on the evidence specified in the question asked, have in common the following:
(a) The evidence although hearsay, are allowed by the Rules as exceptions to the hearsay rule; (b) xxx

(c) xxx

Q: Dencio barged into the house of Marcela, tied her to a chair and robbed her of assorted pieces of jewelry
and money. Dencio then brought Candida, Marcela’s maid, to a bedroom where he raped her. Marcela could
hear Candida crying and pleading: “Huwag! Maawa ka sa akin!" After raping Candida, Dencio fled from the
house with the loot. Candida then untied Marcela and rushed to the police station about a kilometer away
and told Police Officer Roberto Maawa that Dencio had barged into the house of Marcela, tied the latter to a
chair and robbed her of her jewelry and money. Candida also related to the police officer that despite her
pleas, Dencio had raped her. The policeman noticed that Candida was hysterical and on the verge of
collapse. Dencio was charged with robbery with rape. During the trial, Candida can no longer be located.
(2005 Bar Question)

a) If the prosecution presents Police Officer Roberto Maawa to testify on what Candida had told him, would
such' testimony of the policeman be hearsay? Explain.

SUGGESTED ANSWER:

The rule on statements that are part of the res gestae; x x x

xxx

304

Trinidad v. Court of Appeals,

No. The testimony of the policeman is not hearsay. It is part of the res gestae. It is also an independently
relevant statement. The police officer testified of his own personal knowledge, i.e., that complainant told
him that despite her pleas, Dencio had raped her. He did not testify to the truth of his statement. [People v.
Gaddi, 170 SCRA 649 [19891).

ALTERNATIVE ANSWER

Strictly speaking the testimony is hearsay, but it is an exception to the hearsay rule.

b) If the police officer will testify that he noticed Candida to be hysterical and on the verge of collapse,
would such testimony be considered as opinion, hence, inadmissible? Explain. (8%)

SUGGESTED ANSWER:

b) No, It cannot be considered as opinion, because he was testifying on what he actually observed. A
witness may testify on his impressions of the emotion, behavior, condition or appearance of a person. (Rules
of Court, Rule 130,Sec. 50, last par.).
Q: (1988 Bar Question)

(a) When Tomas was stabbed on the chest during a street brawl, he instinctively shouted for help. Emil who
was nearby heard the shout and rushed to Tomas' side who when asked by Emil what happened, stated that
Kulas stabbed him.

Tomas died on account of the stab wound.

1) Could Emil’s testimony be received to identify Kulas? Explain. Answer:

(a) Yes, Emil’s testimony may be received to identify Kulas because the statement of Tomas who had just
been stabbed on the chest that Kulas stabbed him is admissible as part of the res gestae. (Sec. 36 of Rule
130)

(b) The day before the stabbing victim died, he identified positively to the Police the person who stabbed
him. When he was asked by the Police if he was going to die because of his wounds, he answered that he
did not know.

1) Is the identification by the deceased admissible as an ante-mortem statement and an exception to the
hearsay rule? Explain.

2) State five other exceptions to the hearsay rule.

Answer:

(b) 1) No, because his answer to the question of the police, if he was going to die, that he did not know
shows that his identification of the person who stabbed him was not made under consciousness of
impending death. Hence, the identification is not admissible as a dying declaration or ante-mortem
statement. (Sec. 31 of Rule 130; People vs. Dominguez, 36 SCRA 59)

Alternative Answer:

305

(b) 1) Yes, because in the case of People vs. Sarbia (127 SCRA 100) where the answer of the victim to the
question of the police, if he was going to die, was “I do not know Sir because my wounds are too painful”
and in fact he died two days later, the statement of the victim identifying the person who stabbed him was
admitted as a dying declaration. This ruling may apply to this case where the victim died the next day.

Note: The answer will depend on the circumstances. It will have to be decided on a case to case basis. If the
wounds are serious, it can be considered ante-mortem.

2) Five other exceptions to the hearsay rule are:

. a) Declaration against interest

. b) Act or declaration about pedigree

. c) Family reputation or tradition regarding pedigree

. d) Common reputation

. e) Entries in the course of business

. f) Entries in official records

. g) Commercial lists and the like

. h) Learned treatises

. i) Testimony at a former trial (Secs. 32-41 of Rule 130)

7. Opinion rule
a. Opinion of expert witness
b. Opinion of ordinary witness

Q: At Nolan’s trial for possession and use of the prohibited drug known as “shabu," his girlfriend, Kim,
testified that on a particular day, she would see Nolan very prim and proper, alert and sharp, but that three
days after, he would appear haggard, tired and overly nervous at the slightest sound he would hear. Nolan
objects to the admissibility of Kim's testimony on the ground that Kim merely stated her opinion without
having been first qualified as expert witness.

