Preweek - Remedial

8/17/2019 Preweek - Remedial

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SAN BEDA COLLEGE OF LAWCENTRALIZED BAR OPERATIONS 2001Any form of reprodu !"on of !#"$ opy "$ $!r" !%y pro#"&"!ed'''

PRE(WEE)

R E M E D I A L L A W

CIVIL PROCEDURE

1. Ellaine filed an action against Boyet, driver of the tr c!, "ichelle, o#ner of saidtr c!, and R th, ins rer of the tr c!, for da$ages #hen the tr c! ra$$ed her car.Ellaine and R th entered into a co$%ro$ise agree$ent %on an a$o nt lo#er

than that s ed %on &y Ellaine against all three defendants. 'ccordingly, the co rtdis$issed the case against R th. Boyet and "ichelle $oved to dis$iss the caseagainst the$ on the gro nd that, &eing an indis%ensa&le %arty nder a co$$onca se of action, non(incl sion of R th #o ld not $a!e the case %ros%er.

)o# #o ld yo resolve the $otion*

I would deny the motion. Ruth is not an indispensable party. The liability of Ruthis based on the contract of insurance whereas the liability of the Boyet and Michelle isbased on quasi-delict. Hence, the plaintiff does not have a common cause of actiona ainst all the defendants and the dismissal of the complaint a ainst Ruth will not affectthe complaint a ainst Boyet and Michelle. (Inson vs. Court of Appeals, 239 SCRA 58)

+. Ellen filed an action against Leila for recovery of %ossession of a %iece of land.Leila in her ans#er s%ecifically denied Ellen s clai$ and inter%osed asco nterclai$ the a$o nt of P1- , . , arising fro$ another transaction,consisting of the %rice of the cars he sold and delivered to Ellen and #hich thelatter failed to %ay.

Is Leila s co nterclai$ allo#ed nder the r les* E/%lain.

0es. !eila"s counterclaim is a permissive counterclaim inasmuch as it arises outof a transaction not the sub#ect matter of $llen"s complaint. It is allowed if it is within the

#urisdiction of the court. 2ec 3 of R le 45 Note : $llen"s action is co ni%able by RT& or MT& dependin upon the assessed value of the land.

6. Ro&ert filed an action for da$ages against )o#ie arising fro$ the latter stortio s act. )o#ie filed his ans#er #ith a co nterclai$ for da$ages s ffered ande/%enses inc rred on acco nt of Ro&ert s s it. 7hereafter, Ro&ert $oved todis$iss the case since he lost interest in the case. )o#ie did not o&8ect. 7he co rtdis$issed the action #itho t %re8 dice. )o#ie $oved i$$ediately to set therece%tion of his evidence to %rove his co nterclai$.

If yo #ere the 8 dge, ho# #o ld yo resolve the $otion* E/%lain.

I would rant the motion. Howie need not ob#ect to a dismissal upon plaintiff"sown motion after the answer is filed. The dismissal does not affect the counterclaim.

2ec. + of R le 195.

:. Re/ asse$&les an o#ner(ty%e 8ee% for 'lvin #ho in t rn rents it to Eric. D e tofa lty &ra!es, Eric fig res in a vehic lar accident ca sing severe in8 ries. Ericfiles an action for da$ages against Re/ and 'lvin.

"ay 'lvin file a third(%arty co$%laint against Re/ for inde$nity* E/%lain.

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'o, because Re( is not a stran er to the case. )hat *lvin should file is acrossclaim a ainst his co-defendant Re(.

-. < filed an action for reconveyance against 0. 0 forth#ith filed his ans#er andserved it on


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>. ;hat is the %rinci%le of esto%%el to = estion 8 risdiction*

6urisdiction is conferred by law and cannot be conferred by consent of the partiesor by their failure to ob#ect to the lac7 of it. It may be raised at any sta e of theproceedin s. However, a party cannot invo7e #urisdiction of the court to secureaffirmative relief a ainst his opponent and after obtainin or failin to obtain suchrelief, repudiate or question the same #urisdiction.

1 . ;hat are the e/ce%tions to the r le of adherence to 8 risdiction*

*s a rule, #urisdiction, once it attaches, cannot be ousted by the happenin of subsequent events althou h of such character which would have prevented

#urisdiction from attachin in the first instance. $(ceptions1

2 )here a subsequent statute e(pressly prohibits the continued e(ercise of #urisdiction8

2 )here the law penali%in an act is repealed by a subsequent law8

11. ;hat is the so(called resid al 8 risdiction of the co rt*

It means that in appeals prior to the transmittal of the record to the appellatecourt or before the appeal is iven due course, the trial court retains #urisdiction1

2 to issue orders for the preservation of ri hts of the parties which do notinvolve any matter liti ated by appeal8

2 to approve compromise prior to transmittal of record802 to permit appeals by an indi ent892 to order e(ecution pendin appeal in accordance with 2ec.+, R le 6>,

meanin that the motion for e(ecution was filed before the e(piration of the period to appeal8 and

:2 to allow withdrawal of appeals.

1+. ;hat is the t#o(dis$issal r le*

)hen the same complaint had been dismissed by the plaintiff twice by filin anotice of dismissal, the second dismissal operates as an ad#udication on the merits.

16. Disting ish &et#een clai$ %recl sion and iss e %recl sion.

&laim preclusion or the so-called bar by prior #ud ement refers to the effect of a #ud ement as a bar to the prosecution of a second action upon the same claim, demandor cause of action while issue preclusion or the so-called conclusiveness of #ud ementprecludes the re-liti ation of a particular fact or issue in another action between thesame parties for a different cause of action.

1:. ;hat is the difference &et#een $is8oinder of %arties and non(8oinder of %arties*

Mis#oinder of parties is not a round for dismissal ; R le 6, 2ec. 11 2 while non-#oinder of parties may result to dismissal as when an indispensable party is not #oined ; R le 6,2ec. > +5 2.

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1-. Car$elo filed a co$%laint for e8ect$ent #ith da$ages a$o nting to P 6- ,against Bal in the "7C of Pasay. Bal filed an ans#er #ith the co nterclai$

a$o nting to P - , as $oral da$ages for the alleged filing of a $alicio saction against hi$ &y Car$elo. Car$elo filed a $otion to dis$iss theco nterclai$ of Bal on the gro nd that it is &eyond the 8 risdiction of the lo#er co rt. Bal o%%osed clai$ing that it is a co$% lsory co nterclai$, hence, if not%leaded in the ans#er, it is dee$ed #aived. ? dge Car llo dis$issed theco nterclai$.

Is the dis$issal of the co nterclai$ %ro%er*

The dismissal of the counterclaim is proper. The counterclaim is permissive.

14. Bo! instit ted an action against Boyet &efore the R7C of Caloocan. Boyet filed

a $otion to dis$iss the co$%laint. Can Bo! still a$end his co$%laint as a $atter of right even if a $otion to dis$iss #as already filed*

0es . Bo7 can amend the complaint as a matter of ri ht because a motion todismiss is not a responsive pleadin . >9 R les5 The courtcannot motu proprio render #ud ment on the pleadin s e(cept durin the pre-trial.

