2011 Bar Exams Trial Memorandum

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2011 Bar Exams Trial Memorandum

On April 8, 2012

Jonna Buenofiled an action for damages of P500,000.00 against Gloria Supermart, Inc. beforethe Regional Trial ourt of !ue"on it# for the in$uries that her son, Ric%#, suffered at its

supermar%et,for the e&pense, and for the emotional pain that it brought to him and his mother.

onsider the follo'ing testimonies that the 'itnesses from either side presented at the trial of the

case. (ssume that #ou are the la'#er either for Bueno or for Gloria Supermart and 'rite a trialmemorandum for the side #ou ha)e chosen to represent. *ou 'ould 'ant to con)ince the trial

court to decide the case in #our client+s fa)or.

-

Excerpts from Transcript of Stenographic Notes

Bueno vs !loria Supermart" #nc" $ivil $ase No 2%-112011" &earing of 'une %" 2011

IR-T -(/I(TI1 12 P3(ITI22+S 4IT-SS

1RT ST(226 7(fter s'earing in the 'itness8 State #our name and personal circumstances.

4IT-SS6 I am Jonna Bueno, 95 #ears old, married, and a resident of :; 3ittle

Baguio St., San Juan it#, /etro /anila. I am an accountant.

(TT*. R- B-3TR(6 *our


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(TT*. -/I3 SG(6 Sub$ect to cross, *our 0

#ears.

!. 4here is Gloria Supermart located=

(. 1n 1rtigas ()enue, San Juan, /etro /anila, $ust t'o bloc%s from our condominium.

!. o #ou remember 'here #ou 'ere at about ?0 a.m. on /a# ??, >0?0=

(. *es, Sir.

!. 4here 'ere #ou=

(. I 'as at Gloria Supermart.

!. 4hat 'ere #ou doing there=

(. I 'as about to coo% spaghetti for m# son Ric%# 'hen I reali"ed I didn+t ha)e an# tomato

sauce so I 'ent to Gloria Supermart to bu# tomato sauce and some other things 'e needed in thehouse.

!. id #ou ha)e an# companion=

(. *es, m# bo# Ric%#.

!. 005.


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!. o #ou remember an#thing unusual that happened 'hile #ou and Ric%# 'ere pic%ing up

groceries at the shel)es=

(. *es, a small ball rolled along the aisle and Ric%# ran after it.

!. 4as he able to catch the ball=

(. o. (lthough Ric%# had gone some distance do'n the aisle from 'here I stood, I sa'

him slip 'ith a hea)# bang on a 'et section of the aisle.

!. 4hat happened to him after he slipped=

(.


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(. one, Sir, although I heard someone shout, A


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(. I spent P>>,:E0.00 for doctor+s fee, hospitali"ation, and medicine. 4e also bought to#s

for Ric%# to distract him from the pain that he suffered. 4e spent appro&imatel# P5,000.00.

!. o #ou ha)e e)idence of these e&penses=

(. *es, Sir, here are m# receipts

FNote: Assume that the marking and presentation of the receipts for the expenses mentionedabove, although omitted here, ere done right!

(TT*. B-3TR(6 That is all for the 'itness.

1RT6 ross.

R1SSD-(/I(TI1 B* (TT*. SG(

(TT*. SG(6

!. /s. Bueno, #ou said that #ou brought #our son Ric%# to Gloria Supermart on /a#

??, >0?0. id #ou need him to be there 'hene)er #ou bu# #our groceries=

(. o, Sir, but I did not ha)e an#one to lea)e him home 'ith.

!. But 'hen #ou too% him there, #ou of course are a'are that the supermar%et did not ha)e

a lea)eD#ourDchild ser)ice=

(. *es, Sir.

!. onse@uentl#, #ou 'ere a'are that the responsibilit# for loo%ing after Ric%#+s needs and

safet# 'hile in the supermar%et is primaril# in #our hands as his mother=

(. *es, Sir, but supermar%ets al'a#s e&pect children to come 'ith their parents and so it has

to ma%e sure that the place is safe for children.

