CRIMINAL PROCEDURE (HERRERA) NOTES

by Danika S. Santos (2-I) Page 1

RULE 110 PROSECUTION OF OFFENSES

SECTION 6 SUFFICIENCY OF COMPLAINT OR INFORMATION

Time of the offense under the former rule was changed to date of the offense.

All element of crime must be alleged
What facts and circumstance are necessary to be stated must be determined by reference to the definitions and the essential elements of the
specific crimes.
Purpose: to enable accused to suitably prepare his defense.

Matter of Evidence; need not be averred

Reasonable Certainty in the Statement of the Crime Suffices
All that is required is that the charge be set forth with such particularity as will reasonable indicate the exact offense which the accused is
alleged to have committed and will enable him intelligently to prepare his defense.

Effects of Fatally Defective Information
Conviction or acquittal for want of certain essential allegation is not necessarily void when no objection appears to have been raised at the trial
and the fatal defect could have been supplied by competent proof.
However, if that substantial defect in the information cannot be cured by evidence.

Reason: accused was jeopardized of his right to know the true nature of the offense charged to him

Information which does not charge an offense at all cannot be validated by the presentation of evidence.

Sufficiency of Allegations of Conspiracy
Conspiracy as a crime itself
Governed by Section 6 of Rule 110; must be set forth in the offense or information

Conspiracy as a mode of committing the crime
Less necessity of reciting its particularities in the information because conspiracy is not the gravamen of the offense charged.

Need to Designate Statute Violated
Sec.6 Rule 110 expressly requires that for a complaint or information to be sufficient, it must state (1) the designation of the offence by the
statute and (2) the acts or omissions complained of as constituting the crime.

Failure to designate the offense by statute or to mention specific provision does not vitiate the information if the facts alleged clearly recite the
facts constituting the crime charged.

The title of information or designation of the offense is not controlling. It is the actual facts recited in the information that determines the nature
of the crime.


SECTION 7 NAME OF THE ACCUSED

The word discovered under the former rule was changed to ascertained
Error in the name or identity should be raised on arraignment.

Purpose of the Rule
To enable the court to acquire jurisdiction over his person and inform him of the facts.

Where the accused has been sued as John Doe in an information filed in due form, and after PI of the prosecutor his identity became known,
his true name may be inserted without further need of PI.

Verbal motion to correct spelling is sufficient.


SECTION 8 DESIGNATION OF THE OFFENSE
SECTION 9 CAUSE OF THE ACCUSATION
Amendment
The former rule did not require qualifying and aggravating circumstances to be alleged in the complaint or information. THIS IS NO LONGER
TRUE.

Retroactive Application of the Rule
Because it is remedial and favorable to the accused, the amendment of the rule may be applied retroactively to pending cases.

Purpose
To fully apprise (describe/explain) the accused of the true charge against him

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The rule broadens the scope and concept of the right of the accused to be informed of the nature and cause of the accusation against him.

Life and liberty of the accused should not be left to ability or inability of his counsel to promptly object against the admissibility of what the law
or rule requires to be specifically alleged.

The essence of the constitutional right of the accused to be informed of the nature and cause of the accusation against him is that every
element of the offense must be alleged in the complaint or information so as to enable the accused to suitably prepare his defense.

The test is whether the crime is described in intelligible terms with such particularity as to apprise the accused, with reasonable certainty of the
offense charge.

NB: The court may appreciate as an aggravating circumstance the victims minority, which was pleaded in the information and proved by her
birth certificate.

Exact relationship to be alleged
For rape to be qualified as heinous, the circumstance of the minority of the victim and her relationship with the offender must both be alleged
in the information for rape.

Specific Allegation of Minority and Relationship
Even if the information alleged that the victim is the natural daughter of the accused, where there is a difference in their surname, the mere
testimony of the victim that the accused is his father is not sufficient to establish the qualifying circumstance of relationship, even if such relationship was
not denied by the accused.

Exact age of Victim Must be Alleged
The allegation in the information that complainant is the minor daughter of the accused is insufficient. The information must state the exact
age of the victim at the time of the commission of the crime.