13. ;hat are the availa&le re$edies of a %arty declared in defa lt@

1. Before the rendition of 8 dg$ent*+. 'fter 8 dg$ent & t &efore its finality* and6. 'fter finality of 8 dg$ent*

. Before the rendition of #ud ment ;a2 he may file a motion under oath to set aside theorder of default on the rounds of fraud, accident, mista7e or e(cusable ne li enceand that he has meritorious defense8 and if it is denied, he may move to reconsider,and if reconsideration is denied, he may file the special civil action of certiorari for

rave abuse of discretion amountin to lac7 or e(cess of the lower court"s #urisdictionor, ;b2 he may file a petition for certiorari if he has been ille ally declared in default,e. . durin the pendency of his motion to dismiss or before the e(piration of the timeto answer.

. *fter #ud ment but before finality, he may file a motion for new trial on the rounds of fraud, accident, mista7e, e(cusable ne li ence, or a motion for reconsideration onthe round of e(cessive dama es, insufficient evidence or a decision or final order bein contrary to law and thereafter, if the motion is denied, he can appeal.

0. *fter finality of the #ud ment, there are three ways to assail the #ud ment, which are1;a2 a petition for relief under Rule 0= on the rounds of fraud, accident, mista7e or e(cusable ne li ence8 ;b> annulment of #ud ment under Rule 9/ for e(trinsic fraudor lac7 of #urisdiction8 or ;c2 certiorari if the #ud ment is void on its face by #udicialrecord.

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1>. Ca se of action fro$ action.

* cause of action is an act or omission in violation of the ri ht or ri hts of another. *n action is an ordinary suit in a court of #ustice by which one party prosecutes another for the enforcement or protection of a ri ht, or the prevention or redress of a wron .

+ . Aor fail re of athy to file an ans#er #ithin the regle$entary %eriod, the Co rt,%on $otion of oilo, declared athy in defa lt. In d e ti$e, athy filed annverified $otion to lift the order of defa lt #itho t an affidavit of $erit attached

to it. athy attached to the $otion her ans#er nder oath, stating in said ans#er the reasons for her fail re to file an ans#er on ti$e, as #ell as her defenses. ;illthe $otion to lift the order of defa lt %ros%er* E/%lain.

0es , there is substantial compliance with the rule. *lthou h the motion is unverified, theanswer attached to the motion is verified. The answer contains what the motion to lift theorder of default and the affidavit of merit should contain, which are the reasons for movant"s failure to answer as well as his defenses.

+1. ;hen is re%ly necessary*

)here the answer is based on an actionable document in which case a verified reply isnecessary otherwise the enuineness and due e(ecution of said actionable documentare enerally deemed admitted.

++. In an ad$irality case filed &y ' against 0 2hi%%ing Lines #hose %rinci%aloffices are in "anila5 in the R7C, Davao City, the co rt iss ed a s &%oena d cestec $ directing 0, the %resident of the shi%%ing co$%any, to a%%ear and testify atthe trial and to &ring #ith hi$ several doc $ents.

a5 On #hat valid gro nd can 0 ref se to co$%ly #ith the s &%oena d ces tec $*&5 )o# can ' ta!e the testi$ony of 0 and %resent the doc $ents as e/hi&its

other than thro gh the s &%oena for$ the R7C*

;a2 ? can refuse to comply with the subpoena duce tecum on the round that he residesmore than >> 7ilometers from the place where he is to testify. 2ec. 1 , R le +65

;b2 * can ta7e the testimony of ? and present the documents as e(hibits by ta7in hisdeposition throu h oral e(amination or written interro atories. He may also file amotion for the production or inspection of documents. R le +95

+6. Descri&e &riefly the five $odes of discovery nder the R les of Co rt.

. 5eposition. By leave of court after #urisdiction has been obtained over any defendantor over property which is the sub#ect of the action, or without such leave after ananswer has been served, the testimony of any person, whether a party or not, maybe ta7en, at the instance of any party, by deposition upon oral e(amination or writteninterro atories. R le +6, 2ec 15

. Interro atories to parties.


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9. 3roduction or inspection of documents or thin s.


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+9. 't ' s trial for B s $ rder, the defense atte$%ts to %resent as its #itness B s#ido#,


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Is the trial co rt correct in ref sing to ad$it the testi$ony of the#itnesses*

o . 2ec. +6, R le 16 of the Rules of &ourt, disqualifies only parties. Theofficers and or stoc7holders of a corporation are not disqualified from testifyin , for or a ainst the corporation which is a party to claim or demand a ainst the estate of adeceased person, as to any matter of fact occurrin before the death of such deceasedperson. ( i $au o vs. Atlanti ulf and #a ifi Co. of anila, 8% #$il. 33+)

6+. 'fter the acc sed hi$self had testified in his defense in a $ rder case, thetrail 8 dge, over the o&8ection of the % &lic %rosec tion, allo#ed the defenseco nsel to file and $erely s &$it the affidavit of the other #itnesses of theacc sed in lie of their direct testi$ony & t s &8ect still to cross(e/a$ination &ythe %rosec tion

7he % &lic %rosec tor th s filed #ith the 2 %re$e Co rt for certiorari and%rohi&ition to n llify the order of the trial 8 dge allo#ing s ch a %roced re.

2ho ld said %etition &e granted* Reasons.

0es , inasmuch as 2ection 1 of R le 16+ clearly requires that the testimony of awitness shall be iven orally in open court.

The trial #ud e, in issuin his questioned order, acted with rave abuse of discretion correctible by certiorari.

66. "ario 7andoy #as convicted of violating R.'. 4:+- after he #as ca ght in a& y(& st o%eration for selling + foils of $ari8 ana for P+ . in $ar!ed $oney. )e#as sentenced to life i$%rison$ent.

On a%%eal to the 2 %re$e Co rt, he contends that the lo#er co rt erred inad$itting in evidence $erely a


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6-. 2e$illa, %on &eing infor$ed that his ncle Catalino had cried for hel%, r shedho$e and fo nd Catalino lying #o nded and the ho se in disarray and a certaina$o nt of $oney $issing fro$ a container. Catalino ordered 2e$illa to fetch a

%olice$an. ;hen 2PO1 A entes arrived, A entes as!ed that victi$ #ho hadhac!ed hi$ and the latter ans#ered that it #as FPa% G 2a&io, the acc sed. ;henf rther as!ed #hy FPa% G 2a&io hac!ed hi$, the victi$ ans#ered that FPa% Gde$anded $oney fro$ hi$. A entes also as!ed ho# $ ch $oney he had lost & tthe latter #as not a&le to ans#er that = estion.

2ensing that the #o nd #as serio s since it #as &leeding %rof sely, 2PO1A entes decided to ta!e do#n the ans#ers of the victi$ to the = estions%revio sly %ro%o nded &y the %olice$an. A entes had it th $& $ar!ed &y thevicti$ #ith the latter s o#n &lood. 7hree days later, Catalino died.

