JEFFERSON G.

LEGADO FINAL EXAMS REMEDIAL LAW REVIEW II

REFRESHER SECTION 4-2 ATTY. PAGALILAUAN

A) Gary Tavares, a boxer, during his fight against Lucas Ventura, knocked the latter out.
Despite being warded off by the referee, Tavares continued to punch Ventura, resulting to his
untimely death. Tavares and Ventura appeared to have a personal spite towards each other.
He was arrested by the police and brought to the police station. He challenges the validity of
the arrest since it is without warrant.

1) Is the arrest justified? Explain

2) Is there a crime committed? Why or why not?

ANSWER:

1) No, the arrest is not justified. The arresting officers has no probable cause to arrest
Tavares.

To constitute probable cause and effect an In flagrante Delicto arrest, 2 requisites must
concur:

a. The person arrested must execute an overt act indicating that he has just
committed, is actually committing, or is attempting to commit a crime; and
b. Such overt act is done in the presence of the arresting officer/s.

In the present case, there was no mention of the fact that the arresting officer was
physically present and that he had an opportunity to have witnessed any overt act that will
constitute a crime that may give rise to a probable cause to effect the arrest of Tavares.

Assuming arguendo that the arresting officer was present during the match, still there
could have been no probable cause to effect a valid in flagrante delicto absent any overt act
that will logically and necessarily ripen into a concrete offense. The actions of both fighters
were sanctioned by the sports authority who organized such event and both have authority to
physically hurt and dominate the other to win, hence such act contingent to this authority
should not be equated by the arresting officer as a criminal assault to the other.

2) Yes, Tavares may be held liable under Article 365 of the revised penal code on criminal
negligence. The elements are:

a. There must be a duty to perform an act;

b. Deficiency of perception, or lack of foresight, or failure to foresee the injury, or
thoughtlessness in the performance of such duty;
c. Results in injury;
d. Such lack of foresight is the proximate cause of the injury.

In the present case, Tavares is assumed experienced enough to know the basic rules in a
boxing match. He was given 2 opportunities to cease any further infliction of injury over his
 opponent, first was when his opponent was knocked out, as a boxer he is expected to stop
attacking when an opponent is knocked out or even knocked down. The second opportunity is
when the referee warded him off.

Although Tavares has the duty to win the fight, such duty was breached when he failed
to foresee further injury when he kept boxing even after his opponent ceased on fighting,
hence he is liable for reckless imprudence resulting to homicide under article 365 of the
Revised Penal Code.

B) Can a person who posted slanderous remarks against another be immediately arrested
without warrant being a case of in flagrante delicto? Explain.

ANSWER:

No, provided that the defamation or slander consists in the imputation of the offenses of
Seduction, Abduction, or Acts of Lasciviousness.

Section 5 of Rule 110 of the Rules on Criminal Procedure considered defamation or slander,
which consists in the imputation of the offenses of Seduction, Abduction, and Acts of
Lasciviousness, as private crime and outside the scope of warrantless arrest even if done in
flagrante delicto.

Private crimes/offenses are those which cannot be prosecuted except upon a complaint filed
by the aggrieved party. The private offended party who may prefer not to file a case and go
through the scandal of a public trial must not be pre-empted by the State in effecting an in
flagrante delicto arrest.

C) What is the role of a private prosecutor in a case? When is his appearance warranted?

ANSWER:

A private prosecutor’s role in a criminal case is similar to a public prosecutor insofar as

prosecuting a criminal case is concerned, however all actions performed by the private
prosecutor in relation to prosecuting a crime shall at all times under the supervision and
control of a public prosecutor.

The appearance of a private prosecutor is warranted when in cases of heavy work schedule of
the public prosecutor or in the event of lack of public prosecutors, private prosecutors may be
authorized in writing by the Chief of the Prosecution office or the Regional State Prosecutor
to prosecute the case subject to the approval of the court.

D) When a person is entitled to bail as a matter of right, but the judge denied it on matters of
national security, because the judge thinks that there is a big chance of the accused escaping
or committing another crime, is the judge acting in grave abuse of discretion?

ANSWER:
 Yes. If an accused is entitled to bail as a matter of right, he therefore cannot be denied of such
Constitutional right regardless of any reason.

The 1987 Constitution provides that all persons, except those charged with an offense
punishable by Reclusion Perpetua to Death, when the evidence of guilt is strong, shall before
conviction be bailable.

The Supreme Court also held in the case of Almeda vs Villaluz that bail, if a matter of right, is
a guaranteed right by the Constitution and may not be denied even where the accused has
previously escaped detention of by reason of his prior absconding.

E) What is the difference between a probable cause in preliminary investigation and probable
cause in the issuance of a warrant of arrest?

ANSWER:

The trial court judge's determination of probable cause is based on her or his personal
evaluation of the prosecutor's resolution and its supporting evidence. The determination
of probable cause by the trial court judge is a judicial function, whereas the determination
of probable cause by the prosecutors is an executive function.

During preliminary investigation, the prosecutor determines the existence of probable

cause for filing an information in court or dismissing the criminal complaint. As worded
in the Rules of Court, the prosecutor determines during preliminary investigation whether
"there is sufficient ground to engender a well-founded belief that a crime has been
committed and the respondent is probably guilty thereof, and should be held for trial." At
this stage, the determination of probable cause is an executive function. Absent grave
abuse of discretion, this determination cannot be interfered with by the courts. This is
consistent with the doctrine of separation of powers.

On the other hand, if done to issue an arrest warrant, the determination of probable cause
is a judicial function. No less than the Constitution commands that "no . . . warrant of
arrest shall issue except upon probable cause to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witnesses he may
produce." This requirement of personal evaluation by the judge is reaffirmed in Rule 112,
Section 5 (a) of the Rules on Criminal Procedure.