Rule on Exemplary Damages
The qualifying circumstances of minority and relationship, thought not specified in the complaint, can serve as basis for awarding exemplary
damages.

Thus an aggravating circumstance, whether ordinary or qualifying, should entitle the offended party to an award of exemplary damages within
the context of Article 2230 of the NCC, even if the information or criminal complaint has not alleged said circumstances as required by the rule.

Modifying Circumstances Must be alleged not only in the Preamble but in the Accusatory Portion
The real nature of the criminal charge is determined not from the caption or the preamble of the information, nor from the specifi cation of the
provision of aw alleged to have been violated but from the actual recital of facts as alleged in the body of the information

Plea of Guilty is not on the offense alleged in the preamble but for the crime alleged in the accusatory portion of the information.

Principle is Now Applicable in All Criminal Cases, not only in cases where the aggravating circumstances would increase penalty to Death
NB: Where the aggravating circumstance of dwelling and abuse of confidence or obvious ungratefulness, nocturnity or nighttime or treachery
of abuse of superior strength not alleged in the information cannot be appreciated.

But in People v Ostdia, although the information does not specifically allege treachery as a qualifying circumstance in the commission of the
crime, the allegation in the information that the victim was 4 years old at the time of killing is sufficient compliance with Section 6 Rule 110, as amended.
Killing a child by an adult constitutes treachery even if the mode of attack by the assailant is not proved by the prosecution because a child of tender
years could not be expected to put up a defense and hence at the mercy of his assailant.

J udgment must make an Express Finding of the Qualifying Circumstances

Modifying Circumstances Need Not Allege with Specifity whether it is Qualifying or Aggravating
Circumstances need not be preceded by the words aggravating,/qualifying, qualifying or qualified by to be considered as qualifying
circumstance. It is sufficient that these circumstances be specified in the Information to appraise the accused of the charges against him to enable him to
prepare fully his defense, thus precluding surprises during the trial.

Effects of Variance in MODE OF COMMISSION OF THE CRIME
The foregoing doctrines refer to the special qualifying circumstances that are required to be specifically alleged in the information. It would
seem to be different when there is a mere variance in the mode of the commission of the crime.

Real Nature of Crime Determined by Facts Alleged in the Complaint or Information and Not by the Title
What controls is not the designation of the offense but its description. In the case of the attending circumstances, not their denomination but
their function.
It is not the technical name given by the Prosecutor appearing in the title of the Information that determines the character of the crime but the
facts alleged in the body of the information.

Limitation on Rule that an Accused may be Convicted of a Crime which is More Serious than that Named in the Title so Long as the Facts
Alleged the More Serious Offense
An accused could not be convicted under one act when he is charged with a violation of another if the change from one statute to the other
involves:
1. A change of the theory of the trial
2. Requires of the defendant a different defense, or
3. Surprises the accused in anyway
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GENERAL RULE: An accused cannot be convicted of a different mode of commission of the offense charged in the information (where the law
distinguished between two cases of violation of its provision, an information for violation thereof must specify under which of the two cases the defendant
stands accused of).

EXCEPTION: Failure to object to evidence of the mode of commission of the crime different from that alleged in the information (Waiver).

EXCEPTION TO THE EXCEPTION: when waiver is not allowed (as it would violate the constitutional right of the accused to be informed of the nature
and the cause of the accusation against him) as follows:
1. Information charges no offense
2. Qualifying circumstance is different from the qualifying circumstance in the information
3. When waiver would result in a more serious penalty
4. Right to be arraigned cannot be waived

Habitual Delinquency
A mere statement of habitual delinquency does not make the accused a habitual delinquent. The information should specify the following:
1. Date of the commission of the previous crimes
2. Date of the last conviction or release
3. Date of the other previous conviction or release of the accused.

Negative and Excepting Allegations
When an exception or negative allegation is not an ingredient of the offense and is a matter of defense, it need not be alleged.