7h s, Rod lfo 2a&io alias FPa% G #as charged and s &se= entlyconvicted &y the trial co rt of the cri$e of Ro&&ery #ith )o$icide. On a%%eal thethe acc sed contended, a$ong others, 15 that he co ld not &e convicted of thesaid cri$e as only the cri$e of ho$icide #as %roven and +5 that the ante$orte$declaration of the victi$ sho ld not have &een ad$itted as evidence &eca se thedeclarant #as not nder a conscio sness of an i$%ending death #hen the saiddeclaration #as $ade.

R le on the contentions

; 2 4nly homicide was committed.3lainly, the evidence supportive of the char e is at best circumstantial and does

not establish beyond reasonable doubt that the accused carried away personaltybelon in to the offended party. There was no eye witness to the alle ed robbery, nor was any party of the alle ed missin ob#ect recovered. * conviction for robbery withhomicide requires that robbery itself be proven as conclusively as any other essentialelement of the crime, it not bein enou h to infer said robbery from mere suspicion andpresumption.

'or can the dyin declaration of the victim be admitted to establish the fact of robbery. The admission of dyin declarations has always been strictly limited to criminalprosecutions for homicide or murder as evidence of the cause and surroundincircumstances of death.

; 2 The dyin declaration is admissible to prove that only homicide wascommitted.

The seriousness of the in#ury on the victims forehead8 the spontaneous answer of the victim that @only 3apu abio is responsible for my deathA8 and his subsequentdemise from the direct effects of the wound on his forehead, stren then the conclusionthat the victim must have 7nown that his end was inevitable. That death did not ensue till0 days after the declaration was made will not alter its probative force since it is notindispensable that a declarant e(pires immediatelty thereafter. It is the belief inimpendin death and not the rapid succession of death, in point of fact, that renders thedyin declaration admissible. Peo%le vs 2a&io5

64. Ignacio Calvario, one of the ro&&ers, #as #illing to testify against his co(cons%irators %rovided that he &e tiliHed as a govern$ent #itness. 'fter hisarrest, an agree$ent had &een reached, for he #as &ro ght to sitio Bali&ayon#here he reenacted the co$$ission of the cri$e. 7he ne/t day, Calvario #as&ro ght to the %o&lacion of Placer #here he %ointed to C%l. Desoloc the%er%etrators of the cri$e. 7hereafter, he e/ec ted his e/tra(8 dicial confessionafter #hich he #as released fro$ c stody. 7he %rosec tion listed Calvario as oneof its #itnesses.

'fter the %reli$inary investigation, the case #as filed #ith the Regional7rial Co rt for trial. )o#ever, a reinvestigation #as cond cted, d ring #hich ti$eIgnacio Calvario t rned hostile and indicted that he #o ld no longer testify for thegovern$ent.

Is the e/tra(8 dicial confession of Calvario ad$issi&le in evidence*

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0es . This &ourt has earlier held that where one of several co-defendants turnstate"s evidence on a promise of immunity by the prosecutin attorney, but later retracts

and fails to 7eep his part of the a reement, his confession made under such a promise

may then be used a ainst him, provided that he was assisted by counsel. (#eople vs.e/erino, !9 SCRA "9%)

69. ;hat is the conce%t of 2elf(' thenticating Doc $ents* ive three e/a$%lesof s ch doc $ents.

elf-*uthenticatin documents are certain 7inds of documents or records whichrequire no independent proof of authenticity. Their nature is such that merely producinthe document establishes prima facie its own authentication. The burden then shifts tothe adverse party to prove that the document is not what it purports to be or otherwise isnot authentic.

$(amples are1a2 official records under seal ; ec. 9, Rule 0 2b2 'otari%ed documents ; ec. 0>, Rule 0 2c2 &ertified copies of public records ; ec. /, Rule 0 2

63. 2tate the ood 2a$aritan R le nder the R les of Evidence.

The Cood amaritan rule provides that @an offer to pay or the payment of medical, hospital or other e(penses occasioned by an in#ury is not admissible inevidence as proof of civil or criminal liability for the in#ury.A 2ec. +9, R le 16 5

The rationale here is that such payment may have been prompted solely by@humanitarian motives.A

6>. En $erate the different !inds of FVicario sG 'd$issions .

The different 7inds of vicarious admission are1a2 *dmissions by co-partner or a ent or co-owner ; ec. D. Rule 0>28b2 *dmission by a co-conspirator ; ec. 0>, Rule 0>28 andc2 *dmission by privies ; ec. 0 , Rule 0>2

: . ;hen are self( serving declarations $ade &y a %arty ad$issi&le in his o#n&ehalf*

elf-servin declarations made by a party are admissible in his own behalf in thefollowin cases1

a2 )hen they form part of the res estae, includin spontaneous statements,and verbal acts8

b2 )hen they are in the form of complaint and e(clamations of pain andsufferin 8

c2 )hen they are part of a confession offered by the prosecution8d2 )here they are offered by the opponent8e2 )hen they are offered without ob#ection, the evidence cannot afterward be

ob#ected, to as incompetent.

:1. ;hat is a leading = estion* ' $isleading = estion* ;hen is a leading= estion allo#ed*

* leadin question is a question which su ests to the witness the answer whichthe e(aminin party desires. It is allowed in the followin cases1

a2 4n cross-e(amination8b2 4n preliminary matters8

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c2 )hen there is difficulty in ettin direct and intelli ible answers from awitness who is i norant, or a child of tender years, or is of feeble mind, or adeaf-mute8

d2 4f an unwillin or hostile witness8 or e2 4f a witness who is an adverse party or an officer, director, or mana ina ent of a public or private corporation or of a partnership or associationwhich is an adverse party.

* misleadin question is one which assumes as true a fact not yet testified to bythe witness, or contrary to that which he has previously stated. It is not allowed. 2ec.1 , R le 16+5

:+. ;hat is a FB rsting B &&leG theory or 7hayerian R le* ;hat is the effect of this r le*

The @Burstin BubbleA theory or Thayerian rule provides that when opposinevidence comes into the case, the presumption, havin served its purpose, is no lon er operative and the issue is determined on the evidence #ust as thou h no presumptionhad ever e(isted.

The effect of this rule is to continue the burden of persuasion on him who initiallyhad the benefit of the presumption.

:6. If the trial co rt re8ects an evidence offered &y a %arty, #hat is the re$edy of s ch %arty* 2tate the % r%ose and the %roced re for s ch re$edy.

The remedy is for the party to ma7e a formal offer of proof or tender of e(cludedevidence.

If the evidence e(cluded by the court consists of documents or thin s, the offeror may have the same attached to or made part of the record.

If the evidence e(cluded is oral, the offeror may state for the record the sameand other personal circumstances of the witness and the substance of the proposedtestimony 2ec. : , R le 16+5.

The reason for such remedy is to preserve for the appeal the evidence e(cludedby the trial court, so that the appellate court may be able to e(amine the evidencee(cluded and to #ud e whether or not their re#ection was erroneous (6ele7 vs. C$ave7,5+ #$il. "!")

::. En $erate the $atters #hich need not &e %roved.

The followin matters need not be proved12 Immaterial alle ations2 Eacts admitted or not denied provided they have been sufficiently alle ed

02 * reed and admitted facts92 Eacts sub#ect to #udicial notice:2 Eacts le ally presumed.

