TECHNIQUES IN ANSWERING BAR EXAM QUESTIONS:

“SPOTTING THE ISSUE”

Atty. Moumina Sheryne L. Domadalug-Abdullah
Professorial Lecturer, Legal Writing
WHAT DOES “SPOTTING THE
ISSUE” MEAN?
It simply means identifying the core issue involved and
resolving the same in order to answer the immediate issue. By
knowing the core issue, the examinee will find it more convenient
and less stressing to answer challenging or tricky bar question.
Failure to identify the core issue of the question will often lead to
unresponsive or irrelevant answers.
2 KINDS OF ISSUES

1. IMMEDIATE ISSUE
2. CORE ISSUE
IMMEDIATE ISSUE

■ The main question being asked in the problem

■ The question being asked in the problem usually
found in the last part
CORE ISSUE

■ Or the core principle involved

■ The issue that needs to be resolved in order to
answer the immediate issue/ main question
EXAMPLES
Example 1:
Gene and Jane, Filipino, met and got
married in England while both were
taking up post-graduate courses there. A
few years after their graduation, they
decided to annul their marriage. Jane
filed an action to annul her marriage to
Gene in England on the ground of
latter’s sterility, a ground for annulment
of marriage in England. The English
court decreed the marriage annulled.
Returning to the Philippines, Gene
asked you whether or not he would be
free to marry his former girlfriend.
What would your legal advice be? (5%)
Example 2:
Alex was born a Filipino but was a
naturalized Canadian citizen at the time of
his death on December 25, 1998. He left
behind a last will and testament in which he
bequeathed all his properties, real and
personal, in the Philippines to his
acknowledged illegitimate Fillpina daughter
and nothing to his two legitimate Filipino
sons. The sons sought the annulment of the
last will and testament on the ground that it
deprived them of their legitimes but the
daughter was able to prove that there were
no compulsory heirs or legitimes under
Canadian law. Who should prevail? Why?
(5%)
Example 3:
Felipe is a Filipino citizen. When he went to Sydney for
vacation, he met a former business associate, who
proposed to him a transaction which took him to Moscow.
Felipe brokered a contract between Sydney Coals Corp.
(Coals), an Australian firm, and Moscow Energy Corp.
(Energy), a Russian firm, for Coals to supply coal to Energy
on a monthly basis for three years. Both these firms were
not doing, and still do not do, business in the Philippines.
Felipe shuttled between Sydney and Moscow to close the
contract. He also executed in Sydney a commission
contract with Coals and in Moscow with Energy, under
which contracts he was guaranteed commissions by both
firms based on a percentage of deliveries for the three-
year period, payable in Sydney and in Moscow,
respectively, through deposits in accounts that he opened
in the two cities. Both firms paid Felipe his commission for
four months, after which they stopped paying him. Felipe
learned from his contacts, who are residents of Sydney
and Moscow, that the two firms talked to each other and
decided to cut him off. He now files suit in Manila against
both Coals and Energy for specific performance.
Should the Philippine court assume jurisdiction over the
case? Explain. (5%)
Example 4:
Emmanuel and Margarita, American
citizens and employees of the U.S. State
Department, got married in the African
state of Kenya where sterility is a ground
for annulment of marriage. Thereafter,
the spouses were assigned to the U.S.
Embassy in Manila. On the first year of
the spouses’ tour of duty in the
Philippines, Margarita filed an
annulment case against Emmanuel
before a Philippine court on the ground
of her husband’s sterility at the time of
the celebration of the marriage.
Will the suit prosper? Explain your
answer.(3%)
Example 5:
While the crew of a steamer prepared to raise
anchor at the Pasig River, A, evidently impatient
with the progress of work, began to use abusive
language against the men. B, one of the
members of the crew, remonstrated saying that
they could work best if they were not insulted. A
took B's attitude as a display of insubordination
and, rising in a rage, moved towards B wielding
a big knife and threatening to stab B. At the
instant when A was only a few feet from B, the
latter, apparently believing himself to be in great
and immediate peril, threw himself into the
water, disappeared beneath the surface, and
drowned.
May A be held criminally liable for the death of
B?
Example 6:
During the robbery in a dwelling house,
one of the culprits happened to fire his
gun upward in the ceiling without
meaning to kill anyone. The owner of
the house who was hiding thereat was
hit and killed as a result. The defense
theorized that the killing was a mere
accident and was not perpetrated in
connection with, or for purposes of, the
robbery. Will you sustain the defense?
Why? (4%)
Example 7:
OZ and YO were both courting
