examination sample

1.In the famous case of Salonga v. Paño (134 SCRA 438), the Supreme Court introduced the “symbolic function” principle. What do you understand by this “symbolic function of the Supreme Court”? Explain using the factual background of the case.

2.Decide whether the right against self-incrimination is violated under the following circumstances:

A.in a rape case it was alleged as an aggravating circumstance, that the rapist infected the victim with gonorrhea. The prosecution moved for the medical examination of the accused to check whether he has gonorrhea. The defense objected, invoking the right of the accused to self-incrimination.

B. In a theft case, the prosecution alleged that the diamond was swallowed by the accused, and moves that the accused be subjected to an x-ray examination.

C. In a falsification case, the prosecution wants to prove that it was the accused that signed the falsified indorsements in the check. It moves that the accused be compelled to submit his specimen signatures, or if there are none, for the accused to write three legible signatures on a blank piece of paper.

D. The Senate Blue Ribbon Committee summoned the Secretary of Agriculture to appear before it to answer questions relative to the alleged unlawful disbursement of funds. He refused to appear and answer questions invoking his right against self-incrimination.

E.The prosecution did not have any other witness to prove its case, and would want to use the accused as hostile witness to testify. The accused refused to testify. The prosecution files a motion for a subpoena ad testificandum to compel the accused to testify.

3. a. What do you understand by the term “custodial investigation”?

b. Facts: The evidence shows that at around ten o'clock in the morning of January 14, 1976, Celso Saminado, 37, a prisoner in the national penitentiary at Muntinlupa, Rizal and a patient in the emergency ward of the prison hospital, went to the toilet to answer a call of nature and to fetch water.

The accused, Tampus, 27, and Avila, 28, prisoners in the same penal institution, who were tubercular patients in the hospital, followed Saminado to the toilet and, by means of their bladed weapons, assaulted him. Tampus inflicted eight incised wounds on Saminado while Avila stabbed him nine times. Saminado died upon arrival at eleven o'clock on that same morning in the prison hospital.

Right after the murder, Tampus and Avila revealed to the jail guard that they murdered Saminado as they were motivated by revenge.

They executed affidavits, without the assistance of counsel, concerning the truth.

As they were dangerous criminals, the Court decided to conduct trial right in the national penitentiary. A public attorney assisted the accused during arraignment and trial.During trial the accused testified and admitted the killing himself.

The accused were convicted and sentenced to death.

On appeal, the defense states that the conviction of the accused be reversed, as his rights as accused were duly violated: (a) the confession was unlawful (b) he was not afforded his right to a public and impartial trial as the trial was conducted in the penitentiary (c) all the time he was under custodial investigation, and his rights as an accused, i.e., the right to remain silent, and to be informed of said right, and his right to have an independent and competent counsel of his own choosing were grossly violated (d) That during the time when the accused testified about his admission of the killing the Court did not advise him of his right to remain silent.

Rule on the issues raised by the defense. Would you reverse the conviction?

4.Facts: Jose Cruz upon suspicion of the military that he is an accomplice of the MNLF, was arrested in Siocon, Zamboang del Norte on January 5, 2006.He was then detained in the Provincial Jail, yet not charge has yet been formally filed against him. He wants to be released as he missed his family in Dapitan City.He files a petitin for a writ of habeas corpus with a supplementary motion that he be released on bail.The judge refused to grant him bail, on the ground that there is yet no charge and he has no way of fixing the amount of bail, as there is no criminal charge to base his computation of the bail.

Is the Judge correct? In short, can a person file his bail despite the fact that he is not yet charged of any offense? Cite a case.

5. The former secretary Dinky Soliman is charged by Party List Representative Marcoleta with Grave Oral Defamation, now pending before the Metropolitan Trial Court of Manila.A warrant of arrest was issued against her, on a finding of probable cause, and bail was fixed by the Court at 12,000 pesos. Dinky was then attending a conference in Vietnam, and hence could not be served with such warrant. Upon knowing the warrant of arrest, Dinky called her husband to post the necessary bond. The Court refused the bailbond, and insisted on the warrant of arrest. Dinky claims that the government is persecuting her, knowing that she is against Gloria Macapagal-Arroyo.

Is the refusal of the Court to accept the bailbond violative of the right of Dinky Soliman on her right to bail?