!. But do #ou agree that, as his mother, he is safer 'hen he sta#s b# #our side in a public

place li%e a supermar%et=

(. *es, Sir.

!. Still, #ou let him slip a'a# from #our control, 'hen he ran after that ball=


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(. *es, Sir, but the supermar%et should %eep their e#es open for things li%e loose balls

running do'n their aisles, dra'ing children a'a# from their parents, and letting them slip on

carelessl# spilled li@uids.

!. But did #ou not notice that the aisles of Gloria Supermart ha)e sales cler%s that attend to

in@uiries and needs of its customers=

(. ot all the time. 4hen m# son had his accident, no one 'as around to pre)ent it from

happening.

(TT*. SG(6 That is all, *our .G. ru", Sampaloc,

/anila. I am a supermar%et super)isor.

(TT*. -/I3 SG(6 *our


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(. I ha)e been 'ith Gloria Supermart for 5 #ears alread#, Sir.

!. o #ou %no' the plaintiff Jonna Bueno=

(. *es, Sir, she has been a customer at our supermar%et.

!. o #ou recall seeing her at #our supermar%et about ?0 a.m. on /a# ??, >0?0=

(. *es, Sir.

!. 4h# do #ou recall seeing her there at that time and on that date=

(. Because her son Ric%# had an accident and I 'as around.

!. id #ou see ho' the accident happened=

(. o, Sir, but I 'as $ust at the ne&t aisle fi&ing the ne' stoc%s of instant noodles. 4hen Iheard the commotion, I @uic%l# 'al%ed do'n there and sa' Ric%# l#ing on the floor, cr#ing 'ith

pain.


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(. (ll supermar%ets allo' customers to bring their children into the store. It is often a

necessit# for them. It is understood of course that their parents 'ould loo% after them, pre)enting

them from misbeha)ing, causing damage to the merchandise, or getting in$ured.

!. /s. Bueno said that Ric%# slid on the floor because some s#rup seeped out of a lea%ing

bottle in one of the shel)es. o #ou %no' an#thing about it=

(. *es, sir. 4hat she said is not true. The s#rup must ha)e come from one of the

bottles that Ric%# %noc%ed off from the shelf 'hen he ran 'ild do'n the aisle, supposedl#

running after a loose ball. There can be no other e&planation.

!. 4hat did #ou do then=

(. I helped /s. Bueno pic% up Ric%#, intending to bring him to a hospital but his mom

insisted that 'e ta%e him to her car so she can dri)e him @uic%l# to the hospital. I carried Ric%#

to her car and accompanied them to the hospital.

!. id /s. Bueno tell #ou an#thing 'hile #ou 'ere in the car=

(. She 'as blaming the supermar%et for the accident.

!. id #ou repl# to her=

(. o, Sir, I said nothing to upset her because she 'as dri)ing and 'as 'orried about her

child.

(TT*. SG(6 That is all, *our


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(. *es, Sir, but the scene suggested it.

!. Since #ou did not see 'hat actuall# happened at that aisle, is it possible for some other

person to ha)e %noc%ed off those bottles=

(. *es, Sir, that is possible but not li%el# since I did not see an# person lea)e the place inhaste.

!. So, it is also possible that the s#rup on the floor, spilled b# someone else, caused

Ric%# to slip as he 'as running after some ball before #ou sho'ed up=

(. *es, that is possible, but unli%el#. The shel)es are carefull# stoc%ed.

!. o accidents resulting in in$ur# happen in #our supermar%ets=

(. *es but not so oftenH about one accident a #ear, if I remember right. These things areuna)oidable because hundreds of people come to the supermar%et e)er#da#.

!.


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*M#) $,E

/*.ENT*) *T&.#T

(RT. >0;. Pursuant to the natural right and dut# of parents o)er the person and propert# oftheir unemancipated children, parental authorit# and responsibilit# shall include the caring for

and rearing of such children for ci)ic consciousness and efficienc# and the de)elopment of their

moral, mental and ph#sical character and 'ellDbeing.

