Regala, Vasquez, Talamayan, Pilotin, Rangel - 2011-2016 Criminal Procedure Bar Q&a.docx

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2011 – 2016 Bar Questions and Answers (Criminal Proced

2011 Bar Questions and Suggested Answers (Rangel, Kevin) TOPICS COVERED:  BAIL (2)  AMENDMENTS OR SUBSTITUTION (2)  PRE-JUDICIAL QUESTIONS (1)  PROVISIONAL DISMISSAL (1)  DOUBLE JEOPARDY (1)  ARREST (1)  MOTION TO QUASH (1) BAIL is the security given for the release of a person in custody of law, to guarantee his appearance before any court. (in forms of corporate surety, property bond, cash deposit or recognizance) 1. The Metropolitan Trial Court convicted Virgilio and Dina of concubinage. Pending appeal, they applied for bail, claiming they are entitled to it as a matter of right. Is their claim correct? Suggested Answer: Yes, under Rule 114 Sec 4 (Bail as a matter of right) All persons in custody shall be admitted to bail as a matter of right; a. before or after conviction of MTC b. before conviction of RTC of an offense not punishable of death, reclusion perpetua or life imprisonment 2. When may the bail of the accused be cancelled at the instance of the bondsman? Suggested Answer: Rule 114 Sec 22 Upon application of bondsman with due notice to the prosecutor, the bail may be cancelled upon surrender of the accused or proof of his death. In this case the bail has no sense since the accused is already in the custody of the court, or it has no purpose Amendments and substitution 3. Which of the following is a correct statement of the rule on amendment of the information in a criminal proceeding? Group IV Pilotin, Regala, Rangel, Talamayan, Vasquez Atty. Voltaire Duano

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2011 – 2016 Bar Questions and Answers (Criminal Proced

(A) An amendment that downgrades the offense requires leave of court even before the accused pleads. (B) Substantial amendments are allowed with leave of court before the accused pleads. (C) Only formal amendments are permissible before the accused pleads. (D) After the plea, a formal amendment may be made without leave of court.

Suggested Answer: Letter A An amendment that downgrades the offense requires leave of court even before the accused pleads. Under Rule 110 Sec 14 (2nd par) Any amendment which downgrades the nature of the offense charged or excludes any accused from complaint of information, can be made only 1. Upon motion by prosecutor 2. Notice to the offended party 3. With leave of court

4. The city prosecutor charged Ben with serious physical injuries for stabbing Terence. He was tried and convicted as charged. A few days later, Terence died due to severe infection of his stab wounds. Can the prosecution file another information against Ben for homicide? Suggested Answer: Rule 110 Sec 14 (3rd par) Yes. Supervening event altered the nature of the crime. Hence, if it appears anytime before judgment that a mistake has been made, the court here shall dismiss the original event upon filing of a NEW one charging the proper offense. Pre judicial question Prejudicial question is one based on a fact separate and distinct from the crime but is so intimately related to it that it determines the guilt or innocence of the accused Elements a. previously instituted civil action Group IV Pilotin, Regala, Rangel, Talamayan, Vasquez Atty. Voltaire Duano

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2011 – 2016 Bar Questions and Answers (Criminal Proced

b. involves an issue similar or intimately related to issue in criminal action c. resolution of such issue is determinative whether crim case may proceed 5. The city prosecutor of Manila filed, upon Soledad’s complaint, a criminal action for estafa against her sister, Wella, before the RTC of Manila for selling to Victor a land that she previously sold to Soledad. At the same time Soledad filed a civil action to annul the second sale before the RTC of Quezon City. May the Manila RTC motu proprio suspend the criminal action on ground of prejudicial question? Suggested Answer: Rule 111 Sec 7 No. Without motion to suspend on such ground It is unknown to the court that the elements of prejudicial questions exist. Provisional Dismissal Provisional dismissal. – A case shall not be provisionally dismissed except with the express consent of the accused and with notice to the offended party 6. A pending criminal case, dismissed provisionally, shall be deemed permanently dismissed if not revived after 2 years with respect to offenses punishable by imprisonment (A) of more than 12 years. (B) not exceeding 6 years or a fine not exceeding P1,000.00. (C) of more than 6 years or a fine in excess of P1,000.00. (D) of more than 6 years. Suggested Answer: D (under Rule 117 Sec 8) 1 year for offense punishable by imprisonment of not more than 6 years and 2 years if more than 6 years Double jeopardy When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information. 7. The accused was convicted for estafa thru falsification of public document filed by one of two offended parties. Can the other offended party charge him Group IV Pilotin, Regala, Rangel, Talamayan, Vasquez Atty. Voltaire Duano

