JAMIL ASUM gkmuslimaffairs@gmail.com or beman@gk1world.

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CRIMINAL PROCEDURE NOTES AND ENUMERATIONS

1. Distinguish Criminal Procedure from Criminal Law.

Criminal Law is essentially substantive, meaning that it defines crimes, treats of their nature and provides for their punishment. Criminal Procedure, on the other hand, is remedial or procedural. It provides for the method by which a person accused of a crime is arrested, tried and punished. Criminal Law declares what acts are punishable, while Criminal Procedure provides how the act is to be punished.

2.

When can an accused be released on recognizance instead of bail?

Instances when recognizance is allowed by the law or this Rule: a) RA 6036. When the offense charged is for a violation of an ordinance, a light felony, or a criminal offense, the imposable penalty for which does not exceed 6 months imprisonment and/or P2,000 fine, under the circumstances provided in RA No. 6036. b) Rule 114, Sec. 16. A person in custody for a period equal to or more than the minimum of the principal penalty prescribed for the offense charged, without application of the Indeterminate Sentence Law or any modifying circumstance, shall be released on a reduced bail or on his own recognizance, at the discretion of the court. c) Rule 114, Sec. 24. No bail shall be allowed after a judgment of conviction has become final. If before such finality, the accused applies for probation, he may be allowed temporary liberty under his bail. When no bail was filed or the accused is incapable of filing one, the court may allow his release on recognizance to the custody of a responsible member of the community. In no case shall bail be allowed after the accused has commenced to serve sentence. d) PD 603 (Child and Youth Welfare Act). In case of a youthful offender held for physical and mental examination, trial, or appeal, if he is unable to furnish bail and under the circumstances envisaged in PD No. 603, as amended. 3. Arraignment and plea; how made.

(a) The accused must be arraigned before the court where the complaint or information was filed or assigned for trial. The arraignment shall be made in open court by the judge or clerk by furnishing the accused with a copy of the complaint or information, reading the same in the language or dialect known to him, and asking him whether he pleads guilty or not guilty. The prosecution may call at the trial witnesses other than those named in the complaint or information.

(b) The accused must be present at the arraignment and must personally enter his plea. Both arraignment and plea shall be made of record, but failure to do so shall not affect the validity of the proceedings. (c) When the accused refuses to plead or makes a conditional plea, a plea of not guilty shall be entered for him. (d) When the accused pleads guilty but presents exculpatory evidence, his plea shall be deemed withdrawn and a plea of not guilty shall be entered for him. (e) When the accused is under preventive detention, his case shall be raffled and its records transmitted to the judge to whom the case was raffled within three (3) days from the filing of the information or complaint. The accused shall be arraigned within ten (10) days from the date of the raffle. The pre-trial conference of his case shall be held within ten (10) days after arraignment. (f) The private offended party shall be required to appear at the arraignment for purposes of plea bargaining, determination of civil liability, and other matters requiring his presence. In case of failure of the offended party to appear despite due notice, the court may allow the accused to enter a plea of guilty to a lesser offense which is necessarily included in the offense charged with the conformity of the trial prosecutor alone. (g) Unless a shorter period is provided by special law or Supreme Court circular, the arraignment shall be held within thirty (30) days from the date the court acquires jurisdiction over the person of the accused. The time of the pendency of a motion to quash or for a bill or particulars or other causes justifying suspension of the arraignment shall be excluded in computing the period. 4. Grounds for Motion to Quash.