SECTION 10 PLACE OF COMMISSION OF THE OFFENSE
Purpose
To show territorial jurisdiction

Crimes where Place is Essential
1. Violation of domicile (Art. 128, RPC)
2. Penalty on keeper, watchman and visitor of an opium den (Art. 199, RPC)
3. Trespass to Dwelling (Art. 280, RPC)
4. Violation of Election Law, 30 meter-radius carrying of deadly weapon prohibited.

A general allegation in the complaint that the felony was committed within the jurisdiction of the court is sufficient.
Remedy is a Motion for Bill of Particulars (Sec. 6, Rule 116)


SECTION 11 DATE OF COMMISSION OF THE OFFENSE
Amendment
Time of the offense under the former rule was changed to date of the offense.

Crimes where Time is Essential
1. Infanticide
2. Violation of Sunday Statutes (Election Law), and
3. Abortion

The complaint must allege a specific time and place when and where the offense was committed , but when the time so alleged is not of the
essence of the offense, it need not be proved as alleged, and the complaint will be sufficient if the evidence shows that the offense was committed at
anytime within the period of the statute of limitation and before the commencement of the action.

An information for bigamy must state the time and place of the second wedding.

Variance on the date of commission of Rape and violations of the Dangerous Drugs Law is irrelevant.


SECTION 12 NAME OF THE OFFENDED PARTY

The rules on criminal procedure require the complaint or information to state the name and surname of the person against whom or against
whose property the offense was committed or any appellation or nickname by which such person has been or is known and if there is no better way of
identifying him, he must be described designation of the name of the offended party is not absolutely indispensable for as long as the criminal act
charged in the complaint or information can be properly identified.

Even if the names of offended parties are not alleged, if the offense belongs to the class of harmful ones (illegal practice of medicine), the
victims of petitioned should be considered as offended parties.

An erroneous allegation as to the person injured is of form which did not tend to prejudice any substantial right of the accused on the merits.

The name of the offended party is material in slander.
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Ownership is not necessary in Robbery.

Damage inflicted in Estafa need not fall on the same person against whom deceit was directed

Robbery with violence against or intimidation of person, the allegation of the owners name in the information is essential.

Omission of value in theft cases is not fatal.

An information for Murder is not defective where anothers name, not the victims name, is placed in the information. It is merely clerical.



SECTION 13 DUPLICITY OF THE OFFENSE
Purpose
To give the defendant the necessary knowledge of the charge to enable him to prove his defense. The State should not heap upon the
defendant two or more charges which might confuse him in his defense.

Effects of Duplicity of Offenses Charged
Where the accused is charged in one information with more than one offense and makes no objection the prosecution may properly submit
evidence as to the commission of each and all offenses charged and the court may properly enter judgment for each and every offense proved and
impose the proper penalty for each offense.

A motion to quash that more than one offense charged should therefore be filed. Otherwise, it is deemed waived and the accused may be
convicted for as many offenses charged and proved.

A person accused of an offense is not charged by the number of counts or paragraphs, but by the specific criminal acts regardless of their
number contained in one paragraph or in one count.

Inclusion of Different Acts of Offenses to Complete Narration of Facts
Where the different acts or specifications charging the accused with having committed the offense charged were included in the information
merely to describe and to narrate the different and specific acts, the sum total of which constitutes a crime, the validity of the information cannot be
assailed because those acts or offenses may serve merely as a basis for the prosecution of one single crime.

The charge is not defective for duplicity when one single crime is set forth in the different modes prescribed by law for its commission, or the
felony is set forth under different counts specifying the way of its perpetration, or the acts resulted from a single criminal impulse.
Neither is there duplicity when the offense described is but an ingredient or an essential element of the real offense charged nor when several
acts are related in describing the offense.

Single Offense Committed by Different Means
It is a well-settled rule in considering indictments that where an offense may be committed in any of several different modes, and the offense is
alleged to have been committed in two or more modes specified, it is sufficient to prove that it be such as to constitute the substantive offense.
Defendant may therefore be convicted if any one of the substantive charges into which the complaint may be separated has been made out.

It is not objectionable when a single offense may be committed by the use of different means to charge in the alternative (various means by
which the crime may have been committed)

An information is not bad for duplicity when the acts charged were merely different means of committing the same offense, notwithstanding the
fact that they are prohibited by separate sections of the statutes.

