BAR QUESTIONS

JURISDICTION OF CRIMINAL COURTS

1. 2003 Bar: In complex crimes, how is the jurisdiction of a court

determined? (4%)

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 vs. Garcia, 160 SCRA 302 [1988]).

2. 1999 Bar: Distinguish a Complaint from Information. (2%)

Answer: In criminal procedure, a complaint is a sworn written statement
charging a person with an offense, subscribed by the offended party, any
peace officer or other peace officer charged with the enforcement of the law
violated (Rule 110, Sec. 3); while information is an accusation in writing
charging a person with an offense subscribed by the prosecutor and filed with
the court (Sec. 4)

AMENDMENT OR SUBSTITUTION OF COMPLAINT OR

INFORMATION

3. 2001 Bar: Armando 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 Armando. What steps or action should the
prosecution take so that the amended information against Armando
which downgrades the nature of the offense could be validly made?
Why? (5%)

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 (Rule 110,
Sec. 14). The new rule is for the protection of the interest of the offended party
and to prevent possible abuse by the prosecution.

RULE ON IMPLIED INSTITUTION OF CIVIL ACTION WITH

CRIMINAL ACTION
4. 2001 Bar: Saturnino filed a criminal action against Alex for the latter’s
bouncing check. On the date of the hearing after its 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%)

Answer: Yes, the court’s order granting the motion for reconsideration is
correct. The rules provide that the criminal action for violation of BP 22 shall
be deemed to include the corresponding civil action, and that no reservation
to file such civil action separately shall be allowed (Rule 111, Section 1b).

5. 2002 Bar: Delia sued Victor for personal injuries which she allegedly
sustained when she was struck by a car driven by Victor. May the court
receive in evidence, over proper and timely objection by Delia, a
certified true copy of a judgment of acquittal in a criminal prosecution
charging Victor with hit-and-run driving in connection with Delia’s
injuries? Why? (3%) Answer: 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, Section

PREJUDICIAL QUESTION

6. 2000 Bar: CX is charged with Estafa in court for failure to remit to MM

sums of money collected by him (CX’s) for MM in payment for goods
purchased form MM, by depositing the amounts in his 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 ground in support
of your opposition to the motion to suspend proceedings. (5%)

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 CX against MM for
accounting and damages does not involve an issue similarly or intimately
related to the issue of Estafa raised in a 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 (Rule 111, Section 5).

PRELIMINARY INVESTIGATION

7. 1999 Bar: If the information is not accompanied by a certificate that a

preliminary investigation has been conducted, is the Information void?
(3%)

Answer: No, the certification which provided in Sec. 4, Rule 112, is not an
indispensable part of the information (People v. Lapura, 255 SCAR 85).

8. 1999 Bar: 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%)

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 prosecution. The remedy is an appeal to the Secretary of
Justice (Rule 112, Sec. 4)

9. 2003 Bar: 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. 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. Was there a legal basis for the court to
deny the motion? (6%)

Answer: 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])
 ARREST

10. ) 2004 Bar: RP and State XX have a subsisting Extradition Treaty.

Pursuant thereto RP’s Secretary of Justice (SOJ) filed a Petition for
Extradition before the MM Regional Trial Court alleging that Juan
Kwan is the subject of an arrest warrant duly issued by the proper
criminal court of State XX in connection with criminal case for tax
evasion and fraud before his return to RP as a balikbayan. Petitioner
prays that Juan be extradited and delivered to proper authorities of
State XX for trial, and that to prevent Juan’s flight in the interim, a
warrant for his immediate arrest be issued. Before the RTC could act on
the petition for extradition, Juan filed before it an urgent motion, in
sum praying (1) that SOJ’s application for an arrest warrant be set for
hearing and (2) that Juan be allowed to post bail in the event the court
would issue an arrest warrant. Should the court grant or deny Juan’s
prayer? Reason. (5%)

Answer: Under the Extradition Treaty Law, the application of the secretary
of Justice for a warrant of arrest need not be set for hearing, and Juan cannot
be alloweod to post bail if the court would issue a warrant of arrest. The
provision in the Rules of Court on arrest and bail are not applicable
(Government of the United States of America vs. Puruganan, 389 SCRA 623
[2002]).