The accused may move to quash the complaint or information on any of the following grounds: (a) That the facts charged do not constitute an offense; That the court trying the case has no jurisdiction over the offense charged; (b) (c) That the court trying the case has no jurisdiction over the person of the accused; That the officer who filed the information had no authority to do so; (d) (e) That it does not conform substantially to the prescribed form; (f) That more than one offense is charged except when a single punishment for various offenses is prescribed by law; (g) That the criminal action or liability has been extinguished; (h) That it contains averments which, if true, would constitute a legal excuse or justification; and That the accused has been previously convicted or acquitted of the offense (i) charged, or the case against him was dismissed or otherwise terminated without his express consent. 5. Instances when 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. (a) The graver offense developed due to supervening facts arising from the same act or omission constituting the former charge;

(b) The facts constituting the graver charge became known or were discovered only after a plea was entered in the former complaint or information; (c) The plea of guilty to the lesser offense was made without the consent of the prosecutor and of the offended party except as provided in section 1(f) of Rule 116. In any of the foregoing cases, where the accused satisfies or serves in whole or in part the judgment, he shall be credited with the same in the event of conviction for the graver offense.

6.

When shall a case be provisionally dismissed?

A case shall not be provisionally dismissed except with the express consent of the accused and with notice to the offended party. (a) The provisional dismissal of offenses punishable by imprisonment not exceeding six (6) years or a fine of any amount, or both, shall become permanent one (1) year after issuance of the order without the case having been revived. (b) With respect to offenses punishable by imprisonment of more than six (6) years, their provisional dismissal shall become permanent two (2) years after issuance of the order without the case having been revived. 7. What is the procedure in conducting preliminary investigation?

(1) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be in such number of copies as there are respondents, plus two (2) copies for the official file. The affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their absence or unavailability, before a notary public, each of whom must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits. (2) Within ten (10) days after the filing of the complaint, the investigating officer shall either: a. Dismiss it if he finds no ground to continue with the investigation, or

b. Issue a subpoena to the respondent attaching to it a copy of the complaint and its supporting affidavits and documents. The respondent shall have the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy them at his expense. If the evidence is voluminous, the complainant may be required to specify those which he intends to present against the respondent, and these shall be made available for examination or copying by the respondent at his expense.

(3) Within ten (10) days from receipt of the subpoena, the respondent shall submit his counter-affidavit, the affidavits, and other documents in his defense. Affidavits should also be sworn and subscribed. The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit. (4) If the respondent cannot be subpoenaed, or if subpoenaed, or if he fails to file his counter-affidavits within ten (10) days, the investigating office shall resolve the complaint based on the evidence presented by the complainant. (5) If there are facts and issues which need to be clarified, the investigating officer may set a hearing the parties can be present, but they cannot cross-examine. The hearing shall be held within ten (10) days from submission of the counter-affidavits or from the expiration of the period for their submission. It shall be terminated within five (5) days. (6) Within ten (10) days from the termination of the investigation, the investigating officer shall determine whether or not there is probable cause to hold the respondent for trial.

8\. A.

When warrant of arrest may issue? If issued by the RTC.

(1) Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. The determination of the probable cause is a personal and exclusive duty of the judge issuing the warrant. The judge, through his own findings shall determine whether to dismiss the case or issue a warrant of arrest. (2) He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. (3) If he finds probable cause, he shall issue a warrant of arrest or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to section 6 of this Rule. (4) In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint of information.chan law library B. If issued by the MTC and if the preliminary investigation was conducted by a prosecutor, the same procedure is followed above. C. (1) When warrant of arrest not necessary. When the accused is already under detention issued by the MTC;

(2) When the accused was arrested by virtue of a lawful arrest without warrant. (3) 9. When the penalty is a fine only.

When is arrest without warrant lawful? (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 just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances 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 is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. (4) If a person lawfully arrested escapes or is rescued, any person may immediately pursue or retake him without a warrant at any time and in any place within the Philippines. (5) For the purpose of surrendering the accused, the bondsmen may arrest him or, upon written authority endorsed on a certified copy of the undertaking, cause him to be arrested by a police officer or any other person of suitable age and discretion. (6) An accused released on bail may be re-arrested without the necessity of a warrant if he attempts to depart from the Philippines without permission of the court where the case is pending. (7) When the accused is already under detention issued by the MTC;

(8) When the accused was arrested by virtue of a lawful arrest without warrant. (9) 10. When the penalty is a fine only.

