IV.
(c) In connection with the next preceding
(a)In case Dan opts to apply for probation before
the judgment attains finality, may the same be
validly granted?
Answer:
No. Under the law, persons sentenced to serve
a maximum term of imprisonment of more than
six (6) years are disqualified to avail of
probation. In this case, Dan was sentenced to
suffer a prison term the maximum of which is
fixed at 6 years and 1 day. Thus, should he apply
for probation, the same must be denied.
(b) Will your answer be the same if Dan
appeals the judgment whereby the appellate
court downgrades his conviction to Attempted
Homicide and consequently modifies the
sentence to an indeterminate penalty of 4
months of arresto mayor as minimum to 5 years
and 11 months of prision correccional as
maximum?
Answer:
No. Generally, no application for probation
shall be entertained or granted if the accused
has appealed from the judgment of conviction.
However, when a judgment of conviction
imposing a non-probationable penalty is
appealed and such judgment is modified
through the imposition of a probationable
penalty, the accused shall be allowed to apply
for probation based on the modified decision
before such decision becomes final.
In this case, Dan’s application for probation
may be granted although he had early on
appealed the judgment of conviction as the
appellate court modified the appealed decision
that imposed a non-probationable penalty and
consequently imposed a probationable penalty
of 5 years and 11 months of imprisonment as
maximum. Subject to the timeliness of its filing
and barring any circumstance that would
disqualify Dan from probation, his application
therefor must be granted.
question, should Dave and Che apply for
probation with the trial court, may their plea be
granted?
Answer:
Subject to the timeliness of its filing and barring
any circumstance that would disqualify Dave
and Che from probation, their application
therefor must be granted.
Under the law, in a case involving several
defendants where some have taken further
appeal from a judgment of conviction imposing
a non-probationable penalty and such
judgment is modified through the imposition of
a probationable penalty, the other defendants
may apply for probation by submitting a
written application and attaching thereto a
certified true copy of the judgment of
conviction.
V.
(a)Of what crime(s) is Rene guilty?
Answer:
Rene is guilty of two counts of Frustrated
Homicide. A felony is in its frustrated stage once
the accused has performed all acts of execution
which would produce the felony as a
consequence but which nevertheless do not
produce it by reason of causes independent of
the will of the perpetrator. In homicide cases,
the accused is deemed to have performed all
acts of execution upon the infliction of a mortal
wound upon the victim. In this case, Rene is
guilty of frustrated homicide as he, with intent,
has inflicted fatal wounds upon his victims yet
the latter did not die due to timely medical
intervention, a cause independent of his will.
(b) Will your answer be the same, had Rene,
after inflicting on them mortal wounds, suddenly
felt a twinge of guilt and thus, desisted from
further assaulting Roma and Maui?
Answer:
Yes. Rene may have spontaneously desisted
from inflicting further harm on his victims, yet
such is no longer consequential so as to affect
his criminal liability for frustrated homicide as
he has already performed all acts of execution
that would produce the crime of Homicide
when he had inflicted fatal injuries upon them
and that the victim’s survival was not due such
desistance but because of the immediate
medical intervention, a cause that is
independent of Rene’s will.
the commission of Homicide directly by vert
acts but was not able to inflict fatal wounds
upon his victims, as the latter were able to flee,
a cause other than Rene’s spontaneous
desistance.
VI.
Is the penalty to which Chris was sentenced
correct?

Answer:

(c) In connection with next preceding sub- Yes. Under the Indeterminate Sentence Law, it
question, will your answer be the same had the is provided that in crimes punished by the
injuries inflicted on Roma and Maui by Rene did Revised Penal Code, the accused shall be to an
not entail hospitalization for them to heal? indeterminate penalty the maximum term of
which shall be that which, in view of the
Answer: attending circumstances, could be properly
imposed under the said Code, and the minimum
No. Rene should be held liable for two counts of
of which shall be within the range of the penalty
Physical Injuries only. While Rene had initially
next lower to that prescribed by the Code for
intended to kill Roma and Maui when he
the offense. The penalty next lower should be
hacked them, he has yet to perform all acts of
based on the penalty prescribed by the Code for
execution which would produce Homicide not
the offense, without first considering any
having inflicted mortal wounds upon his victims
modifying circumstance attendant to the
that would have made him liable for Attempted
commission of the crime. The determination of
Homicide. In this case though, what prevented
the minimum penalty is left by law to the sound
Rene from inflicting mortal injuries upon Roma
discretion of the court and it can be anywhere
and Maui is his own spontaneous desistance.
within the range of the penalty next lower
By reason thereof, Rene, pursuant to
without any reference to the periods into which
jurisprudence, must be exempt from liability for
it might be subdivided. The modifying
the crime that he intended to commit but not
circumstances are considered only in the
for the crime actually committed by him, which
imposition of the maximum term of the
is Physical Injuries.
indeterminate sentence.