11. 2007 Bar: On his way home, a member of the Caloocan City police force
witnesses a bus robbery 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%)

Answer: No. Under the Rules on Criminal Procedure, it is the duty of the
officer executing the warrant to arrest the accused and to deliver him to the
nearest police station or jail without unnecessary delay. This rule equally
applies to situations of warrantless arrest (Rule 113, Sec. 3).

(b) In the course of serving the 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%)

Answer: Yes. The police can take the unlicensed firearm even if it was not
covered by the search warrant following judicial precedent that prohibited
 articles may be seized for as long as the search warrant is valid. If the warrant
is subsequently quashed, the police are not required to return the firearm
because it is unlicensed. It can, in fact, be ordered forfeited by the court. The
search warrant does not refer to the unlicensed firearm (People vs. Mendi,
GR Nos. 112978-81, 02/19/2001).

12. 2004 Bar: AX swindled RY in the amount of P10,000 sometime in mid-

2003. On the strength of the sworn statement given by RY personally
to SP01 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 ZY’s 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 as 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%)

Answer; 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 (Rule 113, Sec. 5b). Yes, he is entitled to a preliminary
investigation because he was not lawfully arrested without a warrant (Rule
113, Sec. 7). He can move for reinvestigation.

13. 2016 Bar: How long after the commission of the crime can the peace
officer still execute the warrantless arrest?

Answer: In executing a warrantless arrest under Section 5, Rule 113, the

Supreme Court held that the requirement that an offense has just been
committed means that there must be a large measure of immediacy between
the time the offense was committed and the time of the arrest (Pestillos vs.
Generoso, GR No. 182601, 11/10/2014). If there was an appreciable lapse of
time between the arrest and the commission of the crime, a warrant of arrest
must be secured. In any case, personal knowledge by the arresting officer is
an indispensable requirement to the validity of a valid warrantless arrest. The
exact period varies on a case to case basis. In People vs. Gerente (GR Nos.
95847-48, 03/10/1993), the Supreme Court ruled that a warrantless arrest was
 validly executed upon therein accused three (3) hours after the commission
of the crime. In People vs. Tonog, Jr. (GR No. 94533, 02/04/1992), the
Supreme Court likewise upheld the valid warrantless arrest which was
executed on the same day as the commission of the crime. However, in People
vs. Del Rosario (GR No. 127755, 04/14/1999), the Supreme Court held that the
warrantless arrest effected a day after the commission of the crime is invalid.
In Go vs. CA (GR No. 101837, 02/11/1992), the Supreme Court also declared
invalid a warrantless arrest effected six (6) days after the commission of the
crime.

DETERMINATION OF PROBABLE CAUSE FOR ISSUANCE OF

WARRANT OF ARREST

14. 2015 Bar: An information for murder was filed against Rapido. The RTC
judge, after personally evaluating the prosecutor’s resolution,
documents and parties’ affidavits submitted by the prosecutor, found
probable cause and issued a warrant of arrest. Rapido’s lawyer
examined the rollo of the case and found that it only contained the copy
of the information, the submissions of the prosecutor and a copy of the
warrant of arrest. Immediately, Rapido’s counsel filed a motion to
quash the arrest warrant for being void, citing as grounds: a) The judge
before issuing the warrant did not personally conduct a searching
examination of the prosecution witnesses in violation of his client’s
constitutionally-mandated rights; b) There was no prior order finding
probable cause before the judge issued the arrest warrant. May the w
arrant of arrest be quashed on the grounds cited by Rapido’s counsel?
State each ground. (4%)

Answer: No, the warrant of arrest may not be quashed based on the grounds
cited by Rapido’s caounsel. In the issuance of warrant of arrest, the mandate
of the Constitution is for the judge to personally determine the existence of
probable cause. The words “personal determination,” was interpretation by
the Supreme Court in Soliven vs. Makasiar (GR No. 82585, 11/14/1988), as the
exclusive and personal responsibility of the issuing judge to satisfy himself as
to the existence of probable cause. What the law requires as personal
determination on the part of a judge is that he should not rely solely on the
report of the investigating prosecutor. Thus, personal examination of the
complainant and his witnesses is, thus, not mandatory and indispensable in
the determination of probable cause for the issuance of a warrant of arrest
(People vs. Joseph “Jojo” Grey, GR No. 10109, 07/26/2010). At any rate, there
is no law or rule that requires the judge to issue a prior Order finding probable
cause before the issuance of a warrant of arrest.
 BAIL