Crime of Treason
If a person is being charged with four specific acts under one count, and each constitutes a complete act of treason by itsel f independently of
others, the failure of the prosecution to prove all does not entitle the accused to be acquitted of the whole count or all of the charges contained when any
one or more of the acts are proved.

Robbery in Band
An information which charges the commission of Robbery in a band or Brigandage and alleges facts showing the commission of an act of
robbery by band of robbers simply sets out the same fact in different aspects and is not bad for duplicity.

Violation of Child Abuse Law
Each incident of sexual intercourse and lasciviousness acts with a child under the circumstances mentioned in RA 7610 is a separate and
distinct offense.

Principle of DELITO CONTINUADO (Continuing Crimes)
Several acts were considered by the court as constituting only one crime.

For Delito Continuado to exist, there must be:
1. Plurality of acts performed during a period of time
2. Unity of penal provision violated
3. Unity of criminal intent or purpose (2 or more violations of the same penal provisions are united in one and the same intent or resolution
leading to the perpetration of the same criminal purpose or aim)

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In appearance, a delito continuado consists of several crimes but in reality there is only one crime in the mind of the perpetrator.

Examples of Delito Continuado
a. The single lacerny rule
1. Theft of 13 cows;
2. Theft of 6 roosters;
3. Illegal charging of fees by lawyer from revenue victims;
4. Illegal approval of the application for legalization of stay of 32 aliens

Examples when Delito Continuado does not apply
1. Estafa committed in different occasions
2. Malversation and falsification on different occasions
3. 75 estafa cases committed by conversion by agent of collection from different customers on different acts
4. Robbery and fencing (2 separate crimes)
5. Several victims dying from separate shots constitute separate offenses, and if there is no objection for duplicity, the accused should be
convicted of all offenses charged in one information

It is not the act of pressing the trigger that determined that number of felonies committed but the number of bullets which actually produced
them. The firing of several bullets by the accused although resulting from one continuous burst of gunfire constitutes several acts. Each person fell by
different shots is a victim of a separate crime of murder.

Exception to the Rule on Duplicity
Complex Crime and Special Complex Crime

Rule on Complex Crimes
- When a single act constitutes 2 or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the
penalty for the most serious crime shall be imposed, the same to be applied in its maximum period
For a criminal complaint or information to charge the commission of a complex crime, the allegations contained therein do not necessarily
have to charge a complex crime as defined by law. It is sufficient that the information contains allegations which state that one offense was a necessary
means to commit the other.

Where, however, component offenses are not alleged in the information as required in Sections 8 and 9 of Rule 110, they cannot give rise to a
special complex crime, consistent with the right of the accused to be informed of the charges against him.

If one offense is light, there is no complex crime. Separate information must be filed.

Complex Crime: When One Offense is Necessary Means for Committing the Other
Examples:
a. Falsification of cedulas to commit malversation
b. Estafa thru falsification

When 2 or more acts combined in the commission of one crime, the complaint is not necessarily defective because it contains a description of
two acts.

To be a complex crime, the offense must be a necessary means for committing the other, but if one offense is to conceal the other, the
accused may be convicted for both offenses (examples: arson to conceal homicide; falsification to conceal malversation)

No Duplicity in Rape with Homicide

The Principle of Absorption
Possession of drugs is absorbed in the sale thereof, except where the seller is further apprehended in possession of another quantity of the
prohibited drugs not covered or included in the sale and which are probably intended for some future dealing or use by the seller.

Forcible Abduction is absorbed in Rape

Absorption Does Not Include Special Laws
Mala in se cannot absorb mala prohibita. What makes the former a felony is thee criminal intent or negligence; what makes the latter crimes
are the special laws enacting them.

Rebellion Cannot be Complexed with Any Other Offense Committed in the Course thereof
The crime of Rebellion consists of many acts. Acts committed in furtherance of the rebellion though crimes in themselves are deemed
absorbed in the one single crime of rebellion.

Principle of Absorption in Rebellion Applies to Special Laws.
Illegal Possession of Firearm and ammunition is already absorbed as a necessary element or ingredient in the crime of Rebellion.

