Post by pinkalou on Jul 1, 2007 23:23:31 GMT 7
2004 BAR
Suggested Answers to the 2004 BAR EXAMINATION
CRIMINAL LAW
I
RR represented to AA, BB, CC and DD that she could sent them to L:ondon to work there as sales ladies and waitresses. She collected and received from them various amounts of money for recruitment and placement fees totaling P400,000. After their dates of departure were postponed several times, the four prospect got suspicious and went to POE. There they found that RR was not authorized nor licensed to recruit workers for employment abroad. They sought refund to no avail.
Is RR guilty of any grave offense? Explain briefly (5%).
SUGGESTED ANSWER:
Yes. RR is guilty of grave offense, having engaged in illegal recruitment constituting the offense of economic sabotage which is punishable with life imprisonment and fine pf P100,000.
Economic sabotage is an offense defined in article 38B of the Labor Code, as amended by PD 2018, which is incurred when the illegal recruitment is carried out in large scale or by a syndicate. It is in large scale when there are three or more aggrieved parties, individually or as a group. And it is committed by a syndicate when three or more persons conspire or cooperate with one another is carrying out the illegal transaction, scheme or activity.
B. Dan, a private individual , kidnapped CHU, a minor. On the second day, Dan released Chu even before any criminal information was filed against him. AT the trial of his case, Dan raised the defense that he did not incur any criminal liability since he released the child before the lapse of 3-day period and before criminal proceedings for kidnapping were instituted.
Will Dan’s defense prosper? Reason briefly. 5%
Suggested Answers
No. Dan’s defense will not prosper. Voluntary release by the offenser of the offended party in kidnapping is not absolutory. Esides, such release is irrelevant nad immaterial in this case ecasue the victim being a minor, the crime com itted is kinapping and serious illegal detention under article 267 of RPC, to which such circumstance does not apply. The circumstance may be appreciated only in the crime of slight illegal detention in Article 268 (asistion vs. Sna dieo, 10 SCRA 673, 1964).
II
Osang, a married woman in her early twenties, was sleeping on a banig on the floor of their nipa hut beside the seashore when she was awakened by the act of a man mounting her. Thinking that it was her husband, Gardo, who had returned from fishing in the sea, Osang continued her sleep but allowed the man, who was actually their neighbor, Julio, to have sexual intercourse with her. After Julio satisfied himself, he said "Salamat Osang" as he turned to leave. Only then did Osang realize that the man was not her husband. Enraged, Osang grabbed a balisong from the wall and stabbed Julio to death. When tried for homicide, Osang claimed defense of honor. Should the claim be sustained? Why? (5%).
SUGGESTED ANSWER:
No, Osang's claim of defense of honor should not be sustained because the aggression on her honor had ceased when she stabbed the aggressor. In defense of rights under paragraph 1, Art. 11 of the RPC, it is required inter alia that there be (1) unlawful aggression must be continuing when the aggressor was injured or disabled by the person making a defense.
But if the aggression that was begun by the injured or disabled party already ceased to exist when the accused attacked him, as in the case at bar, the attack made is a retaliation, and not a defense. Paragraph 1, Article 11 of the Code does not govern.
Hence, Osang's act of stabbing Julio to death after the sexual intercourse was finished, is not defense of honor but an immediate vindication of a grave offense committed against her, which is only mitigating.
III
Sunshine, a beauteous "colegiala" but a shoplifter, went to the Ever Department Store and proceed to the women's wear section. The saleslady was of the impression that she brought to the fitting room three (3) pieces of swimsuits of different colors. When she came out of the fitting room, she returned only two (2) pieces to the clothes rack. The saleslady became suspicious and alerted the store detective. Sunshine was stopped by the detective before she could leave the store and brought to the office of the store manager. The detective and the manager searched her and found her wearing the third swimsuit under her blouse and pants. Was the theft of the swimsuit consummated, frustrated or attempted? Explain. (5%).
SUGGESTED ANSWER:
The theft was consummated because the taking or asportation was complete when the offender acquired exclusive control of the personal property being taken; in this case, when Sunshine wore the swimsuit under her blouse and pants and was on her way out of the store. With evident intent to gain, the taking constitutes theft and being complete, it is consummated. It is not necessary that the offender is in a position to dispose of the property.
