Criminal Procedure 2007 PDF

ATENEO CENTRAL BAR OPERATIONS 2007
Remedial Law
SUMMER REVIEWER
CRIMINAL PROCEDURE
PRELIMINARY MATTERS
CRIMINAL PROCEDURE
It is the method prescribed by law for the
apprehension and prosecution of persons accused of
any criminal offense and for their punishment, in case
of conviction (Remedial Law IV, Herrera).
It is concerned with the procedural steps through
which a criminal case passes, commencing with the
initial investigation of a crime and concluding with the
release of the offender.
JURISDICTION OVER
THE SUBJECT
MATTER
Conferred by law. It
cannot be acquired by
the consent of the
accused.
JURISDICTION OVER
THE PERSON OF THE
ACCUSED
May be acquired by
consent of the accused
or by waiver of
objections.
Objection that the court

has no jurisdiction over
the subject matter may
be made at any stage of
the proceeding and the
right to make such
objection is never
waived.
If the accused fails to

make his objection in
time, he will be deemed
to have waived it.
JURISDICTION
CRIMINAL JURISDICTION
It is the authority to hear and try a particular offense
and impose the punishment for it (People v. Marinao,
71 SCRA 600, 604).
REQUISITES FOR VALID EXERCISE OF
CRIMINAL JURISDICTION:
1. Jurisdiction over the subject matter is the
power to hear and determine cases of the
general class to which the proceedings in
question belong (Reyes v. Diaz, 73 Phil 484);
by virtue of the imposable penalty or its nature,
is one which the court is by law authorized to
take cognizance of; conferred by law.
2. Jurisdiction over the territory where the
offense was committed the offense must
have been committed within the territorial
jurisdiction of the court; jurisdiction over the
territory; cannot be waived
3. Jurisdiction over the person of the accused
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have been brought to its presence for trial,
forcibly by warrant of arrest or upon his
voluntary submission to the court.
The question of jurisdiction may be raised at any
stage of the proceedings. The exception to this rule
is when there is estoppel and laches on the party
who raised the question of jurisdiction.
What determines jurisdiction

Jurisdiction is determined by the extent of the penalty
which the law imposes, on the basis of the facts as
recited in the complaint or information constitutive of
the offense charged
Jurisdiction is not determined by:
what may be meted out to the offender after
trial
the result of the evidence that would be
presented during the trial
Jurisdiction is retained regardless of:
whether the evidence proves a lesser offense
than that charged in the information,
the subsequent happening of events, although
of a character which would have prevented
jurisdiction from attaching in the first instance.
GENERAL RULE:
Jurisdiction of a court to try criminal action is to be
determined by the law at the time of the institution of
the action.
EXCEPTION: Where the statute expressly provides,
or is construed that it is intended to operate to actions
pending before its enactment, in which case, the
court where the criminal action is pending is ousted
of jurisdiction and the pending action will have to be
transferred to the other tribunal which will continue
the proceeding.
Advisers: Atty. Tranquil Salvador III; Head: Mary Elizabeth M. Belmonte, Renee Lynn C. Miciano, Ma. Cecillia G.
Natividad; Understudies: Neliza Macapayag, Benjamin C. Yan
Remedial Law Summer Reviewer

ONCE VESTED, JURISDICTION CANNOT BE

WITHDRAWN BY:
1. Subsequent
valid
amendment of
the
Information; or
2. Subsequent statutory amendment of the rules
of jurisdiction, unless the amendatory law
provides otherwise.
Venue is jurisdictional
Thus: Action must be instituted and tried in the
municipality or territory where the offense has been
committed or where any one of the essential
ingredients thereof took place.
GENERAL RULE:
The question of jurisdiction may be raised at any
stage of the proceedings.
EXCEPTION: It may not be raised for the first time on
appeal, where there has been estoppel and laches
on the party who raises the question.
Criminal jurisdiction of MTCs
GENERAL RULE:
MTC has jurisdiction over all offenses, the maximum
penalty of which as provided by law does not exceed
6 years (prision correccional).
EXCEPTION: In cases where the only penalty
provided by law is a fine, the amount whereof shall
determine the jurisdiction of the court:
MetroTC, MTC, and MCTC: if fine is not more
than 4000 pesos.
RTC: if fine exceeds 4000 pesos, including
offenses committed by public officers and
employees in relation to their office, where the
amount of the fine does not exceed 6000
pesos. (SC Court Circular No. 09-94).
Accessory penalties and civil liabilities: no longer
determinative of jurisdiction.
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provision of special law are made triable by the RTC
or the Sandiganbayan even if the maximum penalty
prescribed by such special law is less than 6 years.
Included in such exceptions are election offenses,
libel or written defamation, and violation of Sec. 39 of
the Dangerous Drugs Act of 1972 (RA 6425).
Criminal Jurisdiction of the Sandiganbayan
Offenses or felonies, whether simple or complexed

