Remedial Law Bar Q & A

1. Distinguish jurisdiction over subject matter from jurisdiction over person of the
accused: 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]).

2. 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.

3. 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 authority of the Ombudsman (Perez
v. Sandiganbayan, 503 SCRA 252[2006]).

4. 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%)

SUGGESTED ANSWER:
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.

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

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

(a) What is the effect of the death of Donald on his criminal liability? Explain. 


(b) What is the effect of his death on his civil liability based solely on his criminal act?
Explain.

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

(d) 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.

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


(b)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)

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

(d) 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.

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

7. 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.)

8. 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).

9. 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.)

10. 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])

11. 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.

12. 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).

13. 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

14. 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.

15. 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 bail bond 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)

SUGGESTED ANSWER:
The judge correctly ordered the cancellation (forfeiture) of the bail bond 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 ANSWER:
If the judgment was of conviction for a light offense, the promulgation should be made in the presence of
the counsel.

16. 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]).

17. 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]).

18. 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.

19. 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]).

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

SUGGESTED 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)