6.In a murder case, three accused-brothers were indicted. The prosecution presented five witnesses, after which it rested its case. A public attorney defended the accused who were poor, and whose father was a noted ex-convict. The two accused testified, and due to series of postponements caused by the defense counsel, as he was still looking for witnesses, the Judge finally considered the case submitted for decision. The defense counsel asked for another final setting so that the thrid accused could also testify on his behalf. Another setting was made, but the same was again postponed, for reason not attributable to the accused. The Judge issued an order requiring the parties to submit their respective memoranda within a period of 30 days.

After a lapse of 30 days the Judge issued a judgment convictng the three accused.

On appeal the accused moved for a reversal of judgment, on the ground that the right of the accused to be heard was violated.

Rule on the issue.

7. State whether the right of the accused “to be informed of the nature and cause of accusation against him is violated” under the following circumstances:

a. An accused was charged with rape, but the evidence presented points that he can be liable only for qualified seduction. The judge acquitted him of rape, but convicted him of qualified seduction as warranted by the evidence presented, rationalizing that justice to the victim so demands the proper conviction.

b. the charge for rape was not conclusively proved (i.e. reasonable doubt), but the court nevertheless sentenced the accused to pay the accused civil liability of 100,000 pesos for having caused the death of the victim, who committed suicide two days after the alleged rape.

c.the accused was charged with robbery with homicide.Detained at the provincial jail, he escaped and went at-large. The trial judge set the case for trial, and based on the evidence presented by the prosecution, convicted the accused, on the ground that his having escaped shall be considered as waiver on his part to present his evidence..

d.accused was charged with murder, and on the basis of plea bargaining, the accused entered a plea of guilty to homicide. Later on he changed his mind, and in questioning his conviction of homicide, he claims that he was never charged on homicide, hence he was never informed of the nature and cause of accusation against him.

e. Accused was charged with serious physical injuries, trial ensued. The prosecution presented evidence showing that the victim finally died. The court convicted him with homicide pursuant to the evidence presented.

8.Jose Lopez was born on August 20, 1939.His paternal grandfather,(a Spaniard), Lorenzo Lopez was married to a Filipina. Lorenzo resided in Pangasinan and died there on September 11, 1954.The father of Jose Lopez, Mariano Lopez, a famous businessman was born on May 17, 1915, who married Maria Gomez.Their relationship did not last long. Mariano had an illicit affair with an American woman named Betsy Ford, and from said relationship, Jose Lopez came about.

Is Jose Lopez a Filipino citizen?

9. Jose Cruz was born in San Clemente, Tarlac on April 27, 1960 of Filipino parents. On November 5, 1985, he enlisted in the US Marine Corps and without the consent of the Philippines took his oath of allegiance to the United States.On March 17, 1994 he repatriated under Republic Act No. 2630.He ran for and was elected as Congressman for the Second District of Pangasinan on May 11, 1998 elections. His losing opponent filed a petition for qou warranto before the House of Representatives Electoral Tribunal claiming that Jose Cruz was not qualified to become a member of the House of Representatives since he is not a natural-born citizen as required under ARTICLE VI, Section 6 of the Philippine constitution. Is Jose Cruz, a natural-born Filipino?

10. Rosalinda Evasco was born on May 16, 1934 in Napier Terrace, Western Australia, to the spouses Telesforo Evasco, a Filipino citizen and native of Daet, Camarinez Norte, and Theresa Marquez, an Australian.In 1949, at the age of fifteen, she left Australia and came to settle in the Philippines.On June 27, 1962, she was married to Leopoldo Lopez, a Filipino citizen, at the Malate Catholic Church in Manila.Since then she has continuously participated in the electoral process not only as a voter but as a candidate.She served as provincial board member of Davao City,and in 1992 was elected governor of Davao City.

Her losing Opponent filed a case to oust her as governor on the ground that she is not a Filipino citizen, on the following grounds: in 1988 Rosalinda registered herself with the Bureau of Immigration as an Australian national and was issued Alien Certificate of Registration No. 404695 dated September 19, 1988; she was issued an Australian Passport No. H7OOO78 on March 3, 1968.

Is Rosalinda Evasco a Filipino qualified to hold the office of governor?

11. Raffy, Carly and Josey were accused of murder before the RTC of Dipolog. Accused Josey turned state witness against his co-accused, and was accordingly discharged from the Information. Among the evidence presented by the prosecution was an extrajudicial confession made by Josey during the custodial investigation, implicating Raffy and Carly who, he said, together with him (Josey) committed the crime. The Extrajudicial confession was executed without the assistance of counsel.

Accused Raffy and Carly vehemently objected on the ground that the said extrajudicial confession is inadmissible in evidence against them.

Rule whether the said Extrajudicial confession is admissible in evidence or not.

.