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2011 – 2016 Bar Questions and Answers (Criminal Proced

again with the same crime? Suggested Answer: No, since the offense refers to the same series of act, prompted by one criminal intent. The double jeopardy rule is applicable in this case Arrest (Rule 113 of the Rules of Court) Taking of a person in custody that he may be bound to answer for a commission of an offense. PI is not required for there is already sufficient ground to believe that a crime has been committed. 8. When may an information be filed in court without the preliminary investigation required in the particular case being first conducted? Suggested Answer: Sec 5 Rule 113 In cases of those lawfully arrested without a warrant. a. In Flagrante Delicto b. Hot Pursuit c. Person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment Motion to quash 9. What is the effect of the failure of the accused to file a motion to quash an information that charges two offenses? Suggested Answer: He may in general be convicted of both offenses. The court cannot consider any ground other than those stated in the motion to quash. Hence if there is no motion to quash the court cannot consider any ground at all. 2012 Bar Questions and Suggested Answers (Pilotin, Dwight) 1. After an information for rape was filed in the RTC, the DOJ Secretary, acting on the accused's petition for review, reversed the investigating prosecutor's finding of probable cause. Upon order of the DOJ Secretary, the trial prosecutor filed a Motion to Withdraw Information which the judge granted. The order of the judge stated only the following: "Based on the review by the DOJ Secretary of the findings of the investigating prosecutor during the preliminary investigation, the Court agrees that there

Group IV Pilotin, Regala, Rangel, Talamayan, Vasquez Atty. Voltaire Duano

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2011 – 2016 Bar Questions and Answers (Criminal Proced

is no sufficient evidence against the accused to sustain the allegation in the information. The motion to withdraw Information is, therefore, granted." If you were the private prosecutor, what should you do? Explain. Analysis of the Question: Why is there a resolution of the DOJ Secretary when an information for rape has already been filed before the RTC? Rule 112 (Preliminary Investigation), Sec. 4 p. 5: ... If upon petition by a proper party under such Rules as the Department of Justice may prescribe or motu proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor to file the corresponding information without conducting another preliminary investigation, or to dismiss or move for dismissal of the complaint or information with notice to the parties. The same Rule shall apply in preliminary investigations conducted by the officers of the Office of the Ombudsman. [emphasis added] An appeal shall be made: by filing a Petition for Review with the Office of the Secretary of Justice; and by furnishing copies to the adverse party and the Prosecution Office issuing the resolution. (Sec. 4, DOJ Circular No. 70) Pendency of the Petition for Review does not enjoin the filing of the information before the court. The prosecution can still file the information. (Webb v. Judge De Leon, 247 SCRA 652) Suggested Answer: I would file a petition for certiorari under Rule 65 with the Court of Appeals. It is well-settled that when the trial court is confronted with a motion to withdraw an Information—on the ground of lack of probable cause to hold the accused for trial based on a resolution of the DOJ Secretary—the trial court has the duty to make an independent assessment of the merits of the motion. It may either agree or disagree with the recommendation of the Secretary. Reliance alone on the resolution of the Secretary would be an abdication of the trial court’s duty and jurisdiction to determine a prima facie case. The court must itself be convinced that there is indeed no sufficient evidence against the accused. Otherwise, the judge acted with grave abuse of discretion if he grants the Motion to Withdraw Information by the trial prosecutor. Basis for the answer: The judge has the duty to make an independent assessment of the merits of the motion. Once the case is filed in court, it is subject to its sound discretion. The trial court has the option to grant or deny the case filed by the fiscal, whether before or after the arraignment of the accused, ... provided that such grant or denial is made from its own assessment and evaluation of the merits of the motion. (Dean Ferdinand Tan, CRIMINAL PROCEDURE) Group IV Pilotin, Regala, Rangel, Talamayan, Vasquez Atty. Voltaire Duano