Should you, as judge, exclude the testimony of Kim? (1994 Bar Question)

Answer:

No. The testimony of Kim should not be excluded. Even though Kim is not an expert witness, Kim may
testify on her Impressions of the emotion, behavior, condition or appearance of a person. (Sec. 50. last par.
Rule 130).

8. Character evidence

a. Criminal cases

Q: In a prosecution for murder, the prosecutor asks accused Darwin if he had been previously arrested for
violation of the Anti-Graft and Corrupt Practices Act. As defense

306

counsel, you object. The trial court asks you on what ground / s. Respond. (3%) (2010 Bar Question)

SUGGESTED ANSWER:

The objection is on the ground that the fact sought to be elicited by the prosecution is irrelevant and
immaterial to the offense under prosecution and trial. Moreover, the Rules do not allow the prosecution to
adduce evidence of bad moral character of the accused pertinent to the offense charged, except on rebuttal
and only if it involves a prior conviction by final judgment (Rule 130, Sec. 51, and Rules of Court).

Q: D was prosecuted for homicide for allegedly beating up V to death with an iron pipe.

A. May the prosecution introduce evidence that V had a good reputation for peacefulness and non-violence?
Why? (2%)

B. May D introduce evidence of specific violent acts by V? Why? (3%) (2002 Bar Question)

SUGGESTIVE ANSWER:

A. The prosecution may introduce evidence of the good or even bad moral character of the victim if it tends
to establish in any reasonable degree the probability or improbability of the offense charged. [Rule 130, sec.
51 a (3)]. In this case, the evidence Is not relevant

B. Yes, D may introduce evidence of specific violent acts by V. Evidence that one did or did not do a certain
thing at one time is not admissible to prove that he did or did not do the same or a similar thing at another
time; but it may be received to prove a specific Intent or knowledge, identity, plan, system, scheme, habit,
custom or usage, and the like. (Rule 130, sec. 34).

9. Rule on Examination of a Child Witness (A.M. No. 004-07-SC)

a. Live-link TV testimony of a child witness

Q: When may the trial court order that the testimony of a child be taken by live-link television? Explain.
(10%) (2005 Bar Question)
SUGGESTED ANSWER:

The testimony of a child may be taken by live- link television if there is a substantial likelihood that the child
would suffer trauma from testifying in the presence of the accused, his counsel or the prosecutor as the case
maybe. The trauma must be of a kind which would impair the completeness or truthfulness of the testimony
of the child. (Sec. Sec. 25 [f], Rule on Examination of a Child Witness).

F. Offer and objection

1. Offer of evidence

Q: What is the difference between an offer of testimonial evidence and an offer of documentary evidence?
(1994 Bar Question)

Answer:

307

An offer of testimonial evidence is made at the time the witness is called to testify, while an offer of
documentary evidence is made after the, presentation of a party's testimonial evidence. (Sec. 35. Rule 132.)

Q: During the pre-trial of a civil case, the parties their respective documentary evidence. Among the
documents marked by the plaintiff was the Deed of Absolute Sale of the property in litigation (marked as
Exh. “C").

In the course of the trial on the merits, Exh. “C" was Identified by the plaintiff, who was cross- examined
thereon by the defendant’s counsel; furthermore, the contents of Exh. “C" were read into the records by the
plaintiff.

However, Exh. “C" was not among those formally offered in evidence by the plaintiff.

May the trial court consider Exh. “C" in the determination of the action? Why? (1993 Bar Question)

Answer:

Yes, because not only was the Deed of Absolute Sale marked by the plaintiff as Exh. “C" during the pre-trial,
it was identified by the plaintiff in the course of the trial and the plaintiff was cross-examined thereon by the
defendant’s counsel. Furthermore, the contents of Exh. “C" were read into the records by the plaintiff.
Hence, the trial court could properly reconsider Exh. “C” In the determination of the action even though it
was not formally offered in evidence. This is an exception to the rule that the court shall consider no
evidence which has not been formally offered (Sec. 35 of Rule 132). (See People vs. Napata, 179 SCRA 403;
Tabuena vs. Court of Appeals, 196 SCRA 650.)

