REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT

7TH JUDICIAL REGION
BRANCH 666, CEBU CITY

PEOPLE OF THE PHILIPPINES,

Plaintiffs
Criminal Case No.
12345
---versus---

For: Murder

JOB HUTT,
Accused
X------------------------------------------------------------------------------------------------MOTION TO QUASH
(Accused) Jobb Hutt through counsel, and unto this Honorable Court,
most humbly and respectfully file this Motion to Quash.
In accordance with Section 3 (a) of Rule 117 of the Rules of Court,
we move for the quashing of the information that the facts charged do not
constitute an offense; and Section 3 (d) of the same Rule that the officer who
filed the information had no authority to do so.
The rule of law is about form . . . A murderer has been caught with
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blood on his hands, bending over the body of his victim; a neighbour

with a video camera has filmed the crime and the murderer has
confessed in writing and on videotape. We nonetheless insist that
before the state can punish this miscreant, it must conduct a full-dress
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THE REVISED RULES OF COURT, RULE 117 SECTION 3(a)

THE REVISED RULES OF COURT, RULE 117 SECTION 3 (d)
JUSTIVE ANTONIN SCALIA, A MATTER OF INTERPRETATION

criminal trial that results in a verdict of guilty. Is that not formalism?

Long live formalism! It is what makes us a government of laws and
not of men. Justice Antonin Scalia
STATEMENT OF FACTS
On February 8, 2016, a certain Amy Dala was killed in a shooting
incident which happened in Lahug, Cebu City.
On February 9, 2016, a witness named Jan Go came to the police and
reported a murder. Upon the presentation of five photographs presented by
the police officer, he identified Jobb Hutt, the accused in this case as the
alleged shooter.
On February 10, 2016, acting solely on the information supplied by
Jan Go, the police arrested without probable cause the accused Job Hutt
while eating peacefully in his residence. Police claimed that the arrest was
effected under Section 5 (b) of Rule 113 of the Revised Rules of Court.
On the same day of the arrest, the police filed a criminal complaint for
murder against Job Hutt and he was brought to the prosecutors office for
inquest. Jobb Hutt asked for a preliminary investigation and signed a waiver
under Article 125 of the Revised Penal Code. On February 26, 2016, the
office of the prosecutor charged Jobb Hutt with murder and filed it before
the court on the same day.
Furthermore, our client was not able to submit evidence during the
preliminary investigation because he was not provided any counsel during
the investigation.
ISSUES
1. Whether or not the warrantless arrest of Jobb Hutt is valid under
Section 5 (b) of Rule 113 of the Revised Rules of Court
2. Whether or not the accuseds waiver of his rights under Art.125 of the
RPC is valid
3. Whether the investigating officer violated Sections 2 (a), (b), Section
4 of RA 7438

ARGUMENTS and DISCUSSION

I.

VALIDITY OF THE ARREST

As a general rule, an arrest made without warrant is not valid.

However, it is subject to some exceptions, among which are enumerated

under Section 5 (b) of Rule 113 of the Revised Rules of Court which are:
Section 5. Arrest without warrant; when lawful.--- a peace
officer or a private person, may without a warrant, arrest a
person:
(b) When an offense has just been committed, and he has
probable cause to believe in personal knowledge of facts or
circumstances that the person to be arrested has committed it.
An important element for an arrest falling upon the above exception is
the sense of immediacy between the commission of the crime and the arrest.
There must not be an unjustified lapse of time that intervene the sequence of
events from the commission of the crime leading to the arrest.
In the case at bar, the accused was arrested a day after the time when
the crime was made. There is no continuity from the time of the commission
of the crime to the actual apprehension of the alleged assailant as there was a
supervening event and lapse of that interrupted the chain of events. The
accused in this case was only arrested a day after the informant went to the
police station and narrated the happenings.
The intent of the law in allowing certain circumstances to dispense
with the requirement of the warrant is the sense of urgency and exigency that
the circumstances demand.
In the instant case, there was no threat that the alleged assailant might
flee from the premises as he was peacefully eating when he was arrested.
There was a sufficient lapse of time th2at intervened between the
commission of the crime and the arrest. As such, the police officer should
have secured a warrant of arrest in arresting Jobb Hutt.

THE REVISED RULES OF COURT, RULE 113 SECTION 5 (b)

QUINTERO V. NBI. GR. NO. 35149 (1988)
PP. VS CUBCUBIN. GR NO. 136267 (2001)