When is bail not necessary? (1) When a person has been in custody for a period equal to or more than the possible maximum imprisonment prescribed for the offense charged, he shall be released immediately, without prejudice to the continuation of the trial or the proceedings on appeal. If the maximum penalty to which the accused may be sentenced is (2) destierro, he shall be released after thirty (30) days of preventive imprisonment. A person in custody for a period equal to or more than the minimum of (3) the principal penalty prescribed for the offense charged, without application of the Indeterminate Sentence Law or any modifying circumstance, shall be released on a reduced bail or on his own recognizance, at the discretion of the

court.

11. When is the civil action arising from crime is not deemed instituted with the criminal action? (1) When the offended party has waived the civil aspect of the case;

(2) When the offended party has reserved hi right to file a separate civil action; (3) When the civil action was filed or instituted ahead of the criminal action; (4) When the crime is one to which no civil liability attaches;

(5) When the civil action was filed in court before the presentation of the evidence for the prosecution in the criminal action of which the judge presiding on the criminal cases was duly informed. 12. What is an Inquest?

An inquest is an informal and summary investigation conducted by a public prosecutor in a criminal case involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the purpose of determining whether said persons should remain under custody and correspondingly charged in court.

13.

What are the rules on venue on libel cases? (a) As a general rule, the criminal action for libel may be filed in the RTC of the province or the city where the libelous article is printed and first published. (b) If the offended party is a private individual, the criminal action may also be filed in the RTC of the province where he actually resided at the time of the commission of the offense. (c) If the offended party is a public officer whose office is in Manila at the time of the commission of the offense, the criminal action may be filed in the RTC of Manila. (d) If the offended party is a public officer whose office is outside Manila, the action may be filed in the RTC of the province or city where he held office at the time of the commission of the offense.

14.

Plea of guilty to a capital offense; reception of evidence When the accused pleads guilty to a capital offense, the court should: (1) Conduct a searching inquiry into the voluntariness and full comprehension of the consequences of the plea; (2) Require the prosecution to present evidence to prove the guilt and the precise degree of culpability of the accused for the purpose of imposing the proper penalty; (3) Ask the accused if he desires to present evidence in his behalf and allow him to do so if he desires.

15.

Plea of guilty to a non-capital offense; reception of evidence, discretion The court may receive evidence from the parties to determine the penalty to be imposed. Unlike the plea of guilty to a capital offense, the reception of the evidence in this case is not mandatory. It is merely discretionary on the court.

CRIMINAL PROCEDURE PAST EXAMS QUESTIONS

1.

Distinguish Criminal Procedure from Criminal Law.

ANSWER: Criminal Law is essentially substantive, meaning that it defines crimes, treats of their nature and provides for their punishment. Criminal Procedure, on the other hand, is remedial or procedural. It provides for the method by which a person accused of a crime is arrested, tried and punished. Criminal Law declares what acts are punishable, while criminal Procedure provides how the act is to be punished. When can an accused be released on recognizance instead of bail?

2.

ANSWER: Instances when recognizance is allowed by the law or this Rule: a) RA 6036. When the offense charged is for a violation of an ordinance, a light felony, or a criminal offense, the imposable penalty for which does not exceed 6 months imprisonment and/or P2,000 fine, under the circumstances provided in RA No. 6036. b) Rule 114, Sec. 16. A person in custody for a period equal to or more than the minimum of the principal penalty prescribed for the offense charged, without application of the Indeterminate Sentence Law or any modifying circumstance, shall be released on a reduced bail or on his own recognizance, at the discretion of the court. c) Rule 114, Sec. 24. No bail shall be allowed after a judgment of conviction has become final. If before such finality, the accused applies for probation, he may be allowed temporary liberty under his bail. When no bail was filed or the accused is incapable of filing one, the court may allow his release on recognizance to the custody of a responsible member of the community. In no case shall bail be allowed after the accused has commenced to serve sentence. d) PD 603 (Child and Youth Welfare Act). In case of a youthful offender held for physical and mental examination, trial, or appeal, if he is unable to furnish bail and under the circumstances envisaged in PD No. 603, as amended.

