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    Short Mock Bar - Remedial Law 2

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    Anselmo Rodiel IV
    Binman was charged with murder for fatally stabbing Emilio. Text messages sent from Binman's estranged wife Gregoria to Emilio on the eve of his death indicated Binman planned to "finish him off." While Binman objected to Gregoria testifying due to marital privilege, the court overruled this as the privilege does not apply given their estranged relationship. A text Emilio sent to his wife before dying identifying Binman as his attacker was also admitted as a dying declaration. In a separate incident, a driver hit and injured a pedestrian through negligence and both the criminal and civil suits that followed were determined to be properly filed and not duplicative.

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    Short Mock Bar - Remedial Law 2

    Uploaded by

    Anselmo Rodiel IV
    42 views4 pages
    Binman was charged with murder for fatally stabbing Emilio. Text messages sent from Binman's estranged wife Gregoria to Emilio on the eve of his death indicated Binman planned to "finish him off." While Binman objected to Gregoria testifying due to marital privilege, the court overruled this as the privilege does not apply given their estranged relationship. A text Emilio sent to his wife before dying identifying Binman as his attacker was also admitted as a dying declaration. In a separate incident, a driver hit and injured a pedestrian through negligence and both the criminal and civil suits that followed were determined to be properly filed and not duplicative.

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    Binman was charged with murder for fatally stabbing Emilio. Text messages sent from Binman's estranged wife Gregoria to Emilio on the eve of his death indicated Binman planned to "finish him off." While Binman objected to Gregoria testifying due to marital privilege, the court overruled this as the privilege does not apply given their estranged relationship. A text Emilio sent to his wife before dying identifying Binman as his attacker was also admitted as a dying declaration. In a separate incident, a driver hit and injured a pedestrian through negligence and both the criminal and civil suits that followed were determined to be properly filed and not duplicative.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    42 views4 pages

    Short Mock Bar - Remedial Law 2

    Uploaded by

    Anselmo Rodiel IV
    Binman was charged with murder for fatally stabbing Emilio. Text messages sent from Binman's estranged wife Gregoria to Emilio on the eve of his death indicated Binman planned to "finish him off." While Binman objected to Gregoria testifying due to marital privilege, the court overruled this as the privilege does not apply given their estranged relationship. A text Emilio sent to his wife before dying identifying Binman as his attacker was also admitted as a dying declaration. In a separate incident, a driver hit and injured a pedestrian through negligence and both the criminal and civil suits that followed were determined to be properly filed and not duplicative.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    of 4

    I. On March 12, 2008, Binman was charged with Murder for fatally stabbing Emilio.

    To prove the qualifying circumstance of evident premeditation, the prosecution introduced on


    December 11, 2009 a text message, which Mabini’s estranged wife Gregoria had sent to Emilio on
    the eve of his death, reading: "Honey, pa2tayin u ni Mabini. Mtgal n nyang plano i2. Mg ingat u bka
    ma tsugi k."

    a. A subpoena ad testificandum was served on Gregoria for her to be presented for the


    purpose of identifying her cellphone and the text message. Mabini objected to her
    presentation on the ground of marital privilege. Resolve. [EVID]

    The objection of Mabini should be denied.

    The marital privilege may be invoke only during their marriage. In one case, the Supreme
    Court allowed a estranged spouse to testify against the other because their relationship may not be
    considered as a couple.

    Since Gregoria is a estranged wife of Mabini, Mabini therefore cannot be objected to the
    presentation of Gregoria.

    b. Suppose Mabini’s objection in question A was sustained. The prosecution thereupon


    announced that it would be presenting Emilio’s wife Graciana to identify Emilio’s cellphone
    bearing Gregoria’s text message. Mabini objected again. Rule on the objection. [EVID]

    Mabini’s objection should be overruled.

    All persons who can perceive and perceiving may be a witness. She can only testify to facts
    which he/she knows.

    Here, Emilio’s wife Graciana will only identify Emilio’s cellphone bearing Gregoria’s text
    message.

    c. If Mabini’s objection in question B was overruled, can he object to the presentation of the
    text message on the ground that it is hearsay? [EVID]

    Yes, Mabini can object to the presentation of the text message on the ground of hearsay.

    A witness can only testify to those facts which she/he has personal knowledge.

    Here, Graciana has no personal knowledge to the text message because it was Mabini’s
    estranged wife who send the text text message to Emilio.

    d. Suppose that shortly before he expired, Emilio was able to send a text message to his wife
    Graciana reading "Nasaksak ako. D na me makahinga. Si Mabini ang may gawa ni2." Is this
    text message admissible as a dying declaration? Explain. [EVID]
    Yes, the text message is admissible as a dying declaration.

    The declaration of a dying person made under the consciousness of an impending death.

    Here, Emilio’s test message to his wife Graciania was made shoretly before he expired.

    Thus the text message stating “Nasaksak ako. D na me makahinga. Si Mabini ang may
    gawa ni2.” is admissible as a dying declaration.