Q: Distinguish formal offer of evidence from offer of proof. (1991 Bar Question) Answer:

A formal offer of the testimony of a witness is made at the time the witness is called to testify, while a
formal offer of documentary and object evidence is made after the presentation of a party’s testimonial
evidence. (Sec. 35 of Rule 132)

On the other hand, if documents or things offered in evidence are excluded by the court, the offer of proof is
made by having the same attached to or made part of the record; and if the evidence excluded is oral, the
offer of proof is made 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)

2. When to make an offer

Q: A trial court cannot take into consideration in deciding a case an evidence that has not been ‘'formally
offered". When are the following pieces of evidence formally offered? (1997 Bar Question)

. (a) Testimonial evidence

. (b) Documentary evidence

. (c) Object evidence

308

Answer:

(a) Testimonial evidence is formally offered at the time the witness is called to testify. (Rule 132. Sec. 35.
first paragraph)

(b) Documentary evidence is formally offered after the presentation of the testimonial evidence. (Rule 132,
Sec. 35, second par.)

(c) The same is true with object evidence. It is also offered after the presentation of the testimonial
evidence.

3. Objection

Q: What are the two kinds of objections? Explain each briefly. Given an example of each.(1997 Bar
Question)

Answer:

Two kinds of objections are: (1) the evidence being presented is not relevant to the issue; and (2) the
evidence is incompetent or excluded by the law or the rules. (Sec. 3, Rule 138). An example of the first is
when the prosecution offers as evidence the alleged offer of an insurance company to pay for the damages
suffered by the victim in a homicide case. (See question No. 14).

Examples of the second are evidence obtained in violation of the Constitutional prohibition against
unreasonable searches and seizures and confessions and admissions in violation of the rights of a person
under custodial investigation.

Alternative Answers:
1) Specific objections : Example: parol evidence and best evidence rule

General Objections: Example: continuing objections (Sec. 37 of Rule 132).

2) The two kinds of objections are: (1) objection to a question propounded in the course of the oral
examination of the witness and (2) objection to an offer of evidence in writing. Objection to a question
propounded in the course of the oral examination of a witness shall be made as soon as the grounds
therefor shall become reasonably apparent, otherwise, it is waived. An offer of objection in writing shall be
made within three (3) days after notice of the offer, unless a different period is allowed by the court. In both
instances the grounds for objection must be specified. An example of the first is when the witness is being
cross-examined and the cross examination is on a matter not relevant. An example of the second is that the
evidence offered is not the best evidence.

Q: What is the difference between a “broadside" objection and a specific objection to the admission of
documentary evidence? (1994 Bar Question)

Answer:

A “broadside" objection to the admission of documentary evidence is to be distinguished from a specific

objection in that a “broadside" objection is a general objection such as “incompetent, irrelevant and
immaterial", while a specific objection is limited to a particular ground.
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Alternative Answer:

A “broadside" objection is one which does not specify any ground.

Q: (2002 Bar Question)

A. Delia sued Victor for personal injuries which she allegedly sustained when she was struck by a car driven
by Victor. May the court receive in evidence, over proper and timely objection by Delia, a certified true copy
of a judgment of acquittal in a criminal prosecution charging Victor with hit-and-run driving in connection
with Delia’s injuries? Why? (3%)

B. Is this question on direct examination objectionable: “What happened on July 12, 1999”? Why? (2%)

SUGGESTED ANSWER:

A. If the judgment of acquittal in the criminal case finds that the act or omission from which the civil liability
may arise does not exist, the court may receive it in evidence over the objection by Delia. [Rule 111, sec. 2,
last paragraph].

ALTERNATIVE ANSWER:

A. If the judgment of acquittal is bases on reasonable doubt, the court may receive it in evidence because in
such case, the civil action for damages which may be instituted requires only a preponderance of the
evidence. (Art. 29, Civil Code)

SUGGESTED ANSWER:

B. The question is objectionable because it has no basis, unless before the question is asked the proper
basis is laid.

4. Tender of excluded evidence

Q: G files a complaint for recovery of possession and damages against F. In the course of the trial, G marked
his evidence but his counsel failed to file a formal offer of evidence. F then presented in evidence tax
declarations in the name of his father to establish that his father is a co-owner of the property. The court
ruled in favor of F, saying that G failed to prove sole ownership of the property in the face of F’s evidence.
Was the court correct? Explain briefly. (5%)(2007 Bar Question)

SUGGESTED ANSWER:

No, the trial court is not correct in ruling in favor of F. Tax Declarations are not by themselves evidence of
ownership; hence, they are not sufficient evidence to warrant a judgment that F’s father is a co-owner of the
property.