ALTERNATIVE ANSWER:
The crime of theft was only frustrated because Sunshine has not yet left the store when the offense was opportunely discovered and the article seized from her. She does not have yet the freedom to dispose of the swimsuit she was taking (People vs. Dino, CA 45 O.G. 3446). Moreover, in case of doubt as to whether it is consummated or frustrated, the doubt must be resolved in favor of the milder criminal responsibility.
IV
While they were standing in line awaiting their vaccination at the school clinic, Pomping repeatedly pulled the ponytail of Katreena, his 11 years, 2 months and 13 days old classmate in Grade 5 at the Sampaloc Elementary School. Irritated, Katreena turned around and swung at Pomping with a ballpen. The top of the ballpen hit the right eye of Pomping which bled profusely. Realizing what she had caused, Katreena immediately helped Pomping. When investigated, she freely admitted to the school principal that she was responsible for the injury to Pomping's eye. After the incident, she executed a statement admitting her culpability. Due to the injury, Pomping lost his right eye.
a) Is Katreena criminally liable? Why? (3%)
b) Discuss the attendant circumstances and effects thereof. (2%)
SUGGESTED ANSWER:
a) No, Katreena is not criminally liable although she is civilly liable. Being a minor less than fifteen (15) years old although over nine (9) years of age, she is generally exempt from criminal liability. The exception is where the prosecution proved that the act was committed with discernment. The burden is upon the prosecution to prove that the accused acted with discernment.
The presumption is that such minor acted without discernment, and this is strengthen by the fact that Katreena only reacted with a ballpen which she must be using in class at the time, and only to stop Pompong's vexatious act of repeatedly pulling her ponytail. In other words, the injury was accidental.
b) The attendant circumstances which may be considered are:
1. Minority of the accused as an exempting circumstances under Article 12, paragraph 3, Rev. Penal Code, where she shall be exempt from criminal liability, unless it was proved that she acted with discernment. She is however civilly liable;
2. If found criminally liable, the minority of the accused as a privileged mitigating circumstance. A discretionary penalty lower by at least two (2) degrees than that prescribed for the crime committed shall be imposed in accordance with Article 68, paragraph 1, Rev. Penal Code. The sentence, however, should automatically be suspended in accordance with Section 5(a) of Rep. Act No. 8369 otherwise known as the "Family Courts Act of 1997";
3. Also if found criminally liable, the ordinary mitigating circumstance of not intending to commit so grave a wrong as that committed, under Article 13, paragraph 3, Rev. Penal Code; and
4. The ordinary mitigating circumstance of sufficient provocation on the part of the offended party immediately preceded the act.
V
a) For defrauding Lorna, Alma was charged before the Municipal Trial Court of Malolos, Bulacan. After a protracted trial, Alma was convicted. While the case was pending appeal in the Regional Trial Court of the same province, Lorna who was then suffering from breast cancer, died. Alma manifested to the court that with Lorna's death, her (Alma's) criminal and civil liabilities are now extinguished. Is Alma's contention correct? What if it were Alma who died, would it affect her criminal and civil liabilities? Explain. (3%).
b) Name at least two exceptions to the general rule that in case of acquittal of the accused in a criminal case, his civil liability is likewise extinguished. (2%).
SUGGESTED ANSWER:
a) No. Alma's contention is not correct. The death of the offended party does not extinguish the criminal liability of the offender, because the offense is committed against the State (People vs. Misola, 87 Phil. 830, 833). Hence, it follows that the civil liability of Alma based on the offense committed by her is not extinguished. The estate of Lorna can continue the case.