3. The Consul General of Australia was arrested for illegal possession of five kilos of shabu inside the Ninoy Aquino International Airport when he was about to depart

from his own country. Despite the objection that the Court of Manila did not acquire jurisdiction because the Consul General enjoys diplomatic immunity, the Consul General was convicted. QUESTION: Was the conviction proper assuming that the prosecutor was able to establish the guilt beyond reasonable doubt? Reason. ANSWER: Yes, the conviction was proper. The court acquires the jurisdiction over the person of the accused. A Consul General is not one of those persons who were given diplomatic immunity. Thus, his conviction was proper. 4. Nur Misuary was charged with a crime of rebellion, for allegedly leading a Muslim uprising in Basilan Province last January 2002 that resulted to the death of 5 soldiers. However, the prosecution witnesses will not testify if the trial would be conducted in Basilan because some of the participants of the rebellion remain atlarge. Upon motion coming from the prosecution, the presiding judge ordered for the transfer of the hearing to Davao City. QUESTION: Assuming that Misuary was convicted in proper Court of Davao City, was the conviction valid? Reason. ANSWER: No, the conviction was not valid. The court has no authority for the transfer of venue. Only the Supreme Court has the power to transfer the place of venue on the ground that miscarriage of justice will be avoided. Thus, the conviction was not proper. 5. Mr. Preacher was convicted by the Municipal Trial Court of Tagoloan for seduction of Miss X, 16 years old and a member of their religious organization in Tagoloan, Misamis Oriental, which carries a penalty of prision correccional in its minimum and medium period. QUESTION: Assuming that the prosecution was able to establish the guilt beyond reasonable doubt, was the conviction valid? Reason. ANSWER: No. Miss X, the victim is a minor. The case shall have been filed with the Family Court of the place where the offense was committed, or in the absence thereof, with the RTC. The conviction was not valid because the MTC of Tagoloan has not acquired jurisdiction of the offense charged, which is against a minor in the first place.

6. Mr. X was arrested last July 15, 2002, for carrying a duly licensed firearm outside his residence during the barangay election. The said offense is punishable by one-year imprisonment. QUESTION: Where shall you file the necessary complaint or information? Reason. ANSWER: The complaint or information shall be filed at the Regional Trial Court. The RTC has jurisdiction over election offenses. It is an exception of the original jurisdiction of the MTC, who have jurisdiction over offenses punishable for not exceeding six years of imprisonment. By express provision of a special law, RTC has jurisdiction over election offenses. If in case Mr. X, is a minor, the case shall be filed at the Family Court. In the absence of the Family Court, it shall be filed at the RTC.

7. Mr. K was charged with a crime of illegal possession of .001 gram of shabu which carries a penalty of less than 6 years imprisonment. QUESTIONS: (a) In what Court are you going to file the information? Reason. (b) Would your answer be the same if Mr. K is a minor? Why? ANSWER: The conviction shall be filed at the Regional Trial Courts. Aside from the original jurisdiction of the RTC over offenses punishable by imprisonment of 6 years and 1 day and above, it has also jurisdiction over offenses in violation of the Dangerous Drugs Act. If Mr. K was a minor, the information shall be filed at the Family Court. The Family Court has jurisdiction of cases where the accused or the victim of the crime is a minor. In the absence of a family Court, it shall be filed in the RTC.