15. 2002 Bar: 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? (4%)

Answer: D may apply for bail in the RTC-Manila where the information was
filed or in the RTC-Quezon City where 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)
16. 2002 Bar: 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%)

Answer: No, the prosecution is only required to present as much evidence as

is necessary to determine whether the evidence of D’s guilt is strong for
purposes of bail (Rule 114, Sec. 8).

17. 2015 Bar: Paz was awakened by the commotion coming from a condo
unit next to hers. Alarmed, she called up the nearby police station. PO1
Ramus and PO2 Romulus proceeded to the condo unit identified by
Paz. PO1 Remus knocked at the door and when a man opened the door,
PO1 Remus and his companions introduced themselves as police
officers. The man readily identified himself as Oasis Jung and gestured
to them to come in. Inside, the police officers saw a young lady with her
nose bleeding and face swollen. Asked by PO2 Romulus what
happened, the lady responded that she was beaten up by Oasis Jung.
The police officers arrested Oasis Jung and brought him and the young
lady back to the police station. PO1 Remus took the young lady’s
statement who identified herself as AA. She narrated that she is a
sixteen-year-old high school student; that previous to the incident, she
had sexual intercourse with Oasis Jung at least five times on different
occasions and she was paid P5,000.00 each time and it was the first time
that Oasis Jung Physically hurt her. PO2 Romulus detained Oasis Jung
at the station’s jail. After the inquest proceeding, the public prosecutor
filed an information for Violation of RA 9262 (the VAWC Law) for
physical violence and five separate information for violation of RA 7610
(the Child Abuse Law). Oasis Jung’s lawyer filed a motion to be
admitted to bail but the court issued an order that approval of his bail
bond shall be made only after his arraignment.
 (A) Did the court properly impose the bail condition? (3%)

(C) After his release from detention on bail, can Oasis Jung still question
the validity of his arrest? (2%)

Answer: (A) No. The court did not properly impose the bail condition. The
Rules on Criminal Procedure does not require the arraignment of the accused
as a prerequisite to the conduct of hearings in the bail petition. A person is
allowed to file a petition for bail as soon as he is deprived of his liberty by
virtue of his arrest or voluntary surrender. An accused need not wait for his
arraignment before filing the bail petition (Serapio vs. Sandiganbayan, GR
No. 149116, 01/28/2003). Moreover, the condition that the approval of bail
bonds shall be made only after arraignment would place the accused in a
position where he has to choose between: (1) filing a motion to quash the
Information and thus delay h is release on bail because until his motion to
quash can be resolved, his arraignment cannot be held; and (2) forego the
filing of the motion to quash the Information so that he can be arraigned at
once and thereafter be released on bail (Lavides vs. Court of Appeals, GR No.
129670, 02/01/2000).

Answer:(C) Yes. Oasis Jung can still question the validity of his arrest even
after his release from detention on bail. Under Section 26, Rule 114 of the
Rules of Court, an application for or admission to bail shall not bar the
accused from challenging the validity of his arrest or the legality of the
warrant issued therefor, or from assailing the regularity or questioning the
absence of a preliminary investigation of the charge against him, provided
that he raises them before entering his plea.

WHEN A MATTER OF RIGHT; EXCEPTIONS

18. 2006 Bar: When is bail a matter of right and when is it a matter of
discretion? (5%)

Answer: Bail is a matter of right (a) before or after conviction by the inferior
courts; (b) before conviction by the RTC of an offense not punishable by
death, reclusion perpetua of life imprisonment, when the evidence of guilt is
not strong (Rule 114, Sec. 4). Bail is discretionary: Upon conviction by the
RTC of an offense not punishable by death, reclusion perpetua or life
imprisonment (Rule 114, Sec. 5).