12.For the death of Joey, Erning was charged with homicide before the RTC of Dipolog. He was arraigned. Due to numerous postponements of the scheduled hearings at the instance of the prosecution, particularly based on the ground of unavailability of prosecution witnesses who cannot be found or located, the criminal case has been pending for a period of seven years. Upon motion of the accused Erning who invoked his right to speedy trial, the court dismissed the case.

Eventually, the said prosecution witnesses surfaced and a criminal case for homicide, involving the same incident was filed against Erning, who filed a motion for the dismissal of the case on the ground of double jeopardy. The prosecution objected reasoning that it was not able to present said witnesses earlier because they went into hiding for fear of their lives.

Is there really double jeopardy to warrant the dismissal of the case? Reason out your answer.

13. A Tamaraw FX was driven by Asiong, who was drunk, sideswiped a pedestrian along Quezon Avenue, Dipolog City, resulting in physical injuries to the latter. The prosecutor filed two separate Informations against Asiong, the first for reckless imprudence resulting in physical injuries under the Revised Penal Code, and the second for violation of an ordinance in Dipolog City prohibiting and penalizing driving under the influence of liquor.

Asiong was arraigned, tried and convicted for reckless imprudence resulting in physical injuries. With regard to the second case (i.e. violation of the city ordinance), upon being arraigned he filed a motion to quash the information invoking his right against double jeopardy. He contended that, under Art. III, Section 21 of the Constitution, if an act is punished by a law and an ordinance, conviction or acquittal under either shall const9tute a bar to another prosecution for the same act. He argued that the two criminal charges against him stemmed from the same act of driving allegedly under the influence of liquor which caused the accident.

Was there double jeopardy? Explain.

14. The crime of murder was committed on November 25, 1987 by the accused, Jose Go. The penalty for murder pursuant to Article 248 of the Revised Penal Code is reclusion temporal. On December 31, 1993, R.A. 7659 took effect, which increased the penalty of murder to reclusion perpetua.

On September 21, 2001 the accused after due trial, was convicted with murder and sentenced by Judge Gone to reclusion perpetua.

The counsel of the accused objected on the penalty meted.

Is the objection valid? On what ground?

15. The record shows that private respondent herein, Ernesto de la Paz, Pacifico Senecio, Jr. y Sebusa Romeo Millan y Delejero and Wilfredo Jochico y Magalona, were charged with "falsification by private individuals and use of falsified document" under Par. 2, Article 172 of the Revised Penal Code. After the prosecution had presented its evidence and rested its case, private respondents moved to dismiss the charge against them on the ground that the evidence presented was not sufficient to establish their guilt beyond reasonable doubt. Acting on this motion, respondent court issued its order of December 19, 1975, dismissing the case with costs de oficio principally on the ground that the acts committed by the accused as narrated above do not constitute the crime of falsification as charged. In their comment on this Petition, private respondents claim that there was no error committed by respondent court in dismissing the case against them for insufficiency of evidence and that for this Court to grant the present petition would place said respondents in double jeopardy.

On the other hand, the People asserts that the plea of double jeopardy is not tenable inasmuch as the case was dismissed upon motion of the accused, and the dismissal having been made with their consent, they waived their defense of double jeopardy, citing various cases in support thereof.

Question: Was there double jeopardy?

16. The first criminal complaint filed against respondent Fama Jr. on April 15, 1975 (Case No. 3335) was as follows:

That at about 5:30 o'clock in the afternoon of April 12, 1975, at Aquino Nobleza St., Municipality of January, Province of Iloilo, Philippines, and within the jurisdiction of this Honorable Court the above-named accused, while armed with a piece of stone, did then and there willfully, unlawfully and feloniously, assault, attack and use personal violence upon one Miguel Viajar by then hurling the latter with a stone, hitting said Miguel Viajar on the right cheek, thereby inflicting physical injuries which would have required and will require medical attendance for a period from 5 to 9 days barring complication as per medical certificate of the physician hereto attached.

CONTRARY TO LAW. (Pp. 93-94, Record)

Arraigned on July 7, 1975, the accused entered a plea of not guilty.