Present Law of Illegal Possession of Firearm
Where murder or homicide results from the use of an unlicensed firearm, the crime is no longer qualified illegal possession but murder.

The rime of Illegal Possession of firearm in its simplest form is committed only where the unlicensed firearm is not used to commit any of the
crimes of murder, homicide, rebellion, insurrection, sedition or attempted coup detat. Otherwise, the use of unlicensed firearm would be treated either
as:
1. Essential ingredient of the crimes of rebellion, insurrection, sedition or attempted coup detat; or
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2. As an aggravating circumstance in murder or homicide.

Reckless Imprudence cases
Where both damage to property with less serious physical injuries were caused by one single act of defendant, the information cannot be split
into two.
If there is damage to property only, the amount fixed therein should be imposed but if there are also physical injuries, there should be an
additional penalty for the latter.


SECTION 14 AMENDMENT OR SUBSTITUTION
Amendment
The amendment is designed to remove the absolute control of the prosecution of a criminal action after the filing of information even before a
plea is entered.

Amendment is in accordance with Crespo v. Mogul: intended to prevent the prosecution from abusing the process of amendment before plea
by dropping any of the accused from the information or reducing the offense charged whether the accused had been arraigned or not and whether it was
due to a reinvestigation of the prosecutor or a reviewer by the Sec. of Justice.

Once the case had already been brought to the court, whatever disposition the fiscal may feel should proper in the case, should be addressed
for the consideration of the Court.

Qualification: action of the Court must not impair the substantive rights of the accused, or the right of the people to due process of law.

Complaint cannot be withdrawn by the prosecutor without the courts consent. Power to dismiss is solely vested in the court (the presiding
judge)

Court Must Make Independent Assessment
Once a motion to dismiss or withdraw the information is filed, the trial judge may grant or deny it, not out of subservience to the Secretary of
Justice, but in faithful exercise of judicial prerogative.

Finding of Grave Abuse of Discretion and Notice to Parties
In the absence of a finding of grave abuse of discretion, the courts denial of a motion to withdraw information pursuant to the Secretarys
resolution is void. The amendment requires parties, especially the private complainant, to be duly furnished copies of the order resolving the motion
therefore and explaining the reasons for such disposition.

The amendment under the second paragraph of Section 14 Rule 110 may only be made especially with notice to the offended party.

What may be Amended
Only a valid information may be amended.

Information filed before the effectivity of the law punishing the offense may not be amended after the law had come into effect.

Time to Amend
May be made at any time before the accused enters a plea to the charge

Prosecution is free to amend the information without leave of court before arraignment. Provided, the amendment does not downgrade the
nature of the offense charged or excludes any accused from the complaint or information.

Test as when Rights of Accused Prejudices by Amendment
1. When a defense under complaint or information as it originally stood would no longer be available after the amendment is made
2. When any evidence accused might have would no longer be available after the amendment is made
3. When any evidence the accused might have would be inapplicable to the complaint or information as amended.

An amendment which merely states with additional precision something which is already contained in the original information and adds
nothing essential for conviction for the crime charged is an amendment as to form that can be made at any time.

An amendment which neither adversely affects the substantial right of the accused nor affects and/or alters the nature of the offense originally
charged or involves a charge in the basic theory of the prosecution is an amendment as to a matter of form.

Change of Dates of Commission of Crime
More formal than substantial; would not prejudice the rights of the accused.

Rule not applicable when disparity is great.
While it has been held that except when time is an essential or material ingredient of an offense, the precise time of commission need not be
stated in the information, this does not mean that the prosecution officer may be careless about fixing the date of the alleged crime, or that he may omit
the date altogether or that he may make the allegation so indefinite as to amount to the same thing.

Change of date is formal when it was due to clerical error (ex: March 2, 1964 changed to March 2, 1965)

Discharge to be State Witness under Witness Protection Rule
The rule applies in withdrawing or discharging to be a state witness before plea some accused under the witness protection program without
the need of proving the requirement for the discharge of the state witness despite a pending motion for their discharge.