On the other hand, if it were Alma who died pending appeal of her conviction, her criminal liability shall be extinguished and therewith the civil liability under the Revised Penal Code (Art. 89, par. 1, RPC). However, the claim for civil indemnity may be instituted under the Civil Code (Art. 1157) if predicated on a source of obligation other than delict, such as law, contracts, quasi-contracts and quasidelicts (People vs. Bayotas 236 SCRA 239, G.R. 152007, September 2, 1994).
b) Exceptions to the rule that acquittal from a criminal case extinguishes civil liability are:
1. When the civil action is based on obligations not arising from the act complained of as a felony;
2. When acquittal is based on reasonable doubt or acquittal is on the ground that guilt has not been proven beyond reasonable doubt (Art. 29, New Civil Code);
3. Acquittal due to an exempting circumstance, like insanity;
4. Where the court states in its judgment that the case merely involves a civil obligation;
5. Where there was a proper reservation for the filing of a separate civil action;
6. In cases of independent civil actions provided for in Arts. 31, 32, 33 and 34 of the New Civil Code;
7. When the judgment of acquittal includes a declaration that the fact from which the civil liability might arise did not exist (Sapiera vs. CA, 314 SCRA 370);
8. Where the civil liability is not derived or based on the criminal act of which the accused is acquitted (Sapiera vs. CA, 314 SCRA 370).
Note: Only two (2) exceptions are asked.
VI
a) Lucresia, a store owner, was robbed of her bracelet in her home. The following day, at about 5 o'clock in the afternoon, a neighbor, 22-year old Jun-Jun, who had an unsavory reputation, came to her store to buy bottles of beer. Lucresia noticed her bracelet wound around the right arm of Jun-Jun. As soon as the latter left, Lucresia went to nearby police station and sought the help of a policeman on duty, Pat. Willie Reyes. He went with Lucresia to the house of Jun-Jun to confront the latter. Pat. Reyes introduced himself as a policeman and tried to get hold of Jun-Jun who resisted and ran away. Pat. Reyes chased him and fired two warning shots in the air. Jun-Jun continued to run and when he was about 7 meters away, Pat. Reyes shot him in the right leg. Jun-June was hit and he fell down but he crawled towards a fence, intending to pass through an opening underneath. When Pat. Reyes was about 5 meters away, he fired another shot at Jun-Jun hitting him at the right lower hip. Pat. Reyes brought Jun-Jun to the hospital, but because of profuse bleeding, he eventually died. Pat. Reyes was subsequently charged with homicide. During the trial, Pat. Reyes raised the defense, by way of exoneration, the he acted in the fulfillment of a duty. Is the defense tenable? Explain. (3%).
b) Rico, a member of the Alpha Rho fraternity, was killed by Pocholo, a member of the rival group, Sigma Phi Omega. Pocholo was prosecuted for homicide before the Regional Trial Court in Binan, Laguna. During the trial, the prosecution was able to prove that the killing was committed by means of poison in consideration of a promise or reward and with cruelty. If you were the Judge, with what crime will you convict Pocholo? Explain. (2%).
SUGGESTED ANSWER:
a) No, the defense of Pat. Reyes is not tenable. The defense of having acted in the fulfillment of a duty requires as a condition, inter alia, that the injury or offense committed be the unavoidable or necessary consequence of the due performance of the duty (People vs. Oanis, et al., 74 Phil. 257). It is not enough that the accused acted in fulfillment of a duty.
After Jun-Jun was shot in the right leg and was already crawling, there was no need for Pat. Reyes to shoot him further. Clearly, Pat. Reyes acted beyond the call of duty which brought about the cause of death of the victim.
b) Pocholo should be convicted of the crime of homicide only because the aggravating circumstances, which should qualify the crime to murder were not alleged in the Information.
The circumstances of using poison, in consideration of a promise or reward, and cruelty which attended the killing of Rico could only be appreciated as generic aggravating circumstances since none of them have been alleged in the Information to qualify the killing to murder. A qualifying circumstance must be alleged in the Information and proven beyond reasonable doubt during the trial to be appreciated as such.
VII
One fateful night in January 1990, while 5-year old Albert was urinating at the back of their house, he heard a strange noise coming from the kitchen of their neighbor and playmate, Ara. When he peeped inside, he saw Mina, Ara's stepmother, very angry and strangling the 5-year old Ara to death. Albert saw Mina carry the body of Ara, place it inside the trunk of her car and drive away. The dead body of Ara was never found. Mina spread the news in the neighborhood that Ara went to live with her grandparents in Ormoc City. For fear of his life, Albert did not tell anyone, even his parents and relatives, about what he witnesses. Twenty and a half (20 & 1/2) years after the incident, and right after his graduation in Criminology, Albert reported the crime to NBI authorities. The crime of homicide prescribes in 20 years. Can the state still prosecute Mina for the death of Ara despite the lapse of 20 & 1/2 years? Explain. (5%).