Meanwhile, on June 8, 1975, complainant Viajar filed a letter-complaint with the Provincial Fiscal of Iloilo charging Atty. Alfredo Fama, Raul Fama and herein respondent Margarito Fama, Jr. with serious physical injuries arising from the same incident alleged in above Criminal Case No. 3335. After conducting a preliminary investigation, under date of July 28, 1975, the Fiscal filed in the Court of First Instance of Iloilo an information, but only against respondent Fama Jr., (Case No. 5241) for serious physical injuries as follows:

That on or about April 12, 1975, in the Municipality of January, Province of Iloilo, Philippines, and within the jurisdiction of this Court, the said accused, with deliberate intent, and without any justifiable motive, armed with pieces of stone did then and there willfully, unlawfully and feloniously attack, assault and throw pieces of stone at Miguel Viajar, hitting him on the lower right eye which would heal from five (5) to nine (9) days barring complications but leaving a permanent scar and deforming on the right face of said Miguel Viajar.

CONTRARY TO LAW. (Pp. 94-95, Record)

On August 1, 1975, Fama Jr. filed an urgent motion to defer proceedings in Criminal Case No. 5241, claiming that since he was already charged and pleaded not guilty in Criminal Case No. 3335, he would be in double jeopardy, if Case No. 5241 were to be prosecuted.

Question:Is he correct? Why?

17.On 11 May 1978, an information charging petitioner with having violated Article 217, paragraph 4, of the Revised Penal Code, was filed with the then Court of First Instance ("CFI") of Surigao del Norte (docketed Criminal Case No. 299). It read:

That on or before January 27, 1978 in the municipality of del Carmen, Province of Surigao del Norte and within the jurisdiction of this Honorable Court, accused who is the Collecting and Disbursing Officer of the Numancia National Vocational School, which school is also located at del Carmen, Surigao del Norte and while a Collecting and Disbursing Officer of the aforestated school therefore was holding in trust moneys and/or properties of the government of the Republic of the Philippines and holding in trust public funds with all freedom, intelligence, criminal intent and intent of gain, did then and there voluntarily, unlawfully, feloniously and without lawful authority appropriate and misappropriate to his own private benefit, public funds he was holding in trust for the Government of the Philippines in the total sum of SIXTEEN THOUSAND FOUR HUNDRED EIGHTY THREE PESOS and SIXTY-TWO CENTAVOS (P16,483.62), Philippine Currency, which total sum accused failed to account during an audit and failed as well to restitute despite demands by the office of the Provincial Auditor, to the damage and prejudice of the Government equal to the amount misappropriated.

Act contrary to par. 4 of Article 217, of the Revised Penal Code with a penalty of Reclusion Temporal, minimum and medium periods and in addition to penalty of perpetual special disqualification and fine as provided in the same Article. 1

A warrant of arrest was issued, followed by two alias warrants of arrest, but accused-petitioner Ernesto Navallo still then could not be found.

Meanwhile, on 10 December 1978, Presidential Decree No. 1606 took effect creating the Sandiganbayan and conferring on it original and exclusive jurisdiction over crimes committed by public officers embraced in Title VII of the Revised Penal Code.

On 15 November 1984, Navallo was finally arrested. He was, however, later released on provisional liberty upon the approval of his property bail bond. When arraigned by the Regional Trial Court ("RTC") on 18 July 1985, he pleaded not guilty. On 22 May 1986, upon motion of the prosecution, the RTC transferred the case and transmitted its records to the Sandiganbayan. On 27 January 1989, Special Prosecutor Luz L. Quiñones-Marcos opined that since Navallo had already been arraigned before the case was transferred to the Sandiganbayan, the RTC should continue taking cognizance of the case. The matter was referred to the Office of the Ombudsman which held otherwise. The information was docketed (Criminal Case No. 13696) with the Sandiganbayan. A new order for Navallo's arrest was issued by the Sandiganbayan. The warrant was returned with a certification by the RTC Clerk of Court that the accused had posted a bail bond. The bond, having been later found to be defective, on 30 August 1989, a new bond was approved and transmitted to the Sandiganbayan.

Navallo filed a motion to quash, contending (1) that the Sandiganbayan had no jurisdiction over the offense and the person of the accused and (2) that since the accused had already been arraigned by the RTC, the attempt to prosecute him before the Sandiganbayan would constitute double jeopardy.

Question; Is Navallo correct in claiming that he was subjected to double jeopardy?