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Whatever the Secretary of Justice says is only advisory or suggestive. The discretion to allow the withdrawal of the information and the dismissal of the action is vested in the court. It is the discretion, a function of the trial courts which the courts should honor and respect. (Marcelo, et al. v. Court of Appeals, 235 SCRA 39) 2. Rule 65 as Remedy In Cerezo vs. People, G.R. No. 185230, and other cases, Petition for Certiorari under Rule 65 has been used by the parties in seeking to nullify the order of the trial court in granting or denying the motion ti dismiss or withdraw the information, on the ground of lack of probable cause based on DOJ resolution. Reliance alone on the resolution of the Secretary would be an abdication of the trial court’s duty and jurisdiction to determine a prima facie case. The court must itself be convinced that there is indeed no sufficient evidence against the accused. Otherwise, the judge acted with grave abuse of discretion if he grants the Motion to Withdraw Information by the trial prosecutor. (Tamargo v. Awingan, G.R. No. 177727) Alternative Answer: I would file a Motion for Reconsideration of the order of the trial court. If the motion has been denied, I will file a petition for review on certiorari under Rule 45 on pure questions of law, which encompasses both criminal and civil aspects thereof. The filing of the Petition is merely a continuation of the appellate process. Basis for the answer: The Revised Rules of Criminal Procedure provides for an appellate process, as well as a motion for new trial and/or reconsideration. Petition for Certiorari under Rule 65 is a remedy when any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law.

3. A was charged with a non-bailable offense. At the time when the warrant of arrest was issued, he was confined in the hospital and could not obtain a valid clearance to leave the hospital. He filed a petition for bail saying therein that he be considered as having placed himself under the jurisdiction of the court. May the court entertain his petition? Why or why not? Analysis: Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the Group IV Pilotin, Regala, Rangel, Talamayan, Vasquez Atty. Voltaire Duano

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2011 – 2016 Bar Questions and Answers (Criminal Proced

conditions hereinafter specified. Bail may be given in the form of corporate surety, property bond, cash deposit, or recognizance. (Sec. 1, Rule 114) Custody of the law is required before the court can act upon the application of bail. Custody of the law vs. Jurisdiction over the person 1. Custody of the law is accomplished either by arrest or voluntary surrender, while jurisdiction over the person is acquired upon his arrest or voluntary appearance. One can be under custody of the law but not yet subject to the jurisdiction of the court over his person, such as when a person arrested by virtue of a warrant files a motion before arraignment to quash the warrant. On the other hand, one can be subject to the jurisdiction of the court over his person, but not yet in the custody of the law, such as when an accused has escaped custody after trial has commenced. Being in the custody of the law signifies restraint on the person, who is thereby deprived of his own will and liberty, binding him to become obedient to the will of the law. Custody of the law is literally custody over the body of the accused. It includes, but is not limited to, detention. (Miranda vs. Tuliao, G.R. No. 158763 (2006)) Suggested Answer: Yes. A person is deemed to be under the custody of the law either when he has been arrested or has surrendered himself to the jurisdiction of the court. The accused, who is confined in a hospital, may be deemed to be under custody of the law if he clearly communicates his submission to the court while being confined in the hospital. (Paderanga vs. Court of Appeals, G.R. No. 115407 (1995)) Basis for the Answer: The facts (peculiar instances) of the case or incident shall determine whether or not an accused has been placed under custody of the law.

In Defensor-Santiago vs. Vasquez, 217 SCRA 633 (1993), the petitioner who was charged before the Sandiganbayan for violation of Anti-Graft and Corrupt Practices Act, filed through counsel what purported to be an Ex-parte Motion for Acceptance of Cash Bail Bond. Said petitioner was at the time confined in a hospital recuperating from serious physical injuries which she sustained in a major vehicular mishap. Consequently, she expressly sought leave “that she be considered as having placed herself under the jurisdiction of the Sandiganbayan for purposes of the required trial and other proceedings. On the basis of said ex-parte motion and the peculiar instances obtaining in that Group IV Pilotin, Regala, Rangel, Talamayan, Vasquez Atty. Voltaire Duano