SUGGESTED ANSWER:
Yes, the State can still prosecute Mina for the death of Ara despite the lapse of 20 & 1/2 years. Under Article 91, RPC, the period of prescription commences to run from the day on which the crime is discovered by the offended party, the authorities or their agents. In the case at bar, the commission of the crime was known only to Albert, who was not the offended party nor an authority or an agent of an authority. It was discovered by the NBI authorities only when Albert revealed to them the commission on the crime. Hence, the period of prescription of 20 years for homicide commenced to run only from the time Albert revealed the same to the NBI authorities.
VIII
a) Who are deemed to be persons in authority and agents of persons in authority? (3%)
b) Because of the approaching town fiesta in San Miguel, Bulacan, a dance was held in Barangay Camias. A, the Barangay Captain, was invited to deliver a speech to start the dance. While A was delivering his speech, B, one of the guests, went to the middle of the dance floor making obscene dance movements, brandishing a knife and challenging everyone present to a fight. A approach B and admonished him to keep quiet and not to disturb the dance and peace of the occasion. B, instead of heeding the advice of A, stubbed the latter at his back twice when A turned his back to proceed to the microphone to continue his speech. A fell to the ground and died. At the time of the incident A was not armed. What crime was committed? Explain. (2%).
SUGGESTED ANSWER:
a) Persons in authority are persons directly vested with jurisdiction, whether as an individual or as a member of some court or government corporation, board, or commission. Barrio captains and barangay chairmen are also deemed persons in authority. (Article 152, RPC).
Agents of persons in authority are persons who by direct provisions of law or by election or by appointment by competent authority, are charged with maintenance of public order, the protection and security of life and property, such as barrio councilman, barrio policeman, barangay leader and any person who comes to the aid of persons in authority (Art. 152, RPC).
In applying the provisions of Articles 148 and 151 of the Rev. Penal Code, teachers, professors and persons charged with the supervision of public or duly recognized private schools, colleges and universities, and lawyers in the actual performance of their professional duties or on the occasion of such performance, shall be deemed persons in authority. (P.D. No. 299, and Batas Pambansa Blg. 873).
b) The complex crime of direct assault with murder was committed. A, as a Barangay Captain, is a person in authority and was acting in an official capacity when he tried to maintain peace and order during the public dance in the Barangay, by admonishing B to keep quiet and not to disturb the dance and peace of the occasion. When B, instead of heeding A's advice, attacked the latter, B acted in contempt and lawless defiance of authority constituting the crime of direct assault, which characterized the stabbing of A. And since A was stabbed at the back when he was not in a position to defend himself nor retaliate, there was treachery in the stabbing. Hence, the death caused by such stabbing was murder and having been committed with direct assault, a complex crime of direct assault with murder was committed by B.
IX
A was a 17-year old working student who was earning his keep as a cigarette vendor. B was driving a car along busy España Street at about 7:00 p.m. Beside B was C. The car stopped at an intersection because of the red signal of the traffic light. While waiting for the green signal, C beckoned A to buy some cigarettes. A approached the car and handed two sticks of cigarettes to C. While the transaction was taking place, the traffic light changed to green and the car immediately sped off. As the car continued to speed towards Quiapo, A clung to the window of the car but lost his grip and fell down on the pavement. The car did not stop. A suffered serious injuries, which eventually caused his death. C was charged with ROBBERY with HOMICIDE. In the end, the Court was not convinced with moral certainty that the guilt of C has been established beyond reasonable doubt and, thus, acquitted him on the ground of reasonable doubt.
Can the family of the victim still recover civil damages in view of the acquittal of C? Explain. (5%)
SUGGESTED ANSWER:
Yes, as against C, A's family can still recover civil damages despite C's acquittal. When the accused in a criminal prosecution is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted. Such action requires only a preponderance of evidence (ART. 29, CC).
If A's family can prove the negligence of B by preponderance of evidence, the civil action for damages against B will prosper based on quasi-delict. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, about pre-existing contractual relation between the parties, is called a quasi-delict (Art. 2176, CC). This is entirely separate and distinct from civil liability arising from negligence under the Penal Code (Arts. 31, 2176, 2177, CC).