:-. Ron overheard Bal call Ernie a thief. In an action for defa$ation filed &y Ernieagainst Bal, is the testi$ony of Ron offered to %rove the fact of tterance i.e thatBal called Ernie a thief, ad$issi&le in evidence*

?es. The testimony of Ron who overheard Bal called $rnie a thief is admissible inevidence as an independently relevant statement. It is offered in evidence only to provethe tenor thereof, not to prove the truth of the facts asserted therein. Independentlyrelevant statements include statements which are on the very facts in issue are thosewhich are circumstantial evidence thereof. The hearsay rule does not apply.

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:4. 7he &arangay ca%tain re%orted to the %olice that < #as illegally !ee%ing in hisho se in the &arangay an ar$alite "14 rifle. On the strength of that infor$ation,the %olice cond cted a search of the ho se of < and indeed fo nd said rifle. 7he

%olice raiders seiHed the rifle and &ro ght < to the %olice station. D ring theinvestigation, he vol ntarily signed a 2#orn 2tate$ent that he #as %ossessingsaid rifle #itho t license or a thority to %ossess, and a ;aiver of Right toCo nsel. D ring the trial of < for illegal %ossession of firear$, the %rosec tions &$itted in evidence the rifle, 2#orn 2tate$ent and ;aiver of Right to Co nsel.Individ ally r le on the ad$issi&ility in evidence of the @

a. Rifle&. 2#orn 2tate$entc. ;aiver of right to co nsel

. The rifle is not admissible in evidence because it was sei%ed without a proper searchwarrant. * warrantless search is not #ustified. There was time to secure a searchwarrant.

. The sworn statement is not admissible in evidence because it was ta7en withoutinformin him of his custodial ri hts and without the assistance of counsel whichshould be independent and competent and preferably of the choice of the accused.

0. The waiver of his ri ht to counsel is not admissible because it was made without theassistance of counsel of his choice.

:9. E/%lain the e= i%ose doctrine in the la# of evidence and cite its constit tionaland %roced ral &ases.

$quipose is the equivalent of equiponderance of evidence. )hen the scale shallstand upon an equipose and there is nothin in the evidence which shall incline it to oneside or the other, the court will find for the defendant.

The &onstitution provides that no person shall be deprived of life, liberty or propertywithout due process of law, nor shall any person be denied the equal protection of thelaw. 2ec.1, 'rt. III5Burden of proof is the duty of a party to present evidence on the facts in issue necessaryto establish his claim or defense by the amount of evidence required by law. R le 161,2ec. 65.

In a criminal case its constitutional basis is the presumption of innocence and therequirement of proof beyond reasonable doubt for conviction.

:3. ;hat is the difference &et#een a F&roadsideG o&8ection and a s%ecifico&8ection to the ad$ission of doc $entary evidence*

* broadside ob#ection is one which does not specify the round ob#ection or is a eneralob#ection such as @incompetent, irrelevant and immaterialA, while a specific ob#ection islimited to a particular round.

:>. Vida and Ro$eo are legally $arried. Ro$eo is charged in co rt #ith the cri$eof serio s %hysical in8 ries co$$itted against 2el$o, son of Vida, ste%(son of Ro$eo. Vida #itnessed the infliction of the in8 ries of 2el$o &y Ro$eo. 7he% &lic %rosec tor called Vida to the #itness stand and offered her testi$ony as aneye#itness. Co nsel for Ro$eo o&8ected on the gro nd of the $aritaldis= alification r le nder the R les of Co rt.

a5 Is the o&8ection valid*&5 ;ill yo r ans#er &e the sa$e if Vida s testi$ony is offered in a civil case for

recovery of %ersonal %ro%erty filed &y 2el$o against Ro$eo*

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;a2 'o. )hile neither the husband nor the wife may testify for a ainst the other withoutthe consent of the affected spouse, one e(ception is if the testimony of the spouse isin a criminal case for a crime committed by one a ainst the other or the latter"s direct

descendants or ascendants. R le 16 , 2ec.+ 5. The case falls under this e(ceptionbecause elmo if the direct descendant of the spouse Fida.;b2 'o. The marital disqualification rule applies this time. The e(ception provided by the

rules is in a civil case by one spouse a ainst the other. The case here involves acase by elmo for the recovery of personal property a ainst Fida"s spouse, Romeo.

- . ;hat is an Electronic Doc $ent nder the + 5 e(co$$erce la#*

It refers to information or representation of information, data, fi ures, symbols bywhich a ri ht is established or an obli ation e(tin uished, or by which a fact may beproved and affirmed which is received, recorded, transmitted, stored, processed,retrieved or procedured electronically. R.'. 39>+, 2ec.- f55.

-1. )o# $ay an electronic doc $ent &e considered as #ritten doc $ent andoriginal doc $ent for % r%oses of evidence*

R.'. 39>+, 2ec.9 provides1

$lectronic 5ocuments shall have the le al effect, validity or enforceability as anyother document or le al writin and

;a2 )here the law requires a doc $ent to &e in #riting , that requirement is met byan electronic document if the said electronic document maintains its inte rit1 and relia/ilit1 and an /e aut$enti ated so as be usable for subsequentreference.

;i.2 The electronic document has remained complete and unaltered, apartfrom the addition of any endorsement and any authori%ed chan e or any chan e which arises in the normal course of communication,stora e and display8 and

;ii.2 The electronic document is reliable in the li ht of the purpose for which it was enerated and in the li ht of all relevant circumstances.

;b2 3ara raph ;a2 applies whether the requirement therein is in the form of anobli ation or whether the law simply provides consequences for the documentnot bein presented or retained in its ori inal form.

;c2 )here the law requires that the document be presented or retained its originalfor$, that requirement is met by an electronic document if

;i.2 There e(ist a reliable assurance as to the inte rity of the documentfrom the time it was first enerated in its final form8 and

;ii.2 That document is capable of bein displayed to the person to whom itis to be presented1 3rovided that no provision of this act shall apply tovary any and all requirements of e(istin laws on formalities requiredin the e(ecution of documents for their validity.

Eor evidentiary purposes, an electronic document shall be the functionalequivalent of a written document under e(istin laws.

-+. ;hat is the r le on ad$issi&ility of electronic doc $ent*

ec. provides1 In any le al proceedin s, nothin in the application of the ruleson evidence shall deny the admissibility of an electronic data messa e or electronicdocument in evidence-

a. 4n the sole round that it is in electronic form8 or

RE"EDI'L L'; 13


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b. 4n the round that it is not in the standard written form, and the electronicdata messa e or electronic documents meetin and complyin with therequirements under sec. G or / hereof shall be the best evidence of the

a reement and transaction contained therein.In assessin the evidential wei ht of an electronic document, the reliability of the manner in which it was enerated, stored or communicated, the reliabilityof the manner in which it was identified and other relevant facts shall be ivendue re ard.

-6. Disting ish %res $%tion of innocence fro$ reasona&le do &t.