Plaintiffs failure to make a formal offer of his evidence may mean a failure to prove the allegations in his
complaint. However, it does not necessarily result in a judgment awarding co- ownership to the defendant.

While the court may not consider evidence which is not offered, the failure to make a formal 310

offer of evidence is a technical lapse in procedure that may not be allowed to defeat substantive justice. In
the interest of justice, the court can require G to offer his evidence and specify the purpose thereof.

Q: 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. X's counsel object to A's proposed testimony as being irrelevant. The court sustained the objection.

If you were the prosecutor, what course of act ion would you pursue to the end that the proposed testimony
of A would form part of the record for purposes of review? Explain. (1996 Bar Question)
Answer:

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)

VII. Revised Rules on Summary Procedure

A. Cases covered by the rule

Q: (1988 Bar Question)

a) In what civil cases is the Summary Procedure before Metropolitan Trial Courts, Municipal Trial Courts, and
Municipal Circuit Trial Courts applicable?

b) In what criminal cases is the Summary Procedure before the Metropolitan Courts, Municipal Courts, and
Municipal Circuit Trial Courts applicable?

Answer:

a) Summary Procedure is applicable in the following civil cases:

1) Cases of forcible entry and unlawful detainer, accept where the question of ownership is involved, or
where the damages or unpaid rentals sought to be recovered by the plaintiff exceed twenty thousand pesos
(P20,000.00) at the time of the filing of the complaint;

2) All other civil cases, except probate proceedings, falling within the jurisdiction of the abovementioned
courts, where the total amount of the plaintiff s claim does not exceed ten thousand pesos (P10,000.00),
exclusive if interest and costs. (Sec. 1-A)

b) It is applicable in the following criminal cases:

. 1) Violations of traffic laws, rules and regulations;

. 2) Violations of the rental law;

. 3) Violations of municipal or city ordinances;

. 4) All other criminal cases where the penalty prescribed by law for the offense

charged does not exceed six months of imprisonment, or a fine of one thousand pesos (PI,000.00), or both,
irrespective of other imposable penalties, accessory or otherwise, or of the civil liability arising therefrom:
Provided, however, that in offenses involving damage to

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property through criminal negligence, this Rule shall govern where the imposable fine does not exceed ten
thousand pesos (P10,600 00). (Sec. 1-B)

Through criminal negligence, this Rule shall govern where the imposable fine does not exceed ten thousand
pesos (P10,600 00). (Sec. 1-B)

B. Effect of failure to answer

Q: Distinguish between the effects of the failure to file an answer in a civil case governed by the Summary
Rules and in a civil case governed by the regular provisions of the Rules of Court. (1989 Bar Question)

Answer:

Under Summary Procedure Rules, upon the failure to file an answer in. a civil case, the court, motu propio or
upon motion of the plaintiff, shall render judgment as may be warranted by the facts alleged in the
complaint and limited to what is prayed for therein except as to the amount of damages which the court
may reduce in its discretion. (Sec. 5)

Under the regular procedure, upon the failure to file an answer, the court shall, upon motion of the plaintiff
and proof of .such failure, declare the defendant in default. Thereupon, the court shall proceed to receive
the plaintiff’s evidence and render judgment granting him such relief as the complaint and the facts proven
may warrant. Such judgment shall not exceed the amount or be different in kind from that prayed for. (Secs.
1 and 5 of Rule 18).

C. Preliminary conference and appearances of parties

Q: Charged with the offense of slight physical injuries under an information duly filed with the MeTC in
Manila which in the meantime had duly issued an order declaring that the case shall be governed by the
Revised Rule on Summary Procedure, the accused filed with said court a motion to quash on the sole ground
that the officer who filed the information had no authority to do so. The MeTC denied the motion on the
ground that it is a prohibited motion under the said Rule.

The accused thereupon filed with the RTC in Manila a petition for certiorari in sum assailing and seeking the
nullification of the MeTC’s denial of his motion to quash. The RTC in due time issued an order denying due
course to the certiorari petition on the ground that it is not allowed by the said Rule. The accused forthwith
filed with said RTC a motion for reconsideration of its said order. The RTC in time denied said motion for
reconsideration on the ground that the same is also a prohibited motion under the said Rule.