their co-employee, SUE. Because
of their bitter rivalry, OZ decided
to get rid of YO by poisoning him.
OZ poured a substance into YO's
coffee thinking it was arsenic. It
turned out that the substance was
white sugar substitute known as
Equal. Nothing happened to YO
after he drank the coffee. What
criminal liability did OZ incur, if
any? Explain briefly. (5%)
Example 8:
Buddy always resented his classmate,
Jun. One day. Buddy planned to kill Jun
by mixing poison in his lunch. Not
knowing where he can get poison, he
approached another classmate, Jerry to
whom he disclosed his evil plan.
Because he himself harbored
resentment towards Jun, Jerry gave
Buddy a poison, which Buddy placed on
Jun's food. However, Jun did not die
because, unknown to both Buddy and
Jerry, the poison was actually powdered
milk.
What crime or crimes, if any, did Jerry
and Buddy commit? [3%]
Example 9:
Carla, 4 years old, was kidnapped by
Enrique, the tricycle driver paid by her
parents to bring and fetch her to and from
school. Enrique wrote a ransom note
demanding P500,000.00 from Carla's
parents in exchange for Carla's freedom.
Enrique sent the ransom note by mail.
However, before the ransom note was
received by Carla's parents, Enrique's
hideout was discovered by the police. Carla
was rescued while Enrique was arrested and
incarcerated. Considering that the ransom
note was not received by Carla's parents,
the investigating prosecutor merely filed a
case of "Impossible Crime to Commit
Kidnapping" against Enrique. Is the
prosecutor correct? Why? (3%)
Example 10:
A chanced upon three men who were
attacking B with fist blows. C, one of the
men, was about to stab B with a knife.
Not knowing that B was actually the
aggressor because he had earlier
challenged the three men to a fight, A
shot C as the latter was about to stab B.
May A invoke the defense of a stranger
as a justifying circumstance in his favor?
Why? (2%)
Example 11:
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 a 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-Jun
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, that he acted in the fulfillment of a duty. Is
the defense tenable? Explain. (3%)
Example 12:
One night, Una, a young married woman, was
sound asleep in her bedroom when she felt a
man on top of her. Thinking it was her husband
Tito, who came home a day early from his
business trip, Una let him have sex with her.
After the act, the man said, "I hope you enjoyed
it as much as I did." Not recognizing the voice, it
dawned upon Lina that the man was not Tito,
her husband. Furious, Una took out Tito's gun
and shot the man. Charged with homicide Una
denies culpability on the ground of defense of
honor. Is her claim tenable? [5%]
Example 13:
The accused lived with his family in a
neighborhood that often was the scene of
frequent robberies. At one time, past
midnight, the accused went downstairs with
a loaded gun to investigate what he thought
were footsteps of an uninvited guest. After
seeing what appeared to him an armed
stranger looking around and out to rob the
house, he fired his gun seriously injuring the
man. When the lights were turned on, the
unfortunate victim turned out to be a
brother-in-law on his way to the kitchen to
get some light snacks. The accused was
indicted for serious physical injuries. Should
the accused, given the circumstances, be
convicted or acquitted? Why? 4%
Example 14:
After killing the victim, the accused absconded.
He succeeded in eluding the police until he
surfaced and surrendered to the authorities
about two years later. Charged with murder, he
pleaded not guilty but, after the prosecution
had presented two witnesses implicating him to
the crime, he changed his plea to that of guilty.
Should the mitigating circumstances of
voluntary surrender and plea of guilty be
considered in favor of the accused?
Example 15:
Juan de Castro already had three (3) previous
convictions by final judgment for theft when he
was found guilty of Robbery with Homicide. In
the last case, the trial Judge considered against
the accused both recidivism and habitual
delinquency. The accused appealed and
contended that in his last conviction, the trial
court cannot consider against him a finding of
recidivism and again, of habitual delinquency. Is
the appeal meritorious? Explain. (5%)
Example 1:
Gene and Jane, Filipino, met and got
married in England while both were
taking up post-graduate courses there. A
few years after their graduation, they
decided to annul their marriage. Jane
filed an action to annul her marriage to
Gene in England on the ground of
latter’s sterility, a ground for annulment
of marriage in England. The English
court decreed the marriage annulled.
Returning to the Philippines, Gene
asked you whether or not he would be
free to marry his former girlfriend.
What would your legal advice be? (5%)
SUGGESTED ANSWER:
I will advise Gene that he is not free to marry his former
girlfriend.