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2011 – 2016 Bar Questions and Answers (Criminal Proced

incident, the Sandiganbayan authorized petitioner to post a cash bail bond for her provisional liberty without need of her personal appearance in view of her physical incapacity and as a matter of humane consideration. Alternative Answer: No. Bail is not a matter of right to a person charged with a non-bailable offense—capital offense, or an offense punishable by reclusion perpetua or life imprisonment. He shall not be admitted to bail when the evidence of guilt is strong regardless of the stage of the criminal prosecution. (Sec. 7, Rule 114) The court should first conduct a hearing, whether summary or otherwise in the discretion of the court to determine the existence of strong evidence or the lack of it. (People vs. Plaza, G.R. No. 176933 (2009) 2013 Bar Questions and Suggested Answers (Regala, Roca) 1. Yvonne, a young and lonely OFW, had an intimate relationship abroad with a friend, Percy. Although Yvonne comes home to Manila every six months, her foreign posting still left her husband Dario lonely so that he also engaged in his own extramarital activities. In one particularly exhilarating session with his girlfriend, Dario died. Within 180 days from Dario’s death, Yvonne gives birth in Manila to a baby boy. Irate relatives of Dario contemplate criminally charging Yvonne for adultery and they hire your law firm to handle the case. Is the contemplated criminal action a viable option to bring? (3%) Analysis: First, the answer must be on first person point of view because of the type of question being asked. Second, determine what is the criminal action being asked and what are the provisions of the Rules with regard the prosecution of the offense. Suggested Answer: No. A criminal action for adultery will not prosper on the ground that the relatives of Dario have no legal standing to institute the offense of adultery. The Section 5 of Rule 110 of the Revised Rules on Criminal Procedure provides that the crime of adultery shall not be prosecuted except upon a complaint filed by the offended spouse. In the case at bar, Dario, the spouse of Yvonne, was already dead. The rules specifically provides that the offended spouse should be the one filing the complaint. Relatives have no legal standing to file a complaint for the crime of adultery. Ergo, I will inform the relatives of Dario that filing the said complaint is not a viable option and will clearly be dismissed at the onset. 2. While in his Nissan Patrol and hurrying home to Quezon City from his work in Makati, Gary figured in a vehicular mishap along that portion of EDSA Group IV Pilotin, Regala, Rangel, Talamayan, Vasquez Atty. Voltaire Duano

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2011 – 2016 Bar Questions and Answers (Criminal Proced

within the City of Mandaluyong. He was bumped from behind by a Ford Expedition SUV driven by Horace who was observed using his cellular phone at the time of the collision. Both vehicles - more than 5 years old – no longer carried insurance other than the compulsory third party liability insurance. Gary suffered physical injuries while his Nissan Patrol sustained damage in excess of Php500,000. A. As counsel for Gary, describe the process you need to undertake starting from the point of the incident if Gary would proceed criminally against Horace, and identify the court with jurisdiction over the case. (3%) Analysis: The answer must be in first person point of view and must be in a step by step procedure since what is being asked is the process. The process to be taken depends on the offense to be instituted. Suggested Answer: As a counsel for Gary, the following steps shall be taken: First, he has to be medically examined to determine the gravity and extent of the injuries sustained from the accident. Second, a police report, stating the details of the accident as well as the violations committed by the offender, as well as affidavit of witnesses, shall be secured. Third, either a Sinumpaang Salaysay or a Complaint-Affidavit shall be prepared. Forth, the Sinumpaang Salaysay or Complaint-Affidavit shall be filed, including the medical results, police report, affidavits and other necessary pieces of evidence, with the Office of the Prosecutor in Mandaluyong City. The complaint must be filed in the Office of the Prosecutor because the rule provides that offenses requiring preliminary investigation and offenses not requiring preliminary investigation but within the jurisdiction of Manila and chartered cities, must be filed with the said office. The court which has the jurisdiction over the complaint is the Metropolitan Trial Court because the offense charged has an imposable imprisonment of less than 6 years, which is within the exclusive jurisdiction of lower courts regardless of the amount of imposable penalty. The offense was committed in Mandaluyong City, hence, the MTC of Mandaluyong may acquire jurisdiction over the case. B. If Gary chooses to file an independent civil action for damages, explain briefly this type of action: its legal basis; the different approaches in pursuing this type of action; the evidence you would need; and types of defenses you could expect. (5%) Suggested Answer: An independent civil action is an action separate and distinct with the criminal action, which may proceed independently and requires preponderance of evidence only. As provided in Section 3 of Rule 111 of the Revised Rules on Criminal Procedure, in cases included in Articles 32 (violation of bill of rights), 33 (defamation, fraud, physical injuries), 34 (fails to render aid or protection), and 2176 (quasi-delict), an independent civil action may be brought by the Group IV Pilotin, Regala, Rangel, Talamayan, Vasquez Atty. Voltaire Duano