8. Mr. T was charged with a crime of robbery allegedly committed on February 14, 2001. Despite the fact that the evidence showed that the robbery took place on March 4, 2001, Mr. T was nevertheless convicted. On appeal, he questioned his conviction on the ground that he was not properly informed of the charges against him because the information did not state the correct date of the commission of the offense of the crime and in so doing he was not able to prepare himself for trial thus resulted to a miscarriage of justice. QUESTION: Would you sustain the position of Mr. T? Reason. ANSWER: No, I will not sustain the position of Mr. T. As provided in the Revised Rules of Criminal Procedure, it is not required that the precise date and time should be alleged but rather the approximate time of the commission of the offense. It should be as near as possible to the date proved. A difference of weeks will not prejudice the rights of the accused. 9. (a) What would be the proper course of action on the part of the presiding judge, after an accused pleaded guilty to a capital offense? (b) Suppose the crime charged is a non-capital offense, would your answer be the same? Why? ANSWER: (a) According to Rule 116, Sec.3 of the Revised Rules of Court when the accused pleads guilty to a capital offense, the court shall (a) conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea and (b) shall require the prosecution to prove his guilt and the precise degree of culpability. (c) The accused may present evidence in his behalf. (b) No, my answer would be different. According to Rule 116, Sec.4 of the Revised Rules of Court when the accused pleads guilty to a non-capital offense, the court may receive evidence from the parties to determine the penalty to be imposed. Unlike in a plea of guilty to a capital offense, the reception of evidence in this case is not mandatory, but merely discretionary on the court.

10. Ms. AA charged with estafa for issuing a worthless check no. 007 in the amount of P500.00 dated March 1, 2002, in favor of Mr. BB. After Ms. AAs conviction last June 30, 2002, she was again charged with the violation of Batas Pambansa Bilang 22 for issuing the same worthless check in favor of Mr. BB, using the same check as evidence against her. Ms. AA invoked Double Jeopardy. QUESTION: Are you going to sustain the defense of Double Jeopardy? Reason. ANSWER: No, double jeopardy will not attach. BP 22 and Estafa are different offenses. Estafa is punished under the Revised Penal Code, while BP 22 is punished by a Special Law. The gravamen of Estafa is committing fraud and deceit and damage to the offended party, while BP 22 is about the issuance of worthless checks. Since BP 22 and Estafa are not the same offenses, thus no double jeopardy will attach. 11. Miss K, a minor, was seduced by their preacher. Since she is not interested to file a complaint, the mother of Miss K manifested her intention that she would be the one who would sign the complaint, but the husband made a serious opposition because he wanted to avoid a scandal. QUESTION: If you are the prosecutor, are you going to accept the complaint that was signed by the mother despite the opposition coming from the husband? Reason. ANSWER: No, I will not accept the complaint of the mother. The Revised Rules of Criminal Procedure provides that when the offended party is a minor, and such minor does not want to file this case, then the parents, grandparents, guardians, and the State can file in behalf of the accused . It shall be exercised in that order. But in case there is a conflict between the parents, the decision of the father shall prevail. Thus, I will not accept the complaint of the mother. 12. Mr. W was charged with a crime of rape committed on February 14, 2001 and February 15, 2001. He was convicted even if the evidence showed that the crime committed on February 14, 2002 and on February 15, 2002. On appeal, he questioned his conviction on the ground that he was not properly informed of the charges against him because the information did not state the correct date of the commission of the crime, thus resulted to a miscarriage of justice. QUESTION: Would you sustain the position of Mr. W? Reason. ANSWER: No, I will not sustain the petition of Mr. W. When time is not a material element of the crime, it is not required that the precise time be alleged, but rather the approximate time. The right of Mr. W was not prejudiced. Besides, he is deemed to have waived to question the sufficiency of the complaint based on the discrepancies of the time. He should have moved for a bill of particulars before he has pleaded.

13. The Immigration Commissioner was charged before the Sandiganbayan for illegally approving the naturalization of 32 unqualified aliens sometime from October to December 1989. Accordingly, 32 informations were filed against her. She argued that only one information should be filed because if she would be found guilty only

