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 administrators 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 Hs 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 Hs 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 Renes heirs, what steps would you suggest to
settle Renes estate in the least expensive manner?

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

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

Answer:

1) To settle Renes 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 Renes 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

181

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) Suzys 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 decedents 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)

182

1. Is Cancio Vidal, after learning of Sergios death, obliged to file with the proper court a petition
for probate of the latters 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 Lulus 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 Lulus 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. As 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 As
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

185

decedents 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:

186

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. Domenicos 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).

187

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 attorneys 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 Ds
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 Ds administrator.

(2) Yes, Ds administrator can prosecute the claim In an Independent proceeding since the
claim of X was disallowed. If X had a valid claim and Ds 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 Ds intestate proceedings, submitted a project of partition to the
probate court (RTC-Manila). Upon the courts 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. Ds 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 Cs estate. How should the RTC- Manila resolve the
motion of Ds administrator? Explain. (3%) (2002 Bar Question)

SUGGESTED ANSWER:

Atty.

Atty.

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The motion of Ds 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

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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 Courts 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. Ellens
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 courts 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 wifes 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 Ginas 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 Ginas petition, will you give due course to the OSGs 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 RTCs 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 Bs 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:

Rs 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 prosecutors 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 prosecutors 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 Prosecutors 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 Prosecutors
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
plaintiffs parents during their lifetime.

After trial, the Regional Trial Court rendered a decision upholding the defendants 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 accuseds
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 Delias 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. Donalds 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 Paulas right to file a separate civil action against the
executor/administrator or heirs of Donald.

213

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 (CXs)
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
occupants 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 latters residence to investigate, but on their way they met accused Y on the road.
Thereupon, Barangay Captain Z confronted accused Y about the complaint of his common-law
wife X, but Y did not say anything nor deny it. The Barangay Captain, noticing an object bulging
in Ys waistline underneath his T-shirt, and believing that it was the gun he used to injure X and
to threaten her with death, frisked Y and grabbed the object which turned out to be a .38
caliber paltik revolver. The Barangay Captain 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 prosecutions 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 As 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 Ds 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 prosecutors certification of probable cause in the information is sufficient to determine
whether the evidence of guilt is strong, thereby dispensing with the presentation of the
prosecutions evidence.

As Judge, how would you resolve the contention of the defense? Explain. (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.)

225

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 courts 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.

227

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, Ls 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 AAs objections.

During AAs 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 AAs hair and blood samples. AAs 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 Brixs 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 dont know anything about it. It isnt 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 Ds 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 Margals 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 corporations 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 corporations collective
bargaining agreement with the employees 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. Xs counsel assured the court that he fully apprised X of the information, the nature of
the charge, and the consequences of his plea. X even waived the prosecutions presentation of
evidence against him. The court convicted X of murder.

. a) Was the plea of guilty entered valid? Explain.

. b) May the prosecution dispense with the presentation of evidence despite the

waiver of the accused? Explain. (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, attorneys 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 fiscals
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 victims 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:

Ds 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:

Ds 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 complainants 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. Bembols father, Ramil, approached Artemon, the victims
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
Bembols 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 Roys 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 Carlos 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 Bian, 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) Ys 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 Rauls conviction proper?

Answer:

1) No. The Court did not correctly deny Rauls 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. Rauls 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 Beners contention? (1994 Bar Question) Answer:

Beners 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.
Edmonds 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.

Edmonds 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 As telephone line, with As 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 As 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 Bobs contention. (1994 Bar Question) Answer:

Bobs 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
informers 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
plaintiffs parents during their lifetime.

After trial, the Regional Trial Court rendered a decision upholding the defendants 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 As 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

276

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 sheriffs
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 sheriffs 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
sheriffs 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

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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 Als 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 Roys 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 Louises 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 latters 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 XYZs 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)

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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 latters 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 latters 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 Vidas 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 Ws 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.)

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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 As trial for Bs 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 prosecutions 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 latters
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 Narilas 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 Basilios 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)

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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 (deceaseds) promissory note.

At the hearing of the Creditors 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,

284
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 mans 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 (deceaseds) promissory note.

At the hearing of the Creditors 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 mans statute. Authentication is not
a matter of fact on which the claimants 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

285
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 Edgardos 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

286
lawyers 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 latters
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 Basilios wife to testify that Narita confided to him (Allan) during their
marriage that Liza was her love child by Basilio.

288

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.

290

5. Admissions and confessions

a. Res inter alios acta rule

Q: Bembol was charged with rape. Bembols father, Ramil, approached Artemon, the victims
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 Ramils offer and thereby
establish an implied admission of guilt. Is Ramils 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) Ys 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. As 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 As 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 Margals 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, Pedros 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. Pedros offer was merely to buy peace. Since it was the heirs of Ramon and no Pedro who
initially offered to settle the case, and Pedros 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:

296

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 Julietas testimony admissible against Romeo over proper and timely objection?
Why? (5%) (2002 Bar Question)

SUGGESTEDANSWER:

No, Juljetas 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 prosecutions evidence sought to establish that at about
9:00 P.M. of January 20, 1994, Gerry went to complainant Junes 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 stones throw away from Junes 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, Lizas 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 declarants 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.)

298

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 Domingos 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 oclock, 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 declarants 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 Lindas 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 Lindas 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, Marcelas 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 Emils testimony be received to identify Kulas? Explain. Answer:

(a) Yes, Emils 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 Nolans 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 defendants 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 defendants 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
partys 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

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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 Delias 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 Fs 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 Fs
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
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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 plaintiffs 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 MeTCs 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 RTCs orders denying due course to the petition as well as denying the motion for
reconsideration correct? Reason. (5%)(2004 Bar Question)

SUGGESTED ANSWER:
The RTCs 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:

Diegos 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 Rosas 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 Rosas 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.