19. 2003 Bar: 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 (SOJ) 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. The public prosecutor filed a motion to
quash the warrant of arrest and to withdraw the information, attaching
to it the resolution of the SOJ. The court denied the motion. If you were
the counsel for the accused, what remedies, if any, would you pursue?
(6%)

Answer: 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.

20. 2008 Bar: After Alma had started serving her sentence for violation of
Batas Pambansa Blg. 22 (BP 22), she filed for a writ of habeas corpus,
citing Vaca v. 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 of whether the Vaca
ruling applies to her, she be allowed to post bail pursuant to Rule 102,
Sec. 14, which provides that if a aperson 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 under
the Rules of Criminal Procedure? (2%)

Answer: Under the Rules of Criminal Procedure, Rule 114, Sec. 24 clearly
prohibits the grant of bail after conviction by final judgment and after the
convict has started to serve sentence. In the present case, Alma had already
started serving her sentence. She cannot, therefore, apply for bail (Peo v.
Fitzgerald, GR No. 149723, 10/27/2006).

RIGHTS OF THE ACCUSED

21. 2016 Bar: Pedro, the principal witness in a criminal case, testified and
completed his testimony on direct examination in 2015. Due to several
postponements by the accused, grounded on his recurring illness,
which were all granted by the judge, the cross examination of Pedro
was finally set on October 15, 2016. Before the said date, the accused
 moved to expunge Pedro’s testimony on the ground that it violates his
right of confrontation and the right to cross-examine the witness. The
prosecution opposed the motion and asked Pedro’s testimony on direct
examination be admitted as evidence. Is the motion meritorious?
Explain. (5%)

Answer: The Motion is meritorious. The cross-examination of a witness is an

absolute right, not a mere privilege, of the party against whom he is called.
With regard to the accused, it is a right guaranteed by the fundamental law
as part of due process. Art. III, Sec. 14, par. (2), of the 1987 Constitution
specifically mandates that “the accused shall enjoy the right to meet the
witnesses face to face,” and Rule 115, Sec. 1, par. (f), of the 2000 Rules of
Criminal Procedure enjoins that in all criminal prosecutions the accused shall
be entitled to confron and cross-examine the witnesses against him at the
trial. Accordingly, the testimony of a witness given on direct examination
should be stricken off the record where there was no adequate opportunity
for cross-examination (People vs. Rosario, GR No. 146689, 09/27/2002).

In People vs. Manchetti (GR No. L-48883, 08/06/1980), the Supreme Court
also held that if a party is deprived of the opportunity of cross examination
without fault on his part, as in the case of the illness and death of a witness
after direct examination, he is entitled to have the direct testimony stricken
from the records. Since the accused was deprived of his opportunity to cross
examine the witness without fault on his part, the motion to expunge is
meritorious.

(7) Under the doctrine of incomplete testimony, the direct testimony of a

witness who dies before conclusion of the cross-examination can be stricken
only insofar as not covered by the cross-examination (Curtice vs. West, 2
NYS 507, 50 Hun 47, affirmed 24 NE 1099, 121 NY, 696), and that a referee has
no power to strike the examination of a witness on his failure to appear for
cross-examination where a good excuse is given (People vs. Hon. Seneris, GR
No. L-48883, 08/06/1980).

WHEN MAY ACCUSED ENTER A PLEA OF GUILTY TO A LESSER

OFFENSE

22.2002 Bar: D was charged with theft of an article worth P15,000. 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. Can the court allow D to charge his plea? Why? (2%)
 Answer: 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 is not necessarily included in theft of an article worth
P15,000.

MOTION TO QUASH

23. 2002 Bar: 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 double 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 chariman 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.

a. How would D’s motion to quash be resolved? (4%)

b. 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%)

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

b. 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).

c. No. The prosecution is only required to present as much evidence as is

necessary to determine whether the evidence of D’s guilt is strong for
purposes of bail.