one crime was allegedly committed by her. QUESTION: Is the contention of the Commissioner tenable? Reason. ANSWER: Yes, the contention of the Commissioner is tenable. There should only be one information filed. This is a case of a Continuing Crime. A Continuing Crime is where one committed many offenses but they are all due to one criminal resolution. The duplicity rule admits of exceptions and one of which is a continuing crime. Such doctrine was enunciated in the case of Santiago vs. Garchiitorena. 14. Mr. C was hospitalized for 10 days because he was mauled by his three classmates, namely: Peter, John and Joe. Mr. C was determined to take his revenge and decided to kill them all. So he secured a hand grenade and threw it inside the car where Peter, John, and Joe were riding. Peter died instantly; John survived due to timely medical attention while Joe sustained serious physical injuries. QUESTIONS: (a) How many crime or crimes were committed? (b) How many informations that should be filed? Reason. ANSWER: (a) Mr. C committed only one crime. (b) Only one information should be filed. The Rule on Criminal Procedure provides that an information should charge only one offense unless a single punishment is provided for various offenses. The crime committed by Mr. C was a Complex Crime. It is a single act which produces two or more grave or less grave felony. There is only one act done by Mr. C and that is the throwing of the grenade, however, it resulted to Murder with Frustrated Homicide and Serious Physical Injuries.

15. When can an information be amended as a matter of right? What is or are the exceptions? ANSWER: An information be amended as a matter of right before plea, a complaint or information can be amended in the form or substance without leave of court. Exceptions are (a) if the amendment will downgrade the offense or (b) drop the accused from the complaint or information. In such case the following requisites must be observed: 1. Amendment must be made upon motion of the prosecutor; 2. With notice to the offended party; 3. With leave of court; 4. Court must state its reason in resolving the motion; and 5. Copies of the resolution should be furnished all parties, especially the offended party.

16. An accused was arrested without a warrant and charged with Homicide without a preliminary investigation. He filed bail and was accordingly released. After he was arraigned, and before the prosecution started presenting its evidence, accuseds counsel moved for the suspension of the trial because his client would avail of his right to a preliminary investigation. QUESTION: Is the lawyer for the accused correct? Reason.

ANSWER: No, the lawyer is not correct. The accused has already entered his plea, thus he has waived to question or to avail of a preliminary investigation. He should have filed such a motion before entering his plea.

17. Mr. H was charged with Frustrated Homicide. During the arraignment, the counsel of Mr. H with the conformity of the prosecution, moved that the accused will be allowed to plead guilty to Attempted Homicide. QUESTION: If you were the judge, how would you rule on the motion? Reason. ANSWER: I will not grant the motion. In order for the accused to plead to a lesser offense during arraignment, there should be a concurrent consent of the prosecution and the offended party. But if the offended party did not appear at the arraignment even if given with due notice, then the consent of the prosecution is sufficient.

18. During the preliminary investigation for violation of B.P. 22 for issuing worthless check MBTC check no. 111 in the amount of P50,000.00 dated Jan. 6, 2002, the accused filed a motion to dismiss on the ground that the said amount was already paid, as shown in the voucher bearing the same amount with an indication that it was a replacement for the aforementioned check. The prosecution did not consider the said motion and instead filed an information in court. QUESTION: Was the action taken by the prosecution tenable? Reason. ANSWER: Yes, the action of the prosecution was tenable. Since the accused filed a motion to dismiss instead of a counter-affidavit, he is deemed to have waived his right to file for the counter-affidavit, and the investigation shall be based only on the evidences presented by the complainant. Besides motion to dismiss is not allowed during preliminary investigation.

19. Mr. Z was charged with Attempted Rape. Upon motion coming from Zs counsel, with the conformity of the complainant and the prosecution, Mr. Z was allowed to plead guilty to a lesser offense of slander. QUESTION: Was the plea valid? Reason. ANSWER: No, the plea was not valid. In order for a plea of guilty of a lesser offense to be valid, the accused must have (a) consent with the offended party and the prosecutor, and (b) the lesser offense must be necessarily included in the offense charged. In the case at bar, it did not meet the last requirement since slander is not included in the crime of attempted rape.