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2011 – 2016 Bar Questions and Answers (Criminal Proced

offended party. The different approaches that Gary may pursue for civil action are: a. file and independent civil action and prosecute the criminal action separately; b. file an independent civil action alone; or c. file a criminal action without reserving independent civil action. 3. At the Public Attorney's Office station in Taguig where you are assigned, your work requires you to act as public defender at the local Regional Trial Court and to handle cases involving indigents. A. In one criminal action for qualified theft where you are the defense attorney, you learned that the woman accused has been in detention for six months, yet she has not been to a courtroom nor seen a judge. What remedy would you undertake to address the situation and what forum would you use to invoke this relief? (3%) Suggested Answer: I will file a motion to dismiss the charge of qualified theft before the Regional Trial Court where the case was filed, on the ground of violation of right to speedy trial under Section 1(h) of Rule 115 of the Revised Rules on Criminal Procedure. Under the same law, Section 1 of Rule 116 provides for the period when the arraignment shall be made. In the case at bar, since the accused was under a preventive detention, her case should have been raffled within 3 days from the date of filing of the complaint and shall be arraigned within 10 days from the date of the raffle. The six (6) months detention of the accused without having been at least arraigned and no valid justification constitutes violation of her right to speedy trial. Section 9 of Rule 119 provides that the information may be dismissed on motion of the accused on the ground of denial of his right to speedy trial. In case the court denies my motion to dismiss, another remedy I will pursue is to file special remedies of petition for writ of habeas corpus, petition for mandamus, certiorari or prohibition. B. In another case, also for qualified theft, the detained young domestic helper has been brought to court five times in the last six months, but the prosecution has yet to commence the presentation of its evidence. You find that the reason for this is the continued absence of the employercomplainant who is working overseas. What remedy is appropriate and before which forum would you invoke this relief? (3%) Suggested Answer: I will file a motion to dismiss the charge of qualified theft before the Regional Trial Court where the case was filed, on the ground of violation of right Group IV Pilotin, Regala, Rangel, Talamayan, Vasquez Atty. Voltaire Duano

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2011 – 2016 Bar Questions and Answers (Criminal Proced

to speed trial under Section 1(h) of Rule 115 of the Revised Rules on Criminal Procedure. Another remedy I will avail is a motion to require posting of bail for the employer-complainant as provided under Section 14 of Rule 119 in order to secure appearance. Being a material witness to the prosecution of the case, the complainant’s appearance before the court must be secured so as not to prejudice the accused right to speedy disposition of the case. If the witness refused to post bail, the court will commit him/her to prison until his/her testimony has been taken. In case the court denies my motion to dismiss, another remedy I will pursue is to file special remedies of petition for writ of habeas corpus, petition for mandamus, certiorari or prohibition. C. Still in another case, this time for illegal possession of dangerous drugs, the prosecution has rested but you saw from the records that the illegal substance allegedly involved has not been identified by any of the prosecution witnesses nor has it been the subject of any stipulation. Should you now proceed posthaste to the presentation of defense evidence or consider some other remedy? Explain the remedial steps you propose to undertake. (3%) Suggested Answer: Instead of proceeding to the presentation of defense evidence, I will file a motion for leave to file demurrer to evidence. The Supreme Court has previously ruled in several cases that the existence of the dangerous drugs is sine qua non for conviction in cases of violation of the Dangerous Drugs Act. Filing of demurrer to evidence may be done either with or without leave of court. A motion for leave of court to file demurrer to evidence shall be filed within a non-extendable period of five days after prosecution rests its case. After approval, the demurrer to evidence may be filed within a non-extendible ten days from notice. A motion to file demurrer to evidence without leave of court may be filed immediately. D. In one other case, an indigent mother seeks assistance for her 14-year old son who has been arrested and detained for malicious mischief. Would an application for bail be the appropriate remedy or is there another remedy available? Justify your chosen remedy and outline the appropriate steps to take. (3%) Suggested Answer: Yes, application for bail is an appropriate remedy for the release of a minor. The Section 34 of Juvenile Justice and Welfare Act of 2006 provides that the privilege mitigating circumstance of minority shall be considered in recommending for bail. Detention pending trial may be replaced by alternative Group IV Pilotin, Regala, Rangel, Talamayan, Vasquez Atty. Voltaire Duano