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Prohibited Amendments: Substantial Amendments
Substantial amendments are changes in the recital of facts constituting the offense charged and determinative of the jurisdiction of the court.

All other are merely of form.

Habitual Delinquency, mere formal amendment
Don not have the effect of charging another offense different or distinct from the charge contained in the information. Neither do they tend to
correct any defect in the jurisdiction of the trial court over the subject matter of the case.

Additional Allegations of Conspiracy
When mere matter of form
Defendant was charged with murder. After the plea, the fiscal presented an amended information wherein 2 other persons were i ncluded as
co-accused. There was further allegation that the accuse and his co-defendants had conspired and confederated together and mutually aided one
another to commit the offense charged.

When substantial
An information for Malversation of Public Property was amended with additional assertion that in permitting the misappropriation, the accused
acted in conspiracy with Commissioner Llanes who was subsequently booked for Malversation of the identical property also in the same court.
(Preparations have t be radically modified to meet the new situation; allegation of conspiracy enables the prosecution to attribute and ascribe to the
accused all the acts, knowledge, admissions and even omissions of his co-conspirator)

Amendment After Plea Changing the Nature of Offense Charged is Prohibited

Addition of Intent to Gain, mere formal amendment
Merely stated with additional precision something which is already contained in the complaint

Amendment to Allege Offense Committed in Relation to Office, mere formal amendment
May be made at any time before arraignment before Sandiganbayan
Amendment would not affect the juridical nature of the offense charged

No Need of Arraignment where Amendment is Merely Formal
Where the amendment is not substantial, no second plea is necessary.

Amendment to Conform to Evidence is Allowed and Permissible

Mistake to Conform to Evidence
Amendment by Substitution
If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original
complaint or information in accordance with Rule 119, Section 11, provided, the accused would not be placed in double jeopardy.

Section 11, Rule 119 provides that when it becomes manifest at any time before judgment that a mistake has been made in charging the
proper offense and the accused cannot be convicted of the offense charge or of any other offense necessarily included therein, the accused shall not be
discharged, if there appears to be good cause to detain him. In such case, the court shall commit the accused to answer for t he proper offense and
dismiss the original case upon the filing of the proper offense. (Rule does not apply where the accused may be convicted of any other offense
necessarily included in the offense charged)

Section 14, Rule 110 contains 2 parts:
1. One authorizes the amendment of an information or complaint in substance or form, without leave of court, at any time before the defendant
pleads, and thereafter, only as to matter of form
2. The other provides that if it appears at any time before judgment that a mistake has been made in charging the proper offense, the court may
dismiss the original complaint or information and order the filing of a new one charging the proper offense (substitution), provided that the
defendant will not be placed in double jeopardy

Rule 119, Section 11: Court Initiates Substitution
Rule 119 is the rule specifically governing the trial stage where evidence is necessarily being presented, hence the trial court is now in better
position to conclude that manifestly the accused cannot be convicted of the offense charged or of one that it necessarily includes.

Rule 110, Section 14: Prosecutor Initiates Substitution
Rule 110, on the other hand, provides the procedural governance of the prosecution of offenses. Section 14 provides in the 3
rd
paragraph that
procedure and requisites for the substitution of a defective information by the correct one.

Just like Section 11 of rule 119, the permissible stage for effecting substitution is at any time before judgment.

Amendment v. Substitution
Section 14 or rule 110 was clarified to mean as follows:
It may accordingly be posited that both amendment and substitution of the information may be made before or after the defendant pleads, but
they differ in the following respects:

Amendment Substitution
May involve either formal or
substantial changes
Involves a substantial change
from the original charge
Amendment before plea has been
entered can be effected without
Substitution of an information
must be with leave of court as the
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leave of court original information has to be
dismissed
Where the amendment is only as
to form, there is no need for
another preliminary investigation
and the retaking of the plea of the
accused
In substitution, another
preliminary investigation is
entailed and the accused has to
plead anew to the new
information
Refers to the same offense
charged in the original information
or to an offense which necessarily
includes or is necessarily
included in the original charge,
hence, substantial amendments
to the information after plea has
been taken cannot be made over
the objection of the accused, for if
the original information would be
withdrawn, the accused could
invoke double jeopardy
Substitution requires or
presupposes that the new
information involves a different
offense which does not include or
is not necessarily included in the
original charge, hence, accused
cannot claim double jeopardy

In determining therefore whether there should be amendment under the first paragraph of Section 14, rule 110 or a substitution of information
under the third paragraph thereof, the rule is that where second information involves the same offense, or an offense which necessarily includes
or is necessarily included in the first information, an amendment of the information is sufficient; otherwise, where the new information
charges an offense which is distinct and different from that initially charged, a substitution is in order.