Article 15 of the New Civil Code provides that “laws

relating to family rights and duties, or to the status, condition
and legal capacity of persons are binding upon citizens of the
Philippines, even though living abroad.”

Since Gene and Jane are still Filipinos although living in

England, the dissolution of their marriage is still governed by
Philippine law. Under our law, sterility is not one of the grounds
for the annulment of a marriage under Article 45 of the Family
Code. Thus, the annulment of Gene’s marriage to Jane on that
ground is not valid in the Philippines.

There subsisting marriage being a legal impediment,

Gene cannot marry his former girlfriend.
Example 2:
Alex was born a Filipino but was a
naturalized Canadian citizen at the time of
his death on December 25, 1998. He left
behind a last will and testament in which he
bequeathed all his properties, real and
personal, in the Philippines to his
acknowledged illegitimate Fillpina daughter
and nothing to his two legitimate Filipino
sons. The sons sought the annulment of the
last will and testament on the ground that it
deprived them of their legitimes but the
daughter was able to prove that there were
no compulsory heirs or legitimes under
Canadian law. Who should prevail? Why?
(5%)
SUGGESTED ANSWER:
The daughter should prevail.

Article 16 of the New Civil Code provides, in part, that

intestate and testamentary succession shall be governed by the
national law of the person whose succession is under
consideration.

Here, Canadian laws shall govern since the decedent

Alex was a naturalized Canadian citizen when he was born.
Consequently, the fact that legitimes must first be satisfied as
required by Philippine laws do not matter since the daughter
was able to prove that Canadian laws require otherwise.

Hence, the daughter shall inherit in accordance with the

Alex’s last will and testament.
Example 3:
Felipe is a Filipino citizen. When he went to Sydney for
vacation, he met a former business associate, who
proposed to him a transaction which took him to Moscow.
Felipe brokered a contract between Sydney Coals Corp.
(Coals), an Australian firm, and Moscow Energy Corp.
(Energy), a Russian firm, for Coals to supply coal to Energy
on a monthly basis for three years. Both these firms were
not doing, and still do not do, business in the Philippines.
Felipe shuttled between Sydney and Moscow to close the
contract. He also executed in Sydney a commission
contract with Coals and in Moscow with Energy, under
which contracts he was guaranteed commissions by both
firms based on a percentage of deliveries for the three-
year period, payable in Sydney and in Moscow,
respectively, through deposits in accounts that he opened
in the two cities. Both firms paid Felipe his commission for
four months, after which they stopped paying him. Felipe
learned from his contacts, who are residents of Sydney
and Moscow, that the two firms talked to each other and
decided to cut him off. He now files suit in Manila against
both Coals and Energy for specific performance.
Should the Philippine court assume jurisdiction over the
case? Explain. (5%)
SUGGESTED ANSWER:
No, the Philippine courts cannot acquire jurisdiction over
the case of Felipe. Under the principle of lex loci contractus, the
law of the place where the contract is made shall apply. Since
the contracts were not perfected in the Philippines, Philippine
Courts has, therefore, no jurisdiction to try the case.
Example 4:
Emmanuel and Margarita, American
citizens and employees of the U.S. State
Department, got married in the African
state of Kenya where sterility is a ground
for annulment of marriage. Thereafter,
the spouses were assigned to the U.S.
Embassy in Manila. On the first year of
the spouses’ tour of duty in the
Philippines, Margarita filed an
annulment case against Emmanuel
before a Philippine court on the ground
of her husband’s sterility at the time of
the celebration of the marriage.
Will the suit prosper? Explain your
answer.(3%)
SUGGESTED ANSWER:
No, the suit will not prosper.