Suggested Answers to the 2004 BAR EXAMINATION
CRIMINAL LAW
I
RR represented to AA, BB, CC and DD that she could sent them to L:ondon to work there as sales ladies and waitresses. She collected and received from them various amounts of money for recruitment and placement fees totaling P400,000. After their dates of departure were postponed several times, the four prospect got suspicious and went to POE. There they found that RR was not authorized nor licensed to recruit workers for employment abroad. They sought refund to no avail.
Is RR guilty of any grave offense? Explain briefly (5%).
SUGGESTED ANSWER:
Yes. RR is guilty of grave offense, having engaged in illegal recruitment constituting the offense of economic sabotage which is punishable with life imprisonment and fine pf P100,000.
Economic sabotage is an offense defined in article 38B of the Labor Code, as amended by PD 2018, which is incurred when the illegal recruitment is carried out in large scale or by a syndicate. It is in large scale when there are three or more aggrieved parties, individually or as a group. And it is committed by a syndicate when three or more persons conspire or cooperate with one another is carrying out the illegal transaction, scheme or activity.
B. Dan, a private individual , kidnapped CHU, a minor. On the second day, Dan released Chu even before any criminal information was filed against him. AT the trial of his case, Dan raised the defense that he did not incur any criminal liability since he released the child before the lapse of 3-day period and before criminal proceedings for kidnapping were instituted.
Will Dan’s defense prosper? Reason briefly. 5%
Suggested Answers
No. Dan’s defense will not prosper. Voluntary release by the offenser of the offended party in kidnapping is not absolutory. Esides, such release is irrelevant nad immaterial in this case ecasue the victim being a minor, the crime com itted is kinapping and serious illegal detention under article 267 of RPC, to which such circumstance does not apply. The circumstance may be appreciated only in the crime of slight illegal detention in Article 268 (asistion vs. Sna dieo, 10 SCRA 673, 1964).
II
Osang, a married woman in her early twenties, was sleeping on a banig on the floor of their nipa hut beside the seashore when she was awakened by the act of a man mounting her. Thinking that it was her husband, Gardo, who had returned from fishing in the sea, Osang continued her sleep but allowed the man, who was actually their neighbor, Julio, to have sexual intercourse with her. After Julio satisfied himself, he said "Salamat Osang" as he turned to leave. Only then did Osang realize that the man was not her husband. Enraged, Osang grabbed a balisong from the wall and stabbed Julio to death. When tried for homicide, Osang claimed defense of honor. Should the claim be sustained? Why? (5%).
SUGGESTED ANSWER:
No, Osang's claim of defense of honor should not be sustained because the aggression on her honor had ceased when she stabbed the aggressor. In defense of rights under paragraph 1, Art. 11 of the RPC, it is required inter alia that there be (1) unlawful aggression must be continuing when the aggressor was injured or disabled by the person making a defense.
But if the aggression that was begun by the injured or disabled party already ceased to exist when the accused attacked him, as in the case at bar, the attack made is a retaliation, and not a defense. Paragraph 1, Article 11 of the Code does not govern.
Hence, Osang's act of stabbing Julio to death after the sexual intercourse was finished, is not defense of honor but an immediate vindication of a grave offense committed against her, which is only mitigating.
III
Sunshine, a beauteous "colegiala" but a shoplifter, went to the Ever Department Store and proceed to the women's wear section. The saleslady was of the impression that she brought to the fitting room three (3) pieces of swimsuits of different colors. When she came out of the fitting room, she returned only two (2) pieces to the clothes rack. The saleslady became suspicious and alerted the store detective. Sunshine was stopped by the detective before she could leave the store and brought to the office of the store manager. The detective and the manager searched her and found her wearing the third swimsuit under her blouse and pants. Was the theft of the swimsuit consummated, frustrated or attempted? Explain. (5%).
SUGGESTED ANSWER:
The theft was consummated because the taking or asportation was complete when the offender acquired exclusive control of the personal property being taken; in this case, when Sunshine wore the swimsuit under her blouse and pants and was on her way out of the store. With evident intent to gain, the taking constitutes theft and being complete, it is consummated. It is not necessary that the offender is in a position to dispose of the property.