3resumption of innocence is a conclusion drawn from law in favor of citi%ens. It isconsidered as evidence introduced by the law to be considered by the court

Reasonable doubt is a condition of mind produced by proof resultin fromevidence in the case. It is a result of insufficient proof.

-:. ;ho is a hostile #itness*

4ne who manifest so much hostility or pre#udice under e(amination-in chief thatthe party who has called him, or his representative, is allowed to cross-e(amine him, thatis to treat him as thou h he has been called by the opposite party.

--. ;hat is an ancient Doc $ent R le*

The document which appears to be of the a e of at least 0> years, which is foundin the proper custody, and which is unblemished by alterations and is otherwise freefrom suspicion is admissible in evidence without direct proof of its e(ecution on thetheory that, under the circumstances, the instrument proves itself. R le 16+ 2ec.+15

-4. ;hat is $eant &y Aals s in no, fals s in o$ni& s*

)here a witness has willfully falsified the truth in one point, his testimony in other points maybe disre arded unless corroborated by circumstances or other unimpeachedevidence. This principle is not necessarily adhered to by our courts.

-9. ;hen $ay 8 dicial records &e i$%eached*

*ny #udicial record may be impeached by evidence of1a.2 want of #urisdiction in the court or #udicial officer b.2 collusion between the partiesc.) fraud in the party offerin the record, in respect to the proceedin R le

16+ 2ec.+>5.

-3. In an action for in8 ries s stained &y the ?a8a, $ay ?a8a s state$ent as to ho#and #ho in8 red her, $ade 1 $in tes after the incident in res%onse to the= estions $ade &y the #itness #ho had r n to her assistance %on hearing her cries for hel% ad$issi&le in evidence*

?es, the statement may be considered competent as part of res estae. *lthou h itwas made in response to questions by the witness who ran to his assistance, > minutesafter the incident, @it was spontaneous impulsive statement of fact while the plaintiff wassufferin intense and e(cruciatin pain and under the e(citement of the incident wherethe natural promptin would be to state the truth.A

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->. Pedro #as tried for stat tory ra%e, set a defense of s#eetheart theory, and thataren the victi$ #as already &eyond 1+ years old as corro&orated &y testi$onies

of his #itnesses and the late registration of aren s &irth #hich too! %lace d ringthe %endency of the case. aren and her $other ho#ever testified as to theveracity of the victi$ s age. ;hich contention is tena&le*

In terms of evidentiary value, we accord reater wei ht to the birth certificate., ection 99 of the Revised Rules on $vidence, a birth certificate is thebest evidence of a person s date of birth. It is an entry in the official record made in theperformance of his duty by a public officer of the 3hilippines and is considered primafacie evidence of the facts stated therein. The evidentiary value of the birth certificate isnot affected by the late re istration by the mother of the birth of her child.

It is lon settled, that the testimony of a person as to his a e is admissiblealthou h hearsay and thou h a person can have no personal 7nowled e of the date of his birth as all the 7nowled e a person has of his a e is acquired from what he is told byhis parents he may testify as to his a e as he had learned it from his parents andrelatives and his testimony in such case is an assertion of family The testimony of theprosecution witnesses, the victim and her own mother, as to the fact that the victim"sdate of birth fall under the e(ception to the hearsay rule as provided under ection 9> of Rule 0> of the Revised Rules on $vidence.

4 . 'ndre# #as acc sed for $ rder. D ring the c stodial investigation, hair sa$%les #ere forci&ly ta!en fro$ his head for co$%arison fro$ those fo nd in thecri$e scene. 'ndre# no# contends that the act is violative of his right againstself(incri$ination. Is the contention tena&le*

The rules set forth in the &onstitution as reco nition of the fact that thepsycholo ical if not physical atmosphere of custodial investi ations in the absence of procedural safe uards is inherently coercive in nature.

It bears emphasis, however, that under the constitution, what is actually proscribed isthe use of physical or moral compulsion to e(tort communication from the accused-appellant and not t$e in lusion of $is /od1 in eviden e when it may be material. Eor instance, substance emitted from the body of the accused may be received as evidencein prosecution for acts of lasciviousness and morphine forced out of the mouth of theaccused may also be used as evidence a ainst him. &onsequently, althou h the hair samples were forcibly ta7en from him and submitted for forensic e(amination, the hair samples may be admitted in evidence a ainst him, for what is proscribed is the use of testimonial compulsion or any evidence communicative in nature acquired from theaccused under duress.

41. On acco nt of &y(& st o%eration, )ansel the alleged dr g dealer #asa%%rehended %ossessing the $ar!ed $oney sed in the % rchase of the illegaldr gs. D ring the trial he raised a defense of FAra$e( %G, and his testi$ony #asthe only evidence %resented &efore the co rt. R le on the case.

The contention that the mar7ed money was wiped on his hands and poc7et wassupported by nothin more than his bare alle ation. It has been stated that alle ationthat one was framed can be made with ease. That alle ation must therefore be proved/1 lear and onvin in eviden e . The presumption that law enforcers have re ularlyperformed their duties requires that proof of a frame-up must be stron .

4+. Aran!ie, charged for !illing Pa l inter%osed as a defense an 'li&i, that he #asat ho$e #hich is + $ nici%alities a#ay fro$ the cri$e scene. )e li!e#ise%resented #itnesses corro&orating his defense. On the other hand, the%rosec tion %resented #itnesses directly identifying Aran!ie, and it #as

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esta&lished that the distance of Aran!ie s ho$e fro$ the cri$e scene can &ereached #ithin an ho r s ti$e. R le #ith reason.

*libi as a defense has an inverse relation to positive identification. *s evidence, it isre arded as bein the wea7est and unreliable of all defenses especially in li ht of clear and precise evidence of positive identification of the accused by the prosecution witnessa ainst whom no motive to falsely testify a ainst the accused can be established. It canonly prosper by indubitably provin that the accused was somewhere else when thecrime was committed, and an assailable demonstration that he could not have beenphysically present at the locus of the crime or its immediate vicinity at the time of itscommission. In spatial terms J physical impossibility of bein in two ; 2 places at thesame time.

46. CHar a #itness for the %rosec tion e/ec ted a s#orn affidavit stating thereinthat he #itnessed the $ rder of the victi$ '&et, %ositively identifying ice as theassailant #ho #ith the se of &alisong st &&ed '&et to death. )o#ever d ringCHar s testi$ony in o%en co rt, he stated that ice hac!ed '&et to death #ith the

se of &olo. R le on the discre%ancy of the state$ents and the credi&ility of the#itness.

The eneral rule has always been that discrepancies between the statements of the affiant in his affidavit and those made by him on the witness stand do not necessarilydiscredit him because it is a matter of #udicial e(perience that an affidavit bein ta7en ex-

parte , is almost always incomplete and often inaccurate. The e(ceptions thereto, whichimpair the credibility of witnesses are1 ;a2 when the omission in the affidavit refers to avery important detail of the incident that one relatin the incident as an eyewitness wouldnot be e(pected to fail to mention, or ;b2 when the narration in the sworn statementsubstantially contradicts the testimony in court. The point of inquiry therefore, is whether the omission is important or substantial.