(rt. >0. Parental authorit# and responsibilit# ma# not be renounced or transferred e&cept in thecases authori"ed b# la'.

(rt. >>0. The parents and those e&ercising parental authorit# shall ha)e 'ith respect to theirunemancipated children or 'ards the follo'ing rights and duties6

7?8 To %eep them in their compan#, to support, educate and instruct them b# right precept andgood e&ample, and to pro)ide for their upbringing in %eeping 'ith their meansH

&&& &&& &&&

7:8 To impose discipline on them as ma# be re@uired under the circumstancesH and

7;8 To perform such other duties as are imposed b# la' upon parents and guardians.

(rt. >>?. Parents and other persons e&ercising parental authorit# shall be ci)ill# liable for the

in$uries and damages caused b# the acts or omissions of their unemancipated children li)ing intheir compan# and under their parental authorit# sub$ect to the appropriate defenses pro)ided b#

la'.

$#3#) $,E

/E.SN*) )#*B#)#T

(rt. >0. -)er# person 'ho, contrar# to la', 'illfull# or negligentl# causes damage to another,

shall indemnif# the latter for the same.

N#S*N$E

(rt. ;E. ( nuisance is an# act, omission, establishment, business, condition of propert#, or

an#thing else 'hich6


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7?8 In$ures or endangers the health or safet# of othersH or &&& &&& &&&

(rt. ;K. The abatement of a nuisance does not preclude the right of an# person in$ured to

reco)er damages for its past e&istence.

*ttractive Nuisance

1ne 'ho maintains on his premises dangerous instrumentalities or appliances of a character

li%el# to attract children in pla#, and 'ho fails to e&ercise ordinar# care to pre)ent children

from pla#ing there'ith or resorting thereto, is liable to a child of tender #ears 'ho is in$ured

thereb#, e)en if the child is technicall# a trespasser in the premises. "#idalgo $nterprises,%nc!, v! &alandan, et al!, '()*22, +une 1), 1-2, 1 .hil! *88/

4*S#-,E)#$TS

(rt. >?K. 4hoe)er b# act or omission causes damage to another, there being fault or

negligence, is obliged to pa# for the damage done. Such fault or negligence, if there is no preDe&isting contractual relation bet'een the parties, is called a @uasiDdelict and is go)erned b# the

pro)isions of this hapter.

(n accident pertains to an unforeseen e)ent in 'hich no fault or negligence attaches to the

defendant. &&&

1n the other hand, negligence is the omission to do something 'hich a reasonable man, guidedb# those considerations 'hich ordinaril# regulate the conduct of human affairs, 'ould do, or the

doing of something 'hich a prudent and reasonable man 'ould not do. &&&

(ccident and negligence are intrinsicall# contradictor#H one cannot e&ist 'ith the other. (ccidentoccurs 'hen the person concerned is e&ercising ordinar# care, 'hich is not caused b# fault of

an# person and 'hich could not ha)e been pre)ented b# an# means suggested b# common

prudence. "+arco arketing orporation v! ourt of Appeals, !3! No! 1242, 5ecember 21,

1, )21 63A )4-/

The doctrine of res ipsa lo@uitor applies 'here 7?8 the accident 'as of such character as to

'arrant an inference that it 'ould not ha)e happened e&cept for the defendant+s negligenceH 7>8

the accident must ha)e been caused b# an agenc# or instrumentalit# 'ithin the e&clusi)e

management or control of the person charged 'ith the negligence complained ofH and 798 theaccident must not ha)e been due to an# )oluntar# action or contribution on the part of the person

in$ured. "hild 'earning enter, %nc! v! 7agorio, !3! No! 1-020, November 2-, 200-, *463A 2)/

The test for determining 'hether a person is negligent in doing an act 'hereb# in$ur# or damage

results to the person or propert# of another is this6 could a prudent man, in the position of the

person to 'hom negligence is attributed, foresee harm to the person in$ured as a reasonable

conse@uence of the course actuall# pursued= ".hilippine National onstruction orporation v!ourt of Appeals, !3! No! 1-240, August 22, 200-, *4 63A -/