Dismissal Only After New One is Filed

Substitution Applies Only When No J udgment was Rendered
The amendment or the filing of a new case where there had been a mistake in charging the proper offense after the dismissal of an existing
one, spoken of and therein provided for apply, only to an original case where no judgment has as yet been rendered. Much less does the said section
apply to an appealed case.

Subject to the Rule on Double J eopardy
The reason is obvious and that is because the right to amend or file a new complaint or information charging the proper offense after the
dismissal of the original complaint or information is subject to the rule on double jeopardy.

Where the original charge was that of less serious physical injury for which the accused was convicted, the prosecution cannot on appeal
withdraw the case of physical injuries and file a case of direct assault.

Limitation on Rule on Substitution
Limitations before a new information in substitution of the original one may be allowed:
1. No judgment has yet been rendered
2. Accused cannot be convicted of the offense charged or of any other offense necessarily included therein; and
3. Accused would not be placed in double jeopardy.

No Double J eopardy where Withdrawal Made before Arraignment
In Galves v. CA, the propriety of the withdrawal of the original information for homicide before arraignment was upheld, there having no grave
abuse of discretion in granting the motion and more importantly, in consideration of the fact that the motion to withdraw was filed and granted before
petitioners were arraigned, hence, before they were placed in jeopardy. Thus, even if substitution was made at any stage, petitioners cannot validly
claim double jeopardy which is the evil sought to be prevented under the rule on substitution for the simple reason that no first jeopardy had as yet
attached.

SECTION 15 PLACE WHERE ACTION IS TO BE INSTITUTED

Improper Venue
In criminal proceedings, improper venue is lack of jurisdiction.

Venue in criminal cases is an essential element of jurisdiction, unlike in civil case where venue may be waived.

The rule is that one cannot be held to answer for any crime committed by him except in the jurisdiction where it was committed.

Jurisdiction or venue is determined by the allegation in the information which are controlling.

When Place of Crime Not Alleged
When not alleged, place can be shown by the evidence.

When the record discloses that the crime as alleged in the complaint was not committed in the province wherein the trial was held, and the
accused was not arrested in that province and defendant had not fled therefrom, the CFI (now RTC) of that province has no jurisdiction to impose
sentence. The accused should be remanded to the court of proper jurisdiction for trial.

Purpose of the rule
Not to compel the defendant to move to and appear in a different court from that of the province where the crime was committed as it would
cause him great inconvenience in looking for his witnesses and other evidence in another place.
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Power to Change Venue
Where the convenience of the accused is opposed by that if the prosecution, it is but logical that the court should have the power to decide
where the balance of convenience or inconvenience lies, and to determine the most suitable place for the trial according to t he exigencies of truth and
impartial justice.

A petition for change of venue of the preliminary investigation should however be addressed to the Secretary of Justice who has control and
supervision over the conduct of preliminary investigation which is a function of the Executive and not of the Judiciary.

Places Where Action May Be Instituted, General rule
Territory wherein the crime was committed or where any one of the essential ingredient of the offense took place.

If all the acts material and essential to the crime and requisite of its consummation occurred in one municipality or province, the court of that
municipality or province has sole jurisdiction to tye the case

Anti-Piracy and Anti-Highway Robbery criminal action may be instituted and tried in the court of any municipality or territory where the
vehicle passed during the trip including the place of departure and arrival.
Theft place where the unlawful taking of a moveable thing consummated; not the place where the act of taking away the thing stolen
because it is not an indispensable requisite
Example: Accused stole cattles in Nueva Ecija and took them to Pampanga. Case is triable in Nueva Ecija, not Pampanga.