4:. 'cc sed(a%%ellant ta!es iss e #hether the & llet sl g $ar!ed FE/h. IG co ld&e considered &y the co rt not#ithstanding the fail re of the %rosec tion tofor$ally offer it in evidence. 7he records sho# that #hen the %rosec tor offeredhis evidence in co rt, he inadvertently s!i%%ed FE/h. IG 'fter he offered E/h. ), he%roceeded to offer E/h. ? there&y o$itting E/h. I. 7he acc sed $aintains that

nder 2ec.6-, R le 16+ of the R les of co rt, evidence not for$ally offered, s chas FE/h. IG, cannot &e considered &y the co rt. R le on the contentions.

This is untenable. *lthou h @$(h. IA- the bullet slu - was not formally offered, itwas nevertheless duly identified by a ballistician of the 'BI. It was accordin ly noted andsubsequently incorporated in the records. uch oversight could not be fatal to the causeof the prosecution as its entire evidence had been recorded and the witness who wascompetent to testify on the matter had properly identified the challen ed e(hibit. Buteven without the e(hibits incorporated into the records, the prosecution can still establishits case as its principal witness properl1 identifies K$(h.IA and his testi on1 wasrecorded.

2PECI'L PROCEEDI 2

4-. 'BC Cattle Cor%oration is the holder of a %ast re lease agree$ent since 1>>covering 1, hectares of %ast reland s rro nded #ith fences. In 1>>+, D #asiss ed a %ast re lease agree$ent covering >6 hectares of land ad8acent to'BC s. ' relocation s rvey sho#ed that the &o ndaries of D s land e/tended -3hectares into 'BC s %ast reland. 7here %on, D re$oved 'BC s fence and startedto set % his o#n &o ndary fence -3 hectares into 'BC s %ast re area. 's 'BC

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%ersistently &loc!ed D s advances into its %ro%erty, D filed a co$%laint #ith%reli$inary in8 nction to en8oin 'BC fro$ restricting hi$ in the e/ercise of hislease rights.

If yo #ere the 8 dge, #o ld yo iss e a %reli$inary in8 nction* E/%lain.'o, because a preliminary in#unction may not be issued to ta7e property out of

the possession and control of one party and place it in the control of another whose ri hthas not been clearly established.

44. Disting ish s%ecial %roceeding for$ an ordinary action.

* special proceedin is a remedy to establish the status or ri ht of a party or aparticular fact, while an ordinary action is one by which one party prosecutes another for the enforcement or protection of a ri ht or the prevention or redress of a wron . 2ecs. 1and + of R le +5.

49. "ondi #as arrested on the strength of a #arrant of arrest iss ed &y the R7C inconnection #ith the Infor$ation for ho$icide. 7ricia, the live(in %artner of "ondifiled a %etition for ha&eas cor% s against ' s 8ailer and %olice investigators #iththe C'. Does 7ricia have the %ersonality to file the %etition for ha&eas cor% s*

?es, Tricia, the live-in partner of Mondi, has the personality to file the petition for habeascorpus because it may be filed by @ some person in his behalf.A

49. ive the %ro%er ven e for the follo#ing s%ecial %roceedings@

a5 a %etition to declare as escheated a %arcel of land o#ned &y a resident of thePhili%%ines #ho died intestate and #itho t heirs or %ersons entitled to the%ro%erty.

&5 ' %etition for the a%%oint$ent of an ad$inistrator over the land and & ildingleft &y an '$erican CitiHen residing in California, #ho had &een declared aninco$%etent &y the '$erican co rt.

c5 ' %etition for the ado%tion of $inors residing in Pa$%anga.

(a) The venue of the escheat proceedin s of a parcel of land in this case is the placewhere the deceased last resided. 2ec. 1 R le >15

;b2 The venue for the appointment of an administrator over land and buildin of an *merican citi%en residin in &alifornia, declared incompetent by the *merican court,is the RT& of the place where his property or parts thereof is situated.

;c2 The venue of a petition for adoption of a minor residin in 3ampan a is the RT& of the place in which the petitioner resides.

4>. 'l&ert forci&ly entered and occ %ied the ho se and lot in J eHon City o#ned&y hi neigh&or Carissa. Carissa i$$ediately s ed 'l&ert for forci&le entry. 2healso clai$ed da$ages a$o nting to P1 , other ndeter$ined losses ad ares lt of the forci&le entry, and attorney s fees of P+-, . 'l&ert sets %affir$ative defenses in his ans#er #itho t = estioning Carissa s title ovetr the%ro%erty. Is the case tria&le nder s $$ary %roced re &y the "7C of JC*E/%lain.

?es, because all actions of forcible entry and unlawful detainer are sub#ect to summaryprocedure irrespective of the amount of dama es claimed, but the attorney"s fees shouldnot e(ceed 3 >,>>>.>>.

9 . 2ally files a co$%laint for e8ect$ent in the "7C on the gro nd of non(%ay$entof rentals against itchie. 'fter t#o days, itchie files #ith the R7C a co$%laint

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against 2ally for s%ecific %erfor$ance to enforce the o%tion to % rchase the %arcelof land s &8ect of the e8ect$ent case. ;hat is the effect of itchie action on2ally s co$%laint* E/%lain.

There is no effect. The e#ectment case involves possession de facto only. The action toenforce the option to purchase will not suspend the action of e#ectment for nonpaymentof rentals.

CRI"I 'L PROCEDURE

91. 7he infor$ation filed against Philger charged $ore than one offense. Philger has not yet &een arraigned. If yo #ere the la#yer of ', #o ld yo file a $otion to= ash or a $otion for &ill of %artic lars* E/%lain.

I would file a motion to quash on the round that more than one offense ischar ed. ; ec. -e of Rule /2. * motion for bill of particulars is not proper becausethere are no defects or details in the information that need clarification. ; ec. > of Rule

G2

9+. 'cc sed #as charged estafa and %leaded not g ilty thereto. 7he %rosec tionre%eatedly so ght and o&tained %ost%one$ents over the o&8ection of the acc sed#ho invo!ed his right to s%eedy trial. 't the s cceeding hearing, the %rosec tionagain so ght %ost%one$ent on the gro nd that the co$%lainant, its only #itness,#as o t of the co ntry.

If yo #ere co nsel of the acc sed, #hat co rse of action #o ld yo ta!ein order that the case against hi$ #ill &e finally dis$issed &y the co rt*

I would ob#ect to any further postponement, insist on a trial and more for dismissal on the round of the ri ht of the accused to a speedy trial. The dismissal insuch a case bars a subsequent prosecution for the same offense.

96. 'cc sed #as charged #ith $ rder. 't the hearing of his a%%lication for &ail,the %rosec tion $anifested that it #as ready to %resent evidence to %rove that theg ilt of the acc sed is strong. 7he defense, ho#ever, contended that the re%ortand doc $entsK%a%ers in s %%ort of the %rosec tor s certification of %ro&a&le

ca se in the infor$ation is s fficient to deter$ine #hether the evidence of g ilt isstrong, there&y dis%ensing #ith the %resentation of the %rosec tion s evidence.'s 8 dge, ho# #o ld yo resolve the contention of the defense* E/%lain.