By the principle of lex nationali, the national law of a

person shall govern
with respect to his family relations and status.

Since Emmanuel and Margarita are American citizens,

the governing law as to the ground for annulment is not Kenyan
Law but should be U.S. Law.

Hence, the Philippine court will not give due course to

the case based on Kenyan Law as invoked by Emma.
Example 5:
While the crew of a steamer prepared to raise
anchor at the Pasig River, A, evidently impatient
with the progress of work, began to use abusive
language against the men. B, one of the
members of the crew, remonstrated saying that
they could work best if they were not insulted. A
took B's attitude as a display of insubordination
and, rising in a rage, moved towards B wielding
a big knife and threatening to stab B. At the
instant when A was only a few feet from B, the
latter, apparently believing himself to be in great
and immediate peril, threw himself into the
water, disappeared beneath the surface, and
drowned.
May A be held criminally liable for the death of
B?
SUGGESTED ANSWER:
Yes. A can be held criminally liable for the death of B.

Article 4 of the Revised Penal Code provides in part that

criminal liability shall be incurred by any person committing a
felony although the wrongful act done be different from that
which he intended.

B, who was impelled by the instinct of self-preservation,

jumped into the river because of his strong belief that his life
was in danger of death or great bodily harm.

Hence, A is liable even if his intention is different from

that which he intended since his act is the proximate cause of
B’s death.
Example 6:
During the robbery in a dwelling house,
one of the culprits happened to fire his
gun upward in the ceiling without
meaning to kill anyone. The owner of
the house who was hiding thereat was
hit and killed as a result. The defense
theorized that the killing was a mere
accident and was not perpetrated in
connection with, or for purposes of, the
robbery. Will you sustain the defense?
Why? (4%)
SUGGESTED ANSWER:
No, I will not sustain the defense.

Article 4 of the Revised Penal Code provides that

“criminal liability shall be incurred by any person committing a
felony although the wrongful act done be different from that
which he intended.”

Here, the act being felonious and the proximate cause of

the victim's death, the offender is liable therefor although it
may not be intended or different from what he intended.

Hence, the defense of the offender that the killing was

accidental should be overruled.
Example 7:
OZ and YO were both courting
their co-employee, SUE. Because
of their bitter rivalry, OZ decided
to get rid of YO by poisoning him.
OZ poured a substance into YO's
coffee thinking it was arsenic. It
turned out that the substance was
white sugar substitute known as
Equal. Nothing happened to YO
after he drank the coffee. What
criminal liability did OZ incur, if
any? Explain briefly. (5%)
SUGGESTED ANSWER:
OZ incurred criminal liability for an impossible crime of
murder.

Referring to an impossible crime, Article 4 of the Revised

Penal Code succinctly provides that “criminal liability shall be
incurred by any person performing an act which would be an
offense against persons or property, were it not for the inherent
impossibility of its accomplishment or on account of the
employment of inadequate or ineffectual means.

In the problem given, the impossibility of accomplishing

the crime of murder, a crime against persons, was due to the
employment of ineffectual means which OZ thought was
poison.

Thus, OZ is liable for the impossible crime of Murder.

Example 8:
Buddy always resented his classmate,
Jun. One day. Buddy planned to kill Jun
by mixing poison in his lunch. Not
knowing where he can get poison, he
approached another classmate, Jerry to
whom he disclosed his evil plan.
Because he himself harbored
resentment towards Jun, Jerry gave
Buddy a poison, which Buddy placed on
Jun's food. However, Jun did not die
because, unknown to both Buddy and
Jerry, the poison was actually powdered
milk.
What crime or crimes, if any, did Jerry
and Buddy commit? [3%]
SUGGESTED ANSWER:
Jerry and Buddy are liable for the impossible crime of
Murder.