ALTERNATIVE ANSWER:
The crime of theft was only frustrated because Sunshine has not yet left the store when the offense was opportunely discovered and the article seized from her. She does not have yet the freedom to dispose of the swimsuit she was taking (People vs. Dino, CA 45 O.G. 3446). Moreover, in case of doubt as to whether it is consummated or frustrated, the doubt must be resolved in favor of the milder criminal responsibility.
IV
While they were standing in line awaiting their vaccination at the school clinic, Pomping repeatedly pulled the ponytail of Katreena, his 11 years, 2 months and 13 days old classmate in Grade 5 at the Sampaloc Elementary School. Irritated, Katreena turned around and swung at Pomping with a ballpen. The top of the ballpen hit the right eye of Pomping which bled profusely. Realizing what she had caused, Katreena immediately helped Pomping. When investigated, she freely admitted to the school principal that she was responsible for the injury to Pomping's eye. After the incident, she executed a statement admitting her culpability. Due to the injury, Pomping lost his right eye.
a) Is Katreena criminally liable? Why? (3%)
b) Discuss the attendant circumstances and effects thereof. (2%)
SUGGESTED ANSWER:
a) No, Katreena is not criminally liable although she is civilly liable. Being a minor less than fifteen (15) years old although over nine (9) years of age, she is generally exempt from criminal liability. The exception is where the prosecution proved that the act was committed with discernment. The burden is upon the prosecution to prove that the accused acted with discernment.
The presumption is that such minor acted without discernment, and this is strengthen by the fact that Katreena only reacted with a ballpen which she must be using in class at the time, and only to stop Pompong's vexatious act of repeatedly pulling her ponytail. In other words, the injury was accidental.
b) The attendant circumstances which may be considered are:
1. Minority of the accused as an exempting circumstances under Article 12, paragraph 3, Rev. Penal Code, where she shall be exempt from criminal liability, unless it was proved that she acted with discernment. She is however civilly liable;
2. If found criminally liable, the minority of the accused as a privileged mitigating circumstance. A discretionary penalty lower by at least two (2) degrees than that prescribed for the crime committed shall be imposed in accordance with Article 68, paragraph 1, Rev. Penal Code. The sentence, however, should automatically be suspended in accordance with Section 5(a) of Rep. Act No. 8369 otherwise known as the "Family Courts Act of 1997";
3. Also if found criminally liable, the ordinary mitigating circumstance of not intending to commit so grave a wrong as that committed, under Article 13, paragraph 3, Rev. Penal Code; and
4. The ordinary mitigating circumstance of sufficient provocation on the part of the offended party immediately preceded the act.
V
a) For defrauding Lorna, Alma was charged before the Municipal Trial Court of Malolos, Bulacan. After a protracted trial, Alma was convicted. While the case was pending appeal in the Regional Trial Court of the same province, Lorna who was then suffering from breast cancer, died. Alma manifested to the court that with Lorna's death, her (Alma's) criminal and civil liabilities are now extinguished. Is Alma's contention correct? What if it were Alma who died, would it affect her criminal and civil liabilities? Explain. (3%).
b) Name at least two exceptions to the general rule that in case of acquittal of the accused in a criminal case, his civil liability is likewise extinguished. (2%).
SUGGESTED ANSWER:
a) No. Alma's contention is not correct. The death of the offended party does not extinguish the criminal liability of the offender, because the offense is committed against the State (People vs. Misola, 87 Phil. 830, 833). Hence, it follows that the civil liability of Alma based on the offense committed by her is not extinguished. The estate of Lorna can continue the case.
On the other hand, if it were Alma who died pending appeal of her conviction, her criminal liability shall be extinguished and therewith the civil liability under the Revised Penal Code (Art. 89, par. 1, RPC). However, the claim for civil indemnity may be instituted under the Civil Code (Art. 1157) if predicated on a source of obligation other than delict, such as law, contracts, quasi-contracts and quasidelicts (People vs. Bayotas 236 SCRA 239, G.R. 152007, September 2, 1994).