24. 2005 Bar: 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 R.A. No. 8294, possession
of an unlicensed .45 caliber gun is punishable by prision mayor in its
minimum period and a fine of P30,000.00 while possession of an
unlicensed of .32 calliber gun is punishable by prision correccional in its
minimum period and a fine of not less than P15,000.00. As counsel of
the accused, you intend to file a motion to quash the Information. What
ground or grounds should you invoke? Explain. (4%)

Answer: The ground for the motion to quash is that more than one offense is
charged in the Information (Sec. 3[f], Rule 117). Likewise, the RTC has no
jurisdiction over the second offense of possession of an unlicensed .32 caliber
gun, punishable by prision correctional 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.

25. 2005 Bar: 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%)

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, so long as the search is conducted in the
place where the search warrant is 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 (Mantaring vs. Roman, 259 SCRA
158 [1996]).

26. 2005 Bar: 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. Because of his guilty plea, Noel
was convicted of frustrated homicide and meted the corresponding
penalty. When the prosecution learned of the victim’s death, it filed
within fifteen (15) days therefrom a motion to amend the information
to upgrade the charge from frustrated homicide to consummated
homicide. Noel opposed the motion claiming that the admission of the
amended information would place him in double jeopardy. Resolve the
motion with reasons. (4%)

Answer: Amending the information from frustrated homicide to

consummated homicide does not place the accused in double jeopardy. The
conviction of the accused shall be a bar to another prosecution for an offense
of 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 offense became known or were discovered
only after plea was entered in the former complaint or information (Sec. 7,
Rule 117). 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 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.

27. 2003 Bar: Before the arraignment for the crime of murder, the private
complainant executed an Affidavit of Desistance stating that she was
not sure if the accused was the man who killed her husband. The public
prosecutor filed a Motion to Quash the Information on the ground that
 with private complainant’s desistance, he did not have evidence
sufficient evidence 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. Resolve the motion to quash. (4%)

Answer: 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 the charge (Sec. 7, Rule 117).

PRE-TRIAL

28.2004 Bar: Mayor TM was charged of malversation through falsification

of official documents. Assisted by Atty. OP as counsel de parte during
pre-trial, he signed together with Ombudsman Prosecutor TG a “Joint
Stipulation of Facts and Documents” which was presented to the
Sandiganbayan. Before the court could issue a pre-trial order but after
some delay caused by Atty. OP, he was substituted by Atty. QR as a
defense counsel. Atty. QR forthwith filed a motion to withdraw the
“Joint Stipulation” alleging that it is prejudicial to the accused because
it contains, inter alia, the statement that the “Defense admitted all the
documentary evidence of the Prosecution,” thus leaving the accused
little or no room to defend himself, and violating his right against self
incrimination. Should the court grant or deny QR’s motion? Reason.
(5%)

Answer: The court should deny QR’s motion. If in the pre-trial agreement
signed by the accused and his counsel, the accused admits the documentary
evidence of the prosecution, it does not violate his right against self-
incrimination. His lawyer cannot file a motion to withdraw. A pre-trial order
is not needed. The admission of such documentary evidence is allowed by the
 rules (Sec. 2, Rule 118; Bayas vs. Sandiganbayan, 392 SCRA 415 [2002]). Non-
appearance during pre-trial.

TRIAL

29.) 2006 Bar: 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?

Answer: As counsel of an accused charged with homicide, I would ask the

prosecutor to recommend that the accused be made a state witness. It is the
prosecutor who must recommend and move for the acceptance of the accused
as a state witness. The accused may also apply under the Witness Protection
Program.

30. 2015 Bar: The Ombudsman found probable cause to charge with
plunder the provincial governor, vice governor, treasurer, budget
officer, and accountant. An Information for plunder was filed with the
Sandiganbayan against the provincial officials except for the treasurer
who was granted immunity when he agreed to cooperate with the
Ombudsman in the prosecution of the case. Immediately, the governor
filed with the Sandiganbayan a petition for certiorari against the
Ombudsman claiming there was grave abuse of discretion in excluding
the treasurer from the Information. (C) Can the Special Prosecutor
move for the discharge of the budget officer to corroborate the
testimony of the treasurer in the course of presenting its evidence? (2%)