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(rt. >?K;. 4hen the plaintiff+s o'n negligence 'as the immediate and pro&imate cause of his

in$ur#, he cannot reco)er damages. But if his negligence 'as onl# contributor#, the immediate

and pro&imate cause of the in$ur# being the defendant+s lac% of due care, the plaintiff ma#reco)er damages, but the courts shall mitigate the damages to be a'arded.

ontributor# negligence is conduct on the part of the in$ured part#, contributing as a legal causeto the harm he has suffered, 'hich falls belo' the standard 'hich he is re@uired to conform for

his o'n protection.

&&& &&& &&&

It is an act or omission amounting to 'ant of ordinar# care on the part of the person in$ured

'hich, concurring 'ith the defendant+s negligence, is the pro&imate cause of the in$ur#.

"National .oer orporation v! #eirs of Noble asionan, !3! No! 1-, November 24,2008, -42 63A 41/

Pro&imate cause is defined as that cause, 'hich, in natural and continuous se@uence,unbro%en b# an# efficient inter)ening cause, produces the in$ur#, and 'ithout 'hich the result

'ould not ha)e occurred. "3amos v! !O!'! 3ealt9 orporation, !3! No! 18*0-, August 28,200, -4 63A -2/

(rt. >?:0. The obligation imposed b# (rticle >?K is demandable not onl# for one+s o'n acts or

omissions, but also for those of persons for 'hom one is responsible.

&&& &&& &&&

The o'ners and managers of an establishment or enterprise are li%e'ise responsible for

damages caused b# their emplo#ees in the ser)ice of the branches in 'hich the latter areemplo#ed or on the occasion of their functions.

&&& &&& &&&

The responsibilit# treated of in this article shall cease 'hen the persons herein mentioned pro)ethat the# obser)ed all the diligence of a good father of a famil# to pre)ent damage.

,*M*!ES

(rt. >?;K. amages ma# be6

7?8 (ctual or compensator#H

7>8 /oralH

798 ominalH

7E8 Temperate or moderateH


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758 3i@uidatedH or

78 -&emplar# or correcti)e.

(rt. >?;;. -&cept as pro)ided b# la' or b# stipulation, one is entitled to an ade@uate

compensation onl# for such pecuniar# loss suffered b# him as he has dul# pro)ed. Suchcompensation is referred to as actual or compensator# damages.

(rt. >>09. The part# suffering loss or in$ur# must e&ercise the diligence of a good father of a

famil# to minimi"e the damages resulting from the act or omission in @uestion.

(rt. >>?E. In @uasiDdelicts, the contributor# negligence of the plaintiff shall reduce the damagesthat he ma# reco)er.

The underl#ing precept on contributor# negligence is that a plaintiff 'ho is partl# responsible for

his o'n in$ur# should not be entitled to reco)er damages in full but must bear the conse@uences

of his o'n negligence. "National .oer orporation v! #eirs of Noble asionan, !3! No!1-, November 24, 2008, -42 63A 41/

In.hoenix onstruction, %nc!, v! %ntermediate Appellate ourt, 'here 'e held that the legal and

pro&imate cause of the accident and of ionisio+s in$uries 'as the 'rongful and negligent

manner in 'hich the dump truc% 'as par%ed but found ionisio guilt# of contributor#negligence on the night of the accident, 'e allocated most of the damages on a >0D:0 ratio. In

said case, 'e re@uired ionisio to bear >0L of the damages a'arded b# the appellate court,

e&cept as to the a'ard of e&emplar# damages, attorne#+s fees and costs. "$stacion v!&ernardo, !3! No! 1**42), ebruar9 24, 200, *8) 63A 222/

(rt. >>?K. /oral damages include ph#sical suffering, mental anguish, fright, serious an&iet#,besmirched reputation, 'ounded feelings, moral shoc%, social humiliation, and similar in$ur#.