(d) Assuming that Roma and Maui were not

In this case, while the crime of Serious Physical
at all injured as they were able to flee from
Injuries is punished under the Revised Penal
Rene’s murderous wrath, for what crime(s), if
Code with prision mayor, the maximum penalty
any, may Rene be held liable?
to which Chris may be sentenced should be
Answer: within the range of prision correccional in its
minimum period since a privileged mitigating
Rene is guilty of two counts of Attempted
and generic mitigating circumstances were
Homicide. A felony is in its attempted stage only
appreciated in his favor. Verily, the maximum
once the accused begins the commission of a
term thereof may rightly be pegged at 6 months
felony directly by overt acts and does not
and 1 day of imprisonment. Further, 1 month
perform all acts of execution which would
and 10 days of arresto mayor should be the
produce the felony by reason of some cause or
minimum term thereof as arresto mayor is the
accident other than his own spontaneous
penalty next lower to prision correccional and
desistance. In homicide cases, the accused is
under the law, the minimum penalty may be
deemed to have performed all acts of execution
fixed anywhere within the range of the penalty
upon the infliction of a mortal wound upon the
next lower to the maximum penalty.
victim. In this case, Rene is guilty of attempted
homicide as he, with intent, has commenced
 VII.
(b) Assuming further Jessie survives the
attack and that the RTC rules to uphold the
MTC’s decision, may an application for probation
that he may file before the judgment of the
former attains finality be denied?
Answer:
No. Under the law, it is provided that no
application for probation shall be entertained
or granted if the accused has appealed from the
judgment of conviction. In this case, the
accused has already appealed from the
judgment of conviction wherein he could have
validly applied for probation on the onset. It is
settled that probation is not a right but a mere
privilege and as such must be availed of at the
earliest opportunity. Besides, appeal and
probation are mutually exclusive remedies as
they rest on diametrically opposed legal
positions. The filing of an application for
probation is an admission of guilt on the part of
the accused which led to the judgment of
conviction while it is otherwise in the case of an
accused who appeals from such judgment.
XIV.
(d) During the heist, beauteous lady guard
Misch, at gunpoint, was embraced and had her
private parts touched by Mariel, a lesbian, and
was later told to go with her. In fleeing, Mariel
dragged along Misch. Minutes after their arrival
at the safe house, Mariel ordered Misch to
undress. While naked, Mariel inserted her
middle finger in Misch’s vagina. She was shot to
death by Mariel later. As regards this incident, of
what crime(s) may Mariel be properly charged
and convicted?
Answer:
Mariel may be properly charged and convicted
of complex crime of Forcible Abduction14 with
Rape (through Sexual Assault) with Homicide.
In this case, Mariel committed Forcible
Abduction because she abducted Misch against
her will and with lewd designs. She likewise
committed Rape through Sexual Assault with
Homicide when Mariel inserted her finger in
Misch’s vagina and by reason or on the occasion
thereof, the latter was killed by her.
It would be proper to indict and convict Mariel
for the Complex Crime of Forcible Abduction
with Rape (through Sexual Assault) with
Homicide, because the former appears to have
been perpetrated by Mariel as a necessary
means of committing the latter.
XXVI.
Is the recommendation of the investigating
prosecutor correct?
Answer:
Only the recommendation for the filing of
information for violation of B.P. Blg. 22 is
correct. Under the said law, a person may be
charged thereof if (1) he makes, draws, or issues
of any check to apply for account or for value;
(2) he has knowledge that at the time of issue
(which may be presumed from delivery of the
notice of dishonor to the accused and that
within five days from receipt thereof, he fails to
pay the amount of the check or to make
arrangements for its payment), he does not
have sufficient funds in or credit with the
drawee bank for the payment of the check in
full upon its presentment; and (3) the check is
subsequently dishonored by the drawee bank
for insufficiency of funds or credit.
As can be gathered from the foregoing facts, all
the elements of the crime of violation of B.P.
Blg. 22 is present. Therefore, Janis may
appropriately be charged in court of said
offense.
However, the recommendation to charge Janis
of Estafa by postdating a check in erroneous. In
this form of swindling, fraud or deceit is an
essential requisite. In this case, it cannot be said
that Janis had defrauded Diane by postdating or
issuing the subject check. In fact, it was the
latter who required its issuance in exchange for
an extended lease. Janis may not therefore be
indicted, much less prosecuted for Estafa by
post-dating a check.