Answer: No. The Special Prosecutor cannot move for the discharge of the
budget officer to become a State witness since his testimony is only
corroborative to the testimony of the treasurer. Under Section 17, Rule 119,
the Court upon motion of the prosecution before resting its case, may direct
one or more of the accused to be discharged with their consent so that they
may be witnesses for the State, provided the following requisites are satisfied:
(a) there is absolute necessity for the testimony of the accused whose
discharge is requested; (b) there is no other direct evidence available for the
proper prosecution of the offense committed, except the testimony of the said
accused; (c) the testimony of said accused does not appear to be the most
guilty; and (e) said accused has not at any time been convicted of any offense
involving moral turpitude. Absolute necessity exists for the testimony of an
accused sought to be discharged when he or she alone has knowledge of the
crime. In more concrete terms, necessity is not present when the testimony
would simply corroborate or otherwise strengthen the prosecution’s
 evidence. The requirement of absolute necessity for the testimony of a state
witness depends on the circumstances of each case regardless of the number
of the participating conspirators (Jimenez, Jr. vs. People, GR No. 209195,
09/17/2014).

DEMURRER TO EVIDENCE

31. 2004 Bar: AX, a Makati-bound paying passenger of PBU, a public utility
bus, died on board the bus on account of the fatal head wounds he
sustained as a result of the strong impact of the collision between the
bus and a dump truck that happened while the bus was still travelling
on EDSA towards Makati. The foregoing facts, among others, were duly
established on evidence-in-chief by the plaintiff TY, sole heir of AX, in
TY’s action against the subject common carrier for breach of contract of
carriage. After TY had rested his case, the common carrier filed a
demurrer to evidence, contending that plaintiff’s evidence is
insufficient because it did not show (1) that defendant was negligent
and (2) that such negligence was the proximate cause of the collision.
Should the court grant or deny defendant’s demurrer to evidence?
Reason briefly. (5%)

Answer: No. The court should not grant defendant’s demurrer to evidence
because the case is for breach of contract of carriage. Proof that the defendant
was negligent and that such negligence was the proximate cause of the
collision is not required (Articles 1170 and 2201, Civil Code; Batangas
Transportation Co. vs. Caguimbal, 22 SCRA 171 [1968]0; Aboitiz vs. Court of
Appeals, 129 SCRA 95 [1984]).

32. 2003 Bar: 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. (4%)

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 evidence on its own initiative after giving the
prosecution the opportunity to be heard (Sec. 23, Rule 119).

33. 2004 Bar: 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, not withstanding that the
material facts duly established during the trial showed that the offense
committed was estafa, punishable by imprisonment of up to 8 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 said judgment reviewable thru a special civil action
for certiorari? Reason. (5%)

Answer: 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. One offense does not
necessarily include or is it included in the other (Sec. 5, Rule 120; Lauro
Santos v. People, 181 SCRA 487). The judgment of conviction is reviewable
by certiorari even if no appeal had been taken, because the judge committed
grave abuse of discretion tantamount to lace 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 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, Rule 119).

34.2003 Bar: In an action for violation of Batas Pambansa Blg. 22, the court
granted the accused’s demurrer to 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
ground: The demurrer to evidence applied only to the criminal aspect
of the case. Resolve the motion for reconsideration. (6%)

Answer: 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 BP 22 included
the corresponding civil action (Sec. 1[b], Rule 111. )

35. 2004 Bar: The information for the 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 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 of such evidence rested his case and within the
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 described therefor.
Is the judgment of the trial court valid and proper? Reason. (5%)

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 (Sec. 23, Rule 119). However, the judgment is
not proper or is erroneous because there was no showing from the proper
office like the Firearms and 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 (People v. Flores, 269 SCRA 62 [1997]).

36. 2007 Bar: Distinguish the effect of filing of a demurrer to evidence in a

criminal case and its filing in a civil case. (5%)

37. 2007 Bar: What is reverse trial and when may it be resorted to? Explain
briefly. (5%) Answer: A reverse trial is a trial where the accused presents
his evidence first before the prosecution submits its evidence. It may be
resorted to when the accused admits the act or omission charged in the
complaint or information but interposes a lawful or affirmative defense
(Sec. 11[e], Rule 119). In civil cases, reverse trial may be resorted to by
agreement of the parties or when the defendant sets up an affirmative
defense.