Though incapable of pecuniar# computation, moral damages ma# be reco)ered if the# are thepro&imate result of the defendant+s 'rongful act for omission.

(rt. >>?;. /oral damages ma# be reco)ered in the follo'ing and analogous cases6

&&& &&& &&&

7>8 !uasiDdelicts causing ph#sical in$uriesH

&&& &&& &&&

.)ES $.T

E3#,EN$E


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Sec. 9.7estimon9 generall9 confined to personal knoledgeH hearsa9 excluded. M ( 'itness can

testif# onl# to those facts 'hich he %no's of his personal %no'ledgeH that is, 'hich are deri)ed

from his o'n perception, e&cept as other'ise pro)ided in these rules.

4here the statements or 'ritings attributed to a person 'ho is not on the 'itness stand are being

offered not to pro)e the truth of the facts stated therein but onl# to pro)e that those statements'ere actuall# made or those 'ritings 'ere e&ecuted, such e)idence is not co)ered b# the hearsa#

e)idence rule."orne;o, 6r!, vs! 6andiganba9an, !3! No! -88)1, +ul9 )1, 184, 1-2 63A --/

nder the doctrine of independentl# rele)ant statements, onl# the fact that such statements 'ere

made is rele)ant, and the truth or falsit# thereof is immaterial. The hearsa# rule does not appl#.

".eople v! umimba et al!, !3! No! 14*0-, ebruar9 24, 2004, -14 63A 2-/

Sec. E>..art of res gestae. M Statements made b# a person 'hile a startling occurrence is ta%ingplace or immediatel# prior or subse@uent thereto 'ith respect to the circumstances thereof, ma#

be gi)en in e)idence as part of res gestae. &&&

( declaration made spontaneousl# after a startling occurrence is deemed as part of the res gestae

'hen 7?8 the principal act, the res gestae is a startling occurrenceH 7>8 the statements 'ere madebefore the declarant had time to contri)e or de)iseH and 798 the statements concern the occurrence

in @uestion and its immediatel# attending circumstances. "?K of the i)il ode, plaintiff has to pro)e b# apreponderance of e)idence6 7?8 the damages suffered b# the plaintiffH 7>8 the fault or negligenceof the defendant or some other person for 'hose act he must respondH and 798 the connection of

cause and effect bet'een the fault or negligence and the damages incurred. "hild 'earning

enter, %nc! v! 7agorio, !3! No! 1-020, November 2-, 200-, *4 63A 2)/


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2012 B*. E5*M#N*T#NS

)E!*) ET$S *N, /.*$T#$*) E5E.$#SES

>: 1ctober >0?> >690 P./. D 5600 P./.

Set B

#NST.$T#NS

The follo'ing @uestionnaire consists of 2I2T-- 7?58 pages, including this page.

*ou are presented 'ith a h#pothetical case trial scenario plus research materials 7pro)isions of

la' and $urisprudence8 that #ou ma# 'ant to use in #our 'or%. These materials are designed to

pro)ide sufficient basis for #our /emorandum. But #ou are free to include such la's, rules andprinciples not pro)ided that #ou feel 'ill enhance #our 'or%. Some of these materials ma# be

irrele)ant. onse@uentl#, use #our $udgment in 'riting onl# 'hat is rele)ant to the position #ou

ta%e.

*ou are gi)en three things6 7a8 the case trial scenario, 7b8 a raft Pad and 7c8 (ns'er Pad. *ouare free to $ot notes or place helpful mar%ings li%e underlines on the case trial scenario and the

enclosed materials. se the raft Pad for ma%ing a draft of #our /emorandum as this 'ill

permit #ou to freel# edit and re'rite #our 'or%. -diting and re'riting are essential to sound/emorandum 4riting.

Budget #our time 'ell. The bells 'ill be rung three times. irst 6ell'ill be rung one hour before

the end of the e&am to signal the need for #ou to begin transferring #our 'or% to #our (ns'er

Pad. Second 6ell'ill be rung ?5 minutes before the end of the e&am to allo' #ou to 'rap up

#our 'or%. (nd the third 6ell'ill be rung to signal the end of the e&am. The (ns'er Pad 'ill becollected 'hether #ou are finished or not. The time pressure is part of the e&am.

