Fr. Cesar D. Tinga...3/25

 TOTAL SCORE: 3/25

1.      Jose Cruz was caught carrying an unlicensed firearm in one of the checkpoints established in Sergio Osmena, while he was riding his car going to Dipolog. He was frisked and the firearm on his waistline was confiscated after he was made to disembark from his car. He was then charged for two offenses: (1) for carrying a firearm during an election gun ban (2) for carrying a firearm without a license under R. A. 10591. He was arraigned on both charges, and after that he filed a motion to dismiss the charge under R.A. 10591 as it is a violation of his right against double jeopardy. Decide, whether he is correct in his contention. Explain.

 

Score:  3 pointsAnswer: Jose Cruz is not correct in contention. When we say Double jeopardy it is when an accused is charged twice of a single offence. In the case at bar, there is no double jeopardy because the accused has committed a two (2) separate offences one is a violation against a gun during election and another information for carrying a gun without which a violation of R.A. 10591. Besides Jose can be charged only of the crime in violation of the gun ban.

On the other hand, while there is no double jeopardy here, pursuant to the special provisionof R.A. 10591 he can only be convicted, just in case the evidence is sufficient, of "gun ban"  for the reason that if another offense is committed (i.e. gun ban) , the case for illegal possession of firearm shall be dismissed.

 

2.      NelinaAcas obtained 20 sacks of rice from the store of Juan Casis. She issued a PNB check for the sum of 40,000 pesos as payment of said rice. Eventually, the check bounced for insufficiency of funds. Juan Casis filed two cases against her: First for violating BP 22 and then another one for Estafa under the Revised Penal Code. She was arraigned on both charges, trial proceeded. She was acquitted for the Estafa charge for insufficiency of evidence. Meanwhile the trial for BP 22 continued, and while the trial was going on, she filed a motion to dismiss for the reason that her acquittal in the Estafa case for the same checks which she issued, already put her on the first jeopardy and to try her for BP 22 would necessarily put her in double jeopardy. Decide whether you grant her motion to dismiss or not.

Score : 0 NelinaAcas is not correct in her motion to dismiss for the reason of double jeopardy. Estafa is criminal which can the innocence or guilt of the party can be proven beyond reasonable doubt. She might be innocent is the estafa case but she can not escape civil liability for the issuance of a bouncing check.

answer: Estafa and BP 22 are separate and distinct offenses. Estafa is punishable under the Revised Penal Code which is a substantive law, while BP 22 is punishable under a special law. The two offenses have different elements, hence there can be no double jeopardy.

 

3.      Juan Santos put a jumper on his electrical connection to save on electricity. When this was discovered by ZANECO, a case for Violating Dipolog Ordinance (for illegal jumpers) and another one for THEFT of electricity under the REVISED Penal CODE  were filed against him. He said that this cannot be, since there is already a double jeopardy. Decide.

Score: 0Answer: in the case at bar, double jeopardy cannot be present. The City ordinance is another offence while Theft of electricity under the Revised Penal Code is another offence.

ANSWER: The act of Juan in putting a jumper  punishable under the ORDINANCE is the same act punished as THEFT under the Revised Penal Code. The applicable law then is the second kind of double jeopardy, which says that when an ACT is punishable by an ORDINANCE and a LAW,  a conviction, acquittal or dismissal of either is a bar to the prosecution of the same ACT. While is it true that Juan is charged under an ORDINANCE and a LAW, no double jeopardy however has attached yet, since he was neither convicted, or acquitted or the case against him on any of the charges was yet dismissed. Thus in this situation, no double jeopardy has attached.

4.      Mario Cruz was caught by the police officers cutting coconut trees without permit from the PCA. It was also learned that he is not the owner of these coconut trees as they are owned by Maria Sy. Maria Sy filed a complaint for theft of coconut trees against him. The PCA also filed a case for illegal cutting of coconut trees (without PCA permit). Will the two charges push through without violating her rights against double jeopardy? Explain.

SCORE: 0Answer: No. The charges if it may push through will violate the right of the accused of double jeopardy. The accused is now charged twice of a single offence.

ANSWER: Illegal cutting of coconut trees is a special law, while Theft is not. There can be no double jeopardy here. Thus, since the elements of two offenses are different, there can be no double jeopardy.

 

5.      Luis Santos is accused of murder by the police officers. The case was filed at the Prosecutor’s office which conducted the preliminary investigation. As the witnesses did not appear, the honorable prosecutor dismissed the case. After two months the witnesses appeared before the prosecutor, and after conducting the investigation, a probable cause was found against Luis Santos. Eventually, a case for murder was filed before the Regional Trial Court in Dipolog City. The accused was arraigned and pleaded not guilty as charge. After that Luis Santos filed a motion to dismiss the case, considering that it was dismissed previously by the Hon. Prosecutor, and the refiling of the same already put him in double jeopardy. Is he correct? As judge will you dismiss the case against him? Explain your answer.

Score: 0Answer: As a Judge in the case at bar, I will not dismiss the case for the reason of double jeopardy. One of the requisites of a double not alleged in the case is the absence of the petition of the victim to dismiss the case without the knowledge of the accused. In the case at bar, it is the accused who petitioned for the dismissal of the case.

ANSWER: There is no double jeopardy.The first dismissal was done by the Prosecutor and not by the Judge. As an element of double jeopardy, the FIRST JEOPARDY must be in the court, but here the first dismissal was at the Prosecutor level only.

 

Submitted:

 

Fr. Cesar D. Tinga