Referring to an impossible crime, Article 4 of the Revised

Penal Code succinctly provides that “criminal liability shall be
incurred by any person performing an act which would be an
offense against persons or property, were it not for the inherent
impossibility of its accomplishment or on account of the
employment of inadequate or ineffectual means.”

Here, Jerry and Buddy, with intent to kill, tried to poison

Jun and thus perpetrate Murder which is a crime against
persons. Further, Jun was not poisoned only because the
would-be killers were unaware that what they mixed with the
food of Jun was powdered milk, not poison.

Criminal liability is, therefore, incurred by Jerry and

Buddy although no crime resulted, because their act of trying
to poison Jun is crime against person.
Example 9:
Carla, 4 years old, was kidnapped by
Enrique, the tricycle driver paid by her
parents to bring and fetch her to and from
school. Enrique wrote a ransom note
demanding P500,000.00 from Carla's
parents in exchange for Carla's freedom.
Enrique sent the ransom note by mail.
However, before the ransom note was
received by Carla's parents, Enrique's
hideout was discovered by the police. Carla
was rescued while Enrique was arrested and
incarcerated. Considering that the ransom
note was not received by Carla's parents,
the investigating prosecutor merely filed a
case of "Impossible Crime to Commit
Kidnapping" against Enrique. Is the
prosecutor correct? Why? (3%)
SUGGESTED ANSWER:
No, the prosecutor is not correct.

Article 4 of the Revised Penal Code limits impossible

crimes only to acts which when performed would be a crime
against persons or property.

As kidnapping is a crime against personal security and

not against persons or property, Enrique could not have
incurred an "impossible crime" to commit kidnapping. There is
thus no impossible crime of kidnapping.

Hence, the prosecutor erred in filing a case for

"impossible crime to commit kidnapping" against Enrique.
Example 10:
A chanced upon three men who were
attacking B with fist blows. C, one of the
men, was about to stab B with a knife.
Not knowing that B was actually the
aggressor because he had earlier
challenged the three men to a fight, A
shot C as the latter was about to stab B.
May A invoke the defense of a stranger
as a justifying circumstance in his favor?
Why? (2%)
SUGGESTED ANSWER:
Yes. A may invoke the justifying circumstance of defense
of stranger.

Article 11 of the Revised Penal Code substantially

provides that that anyone who acts in defense of the person or
rights of a stranger does not incur criminal liability provided
that there be: (1) there be Unlawful aggression; (2) there be
reasonable necessity of the means employed to prevent or
repel it; and (3) the person defending be not induced by
revenge, resentment, or other evil motive

Here, A was not involved in the fight and he shot C when

the latter was about to stab B. Therefore, A was not induced by
revenge, resentment or any other evil motive in shooting C.

That being so, A’s act is justified as a defense of stranger.

Example 11:
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 a 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-Jun
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, that he acted in the fulfillment of a duty. Is
the defense tenable? Explain. (3%)
SUGGESTED ANSWER:
No, the defense of Pat. Reyes is not tenable.

Under the law, 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. It is not
enough that the accused acted in fulfillment of a duty.

Here, 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.

Hence, the defense of Pat. Reyes is not tenable.

Example 12:
One night, Una, a young married woman, was
sound asleep in her bedroom when she felt a
man on top of her. Thinking it was her husband
Tito, who came home a day early from his
business trip, Una let him have sex with her.
After the act, the man said, "I hope you enjoyed
it as much as I did." Not recognizing the voice, it
dawned upon Una that the man was not Tito,
her husband. Furious, Una took out Tito's gun
and shot the man. Charged with homicide Una
denies culpability on the ground of defense of
honor. Is her claim tenable? [5%]
SUGGESTED ANSWER:
No, Una's claim that she acted in defense of honor, is not
tenable.