20. Mr. U was charged for swindling involving 5 million pesos, before the RTC of Malaybalay, Bukidnon. Mr. U moved for the suspension and invoked a prejudicial question because Mr. T who is the complainant was his former partner in buying agriproducts and that the said amount represents his share in the partnership. And that there is a need to determine first as to the ownership of the said amount before a

criminal case would prosper. QUESTION: If you were the judge, how would you rule on the motion? Reason. ANSWER: No, the motion should be denied. The elements of a prejudicial question are: 1. The previously filed civil action involves an issue which is similar or is intimately related with an issue raised in the subsequent criminal action; and The resolution of the issue will determine whether or not the criminal action may proceed.

2.

In the case at bar, there was no previously instituted civil action, but on the contrary he raised such issue only during the trial of the criminal action. Thus, there was no prejudicial question.

21. Mr. ZZ who was a resident of Iligan City, issued a PCIB check no. 222 dated Feb. 14, 2001 in the amount of P25,000.00 in favor of Mr. KK who is a resident of Malaybalay City. Their transaction was made and consummated in Cagayan de Oro City. When KK went to Manila, he deposited the said check in his Manila account but it was returned due to insufficient fund. Assuming that you are a lawyer, and Mr. KK asks you legal opinion as to what place shall the case be filed. QUESTION: What would be your answer? Reason. ANSWER: Mr. KK can file any of the places: Iligan City, Malaybalay City, Cagayan de Oro City or Manila. It is up to the convenience of Mr. KK, since the crime committed is a violation of B.P.22-Bouncing Checks Law. BP22 is a Continuing Offense. Thus Mr. KK may file the case at any of the places where the crime was committed or where any of its essential elements occurred.

22. Col. Ebas, a member of Al Qaida was producing faked Philippine currency in Malaysia. Before he could ship the faked money into Philippine soil, he was arrested by the CIA in Thailand. Since no solid evidence that would link him to the international terrorist group and upon the intercession of the CIA, Col. Ebas was charged with and convicted of producing faked Phil. Currency by the RTC of Manila. He appealed his conviction on the ground of improper venue and wanting of jurisdiction. QUESTION: Is the appeal tenable? Reason. ANSWER: No, the appeal is not tenable. He committed an offense under Article 2 of the Revised Penal Code. Even though he committed the offense outside of the Philippine territory, he can still be tried here in the Philippines since his crime involves Counterfeiting of Philippine notes or currency. The General Rule, is that the case should be instituted where the crime was committed or where any of its essential elements occurred. But the rule admits of exceptions, and one of which is found in Article 2 of the RPC where such case is based upon.

23. Mr. Z was charged of a crime of Homicide. Before he scheduled his arraignment, the prosecution withdrew the information without notifying the accused. Later, he was charged with murder based on the same incident. He invoked double jeopardy because the withdrawal of the original information of Homicide was made without his consent especially that he was not notified. QUESTION: Is the contention of Mr. Z tenable? Reason. ANSWER: No, his contention is not tenable. In order for double jeopardy to be invoked, the accused must first enter a valid plea to a valid complaint or information in a court with competent jurisdiction. Even though the case was dismissed without his consent, he nevertheless not yet entered his plea. Thus, there is no double jeopardy in this case. 24. Mr. BC was charged with Homicide for killing Mr. CB. During the trial, it was discovered that the crime was committed inside the house of Mr. CB, so dwelling was considered as a generic aggravating circumstance. Accordingly, the penalty was fixed in its maximum period because there was no mitigating to offset the aggravating. QUESTION: Was the decision correct? Reason. ANSWER: No, the decision was not correct. In order for an aggravating circumstance to be considered in trial, it must be alleged in the complaint or information. Since the aggravating circumstances was only discovered during the trial and not alleged in the complaint, it should not be considered in the case.

25. The Municipal Trial Court Judge after conduction the preliminary investigation found probable cause that the crime of rape has been committed and the accused was probably guilty. However, the resolution was downgraded by the Provincial Prosecutor to attempted rape. Before the accused could enter his plea, the complainant moved for the suspension of the arraignment because of a pending petition for review with the Department of Justice regarding the resolution of the Provincial Prosecutor. The accused objected that the right is not accorded to the complainant but to the accused only. QUESTION: If you were the judge, how would you rule on the motion? Reason. ANSWER: I will grant the motion. Both parties can appeal to the Secretary of Justice with regards to the resolution of the prosecutor. Both the accused and the offended party can avail of the right to appeal to the Secretary of Justice.