*ou ma# prefer to s%ip the preparation of a draft and 'rite #our /emorandum directl# on #our

(ns'er Pad. That is allo'ed.

!ualit# of 'riting, not length, is desired.

orrections e)en on #our final /emorandum on the (ns'er Pad are allo'ed and 'ill not result

in an# deduction. Still, it is ad)ised that #ou 'rite clearl#, legibl# and in an orderl# manner.

*ou 'ill not be graded for a technicall# right or 'rong /emorandum but for the @ualit# of #ourlegal ad)ocac#.

The test is intended to measure #our s%ills in6

?. communicating in -nglish D >0LH

>. sorting out and e&tracting the rele)ant facts D ?5LH


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9. identif#ing the issue or issues presentedD ?5LH and

E. constructing #our arguments in support of #our point of )ie' D 50L.


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4itness 6 I am Ben !ue, 0 #ears old, married, and a resident of ?>9 Tridalo Street,

/andalu#ong it#

P. Prosecutor 6 /r. !ue, do #ou %no' /r. ,500.00.


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P-S1S6 T'el)e Thousand 2i)e


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P. Prosecutor 6 /a# I re@uest that the stamps of dishonor and the reason (ccount losed

appearing at the bac% of each instrument be correspondingl# mar%ed as -&hibits (D? to -D?,

respecti)el#.

1RT 6 /ar% them accordingl#.

. ounsel 6 I mo)e to stri%e out this particular testimon# for being hearsa#. This 'itness is

not competent to testif# on these matters pertaining to ban% records.

1RT 6 oes the defense den# that all fi)e 758 instruments 'ere dishonored and returned to

the 'itness=

. ounsel 6 o, *our , >0?>, I sent the letter b# registered mail to /r. , >0?> posted at /andalu#ong it# Post 1ffice be mar%ed as

-&hibit G for the prosecution.

1RT 6 /ar% it then.

P. Prosecutor 6 o #ou %no' if accused actuall# recei)ed #our letter sent b# registered mail=

4itness 6 I assumed that he had recei)ed it because the registered letter 'as not returned tome.

. ounsel 6 I ta%e e&ception to that statement. *our


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dishonored chec%s is to forestall the e&istence of a prima facie e)idence of %no'ledge of the

insufficienc# of funds. But here, the reason of the dishonor is (ccount losed, and not $ust

insufficienc# of funds. In short, there is actual proof of lac% of credit 'ith dra'ee ban%. Theaccount is alread# closed and accused cannot e)en ma%e a deposit an#more.

1RT 6 The manifestation is noted.

P. Prosecutor 6


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4itness 6 o, sir. That is o'ned b# m# emplo#er (tlas Parts and, as the /anager, I am the

signator#.

. ounsel 6 /r. hao, in June >0?? 'hen #ou issued the dishonored 14 slips, did #ouderi)e an# personal benefit from the amount loaned=

4itness 6 o, sir. The mone# 'as used to pa# an account pa#able.

. ounsel 6 uring the due dates of the 14 slips that #ou issued to /r. !ue, 'ere #ou still

the /anager of (tlas Parts=

4itness 6 ot an#more, sir, because in the middle of June >0??, I resigned as /anager, and I'as not a'are of the dishonor.

. ounsel 6 id #ou recei)e the demand letter sent to #ou b# /r. !ue after the dishonor=

4itness 6 o, sir.

1RT 6 ross=

P. Prosecutor 6 4ith the %ind permission of the ourt. /r. hao, is it not a fact that /r. !ue

specificall# re@uired #ou to issue chec%s to pa# the monthl# installment of the loan=

4itness 6 *es, sir.

P. Prosecutor 6 *ou 'ill agree 'ith me that 'ithout those fi)e 758 chec%s, or 14 slips as #ou

call them, /r. !ue 'ill not lend mone# to #ou=

4itness 6 *es, sir.