The court has defined Probable Cause in Quintero v. NBI as such facts
and circumstances which could lead a reasonable discreet and prudent man
to believe that an offense has been committed and that the object sought in
connection with the offense are in the place to be searched. It must be within
the personal knowledge of the complainant or the witnesses he may produce
and not based on mere hearsay.
Furthermore as the high court held in the case of People vs. Cubcubin
where the arresting officers merely relied on the information given by an
informant who called in the police station, the court ruled that:
In this case, the arrest of accused-appellant was effected shortly after the victim
was killed. The two did not have "personal knowledge of facts" indicating that
accused-appellant had committed the crime. Their knowledge of the
circumstances from which they allegedly inferred that accused-appellant was
probably guilty was based entirely on what they had been told by others; to wit:
by someone who called the PNP station in San Antonio, Cavite City at about 3:30
in the morning of August 26, 1997 and reported that a man had been killed along
Julian Felipe Boulevard of the said city; by an alleged witness who saw accusedappellant and the victim coming out of the Sting Cafe; by Danet Garcellano,
waitress at the Sting Cafe, who said that the man last seen with the victim was
lean, mustachioed, dark-complexioned and was wearing a white t-shirt and a pair
of brown short pants; by a tricycle driver named Armando Plata who told them
that the physical description given by Garcellano fitted accusedappellant, alias "Jun Dulce" and who said he knew where accused-appellant lived
and accompanied them to accused-appellant's house. Thus, PO3 Rosal and SPO1
Malinao, Jr. merely relied on information given to them by others.

Hence, in order for an arrest to be valid in this circumstance requires

that the person making the arrest shall have personal knowledge that a crime
has just been committed.
In the above case, the arresting officer had no personal knowledge of
the crime, the sole basis of the arrest made was predicated upon an
information given by a stranger in the name of Jobb Hutt which takes the
nature of a hearsay, an inadmissible proof.
Thus, the information was unreliable and the arresting officer had no
personal knowledge that led him to a reasonable certainty, reasonable
suspicion that a prudent man would have had too in the same circumstance
that a crime has been committed and the accused committed it, which makes
the arrest illegal.
The requisite of immediacy and personal knowledge is indispensable
in order for a warrantless arrest to be valid. As supported by a case involving
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the same set of facts and circumstances in the case of People v. Del Rosario,
the arrest came a day after the offense was committed and thus, the offense
had not been just committed. Furthermore, the arresting officers had no
personal knowledge of facts indicating that the person to be arrested had
committed the offense, since they were not present and were not actual
eyewitnesses to the crime, and they became aware of the driver of the
getaway tricycle only during the custodial investigation.
As shown above, the arresting officers did not have personal
knowledge that the crime had just been committed for they were not present
or close to the crime scene, they did not even made surveillance on the
accused but instead, merely relied on the unsubstantiated tip given by an
informant. Thus, it cannot be said that the officers had a probable cause that
led them to a reasonable suspicion in good faith that the accused really
committed the crime.
Consequently, the officer should have secured a warrant when they
arrested the accused. The illegality of the detention was not cured even if a
complaint was subsequently filed because a violation had already been
committed before the information was filed.
Henceforth, the constitutional accuseds right against unlawful and
illegal seizures was violated. Thus, he shall be released without prejudice to
the liability of the investigating officer to be prosecuted for Arbitrary
Detention.
II.

VALIDITY OF THE ACCUSEDS WAIVER UNDER ART.

125
The accused in this case asked for a preliminary investigation and

signed a waiver of his rights under Article 125 of the Revised Penal Code.
But the accused did so without the assistance of a counsel. This is contrary
to the rule provided by the law, and shall be deemed to be null and void.
Section 7, Rule 112, of the Revised Rules of Criminal Procedure
provides for the instructions to be followed in the proceedings:

Sec. 7. When accused lawfully arrested without warrant.

When a person is lawfully arrested without a warrant involving
an offense which requires a preliminary investigation, the
complaint or information may be filed by a prosecutor without
need of such investigation provided an inquest has been
conducted in accordance with existing rules. In the absence or
unavailability of an inquest prosecutor, the complaint may be
filed by the offended party or a peace officer directly with the
proper court on the basis of the affidavit of the offended party
or arresting officer or person.
Before the complaint or information is filed, the person arrested
may ask for a preliminary investigation in accordance with this
Rule, but he must sign a waiver of the provision of Article 125
of the Revised Penal Code as amended, in the presence of his
counsel. Notwithstanding the waiver, he may apply for bail and
the investigation must be terminated within fifteen (15) days
from its inception.
After the filing of the complaint or information in court
without a preliminary investigation, the accused may, within
five (5) days from the time he learns of its filing, ask for a
preliminary investigation with the same right to adduce
evidence in his defense as provided in this Rule.
In addition, Section 2 (e) of RA 7438 provides that:
Any waiver by a person arrested under the provisions of
Article 125 of the RPC, or under custodial investigation, shall
be in writing and signed by such person in the presence of his
counsel; otherwise the same shall be null and void and of no
effect.
RA 7438 also provides that the accused under custodial investigation
shall be assisted at all times with a counsel. If he cannot afford one, he shall
be provided an independent and competent counsel.