Were the RTC’s orders denying due course to the petition as well as denying the motion for reconsideration
correct? Reason. (5%)(2004 Bar Question)

SUGGESTED ANSWER:

The RTC’s orders denying due course to the petition for as well as denying the motion for
reconsideration are both not correct. The petition for is a prohibited pleading under Section 19(g)
of the Revised Rule on Summary Procedure and the motion for reconsideration, while it is not prohibited
motion (Lucas v. Fabros, AM No. MTJ-99-1226, January 31, 2000, citing Joven v. Court of Appeals, 212
SCRA 700, 707-708 (1992), should be denied because the petition for certiorari is a prohibited pleading.

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certiorari

certiorari

Q: Edison was charged with the crime of less serious physical injuries in the Metropolitan Trial Court of
Manila. Under the Revised Penal Code, the penalty prescribed for this offense is arresto mayor, Aside from
the recital of the facts constituting the offense, the information alleged that the offended party suffered
actual damages in the amount of P25,000. Instead of submitting his counter-affidavits as required by the
court, Edison filed a “motion to quash” contending that the court had no jurisdiction over the case since the
amount claimed as damages exceeds the jurisdic-tional limit of trial courts in civil cases. If you were the
judge trying the case, what would you do with the-motion filed? How would you dispose of the question of
jurisdiction raised in the said motion? Explain. (1989 Bar Question)

Answer:

I would deny the motion to quash inasmuch as such a motion is not allowed in Summary Procedure. The
criminal case where the penalty prescribed by law for the offense charged does not exceed six months of
imprisonment is governed by Summary procedure.

On the question of jurisdiction, Summary Procedure applies irrespective of the civil liability arising from the
offense. Hence the fact that the civil liability exceeds P2Q,000 does not deprive the Metropolitan Trial Court
of jurisdiction. (Sec. B-4)
Q: An information for slight physical injuries was filed against Diego in the Municipal Trial Court of Cainta,
after which the judge directed him to appear and submit counter- affidavits and those of his witnesses on
September 12, 1989. Diego failed to appear on the said date. Thereafter, the judge rendered judgment
convicting Diego of the offense charged based on the affidavits submitted by the complainant. Diego
contends that this judgment is a nullity. Decide. (1989 Bar Question)

Answer:

Diego’s contention is correct. Under Summary Procedure rules, the failure of Diego to appear and submit
counter-affidavits on the date specified may be a ground for the judge to issue a warrant for his arrest upon
a finding of probable cause. However, the judge may not render a judg- ment of conviction of the offense
charged based on the affidavits submitted by the complainant. He should set the case for arraignment and
trial if Diego pleads not guilty. Only after trial may the judge render a judgment of conviction. (Secs. 10 and
11)

VIII. Katarungang Pambarangay Law (P.D. No. 1508; R.A. 7610, as amended)

A. Cases covered

Q: (1999 Bar Question)

a. What is the object of the Katarungang Pambarangay Law? (2%)

Answer:

The object of the Katarungang Pambarangay Law is to effect an amicable settlement of disputes among
family and barangay members at the barangay level without judicial recourse and consequently help relieve
the courts of docket congestion. (Preamble of P.D. No. 1508, the former and the first Katarungang
Pambarangay Law.)

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Q: Alice, a resident of Valenzuela. Metro Manila, filed with the Metropolitan Trial Court thereat a complaint
for damages against her next-door neighbor Rosa for P100,000.00 with prayer for preliminary attachment.
She alleged that Rosa intrigued against her honor by spreading unsavory rumors about her among their co-
workers at the Phoenix Knitwear factory located at Valenzuela.

After pre-trial the court motu proprio referred the case for amicable settlement between the parties to the
Lupon Tagapayapa of Barangay 2. Zone 3, of Valenzuela where the factory is located. Rosa questioned the
order contending that the court had no authority to do so as both parties had already gone through pre-trial
where amicable settlement was foreclosed and the parties were already going to trial.

1. Comment-on Rosa’s contention. Explain.

2. Rosa also opposed the referral to the Lupon Tagapayapa of Barangay 2, Zone 3,

claiming that the venue was wrong as the proper Lupon was that of Barangay 1, Zone 5, where she and
Alice reside. Is Rosa’s opposition valid? Explain.

3. Suppose that the Lupon of Barangay 2. Zone 3, is successful in forging an amicable settlement between
Alice and Rosa, is the compromise immediately executory? Ex plain.