P. Prosecutor 6 *ou 'ill also agree that the demand letter of /r. !ue 'as deli)ered to #ouroffice address because that is the address that #ou ga)e to /r. !ue in connection 'ith #our

transaction=

4itness 6 *es, sir. That is possible, but I 'as not able to recei)e it because I had alread# resigned

and I could not do an#thing an#more.

P. Prosecutor 6 That is all, *our


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Section ?. hecks ithout sufficient funds!D (n# person 'ho ma%es or dra's and issues an#

chec% to appl# on account or for )alue, %no'ing at the time of issue that he does not ha)e

sufficient funds in or credit 'ith the dra'ee ban% for the pa#ment of such chec% in full upon itspresentment, 'hich chec% is subse@uentl# dishonored b# the dra'ee ban% for insufficienc# of

funds or credit or 'ould ha)e been dishonored for the same reason had not the dra'er, 'ithout

an# )alid reason, ordered the ban% to stop pa#ment, shall be punished b# imprisonment of notless than thirt# 7908 da#s but not more then one 7?8 #ear or b# a fine of not less than but not more

than double the amount of the chec% 'hich fine shall in no case e&ceed T'o


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(T 1. >09?

( (T -TIT3- T.&ill of exchange, defined!D ( bill of e&change is an unconditional order in 'riting

addressed b# one person to another, signed b# the person gi)ing it, re@uiring the person to 'hom

it is addressed to pa# on demand or at a fi&ed or determinable future time a sum certain in mone#to order or to bearer.

Section ?:5. heck, defined!D ( chec% is a bill of e&change dra'n on a ban% pa#able on demand.

-&cept as herein other'ise pro)ided, the pro)isions of this (ct applicable to a bill of e&change

pa#able on demand appl# to a chec%.

$ .)ES $.T

R3- ?9>

Section 9E. Offer of evidence!D The court shall consider no e)idence 'hich has not been

formall# offered. The purpose for 'hich the e)idence is offered must be specified.

Section 95. >hen to make offer!D (s regards the testimon# of a 'itness, the offer must be made

at the time the 'itness is called to testif#.

ocumentar# and ob$ect e)idence shall be offered after the presentation of a part#s testimonial

e)idence. Such offer shall be done orall# unless allo'ed b# the court to be done in 'riting.

'.#S/.,EN$E

#sip vs /eople

G. R. o. ?K0>;:, June >, >00K, 5>5 SR( K95

The concept of )enue of actions in criminal cases, unli%e in ci)il cases, is $urisdictional. The

place 'here the crime 'as committed determines not onl# the )enue of the action but is an


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essential element of $urisdiction. It is a fundamental rule that for $urisdiction to be ac@uired b#

courts in criminal cases, the offense should ha)e been committed or an# one of its essential

ingredients should ha)e ta%en place 'ithin the territorial $urisdiction of the court. Territorial$urisdiction in criminal cases is the territor# 'here the court has $urisdiction to ta%e cogni"ance

or to tr# the offense allegedl# committed therein b# the accused. Thus, it cannot ta%e $urisdiction

o)er a person charged 'ith an offense ?9llegedl# committed outside of that limited territor#.2urthermore, the $urisdiction of a court o)er the criminal case is determined b# the allegations in

the complaint or information. (nd once it is so sho'n, the court ma# )alidl# ta%e cogni"ance of

the case. cases, there should be clear

proof of notice. /oreo)er, for notice b# mail, it must appear that the same 'as ser)ed on theaddressee or a dul# authori"ed agent of the addressee. 2rom the registr# receipt alone, it ispossible that petitioner or his authori"ed agent did recei)e the demand letter. Possibilities,

ho'e)er, cannot replace proof be#ond reasonable doubt. The consistent rule is that penal statutes

ha)e to be construed strictl# against the State and liberall# in fa)or of the accused. The absenceof a notice of dishonor necessaril# depri)es the accused an opportunit# to preclude a criminal

prosecution. (s there is insufficient proof that petitioner recei)ed the notice of dishonor, the

presumption that he had %no'ledge of insufficienc# of funds cannot arise.