Transitory and Continuing Crimes
Court of either province where any of the essential ingredients of the crime took place has jurisdiction to try the case

Offenses are continuing or transitory upon the theory that there is a new commission, continuance or repetition of the offense wherever the
defendant may be found. In such a case, complaint should allege that the offense was committed within the jurisdiction of the court and not the place
where it was originally committed.

Person may be indicted in any jurisdiction where the offense was in part committed, it being understood that the first court taking cognizance
of the case excludes the other.

Transitory and Continuing Offenses, distinguished
Transitory Offense one where any of the essential ingredients took place (estafa, malversation, abduction)
Continuing Offense one which is consummated in one place, yet by reason of the nature of the offense, the violation of thelaw is deemed
continuing; (a) plurality of acts performed separately over a period of time, (b) unity of penal provision infringed upon or violation, (c) unity of criminal
intent or purpose, (d) same intent leading to the perpetration of the same crime

Adultery place of second marriage

Estafa place where there was a damage to the offended party

Bouncing Check place of the issuance of the check

Falsification of Private Document time and place where the document is falsified

Crime within City Limits
When the crime was committed within two and a half mites of the city limit, the court has jurisdiction.

Crime on Board Foreign Merchant Ships within Territorial Limits
French Rule crimes should not be prosecuted in the court of the country within which they are committed, unless their commission affects
the peace and security of the territory

English Rule crimes are generally triable in the courts of the country withing whose territory they are committed,

Philippines observes English Rule

Disorders which disturb not only the peace of the ship or those on board are to be dealt with exclusively by the sovereignty of the home of the
ship; but hose which disturb the public may be suppressed and the offenders punished by proper authorities of the local jurisdiction.

When the exact place where the crime was committed is unknown and the strong presumption arises at the trial that it was committed on
board a ship navigating within the waters included in the territory of this Archipelago, the court competent to try such crimes is the district and province at
one of whose ports the ship or vessel arrives.

Crimes Committed Outside of the Philippines Punishable under Article 2, RPC
Cognizable in the proper court in which the charge is first filed.

Where the crime is committed by a public officer in relation to his office and is classified as grade 27 and higher, jurisdiction is with the
Sandiganbayan.


SECTION 16 INTERVENTION OF THE OFFENDED PARTY IN THE CRIMINAL PROSECUTION

Primary Purpose of Criminal Action
CRIMINAL PROCEDURE (HERRERA) NOTES
by Danika S. Santos (2-I) Page 10

To punish the offender in order to deter him and others from committing the same or similar offense, to isolate him from society, reform and
rehabilitate him or in general, to maintain social order.

Sole Purpose of Civil Action
For the resolution, reparation or indemnification of the private party for the damage or injury he sustained by reason of the delictual or
felonious act of the accused.

Intervention of Offended Party
The Court stated that under Rule 110 Section 5, all criminal actions covered by a complaint or information shall be prosecuted under the direct
control and supervision of the public prosecutor. Thus even if felonies or delictual acts of the accused result in damage or injury to another, the civil
action for the recovery of civil liability based on the said criminal acts is impliedly instituted.

Under Rule 111 Section 16, offended party may intervene in the criminal action personally or by counsel, who will act as private prosecutor for
the protection of his interest of the speedy and inexpensive administration of justice. A separate action for the purpose would only be costly, burdensome
and time-consumming.

Right to Notice of Offender Party
Law gives the offended party the right to intervene, personally or by counsel and he is deprived of such right only when (1) he waives his civil
action or (2) reserve his right to institute one.

The offended party is entitled to be notified and heard on motions filed in the criminal proceedings especially when there is a conflict in the
positions between the public prosecutor and of the offended party.

Filing of Separate Civil Action
An offended party loses his right to intervene in the prosecution of a criminal case, not only when he has waived his right to institute, but also
when he was actually instituted the civil action arising from the offense.

Legal Personality of the Offended Party
Serves a witness

Offended party has the legal personality to file a motion for reconsideration of an order of dismissal.