Article 11 of the Revised Penal Code substantially

provides that that anyone who acts in defense of his person or
rights shall not incur criminal liability provided that the
following circumstances concur: (1.) Unlawful aggression; (2)
Reasonable necessity of the means employed to prevent or
repel it; and (3) Lack of sufficient provocation on the part of the
person defending himself.

Here, the first requisite is lacking because the unlawful

aggression on Una’s honor had already ceased as she shot the
man after the latter had intercourse with her.

Hence, Una’s claim of defense of honor has no merit

Example 13:
The accused lived with his family in a
neighborhood that often was the scene of
frequent robberies. At one time, past
midnight, the accused went downstairs with
a loaded gun to investigate what he thought
were footsteps of an uninvited guest. After
seeing what appeared to him an armed
stranger looking around and out to rob the
house, he fired his gun seriously injuring the
man. When the lights were turned on, the
unfortunate victim turned out to be a
brother-in-law on his way to the kitchen to
get some light snacks. The accused was
indicted for serious physical injuries. Should
the accused, given the circumstances, be
convicted or acquitted? Why? 4%
SUGGESTED ANSWER:
The accused should be convicted.

The law considers defense of property as a justifying

circumstance to absolve the accused of criminal liability
provided that (1.) Unlawful aggression; (2) Reasonable
necessity of the means employed to prevent or repel it; and (3)
Lack of sufficient provocation on the part of the person
defending himself.

Here, the accused cannot avail of the justifying

circumstance of defense of property his act of shooting a
burglar when there is no unlawful aggression on his person is
not justified there being no indication that the life and limb of
the accused is already in imminent and immediate danger.

Hence, the accused should be convicted.

Example 14:
After killing the victim, the accused absconded.
He succeeded in eluding the police until he
surfaced and surrendered to the authorities
about two years later. Charged with murder, he
pleaded not guilty but, after the prosecution
had presented two witnesses implicating him to
the crime, he changed his plea to that of guilty.
Should the mitigating circumstances of
voluntary surrender and plea of guilty be
considered in favor of the accused?
SUGGESTED ANSWER:
The liability of the accused should be mitigated by
voluntary surrender but not by his subsequent plea of guilty.

The law mitigates the liability of any person who, after

having committed a crime, had voluntarily surrendered himself
to a person in authority or his agents, or that he had voluntarily
confessed his guilt before the court prior to the presentation of
the evidence for the prosecution.

Since the surrender of the accused after two (2) was

done spontaneously, indicative of his remorse or repentance,
voluntary surrender should be considered in his favor. However,
since his plea of guilty was done after the prosecution has
already presented witnesses, accused can no longer avail of the
same.

Hence, voluntary surrender should be considered as a

mitigating circumstance but not plea of guilty.
Example 15:
Juan de Castro already had three (3) previous
convictions by final judgment for theft when he
was found guilty of Robbery with Homicide. In
the last case, the trial Judge considered against
the accused both recidivism and habitual
delinquency. The accused appealed and
contended that in his last conviction, the trial
court cannot consider against him a finding of
recidivism and again, of habitual delinquency. Is
the appeal meritorious? Explain. (5%)
SUGGESTED ANSWER:
No, the appeal is meritorious.
Under the law, a recidivist is one who, at the time of his trial
for one crime, shall have been previously convicted by final
judgment of another crime embraced in the same title of the
Revised Penal Code (RPC).
On the other hand, Article 62 of the RPC provides that a
person shall be deemed to be habitual delinquent, if within a
period of ten years from the date of his release or last conviction of
the crimes of serious or less serious physical injuries, robbery,
theft, estafa or falsification, he is found guilty of any of said crimes
a third time or oftener.
Juan is a recidivist because he had been previously
convicted by final judgment for theft and again found guilty for
Robbery with Homicide, which are both crimes against property,
embraced under the same Title (Title Ten, Book Two] of the
Revised Penal Code. However, Juan cannot be considered habitual
delinquent there being no showing that his latest conviction for
robbery was rendered within ten (10) years from his last conviction
for theft.
Hence, recidivism was correctly considered while that of
habitual delinquency is erroneous.