26. While Mr. HW was driving his PUJ, he bumped a private car that resulted to the death of a passenger who was on the front seat at the same time. The prosecutor charged Mr. HW with Reckless imprudence resulting to homicide. When the trial of the criminal case was on going, the parents of victim filed a civil case for damages against HW. QUESTIONS: (a) Was the filing of the separate civil action valid despite of the pending criminal action? Reason. (b) Would your answer be the same if there was a reservation to file a separate civil action prior to the institution of the criminal action? Reason.

ANSWER: (a) Not valid, under Rule 111, Sec. 1 of Rules of Criminal Procedure, when the criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless (a) the offended party waives the civil action, (b) reserves the right to institute it separately or (c) institutes the civil action prior to the criminal action. (b) No, the filing of the separate civil action is valid when there was already a reservation of the right to institute separately the civil action and it was made (a) before the prosecution starts presenting its evidence and (b) under circumstances affording the offended party a reasonable opportunity to make such reservation.

27. SP, PS, and SO went inside a bank and pretended to be depositors. Thereafter, they started drawing their firearms and took the banks money worth 5 million pesos. They also robbed the personal money of the bank manager, 15 employees, and 10 of the banks clients. Subsequently, they were arrested five hours later and all the victims wanted to charge them with robbery. QUESTIONS: (a) How many informations are you going to file? Reason. (b) Would the number of informations be the same if the bank manager was shot and killed because he resisted to hand over the banks money? Reason. ANSWER: (a) Only one information shall be filed. SP, PS, and SO are all co-accused of the same crime. Only one information is needed. (b) Yes, only one information should be filed. The three accused committed a Complex Crime. A Complex Crime of Robbery with Homicide. The killing of the manager was incidental or necessary for them to get through the banks money. Thus, only one information is necessary.

28. One day, when Mr. K was riding his car on his way to Cagayan de Oro City, from Butuan City, his political opponent (Mr. O) who was armed with an M-16 rifle was waiting inside the boundary of Magsaysay, Mis. Or., in order to ambush Mr. K. When Mr. K was still inside the territory of Agusan but near the boundary Magsaysay, Mis. Oriental, Mr. O shot Mr. K and killed him instantly. QUESTION: Which Court that would acquire the jurisdiction, that of Agusan or Mis. Oriental? Why? ANSWER: Both courts in Agusan or Misamis Oriental would acquire jurisdiction. It is determined by (a) the geographical area over which it presides, and (b) the fact that the crime was committed, or (c) any of its essential ingredients took place, within said area: all 3 are elements of Territorial Jurisdiction. Since the elements of territorial jurisdiction originated in Mis. Oriental where Mr. O stood when he pulled his rifle, thus killing Mr. K instantly still in Agusan, where his body was found, thus both places acquired jurisdiction.

29. KK filed a civil case for damages against CC, due to the death of his wife who was the passenger of CC. After the trial, the Court dismissed the civil case against CC for failure to prove by preponderance of evidence. Since KK was not satisfied with the

decision, he again filed a criminal case for Reckless Imprudence resulting to Homicide. QUESTION: Would the action prosper? Reason. ANSWER: Yes, the action would prosper. The extinction of the civil action does not carry with it the extinction of the criminal action. The quantum of evidence in Civil cases is based on the preponderance of evidence while in Criminal cases it is proof beyond reasonable doubt. Thus, KK can still file a criminal case. He is not barred from filing one just because he already lost in the civil case. 30. What are the elements of a prejudicial question?

ANSWER: The elements are the following: 1. The previously filed civil action involves an issue which is similar or is intimately related with an issue raised in the subsequent criminal action; and The resolution of the issue will determine whether or not the criminal action may proceed.

2.