JUDGMENT
38. 2003 Bar: When a criminal case is dismissed on nolle prosequi, can it
later be refilled? (4%)

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 (Galves v. Court of Appeals, 237 SCRA 686
[1994])

PROMULGATION OF JUDGMENT; INSTANCES OF

PROMULGATION OF JUDGMENT IN ABSENTIA

39. 2014 Bar: Ludong, Balatong, and Labong were charged with murder.
After trial, the court announced that the case was considered submitted
for decision. On promulgation day, Ludong and his lawyer appeared.
The lawyers of Balatong and Labong appeared but without their clients
and failed to satisfactorily explain their absence when queried by the
court. Thus, the judge ordered the Clerk of Court to proceed with the
reading of the judgment convicting all the accused. With respect to
Balatong and Labong, the judge ordered that the judgment be entered
in the criminal docket and copies be furnished their lawyers. The
lawyers of Ludong, Balatong, and Labong filed within the reglementary
period a Joint Motion for Reconsideration. The court favorably granted
the motion of Ludong downgrading his conviction from murder to
homicide but denied the motion as regards Balatong and Labong. (4%)

(A) Was the court correct in taking cognizance of the Joint Motion for
Reconsideration?

(B) Can Balatong and Labong appeal their conviction in case Ludong
accepts his conviction for homicide?

Answer: (A) The Court is not correct in taking cognizance of the Joint
Motion for Reconsideration. Section 6, Rule 120 provides that if the
judgment is for conviction and the failure of the accused to appear was
without justifiable cause, he shall lose the remedies available against the
judgment and the court shall order his arrest. Hence, the Court erred when
it entertained the Joint Motion for Reconsideration with respect to accused
Balatong and Labong who were not present during the promulgation of the
judgment. The Court should have merely considered the joint motion as a
motion for reconsideration that was solely filed by Ludong (People vs. De
Grano, GR No. 167710, 06/05/2009). (
 B) No. Balatong and Ludong cannot appeal their conviction because they
lost their right to appeal from the judgment when they failed to appear
during the promulgation of judgment. Be that as it may, if they surrendered
and filed a Motion for Leave to avail of their post judgment remedies within
ffitteen (15) days frompromulgation of judgment, and they have proven that
their abnsence at the scheduled promulgation was for a justifiable cause,
they may be allowed to avail of said remedies within fifteen (15) days from
notice thereof (People vs. De Grano, GR No. 167710, 06/05/2009)

GROUNDS FOR NEW TRIAL

40. 2015 Bar: The Ombudsman found probable cause to charge with
plunder the provincial governor, vice governor, treasurer, budget
officer, and accountant. An Information for plunder was filed with the
Sandiganbayan against the provincial officials except for the treasurer
who was granted immunity when he agreed to cooperate with the
Ombudsman in the prosecution of the case. Immediately, the governor
filed with the Sandiganbayan a petition for certiorari against the
Ombudsman claiming there was grave abuse of discretion in excluding
the treasurer from the Information. (A) Was the remedy taken by the
governor correct? (2%)

Answer: No. The remedy taken by the Governor is not correct. The petition
for certiorari is a remedy that is only available when there is no plain,
speedy, and adequate remedy under the ordinary course of law; hence, the
Governor should have filed a Motion for Reconsideration. Besides, there is
no showing that the Ombudsman committed grave abuse of discretion in
granting immunity to the treasurer who agreed to cooperate in the
prosecution in the prosecution of the case.

41. Jaime was convicted for murder by the Regional Trial Court of Davao
City in a decision promulgated on September 30, 2015. On October 5,
2015, Jaime filed a Motion for New Trial on the ground that errors of
law and irregularities prejudicial to his rights were committed during
his trial. On October 7, 2015, the private prosecutor, with the
conformity of the public prosecutor, filed an Opposition to Jaime’s
motion. On October 12, 2015, the public prosecutor filed a motion for
reconsideration. The court issued an Order dated October 16, 2015
denying the public prosecutor’s motion for reconsideration. The public
prosecutor received his copy of the order of denial on October 20, 2015
while the private prosecutor received his copy on October 26, 2015.
 (A) What is the remedy available to the prosecution from the court’s
order granting Jaime’s motion for new trial? (3%)