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measures, such as close supervision, intensive care or placement with a family or in an educational setting or home. Another remedy available is the release on recognizance by his parents or other suitable person as found by the court, provided in the same law. 4. On his way to the PNP Academy in Silang, Cavite on board a public transport bus as a passenger, Police Inspector Masigasig of the Valenzuela Police witnessed an on-going armed robbery while the bus was traversing Makati. His alertness and training enabled him to foil the robbery and to subdue the malefactor. He disarmed the felon and while frisking him, discovered another handgun tucked in his waist. He seized both handguns and the malefactor was later charged with the separate crimes of robbery and illegal possession of firearm. A. Where should Police Inspector Masigasig bring the felon for criminal processing? To Silang, Cavite where he is bound; to Makati where the bus actually was when the felonies took place; or back to Valenzuela where he is stationed? Which court has jurisdiction over the criminal cases? (3%) Suggested Answer: Police Inspector Masigasig should bring the felon to the nearest police station or jail in Makati City, where the crime actually took place. It is the duty of the arresting officer to deliver the person arrested to the nearest police station or jail without unnecessary delay, as provided in Section 5 of Rule 113. Moreover, the court having jurisdiction of the offense charged shall be where the offense was committed or essential elements of the offense took place. Since the offenses committed have penalties of more than six (6) years of imprisonment, the court which has the jurisdiction is the Regional Trial Court in Makati City. B. May the charges of robbery and illegal possession of firearm be filed directly by the investigating prosecutor with the appropriate court without a preliminary investigation? (4%) Suggested Answer: Yes. The information may be filed directly by the investigating prosecutor with the court having jurisdiction even without a preliminary investigation. Section 6 of Rule 112 provides that when the accused was lawfully arrested without warrant, information or complaint may be filed without the need of preliminary investigation provided that an inquest has been conducted, and in the absence of an inquest prosecutor, may be filed directly with the proper court based on affidavit. In the case at bar, the arrest without warrant is lawful because the offense has been committed in the presence of the police inspector. The seizure of the unlicensed firearm was also warranted because the arresting officer may inspect Group IV Pilotin, Regala, Rangel, Talamayan, Vasquez Atty. Voltaire Duano

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the offender following a lawful arrest.

2014 Bar Questions and Suggested Answers (Vasquez, Rosebelle) 1. Ludong, Balatong, and Labong were charged with murder. After trial, the court announced that the case was considered submitted for decision. Subsequently, the Clerk of Court issued the notices of promulgation of judgment which were duly received. 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. (A)Was the court correct in taking cognizance of the Joint Motion for Reconsideration? Suggested Answer: No. Sec. 6, Rule 120 of the Rules of Court provides that if the judgment is for conviction and the failure of the accused to appear is without justifiable cause, he shall lose the remedies available against the judgment and the court shall order his arrest. In the case at bar, the Court is correct in taking cognizance of the Joint Motion for Reconsideration with respect to Ludong who was present during the promulgation of judgment. As regards however with accused Balatong and Labong, the Court erred because they lost their remedies against the judgment when they failed to appear during the promulgation thereof. (B) Can Balatong and Labong appeal their conviction in case Ludong accepts his conviction for homicide? Suggested Answer: No. Balatong and Labong cannot appeal their conviction because they lost their right to appeal when they failed to appear during the promulgation of judgment. If they however surrendered and filed a Motion for Leave of Court to avail of their post judgment remedies within 15 days from the promulgation of judgment, and proved that their absence is with justifiable cause, they may be allowed to avail the said remedies within 15 days from notice. 2. A search warrant was issued for the purpose of looking for unlicensed firearms in the house of Ass-asin, a notorious gun for hire. When the police Group IV Pilotin, Regala, Rangel, Talamayan, Vasquez Atty. Voltaire Duano