)o?ano vs &on Martine?

G.R. os. 3D9E?;, 3D:9;DE>, 3DK?5E, 3DKE5>ED>5, 3DK5?>>DE;, 3DK5:?>D?9, 3DK5K5DK

and 3DK5K:;, ecember ?:, ?;:, ?E SR( 9>9

The gra)emen of the offense punished b# B.P. >> is the act of ma%ing and issuing a 'orthless

chec% or a chec% that is dishonored upon its presentation for pa#ment. It is not the nonDpa#mentof an obligation 'hich the la' punishes. The la' is not intended or designed to coerce a debtor

to pa# his debt. The thrust of the la' is to prohibit, under pain of penal sanctions, the ma%ing of

'orthless chec%s and putting them in circulation. Because of its deleterious effects on the public


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interest, the practice is proscribed b# la'. The la' punishes the act not as an offense against

propert#, but an offense against public order.

*m6ito vs /eople

G.R. o. ?>K9>K, 2ebruar# ?9, >00;, 5K; SR( ;

The mere act of issuingU a 'orthless chec% D 'hether as a deposit, as a guarantee or e)en as

e)idence of preDe&isting debt D is malum prohibitum.

nder B.P. Big. >>, the prosecution must pro)e not onl# that the accused issued a chec% that 'as

subse@uentl# dishonored. It must also establish that the accused 'as actuall# notified that thechec% 'as dishonored, and that he or she failed, 'ithin fi)e 758 ban%ing da#s from receipt of the

notice, to pa# the holder of the chec% the amount due thereon or to ma%e arrangement for its

pa#ment. (bsent proof that the accused recei)ed such notice, a prosecution for )iolation of theBouncing hec%s 3a' cannot prosper.

The absence of a notice of dishonor necessaril# depri)es an accused an opportunit# to preclude acriminal prosecution. (ccordingl#, procedural due process clearl# en$oins that a notice of

dishonor be actuall# sent to and recei)ed b# the accused. The accused has a right to demand Dand the basic postulates of fairness re@uireDD that the notice of dishonor be actuall# sent to and

recei)ed b# the same to afford himQher the opportunit# to a)ert prosecution under B.P. Big. >>.

!osiaco vs $hing

G.R. o. ?K9:0K, (pril ?, >00;, 5:5 SR( EK?

B.P. Big. >> imposes a distinct ci)il liabilit# on the signator# of the chec% 'hich is distinct from

the ci)il liabilit# of the corporation for the amount represented from the chec%. The ci)il liabilit#

attaching to the signator# arises from the 'rongful act of signing the chec% despite theinsufficienc# of funds in the account, 'hile the ci)il liabilit# attaching to the corporation is itselfthe )er# obligation co)ered b# the chec% or the consideration for its e&ecution. *et these ci)il

liabilities are mista%en to be indistinct. The confusion is traceable to the singularit# of the

amount of each.

If 'e conclude, as 'e should, that under the current Rules of riminal Procedure, the ci)il action

that is impliedl# instituted in the B.P. Big. >> action is onl# the ci)il liabilit# of the signator#, and

not that of the corporation itself, the distinctness of the cause of action against the signator# and

that against the corporation is rendered be#ond dispute. It follo's that the actions in)ol)ing theseliabilities should be ad$udged according to their respecti)e standards and merits. In the . B. P.

Big. >> case, 'hat the trial court should determine is 'hether or not the signator# had signed thechec% 'ith %no'ledge of the insufficienc# of funds or credit in the ban% account, 'hile in theci)il case the trial court should ascertain 'hether or not the obligation itself is )alid and

demandable. The litigation

of both @uestions could, in theor#, proceed independentl# and simultaneousl# 'ithout being

ultimatel# conclusi)e on one or the other.


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D - D

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2011 Bar Exams Trial Memorandum

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