(B) In what court and within what period should a remedy be availed
of? (1%)

(C) Who should pursue the remedy? (2%)

Answer: (A) The remedy of the prosecution is to file a petition for certiorari
under Rule 65, because the denial for a motion for reconsideration is merely
an interlocutory order and there is no plain, speedy, and adequate remedy
under the course of law. It may be argued that appeal us the appropriate
remedy from an order denying a motion for reconsideration of an order
granting a motion for new trial because an order denying a motion for
reconsideration was already removed in the enumeration of matters that
cannot be a subject of an appeal under Section 1, Rule 41 of the Rules of
Court.

(B) Following the principle of judicial hierarchy, the petition for certiorari
should be filed before the Court of Appeals within sixty (60) days from
receipt of the copy of the order of denial of the public prosecutor’s motion
for reconsideration, or on October 20, 2015.

(C) The Office of the Solicitor General should pursue the remedy. In
criminal proceedings on appeal in the Court of Appeals or in the Supreme
Court, the authority to represent the people is vested solely in the Solicitor
General. Under Presidential Decree No. 478, among the specific powers and
functions of the OSG is to represent the government in the Supreme Court
and the Court of Appeals in all criminal proceedings. This provision has
been carried over to the Revised Administrative Code (Book IV, Title III,
Chapter 12). Without doubt, the OSG is appellate counsel of the People of
the Philippines in all criminal cases (Cariño vs. De Castro, GR No. 176084,
04/30/2008).

EFFECTS OF DENYING A NEW TRIAL OR RECONSIDERATION

42. 2015 Bar: Jaime was convicted for murder by the Regional Trial
Court of Davao City in a decision promulgated on September 30, 2015.
On October 5, 2015, Jaime filed a Motion for New Trial on the ground
that errors of law and irregularities prejudicial to his rights were
committed during his trial. On October 7, 2015, the private prosecutor,
with the conformity of the public prosecutor, filed an Opposition to
Jaime’s motion. On October 12, 2015, the public prosecutor filed a
motion for reconsideration. The court issued an Order dated October
 16, 2015 denying the public prosecutor’s motion for reconsideration.
The public prosecutor received his copy of the order of denial on
October 20, 2015 while the private prosecutor received his copy on
October 26, 2015.

(A) What is the remedy available to the prosecution from the court’s
order granting Jaime’s motion for new trial? (3%)

(B) In what court and within what period should a remedy be availed
of? (1%) (C) Who should pursue the remedy? (2%)

Answer: (A) The remedy of the prosecution is to file a petition for

certiorari under Rule 65, because the denial of a motion for reconsideration
is merely an interlocutory order and there is no plain, speedy and adequate
remedy under the course of law. Appeal is the right remedy from an order
denying a motion for reconsideration was already removed in the
enumeration of matters that cannot be a Subject of an appeal under Section
1, Rule 41.

(B) Following the principle of judicial hierarchy, the petition for certiorari
should be filed before the Court of Appeals within sixty (60) days from
receipt of the copy of the order of denial of the Public prosecutor’s motion
for reconsideration, or on October 20, 2015.

(C) The office of the Solicitor General should pursue the remedy. In
criminal proceedings on appeal in the Court of Appeals or in the Supreme
Court, the authority to represent the people is vested solely in the Solicitor
General. Under Presidential Decree No. 478, among the specific powers and
functions of the OSG is to represent the government in the Supreme Court
and the Court of Appeals in all criminal proceedings. This provision has
been carried over to the Revised Administrative Code particularly in Book
IV, Title III, Chapter 12 (Cariño vs. de Casto, GR No. 176084, 04/30/2008

PERSONAL PROPERTY TO BE SEIZED

43.2003 Bar: In a buy-bust operation, the police operatives arrested the

accused and seized from him a sachet of shabu and an unlicensed firarm.
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 seizure of the firearm valid?

(b) Was the denial of the motion to dismiss proper?

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, Rule
126). A search warrant was not necessary.

(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 with the court
where the action is pending.