I would overrule the contention of the defense because the prosecution has theri ht to present evidence to prove that evidence of uilt is stron . ; ec. = of Rule 92 *hearin in indispensable.

9:.


19/26


in= ired #hether acc sed had a license to %ossess or %er$it to carry the g n, and#hen the latter ans#ered to the negative, the Barangay Ca%tain arrested hi$ andconfiscated the firear$. Aro$ the record of the local P P, it #as ascertained that

the revolver #as not registered or licensed in the na$e of the acc sed 0.;as the arrest, of acc sed 0 #itho t #arrant la#f l % rs ant to 2ection- a5 of R le 116 of the Revised R les on Cri$inal Proced re* ;ere the searchcond cted and seiH re of the g n li!e#ise la#f l #itho t a search #arrant% rs ant to 2ection 1+ of R le 1+4* E/%lain.

The arrest of the accused ? without warrant was lawful pursuant to ection :;a2of Rule 0, because an offense had in fact #ust been committed and Baran ay &aptainL has personal 7nowled e of facts indicatin that ? had committed it. )hen L,accompanied by the complainant +, met ? on the road and confronted him on thecomplaint of +, ? did not say anythin nor deny it. That was sufficient round for L toarrest ? and search him. Hence the search and sei%ure of the un was lawful without asearch warrant under ec. of Rule G.

Alternative Ans*er

The arrest of the accused ? without warrant was lawful under ection : ;a2 of Rule 0, because the totality of the circumstances would indicate to a veteran policeofficer that a crime was bein committed in his presence, and #ustify an arrest of ?without warrant. Hence the search and sei%ure of the un was lawful under ec of Rule G.

9-. < #as charged #ith $ rder attended &y treachery &and evident %re$editation.D ring arraign$ent,


20/26


99. ;hat is a %re8 dicial = estion*

* pre#udicial question is an issue involved in a civil action which is similar or intimately related to the issue raised in the criminal action, the resolution of whichdetermines whether or not the criminal action may proceed. 2ec.- R le 1115

* pre#udicial question is one based on a fact distinct and separate from the crimebut so intimately connected with it that it determines the uilt or innocence of accused.

93. ;hat are re= isites of a trial in a&sentia*

The requisites of a trial in absentia are ;a2 the accused has already beenarrai ned8 ;b2 he has been duly notified of the trial8 and ;c2 his failure to appeal isun#ustifiable.

9>. Aacing a charge of " rder, 'nthony filed a %etition for &ail. 7he %etition #aso%%osed &y the %rosec tion & t after hearing, the co rt granted &ail to 'nthony.On the first sched led hearing on the $erits, the %rosec tion $anifested that it#as not add cing additional evidence and that it #as resting its case. 'nthonyfiled a de$ rrer to evidence #itho t leave of co rt & t it #as denied &y the co rt.1. Did the co rt have the discretion to deny the de$ rrer to evidence nder the

circ $stances $entioned a&ove*+. If the ans#er to the %receding = estion is in the affir$ative, can 'nthony

add ce evidence in his defense after the denial of his de$ rrer of evidence*

. ?es. The court had the discretion to deny the demurrer to the evidence, becausealthou h the evidence presented by the prosecution at the hearin for bail was notstron , without any evidence for the defense, it could be sufficient for conviction.

. 'o. Because he filed the demurrer to the evidence without leave. However, the trialcourt should inquire as to why the accused filed the demurrer without leave andwhether his lawyer 7new that the effect of filin it without leave is to waive thepresentation of the evidence of the accused.

3 . ;hat is a 7erry search or so called Fsto% and fris!G5* Is it 8 stified nder thee/isting la# and 8 ris%r dence* E/%lain.

* Terry search is a stop-and-search without a warrant. It is #ustified whenconducted by police officers on the bases of prior confidential information which werereasonably corroborated by other attendant matters.

31. 0o r friend "alyn, an or%han, 14 years old, see!s yo r legal advice. 2he tellsyo that Car$elo, her ncle, s &8ected her to acts of lascivio sness that #henshe told her grand%arents, they told her to 8 st !ee% = iet and not to file chargesagainst Car$elo, their son. Aeeling very $ ch aggrieved, she as!s yo ho# her

ncle Car$elo can &e $ade to ans#er for his cri$e.a5 ;hat #o ld yo r advice &e* E/%lain.&5 2 %%ose the cri$e co$$itted against "alyn &y her ncle Car$elo is ra%e,

#itnessed &y yo r $ t al friend ate. B t this ti$e, "alyn has %revailed %on&y her grand%arents not to file charges. ate as!s yo if she can initiate theco$%laint against Car$elo. ;o ld yo r ans#er &e the sa$e* E/%lain.

a5 I would advise the minor, an orphan of G yrs of a e, to file the complaint herself independently of her randparents, because she is not incompetent or incapable of doin so upon the rounds other then her minority. 2ec.- R le 11 , R les of Cri$inal Proced re5

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&5 ince rape is now is classified as a &rime * ainst 3ersons under the *nti-Rape !awof DD/, I would advise ate to initiate the complaint a ainst &armelo.

3+. In an infor$ation charging the$ of $ rder, %olice$en ', B, and C #ereconvicted of )o$icide. ' a%%ealed fro$ the decision & t B and C did not. Bstarted serving his sentence & t C esca%ed and is at large. In the C', ' a%%lied for &ail & t #as denied. Ainally, the C' rendered a decision ac= itting ' on thegro nd that the evidence %ointed to the P' as the !illers of the victi$.

Can B and C &e &enefited &y the decision of the C'*

B, who did not appeal, can be benefited by the decision of the &* which is favorableand applicable to him. The benefit will also apply to & even if his appeal is dismissedbecause of his escape.

36. ;hat are the re= isites of a valid %re8 dicial = estion*

a. The civil action must be instituted prior to the criminal action.b. The civil action involves an issue similar or intimately related to the issue

raised in the criminal action.c. The resolution of such issue determines whether or not the criminal action

may proceed.

3:. Can a co nterclai$, crossclai$ or 6 rd %arty co$%laint &e filed &y the acc sedin any cri$inal case*

'o counterclaim, cross-claim or 0 rd party complaint may be filed by the accused inthe criminal case, but any cause of action which could have been the sub#ect thereof may be liti ated in a separate civil action. R le III, 2ec.15

3-. ;hen is a %reli$inary investigation re= ired*

$(cept as provided in ec./ of Rule , a preliminary investi ation is required to beconducted before the filin of a complaint or information for an offense where the penaltyprescribed by law is at least four ;92 years, two ; 2 months and one ; 2 day withoutre ard to fine. R le 11+, 2ec.15.

34. ;hat are the gro nds for a $otion to = ash*

a. That the facts char ed do not constitute an offense8b. That the court tryin the case has no #urisdiction over the offense char ed8c. That the court tryin the case has no #urisdiction over the person of the

accused8d. That the officer who filed the information had no authority to do so8e. That it does not conform substantially to the prescribed form8f. That more than one offense is char ed e(cept when a sin le punishment for

various offenses is prescribed by law8. That the criminal action of liability has been e(tin uished8

h. That it contains averments which, if true, would constitute a le al e(cuse or #ustification8 and

i. That the accused has been previously convicted or acquitted of the offensechar ed, or the case a ainst him was dismissed or otherwise terminatedwithout his e(press consent.