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2011 – 2016 Bar Questions and Answers (Criminal Proced

served the warrant, they also sought the assistance of barangay tanods who were assigned to look at other portions of the premises around the house. In a nipa hut thirty (30) meters away from the house of Ass-asin, a barangay tanod came upon a kilo of marijuana that was wrapped in newsprint. He took it and this was later used by the authorities to charge Ass-asin with illegal possession of marijuana. Ass-asin objected to the introduction of such evidence claiming that it was illegally seized. Is the objection of Assasin valid? Suggested Answer: Yes. Rule 126 provides that a search warrant particularly describe the place to be searched and the things to be seized which may be anywhere in the Philippines. Applying this in the case, the search warrant specifically described that the place to be searched is the house of Ass-asin. Since the marijuana was found in a place other than the one described in the search warrant, it can be considered as a fruit of invalid warrantless search. Hence, Ass-asin’s objection is valid. 3. Solomon and Faith got married in 2005. In 2010, Solomon contracted a second marriage with Hope. When Faith found out about the second marriage of Solomon and Hope, she filed a criminal case for bigamy before the Regional Trial Court (RTC) of Manila sometime in 2011. Meanwhile, Solomon filed a petition for declaration of nullity of his first marriage with Faith in 2012, while the case for bigamy before the RTC of Manila is ongoing. Subsequently, Solomon filed a motion to suspend the proceedings in the bigamy case on the ground of prejudicial question. He asserts that the proceedings in the criminal case should be suspended because if his first marriage with Faith will be declared null and void, it will have the effect of exculpating him from the crime of bigamy. Decide. Suggested Answer: The motion filed by Solomon should be denied. The elements of prejudicial question provided in Sec. 7 of Rule 111 of ROC are: (1) the previously instituted civil action involves an issue similar or intimately related to the issue in the subsequent criminal action; (2) the resolution of such issue will determine whether or not the criminal action may proceed. In the given case, since the criminal case for bigamy was filed ahead of the civil action for declaration of nullity of marriage, there is no prejudicial question. 4. The Ombudsman, after conducting the requisite preliminary investigation, found probable cause to charge Gov. Matigas in conspiracy with Carpintero, a private individual, for violation of RA 3019 or Anti-Graft and Corrupt Practices Act. Before the information could be filed with Sandiganbayan, Gov. Matigas was killed in an ambush. This, notwithstanding, information was filed against Gov. Matigas and Carpintero. Group IV Pilotin, Regala, Rangel, Talamayan, Vasquez Atty. Voltaire Duano

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At the Sandiganbayan, Carpintero through counsel, filed a Motion to Quash the Information, on the ground of lack of jurisdiction of the Sandiganbayan, arguing that with the death of Gov. Matigas, there is no public officer charged in the information. Is the motion to quash legally tenable? Suggested Answer: No. The requirement before a private person may be indicted for violation of RA 3019, among others, is that such person must be alleged to have acted in conspiracy with a public officer. The law, however, does not require that such person must, in all instances, be indicted together with the public officer. In the given case, while it is true that by the reason of the death of Gov. Matigas, there is no longer any public officer with whom he can be charged for violation of RA 3019, it does not mean that the allegation of conspiracy between them can no longer be proved or that their alleged conspiracy is already expunged. Hence, the motion is not legally tenable. 2015 Bar Questions and Suggested Answers (Talamayan, Maclord)

1. 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. 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 warrant of arrest be quashed on the grounds cited by rapido's counsel? State your reason for each ground. (4%) Suggested answer: No. In people v. Grey, the Supreme Court ruled that what the constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on Group IV Pilotin, Regala, Rangel, Talamayan, Vasquez Atty. Voltaire Duano