The law requires that the waiver must be made in the presence of a
counsel in order that the accused will be informed effectively of his
rights and to ensure that he will not be coerced to make unsolicited
admissions. Even if the waiver has reduced into writing, the other
indispensable requirement of the presence of a counsel to assist the
accused was not complied.3
Hence, the waiver was not valid and did not produce any legal effect.
Thus, the prosecutor shall have instead made an inquest proceeding to
determine the validity of the warrantless arrest in order to ensure that the
person is not unlawfully detained.
The inquest establishes whether evidence is sufficient enough to seek
court approval to keep the person in detention. Thus, the accused was
unlawfully detained and was denied of due process when he remained at the
custody the police and was charged even if no inquest proceedings was done
or the preliminary investigation was invalid.
Because of the lack of assistance by a counsel, the accused was also
not able to present a counter-affidavit and evidence to controvert the
information. This has led to the deprivation of the accused of his right to due
process.
Meanwhile, preliminary investigation is always necessary because it
is a statutory right. The absence of which is also tantamount to the
deprivation of the accused of his right to due process. This is highlighted in
the case of Victor Jose Tan Uy v. Office of the Ombudsman where the court
said ruled that:
preliminary investigation is held before an accused is placed on
trial to secure the innocent against hasty, malicious and
oppressive prosecution, and to protect him from trouble,
expenses and anxiety of a public trial. It is also intended to
protect the State from having to conduct useless and expensive
trials. Thus, while the right is statutory rather than

THE REVISED PENAL CODE, ART. 125

VICTOR JOSE TAN UY V. OMBUDSMAN GR NO. 156399-400 (2008)

unconstitutional, it is a component of due process in

administering criminal justice.
The irregularity of the conduct of the preliminary investigation due to
the absence of a lawyer in assisting the accused in the preliminary
investigation especially in helping him prepare his counter affidavits
constitutes a gross deprivation of the defendants right to due process.
III.

Whether or not the investigating officer violated Art. 125 and

Sections 2 (a),(b), Section 4 of RA 7438
In the case at bar, it is undisputable that the accused was not assisted

by a counsel during the preliminary investigation, the investigating officer

did not even inform of this right and did not offer to provide an independent
counsel to represent him.
Consequently, the accused was unable to present his evidence and
counter affidavit to controvert the information. The accused when he signed
the waiver was not assisted by a counsel, in violation of what the law
prescribes.
This is in violation of the following provisions of Section 2 of RA
7438. Rights of Persons Arrested, Detained or Under Custodial
Investigation; Duties of Public Officers:
(a) Any person arrested, detained or under custodial investigation
shall at all times be assisted by counsel.
(b) Any public officer or employee, or anyone acting under his order
or his place, who arrests, detains or investigates any person for the
commission of an offense shall inform the latter, in a language
known to and understood by him, of his rights to remain silent and
to have competent and independent counsel, preferably of his own
choice, who shall at all times be allowed to confer privately with
the person arrested, detained or under custodial investigation. If
such person cannot afford the services of his own counsel, he must
be provided with a competent and independent counsel by the
investigating office.

Moreover, the investigating officer is liable under Section 4 of RA

7438.
Penalty Clause. a) Any arresting public officer or employee, or
any investigating officer, who fails to inform any person arrested,
detained or under custodial investigation of his right to remain silent
and to have competent and independent counsel preferably of his
own choice, shall suffer a fine of Six thousand pesos (P6,000.00) or
a penalty of imprisonment of not less than eight (8) years but not
more than ten (10) years, or both. The penalty of perpetual absolute
disqualification shall also be imposed upon the investigating officer
who has been previously convicted of a similar offense. cdtai
The same penalties shall be imposed upon a public officer or , or
anyone acting upon orders of such investigating officer or in his
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place, who fails to provide a competent and independent counsel to

a person arrested, detained or under custodial investigation for the

commission of an offense if the latter cannot afford the services of
his own counsel.

In sum, the investigating officer violated Sections 2 (a),(b), Section 4

of RA 7438 when he failed to inform the detainee of his rights and also his
failure to provide an independent counsel for the detainee.
Hence, the detention was illegal, the preliminary investigation was
conducted irregularly in the absence of a counsel to assist the accused.
Moreover, the accused was not even informed that he had a right to an
independent and competent counsel. Also, the accused was not able to
produce a counter affidavit.
This gross ignorance of the law and the procedural rules warrants the
quashing of the information.
PRAYER

REPUBLIC ACT 7438, SECTION 2 (a)

REPUBLIC ACT 7483, SECTION 2 (b)
REPUBLIC ACT 7438, SECTION 4

In view of the foregoing considerations, it is our humble position that

the information shall be quashed as the arresting officer had no authority to
do so; the facts charge does not constitute an offense. To rule otherwise
would violate the constitutional rights of the accused trumping the very
essence of the rule of law.
The Above Premises Considered, (Accused) Jobb Hutt respectfully
prays to the Honorable Court to quash the Information and to dismiss the
criminal charge against him.
Jobb Hutt likewise respectfully prays for other just and equitable
relief.
Cebu City, Philippines, March 2, 2016.

____________
Counsel of the Accused
Kwaii Gonn

Submitted by:
Jayford O. Powao
EH 408
LLB-1

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