    II. X was driving the dump truck of Y along Cattleya Street in Sta. Maria, Bulacan. Due to
    his negligence, X hit and injured V who was crossing the street. Lawyer L, who
    witnessed the incident, offered his legal services to V.

    V, who suffered physical injuries including a fractured wrist bone, underwent surgery to screw a
    metal plate to his wrist bone.

    On complaint of V, a criminal case for Reckless Imprudence Resulting in Serious Physical Injuries
    was filed against X before the Municipal Trial Court (MTC) of Sta. Maria. Atty. L, the private
    prosecutor, did not reserve the filing of a separate civil action.

    V subsequently filed a complaint for Damages against X and Y before the Regional Trial Court of
    Pangasinan in Urdaneta where he resides. In his "Certification Against Forum Shopping," V made no
    mention of the pendency of the criminal case in Sta. Maria.

    a. Is V guilty of forum shopping? [CIVPRO]

    No, V is not guilty of forum shopping.

    There is a forum shopping when plaintiff certify under oath in the complaint or initiatory
    pleading that he/she has not commenced any action involving the same issue in any court, tribunal
    or quasi-judicial agency.

    Here, the issue in criminal case for Recknless Imprudence Resulting in Serious Physical
    Injuries is not the same in a complaint for damages.

    b. Instead of filing an Answer, X and Y move to dismiss the complaint for damages on the
    ground of litis pendentia. Is the motion meritorious? Explain. [CIVPRO]

    No, the motion is not meritorious.

    The litis pendentia is meritorious in filing a motion to dimiss when it involves the same party
    for the same cause of action.

    Here, although both cases involves the same parties, the cause of action are not the same.

    Therefore, X and Y’s moton to dismiss on the ground of litis pendentia is not meritorious.
    c. Suppose only X was named as defendant in the complaint for damages, may he move for
    the dismissal of the complaint for failure of V to implead Y as an indispensable party?
    [CIVPRO]

    No. X may not be move for the dismissal of the complaint for failure of V to implede Y as an
    indispensable party.

    Non-joinder of of parties is not a ground fro the dismissal of an action.

    Here, even V failed to implead Y as an indispensable party, failure to impleade him as an


    indispensable party would be a ground for the dismissal of the complaint.

    d. X moved for the suspension of the proceedings in the criminal case to await the decision
    in the civil case. For his part, Y moved for the suspension of the civil case to await the
    decision in the criminal case. Which of them is correct? Explain. [CIVPRO]

    X and Y are not correct.

    The motion to suspend proceedings is a prohibited motion.

    Here, X moved for the suspension of the proceedings in the criminal case to await the
    decision in civil case while Y moved for the suspension of the civil case to await the decision in the
    criminal case, both motions are prohibited.

    Therefore, filing of a motion to suspend the proceedings either in criminal or civil case is
    prohibited.

    e. Atty. L offered in the criminal case his affidavit respecting what he witnessed during the
    incident. X’s lawyer wanted to cross-examine Atty. L who, however, objected on the ground
    of lawyer-client privilege. Rule on the objection. [EVID]

    The objection is overruled.

    Lawyer-client privilege may not be invoked when the communication is relevant to the issue
    concerning the attested document.

    Here Atty. L will be cross examined only by X’s lawyer as to the affidavit that he executed
    involving the incident that he witnessed.

    III. As Cicero was walking down a dark alley one midnight, he saw an "owner-type jeepney"
    approaching him. Sensing that the occupants of the vehicle were up to no good, he
    darted into a corner and ran. The occupants of the vehicle − elements from the Western
    Police District − gave chase and apprehended him.

    The police apprehended Cicero, frisked him and found a sachet of 0.09 gram of shabu tucked in his
    waist and a Swiss knife in his secret pocket, and detained him thereafter. Is the arrest and body-
    search legal? [CRIMPRO]
    The arrest and body search are not legal.

    A warrantless arrest is lawful when the person to be arrested has committed, is actually
    committing or attempting to commit an offense.

    Here, running as when Cicero was sensing that the occupants of the vehicle were up to no
    good is not an offense. Thus, the arrest is unlawful. The search is likewise unlawful if the arrest is
    unlawful.

    IV. Policemen brought Lorenzo to the Philippine General Hospital (PGH) and requested one
    of its surgeons to immediately perform surgery on him to retrieve a packet of 10 grams
    of shabu which they alleged was swallowed by Lorenzo.

    Suppose the PGH agreed to, and did perform the surgery, is the package of shabu admissible in
    evidence? Explain. [CRIMPRO]

    Yes, the package of shabu may be admissible in evidence.

    A person lawfuly arrested may be searched for anything which may be used as proof in the
    commission of an offense even without a search warrant.

    Here, Lorenzo allegedly swallowed the shabu. Thus, even without the issuance of a search
    warrant, performing the surgery is a tool to prove that he committed an offense.

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