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2011 – 2016 Bar Questions and Answers (Criminal Proced

the basis thereof he finds no probable cause, he may disregard the fiscal’s report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. It is not mandatory in the determination of probable cause for the issuance of the warrant of arrest. In this case, the judge, upon his personal examination of the complaint and evidence before him, determined that there was probable cause to issue the warrants of arrest after the provincial prosecution, based on the affidavits presented by complainant and her witnesses, found probable cause to file the criminal information. 2015 Bar Questions and Suggested Answers (Talamayan, Maclord)

1. Under section 5, rule 113 a warrantless arrest is allowed when an offense has just been committed and the peace officer has probable cause to believe, based on his personal knowledge of facts or circumstances, that the person to be arrested has committed it. A policeman approaches you for advice and asks you how he will execute a warrantless arrest against a murderer who escaped after killing a person. The policeman arrived two (2) hours after the killing and a certain max was allegedly the killer per information given by a witness. He asks you to clarify the following: (A) How long after the commission of the crime can he still execute the warrantless arrest? (2.5%) (B) What does “personal knowledge of the facts and circumstances that the person to be arrested committed it” mean? (2.5%) Suggested answer: A. Based on the developments of section 5(b), rule 113 of the revised rules of criminal procedure and our jurisprudence on the matter, the supreme held that the following must be present for a valid warrantless arrest: 1) the crime should have been just committed; and 2) the arresting officer's exercise of discretion is limited by the standard of probable cause to be determined from the facts and circumstances within his personal knowledge. The requirement of the existence of probable cause objectifies the reasonableness of the warrantless arrest for purposes of compliance with the constitutional mandate against unreasonable arrests. In People v. Del Rosario, the 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. If there was an appreciable lapse of time between the arrest and the commission of the crime, a warrant of arrest must be secured. The reason for the element of the immediacy is this - as the time gap from the commission of the crime to the arrest widens, the pieces of information gathered are prone to become contaminated and subjected to external factors, interpretations and hearsay. (pestilos vs. Moreno generoso, g.r. No. 182601, November 10, 2014) Group IV Pilotin, Regala, Rangel, Talamayan, Vasquez Atty. Voltaire Duano

New Era University ure)

2011 – 2016 Bar Questions and Answers (Criminal Proced

B. According to the black's law dictionary "circumstances are attendant or accompanying facts, events or conditions. " circumstances may pertain to events or actions within the actual perception, personal evaluation or observation of the police officer at the scene of the crime. Thus, even though the police officer has not seen someone actually fleeing, he could still make a warrantless arrest if, based on his personal evaluation of the circumstances at the scene of the crime, he could determine the existence of probable cause that the person sought to be arrested has committed the crime. However, the determination of probable cause and the gathering of facts or circumstances should be made immediately after the commission of the crime in order to comply with the element of immediacy.in other words, the clincher in the element of ''personal knowledge of facts or circumstances" is the required element of immediacy within which these facts or circumstances should be gathered. This required time element acts as a safeguard to ensure that the police officers have gathered the facts or perceived the circumstances within a very limited time frame. This guarantees that the police officers would have no time to base their probable cause finding on facts or circumstances obtained after an exhaustive investigation. (Pestilos vs. Moreno generoso, G.R. No. 182601, November 10, 2014) 2. [a] What is the “most important witness” rule pursuant to the 2004 guidelines of pretrial and use of deposition-discovery measures? Explain. (2.5%) [b] What is the “one day examination of witness” rule pursuant to the said 2004 guidelines? Explain. (2.5%) Suggested answer: A. The one-day examination of witness rule, that is, a witness has to be fully examined in one (1) day only, shall be strictly adhered to subject to the courts' discretion during trial on whether or not to extend the direct and/or crossexamination for justifiable reasons. On the last hearing day allotted for each party, he is required to make his formal offer of evidence after the presentation of his last witness and the opposing party is required to immediately interpose his objection thereto. Thereafter, the judge shall make the ruling on the offer of evidence in open court. However the judge has the discretion to allow the offer of evidence in writing in conformity with section 35, rule 132. B. Determine the most important witnesses to be heard and limit the number of witnesses (most important witness rule). The facts to be proven by each witness and the approximate number of hours per witness shall be fixed.

Group IV Pilotin, Regala, Rangel, Talamayan, Vasquez Atty. Voltaire Duano