b) Exceptions to the rule that acquittal from a criminal case extinguishes civil liability are:
1. When the civil action is based on obligations not arising from the act complained of as a felony;
2. When acquittal is based on reasonable doubt or acquittal is on the ground that guilt has not been proven beyond reasonable doubt (Art. 29, New Civil Code);
3. Acquittal due to an exempting circumstance, like insanity;
4. Where the court states in its judgment that the case merely involves a civil obligation;
5. Where there was a proper reservation for the filing of a separate civil action;
6. In cases of independent civil actions provided for in Arts. 31, 32, 33 and 34 of the New Civil Code;
7. When the judgment of acquittal includes a declaration that the fact from which the civil liability might arise did not exist (Sapiera vs. CA, 314 SCRA 370);
8. Where the civil liability is not derived or based on the criminal act of which the accused is acquitted (Sapiera vs. CA, 314 SCRA 370).
Note: Only two (2) exceptions are asked.
VI
a) Lucresia, a store owner, was robbed of her bracelet in her home. The following day, at about 5 o'clock in the afternoon, a neighbor, 22-year old Jun-Jun, who had an unsavory reputation, came to her store to buy bottles of beer. Lucresia noticed her bracelet wound around the right arm of Jun-Jun. As soon as the latter left, Lucresia went to nearby police station and sought the help of a policeman on duty, Pat. Willie Reyes. He went with Lucresia to the house of Jun-Jun to confront the latter. Pat. Reyes introduced himself as a policeman and tried to get hold of Jun-Jun who resisted and ran away. Pat. Reyes chased him and fired two warning shots in the air. Jun-Jun continued to run and when he was about 7 meters away, Pat. Reyes shot him in the right leg. Jun-June was hit and he fell down but he crawled towards a fence, intending to pass through an opening underneath. When Pat. Reyes was about 5 meters away, he fired another shot at Jun-Jun hitting him at the right lower hip. Pat. Reyes brought Jun-Jun to the hospital, but because of profuse bleeding, he eventually died. Pat. Reyes was subsequently charged with homicide. During the trial, Pat. Reyes raised the defense, by way of exoneration, the he acted in the fulfillment of a duty. Is the defense tenable? Explain. (3%).
b) Rico, a member of the Alpha Rho fraternity, was killed by Pocholo, a member of the rival group, Sigma Phi Omega. Pocholo was prosecuted for homicide before the Regional Trial Court in Binan, Laguna. During the trial, the prosecution was able to prove that the killing was committed by means of poison in consideration of a promise or reward and with cruelty. If you were the Judge, with what crime will you convict Pocholo? Explain. (2%).
SUGGESTED ANSWER:
a) No, the defense of Pat. Reyes is not tenable. The defense of having acted in the fulfillment of a duty requires as a condition, inter alia, that the injury or offense committed be the unavoidable or necessary consequence of the due performance of the duty (People vs. Oanis, et al., 74 Phil. 257). It is not enough that the accused acted in fulfillment of a duty.
After Jun-Jun was shot in the right leg and was already crawling, there was no need for Pat. Reyes to shoot him further. Clearly, Pat. Reyes acted beyond the call of duty which brought about the cause of death of the victim.
b) Pocholo should be convicted of the crime of homicide only because the aggravating circumstances, which should qualify the crime to murder were not alleged in the Information.
The circumstances of using poison, in consideration of a promise or reward, and cruelty which attended the killing of Rico could only be appreciated as generic aggravating circumstances since none of them have been alleged in the Information to qualify the killing to murder. A qualifying circumstance must be alleged in the Information and proven beyond reasonable doubt during the trial to be appreciated as such.
VII
One fateful night in January 1990, while 5-year old Albert was urinating at the back of their house, he heard a strange noise coming from the kitchen of their neighbor and playmate, Ara. When he peeped inside, he saw Mina, Ara's stepmother, very angry and strangling the 5-year old Ara to death. Albert saw Mina carry the body of Ara, place it inside the trunk of her car and drive away. The dead body of Ara was never found. Mina spread the news in the neighborhood that Ara went to live with her grandparents in Ormoc City. For fear of his life, Albert did not tell anyone, even his parents and relatives, about what he witnesses. Twenty and a half (20 & 1/2) years after the incident, and right after his graduation in Criminology, Albert reported the crime to NBI authorities. The crime of homicide prescribes in 20 years. Can the state still prosecute Mina for the death of Ara despite the lapse of 20 & 1/2 years? Explain. (5%).