4. How, when and by whom shall the compromise agreement be enforced? Explain.

Answer:

1. Rosa is not correct. The Local Government Code provides that in non-criminal cases not falling within the
authority of the Lupon, the court may at any time before trial refer the case to the Lupon concerned for
amicable settlement. (Sec. 408)
2. No, because the law also provides that the venue of disputes arising at the workplace of the contending
parties shall be brought in the barangay where such workplace is located. (Sec. 409[d])

3. No, because any compromise settlement shall be submitted to the court which referred the case for
approval. (Sec. 416)

4. Upon approval thereof, it shall have the force and effect of a Judgment of the court and shall be enforced
in accordance with Section 6, Rule 39.

Q: For failure of the tenant, X, to pay rentals, A, the court-appointed administrator of the estate of Henry
Datu, decides to file an action against the former for the recovery of possession of the leased premises
located In Davao City and for the payment of the accrued rentals In the total amount of P25,000.00. (1991
Bar Question)

a) Is prior referral to the Lupon under P.D. No. 1508 necessary?

Answer:

a) No, because the law applies only to disputes between natural person, and does not apply to juridical
person such as the estate of a deceased. [Vda. de Borromeo v. Pogoy, 126 SCRA 217)

b) What is the court of proper jurisdiction and venue of the Intended action?

Answer:

b) The Court of proper jurisdiction and venue is the Municipal Trial Court of Davao City, since this is an
action of illegal detainer and the leased premises are located in Dayao City.

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Another Answer:

If the action filed is for recovery of possession or accion publiciana, the Regional Trial Court of Davao City
would have jurisdiction and the venue would also be in Davao City.

c) Supposing that referral is necessary, but the complaint is filed without such referral, may it be dismissed
on the ground of lack of jurisdiction?

Answer:

c) No, because lack of referral would merely render the action premature for failure to comply with a
condition precedent.

d) If the case is filed with the Municipal Trial Court, in Cities (MTCC), is it covered by the Rule on Summary
Procedure?

Answer:

d) No, it is not covered by the Rule on Summary Procedure in any of the lower courts, because the unpaid
rentals exceed P20.000.00 (Sec. 1-A-l of Rule on Summary Procedure)

e) Supposing that A filed the complaint in the MTCC, and X filed an Answer wherein he interposed a
counterclaim for moral damages in the amount of P50.000 alleging that the complaint is unfounded and
malicious, would the MTCC have jurisdiction over the counterclaim? If X did not set up the counterclaim, can
he file a separate action to recover the damages? Can A file a counterclaim to the counterclaim?

Answer:
e) No, because the counterclaim exceeds the jurisdictional amount of P20.000.00. Since the claim for
damages is not within the jurisdiction of the MTCC, it is not a compulsory counterclaim and X can file a
separate action in the RTC to recover the damages. [Reyes v. CA, 38 SCRA 130)

Another Answer:

The MTCC would have jurisdiction over the counterclaim if the excess of the amount thereof over
P20.000.00 is waived by X. (Agustin v. Bocalan, 135 SCRA 340)

B. Subject matter for amicable settlement

Q: An amicable settlement was signed before a Lupon Tagapamayapa on January 3, 2001. On July 6, 2001,
the prevailing party asked the Lupon to execute the amicable settlement because of the non-compliance by
the other party of the terms of the agreement. The Lupon concerned refused to execute the
settlement/agreement.

a) Is the Lupon correct in refusing to execute the settlement/agreement? (3%)

b) What should be the course of action of the prevailing party in such a case? (2%) SUGGESTED ANSWER:

315

a) Yes, the Lupon is correct in refusing to execute the settlement/agreement because the execution sought
is already beyond the period of six months from the date of the settlement within which the Lupon is
authorized to execute. (Sec. 417, Local Government Code of 1991)

b) After the six-month period, the prevailing party should move to execute the settlement/agreement in the
appropriate city or municipal trial court. (Id.)

Q: (1999 Bar Question) b. x x x

c. What is the difference, if any, between the conciliation proceedings under the Katarungang Pambarangay
Law and the negotiations for an amicable settlement during the pre-trial conference under the Rules of
Court? (2%)

SUGGESTED ANSWER:

a. xxx

b. The difference between the conciliation proceedings under the Katarungang Pambarangay Law and the
negotiations for an amicable settlement during the pre-trial conference under the Rules of Court is that in
the former, lawyers are prohibited from appearing for the parties. Parties must appear in person only except
minors or incompetents who may be assisted by their next of kin who are not lawyers. (Formerly Sec. 9,
P.D. No. 1508; Sec. 415, Local Government Code of 1991, R.A. 7160.) No such prohibition exists in the pre-
trial negotiations under the Rules of Court.