18. Petitioner Manuel P. Martinez was charged by the assistant prosecutor of Manila before the RTC of a crime of libel in the complaint of private respondent Salvador H. Laurel where in Martinez allegedly wrote derogatory and scurrilous imputations and insinuations against Laurel contained in his article entitled “The Sorrows of Laurel” published in his Manila Times column Narrow Gate. Martinez filed a motion for reinvestigation, which was denied by trial judge. Thereafter, the case was set for arraignment and pre-trial but this was cancelled due to the retirement of the trial judge. Two months after the arraignment and pre-trial was cancelled, private respondent Laurel filed a motion to set the case for arraignment and pre-trial under the successor of the retired judge. In the meantime, petitioner Martinez filed a petition with the DOJ seeking for review of the resolution of City Prosecutor finding a prima facie case of libel against him. Accordingly, 3^rd Asst. City Prosecutor filed a motion to suspend proceedings pending resolution by DOJ of Martinez’ petition for review, which was granted by the successor judge. But then again, private respondent filed a motion to set the case for arraignment and pre-trial. No action was taken on his said motion. Five months after, the DOJ thru Acting Justice Secretary Bello III sent a letter to City Prosecutor of Manila declared inter alia that while the language used in the article maybe unsavory and unpleasant to complainant, the same was not actionable as libel, as if embodied merely on opinion protected as a privileged communication under Art. 354 of the RPC. The appealed resolution was therefore set aside and the City Prosecutor was directed to cause the dismissal of the information filed against Manuel F. Martinez. Consequently, a motion to dismiss of the above case was filed and set for hearing. At the hearing, complainant’s counsel manifested that he had received no copy of the motion to dismiss, then the trial court directed the case prosecutor to furnish him a copy and shall given ten (10) days to respond thereto but it was found out that the case prosecutor has not complied with the order of the court. Coming as it does from the officials having control of the prosecution and at this stage of the proceedings, there being no objection, the motion to dismiss was granted. Thereafter, private respondent appealed to the Court of Appeals on the order of dismissal of the case.

QUESTION::

1. Does the appeal against the order of dismissal on the above foreclosed by the rule of double jeopardy?

19. Before us for review, on appeal by the People of the Philippines, is an order, dated January 8, 1965, of the Court of First Instance of Pangasinan dismissing, upon motion of the defense, an indictment for rape against Willy Obsania. On November 22, 1964, barely a day after the occurence of the alleged crime, Erlinda Dollente, the 14-year old victim, and her parents, Ciriaco Dollente and Carmelita Lureta, filed in the municipal court of Balungao, Pangasinan a complaint for rape with robbery.

After the case was remanded to the Court of First Instance of Pangasinan for further proceedings, the assistant provincial fiscal filed an information for rape against the accused, embodying the allegations of the above complaint, with an additional averment that the offense was committed "with lewd designs".

The accused pleaded not guilty upon arraignment, and forthwith his counsel moved for the dismissal of the case, contending that the complaint was fatally defective for failure to allege "lewd designs" and that the subsequent information filed by the fiscal which averred "lewd designs" did not cure the jurisdictional infirmity. The court a quo granted the motion and ordered dismissal of the action, ruling that "the failure of the complaint filed by the offended party to allege that the acts committed by the accused were with 'lewd designs' does not give this Court jurisdiction to try the case." From this order, the fiscal brought the instant appeal.

QUESTION:

1. Are lewd designs an indispensable element that should be alleged in the complaint?

2. Does the present appeal place the accused in double jeopardy?

20. Private respondent and Barangay Captain Castro Belme Mabuyo while riding on a jeepney was overtaken and smothered in dust by a Nissan Patrol which he later ascertained to be owned and ridden by Dr. Ramon and Angela Paulin, herein petitioners.

Said incident was followed by an alleged gun pointing by the petitioners with Jose Bacho acting as back-up later that day in Kilawan Tanke, Talisay while the respondent was investigating a case, prompting him to call the police.

Station Commander P/Lt. Ariel Palcuto filed a complaint for grave threats against the Paulin and Bacho and a complaint for grave threats and oral defamation against private respondent Mabuyo 16 days after the incident.

The cases were jointly tried and on motion of the petitioners the case against them was dismissed by Municipal Trial Court (MTC) Judge Mamerto Coloflores to which respondent filed a Motion for Reconsideration which was granted. Herein petitioners sought to set aside said resolution but the same was denied in another resolution.

Dissatisfied, petitioners filed for certiorari, prohibition, damages with relief of preliminary injunction and issuance of temporary restraining order before Regional Trial Court Branch 5 which was subsequently dismissed by Judge Celso M. Gimenez.

Petitioners now contended that the decision of MTC in dismissing the case against them was a judgment of acquittal and may no longer be set aside without violating their rights against double jeopardy.

QUESTIONS:

1.Does the dismissal of MTC amounts to acquittal on the allegation that it was issued on merits of prosecution’s evidence?

2.When a “dismissal” is held final even if made on motion of the accused?

3.Does the dismissal of the case against the petitioners by the MTC constitute a bar for another prosecution, as it would violate their right against double jeopardy?