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39. < Co. is a do$estic cor%oration engaged in the tr c!ing & siness. It ha lscargo fro$ one de%ot to another of 'sia Bre#ery. One of its tr c!s driven &y 7oto& $%ed a tricycle. 7he tricycle #as totally #rec!ed and its driver died #hile its

%assenger #as serio sly in8 red. In ?an.+ 1, the heirs of the tricycle driver andthe in8 red %assenger filed a cri$inal case against 7oto & t reserved the filing of se%arate civil actions. 7hey then filed a civil case = asi(delict5 against < Co. for da$ages. < Co. settled the clai$ of the driver s heirs. Later, the offended %arties#ithdre# their reservation to file a se%arate civil action e/ delicto & t failed to#ithdra# the civil case against < Co. 7he co rt fo nd 7oto g ilty and ordered hi$to inde$nify the offended %arties. On the other hand, < Co. #as also ordered to%ay da$ages. 7he offended %arties $oved to a$end the decision in the cri$inalcase to hold < Co. s &sidiarily lia&le in case of insolvency of the acc sed.

a. Decide on the $otion. b. ;ill yo r ans#er &e the sa$e if the cri$inal case #as filed on

ov.+ *

a. >> amendments, Rule no lon er requires a reservationto file a separate civil action to recover civil liability quasi-delicto. 4nly the civil liability e(delicto is deemed instituted in the criminal action.

In this case, the filin of the civil case for dama es a ainst + &o. need not bereserved and may proceed independently of the criminal case. However, to recover civilliability e( delicto in a separate civil action, reservation is required .

)hen the offended parties reserved and filed the separate civil action e( delicto,they in effect waived their ri ht to recover a ainst + &o. in case of insolvency of theaccused. They can no lon er hold + &o. subsidiarily liable with the accused becausethey already received relief in the civil case quasi-delicto. They cannot recover dama estwice.

b. The answer will be the same e(cept that a reservation is required in order tofile a separate civil action quasi delicito, unli7e in the present Rule.

33. < iss ed a chec! to Ba&a, dra#n against )2BC Ban!, for 3.> $illion %esos as%ay$ent for the % rchase of cell %hones. ;hen Ba&a %resented the chec! for %ay$ent three $onths later, the chec! #as dishono red for ins fficiency of f nds.Ba&a #anted to file a cri$inal case against < and cons lted yo on the $atter.

a. ;hat are the o%tionKs availa&le for Ba&a*&. 'ss $ing that a cri$inal case #as event ally filed, can Ba&a reserve

his right to file a se%arate civil action to recover the s $ d e*

a. Baba can either file a criminal action for estafa and also for violation for B3 .

b. In case Baba files a case for estafa, he can reserve his ri ht to institute aseparate civil action a ainst + since fraud is an element of estafa. He can recover thesum due in said civil action for collection of a sum of money.

However, if Baba files a criminal case for violation of B3 , no separate civilaction may be filed even if there is a reservation made. >>amendments of the Rules on &ivil 3rocedure, the civil liability arisin from B3 cannotbe filed separately.

3>. Bi!oy #as arrested d ring a & y(& st o%eration. )e #as ca ght in %ossessionof - gra$s of sha& . 'n infor$ation for illegal %ossession of %rohi&ited dr gs #asfiled against hi$ in the "7C #itho t a %reli$inary investigation &eing cond cted.7he acc sed a%%lied for &ail & t it #as denied. Later, the acc sed filed a $otionto = ash on the gro nd of lac! of 8 risdiction over the offense charged and lac! of

8 risdiction over the %erson of the acc sed. 7he %rosec tor o%%osed the $otionto = ash on the gro nd that the a%%lication for &ail #aived s ch defects. Decide.

RE"EDI'L L'; 22


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3. ;hen is &ail a $atter of right, discretionary or not allo#ed*

RE"EDI'L L'; 23


24/26


atter of Ri $t 'is retionar1 Not Allo*ed

a.) before or after

conviction by:MTC, MTCC,MCTC

a.) charged of offense

punishable by death, reclusion perpetua, lifeimprisonment whenthe evidence of guilt is not strong

a.) charged of offense

punishable by death, reclusion perpetua, or lifeimprisonment whenevidence of guilt isstrong

b.) before conviction by TC if charged of

offense not punishable by death, reclusion

perpetua or life

imprisonment

b.) upon conviction by TC of offense not

punishable by death, reclusion

perpetua, lifeimprisonment

b.) if convicted of imprisonment exceeding ! yrs."rovided thefollowing circumstances are

present:- That he is arecidivist, quasi-recidivist, or habitualdelinquent, or hascommitted thecrime a ravatedby thecircumstance of reiteration8

- That he has

previouslyescaped fromle al confinement,evaded sentence,or violated theconditions of hisbail without valid

#ustification8- That he

committed theoffense whileunder probation,parole, or conditionalpardon8

- That thecircumstances of his case indicatethe probability of fli ht if releasedon bail8 or

- That there isundue ris7 that hemay commitanother crimedurin thependency of theappeal. # ule$$%, &ec.')

c.) when (udgment of conviction has

RE"EDI'L L'; 24


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become final unless accused applied for

probation.

SAN BEDA COLLEGE OF LAW2001 CENTRALIZED BAR OPERATIONS

E/ec tive Co$$ittee

RHODALYN MONTEMAYOR,MARICAR MARQUEZ,

LORALAINE SINGSON,RAFAEL OCAMPO JR.,

ERNESTO ISIP JR.,MARIA FLORITA CRUZ,

DIANNE AQUINO, JONATHAN ABAS,

Ove !"## C$"% &e '()Ove !"## *%+e C$"% *C!A+"-e %+'*%+e C$"% Se+ e/" %"/*%+e C$"% F%)")+e*%+e C$"% EDPA''/. *%+e C$"% ( EDPA''/. *%+e C$"% ( Se+ e/" %"/A''/. *%+e C$"% ( F%)")+e

2 &8ect Chair%ersons

JOSE PANGANIBAN JR., JUBERT JAY ANDRION,ZULEI A LOPEZ,ERIC RECALDE,

MARICRIS PAHATE,NICEFORO A*ILA JR.,*ERONICA LLADOC,

DERELA DE*ERA,

P(#%/%+"# L"L"3( L"C%v%# L"

T"4"/%() L"C % %)"# L"C( e +%"# L"Re e-%"# L"Le5"# E/$%+' ")- F( '

REMEDIAL LAW COMMITTEE

*ERONICA N. LLADOC CATHLEEN LAO, MANUEL

JONATHAN SEE, BETH SANCHEZ

C$"% &e '()EDP6SSS

SPECIAL THAN S TO7

De") *% 5%#%( B. J" "

Remember Us When YOU’RE GREAT!GOD BLESS!

RE"EDI'L L'; 25


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