SUGGESTED ANSWER:
Yes, the State can still prosecute Mina for the death of Ara despite the lapse of 20 & 1/2 years. Under Article 91, RPC, the period of prescription commences to run from the day on which the crime is discovered by the offended party, the authorities or their agents. In the case at bar, the commission of the crime was known only to Albert, who was not the offended party nor an authority or an agent of an authority. It was discovered by the NBI authorities only when Albert revealed to them the commission on the crime. Hence, the period of prescription of 20 years for homicide commenced to run only from the time Albert revealed the same to the NBI authorities.
VIII
a) Who are deemed to be persons in authority and agents of persons in authority? (3%)
b) Because of the approaching town fiesta in San Miguel, Bulacan, a dance was held in Barangay Camias. A, the Barangay Captain, was invited to deliver a speech to start the dance. While A was delivering his speech, B, one of the guests, went to the middle of the dance floor making obscene dance movements, brandishing a knife and challenging everyone present to a fight. A approach B and admonished him to keep quiet and not to disturb the dance and peace of the occasion. B, instead of heeding the advice of A, stubbed the latter at his back twice when A turned his back to proceed to the microphone to continue his speech. A fell to the ground and died. At the time of the incident A was not armed. What crime was committed? Explain. (2%).
SUGGESTED ANSWER:
a) Persons in authority are persons directly vested with jurisdiction, whether as an individual or as a member of some court or government corporation, board, or commission. Barrio captains and barangay chairmen are also deemed persons in authority. (Article 152, RPC).
Agents of persons in authority are persons who by direct provisions of law or by election or by appointment by competent authority, are charged with maintenance of public order, the protection and security of life and property, such as barrio councilman, barrio policeman, barangay leader and any person who comes to the aid of persons in authority (Art. 152, RPC).
In applying the provisions of Articles 148 and 151 of the Rev. Penal Code, teachers, professors and persons charged with the supervision of public or duly recognized private schools, colleges and universities, and lawyers in the actual performance of their professional duties or on the occasion of such performance, shall be deemed persons in authority. (P.D. No. 299, and Batas Pambansa Blg. 873).
b) The complex crime of direct assault with murder was committed. A, as a Barangay Captain, is a person in authority and was acting in an official capacity when he tried to maintain peace and order during the public dance in the Barangay, by admonishing B to keep quiet and not to disturb the dance and peace of the occasion. When B, instead of heeding A's advice, attacked the latter, B acted in contempt and lawless defiance of authority constituting the crime of direct assault, which characterized the stabbing of A. And since A was stabbed at the back when he was not in a position to defend himself nor retaliate, there was treachery in the stabbing. Hence, the death caused by such stabbing was murder and having been committed with direct assault, a complex crime of direct assault with murder was committed by B.
IX
A was a 17-year old working student who was earning his keep as a cigarette vendor. B was driving a car along busy España Street at about 7:00 p.m. Beside B was C. The car stopped at an intersection because of the red signal of the traffic light. While waiting for the green signal, C beckoned A to buy some cigarettes. A approached the car and handed two sticks of cigarettes to C. While the transaction was taking place, the traffic light changed to green and the car immediately sped off. As the car continued to speed towards Quiapo, A clung to the window of the car but lost his grip and fell down on the pavement. The car did not stop. A suffered serious injuries, which eventually caused his death. C was charged with ROBBERY with HOMICIDE. In the end, the Court was not convinced with moral certainty that the guilt of C has been established beyond reasonable doubt and, thus, acquitted him on the ground of reasonable doubt.
Can the family of the victim still recover civil damages in view of the acquittal of C? Explain. (5%)
SUGGESTED ANSWER:
Yes, as against C, A's family can still recover civil damages despite C's acquittal. When the accused in a criminal prosecution is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted. Such action requires only a preponderance of evidence (ART. 29, CC).
If A's family can prove the negligence of B by preponderance of evidence, the civil action for damages against B will prosper based on quasi-delict. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, about pre-existing contractual relation between the parties, is called a quasi-delict (Art. 2176, CC). This is entirely separate and distinct from civil liability arising from negligence under the Penal Code (Arts. 31, 2176, 2177, CC).