with other crimes committed by the public officials
and their employees mentioned in Subsection (a) of
this section in relation to their office.
If the last element, namely, in relation to his office is
absent or is not alleged in the information, the crime
committed falls within the exclusive original
jurisdiction of ordinary courts and not the SB.
The offense is committed in relation to the office if the
offense is intimately connected with the office of the
offender and perpetuated while he was in the
performance of his official functions, or when the
crime cannot exist without the office, or the office is a
constituent element of the crime as defined in the
statute.
Election Offenses
Fall outside the jurisdiction of SB even if they are
committed by public officers classified as Grade 27
and higher and in relation to their offices. It is the
RTC that has jurisdiction as provided for in the
Omnibus Election Code.
Court Martial Cases
Offenses committed by members of the Armed
Forces and other persons subject to military law are
cognizable by court martial if such offenses are
service connected as expressly enumerated in RA
7055.
If the particular offense is not one of those
enumerated in the law, the case falls under either the
regular courts or the SB, as the case may be.
Jurisdiction of Family Courts
Republic Act No. 8369 establishing the Family Court
granting them exclusive original jurisdiction over child
and family cases, namely: Criminal cases where one
or more of the accused is below 18 years of age but
not less than 9 years of age or where one or more of
the victim is a minor at the time of the commission of
the offense, provided that if the minor is found guilty,
the court shall promulgate sentence and ascertain
any civil liability which the accused may have
incurred. The sentence shall be suspended without
need of an application pursuant to the Child and
Youth Welfare Code or P.D. 603).
Jurisdiction over Complex Crimes
Jurisdiction is lodged with the trial court having
jurisdiction to impose the maximum and most serious
penalty imposable of an offense forming part of the
complex crime.
Page 171 of 289

Jurisdiction over Crimes Punishable by Destierro

Where the imposable penalty is destierro, the case
falls within the exclusive jurisdiction of the Municipal
Trial Court, considering that in the hierarchy of
penalties under Article 71 of the Revised Penal Code,
destierro follows arresto mayor which involves
imprisonment (People v. Eduarte, 182 SCRA).
Principle of Adherence of Jurisdiction
Once jurisdiction is vested in the court, it is retained
up to the end of litigation (Dela Cruz v. Moya, 160
SCRA 838).
RULE 110
PROSECUTION OF OFFENSES
CRIMINAL ACTION
It is an action by which the State prosecutes a person
for an act or omission punishable by law.
Section 1. Institution of Criminal Actions
For
offenses
which
require
preliminary
investigation:
By filing the complaint with the proper officer for
preliminary investigation.
Refers to a complaint-affidavit, and is different
from the complaint defined in Section 3 of Rule
110.
Preliminary investigation is required for
offenses where the penalty prescribed by law
is at least 4 years, 2 months and 1 day of
imprisonment without regard to the fine (Rule
112, Sec. 1, Par. 2).
For all other offenses, or for offenses which are
penalized by law with lower than at least 4 years,
2 months and 1 day without regard to the fine:
Instituted directly with the MTC and MCTC, or the
complaint is filed with the Office of the Prosecutor.
In Manila and other chartered
cities,
the complaint
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NOTE: A complaint for offenses cognizable by the
RTC is NOT filed directly with the RTC either for
purposes of preliminary investigation or for
commencement of the criminal prosecution.
DOES NOT APPLY:
To offenses
subject to summary procedure
which
are
Effect of institution of the Criminal Action:

The institution of the criminal action interrupts the
running of the period of prescription of the offense
charged
UNLESS: otherwise provided in special laws.
Act No. 3323 governs the prescriptive periods of
violations of special laws, or offenses other than
those penalized under the Revised Penal Code.
NOTE: With respect to offenses penalized by special
laws, the filing of the complaint or information in court
is the one that interrupts the prescriptive period and
not the filing of the complaint in the proper office for
purposes of conducting a preliminary investigation
(Zaldivar v. Reyes, 211 SCRA 277).
The filing of a complaint for purposes of
preliminary investigation starts the prosecution
process.
REQUISITES
OF
A
COMPLAINT
OR
INFORMATION
1. in writing
2. in the name of the People of the Philippines
3. Against all persons who appear to be
responsible for the offense involved.
Who is the real offended party?
The People of the Philippines, but since the crime is
also an outrage against the offended party, he is
entitled to intervene in its prosecution in cases where
the civil action is impliedly instituted therein.
Section 2. The complaint or information
FORM:
1. In writing;
2. In the name of the People of the Philippines;
and
3. Against all persons who appear to be
responsible for the offense involved.
Section 3. Complaint defined
COMPLAINT
It is a sworn written statement charging a person with
an offense, subscribed by the offended party, any
peace officer, or other public officer charged with the
enforcement of the law violated.
The complaint as defined under Section 3 is different
from the complaint filed with the Prosecutors Office.
It refers to the one filed in court for the
Page 172 of 289

commencement of a criminal prosecution for violation
of a crime usually cognizable by municipal trial courts
as well as to a complaint filed by an offended party in
private crimes or those which cannot be prosecuted
de officio.
REQUISITES OF A COMPLAINT:
1. It must be in writing and under oath;
2. It must be in the name of the People of the
Philippines;
3. It must charge a person with an offense; and
4. It must be subscribed by the offended party, by
any peace officer or public officer charged with
the enforcement of the law violated.
The
COMPLAINT
FILED
WITH
THE
PROSECUTORS OFFICE, from which the latter
may initiate a preliminary investigation, refers to:
1. any written complaint
2. filed by an offended party or not
3. not necessarily under oath, except in 2
instances:
complaint for commission of an offense
which cannot be prosecuted de officio or is
private in nature
where the law requires that it is to be
started by a complaint sworn to by the
offended party, or when it pertains to those
which need to be enforced by specified
public officers.
Under the Rule on Summary Procedure:
A complaint may be directly filed in the MTC,
provided that in Metro Manila and in chartered cities,
the criminal action may only be commenced by the
filing of information, which means, only by the
prosecutor, except when the offense cannot be
prosecuted de officio as in private crimes.
PERSONS WHO CAN FILE A COMPLAINT:
1. Offended party;
2. Any peace officer;
3. Other public officer charged with
enforcement of the law violated.
the
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INFORMATION
It is an accusation in writing charging a person with
an offense, subscribed by the prosecutor and filed
with the court.
REQUISITES OF AN INFORMATION:
1. It must be in writing;
2. It must charge a person with an offense;
3. It must be subscribed by the prosecutor; and
4. It must be filed in court.

PERSONS
AUTHORIZED
TO
FILE
INFORMATION
1. City or provincial prosecutor and their
assistants
2. Duly appointed special prosecutors.
AN
Information and Complaint distinguished

COMPLAINT
INFORMATION
Subscribed by the
Subscribed by the
offended party, any
prosecutor. It does not
peace officer or other
have to be subscribed by
officer charged with the
the offended party or any
enforcement of the law
peace officer or other
violated.
peace officer charged
with the enforcement of
the law.
Filed either in the MTC or Filed in court.
with the provincial/city
prosecutors office
NOTE: PROSECUTION IN THE RTC IS ALWAYS
COMMENCED BY INFORMATION, EXCEPT:
1. In
certain
crimes
against
chastity
(concubinage, adultery, seduction, abduction,
acts of lasciviousness) ; and
2. Defamations imputing any of the aforesaid
offenses wherein a sworn written complaint is
required in accordance with Section 5 of this
Rule.
In case of variance between the complaint filed by
the offended party and the information in crimes
against chastity, the complaint controls (People v.
Oso, 62 Phil 271).
People v. Santiago G.R. No. 137281 (2001)
A defectively crafted information, such as that
alleging multiple offenses in a single complaint or
information transgresses Rule 110, 13. A. However,
failure to make a timely objection to such a defect is
deemed to be a waiver of the said objection.
Section 5. Who Must Prosecute Criminal Actions
Full Discretion and Control of the Prosecutor
All criminal actions commenced by complaint of
information shall be prosecuted under the direction
and control of the prosecutor.
The institution of a criminal action depends upon the
sound discretion of the prosecutor. But once the
case is already filed in court, the same can no longer
be withdrawn or dismissed without the tribunals
Page 173 of 289

approval. Should the prosecutor find it proper to
conduct a reinvestigation of the case at such stage,
the permission of the Court must be secured (Crespo
v. Mogul).
May a criminal prosecution be restrained by
injunction?
GENERAL RULE: No
REASON: Public interest requires that criminal acts
be immediately investigated and prosecuted for the
protection of society.
EXCEPTIONS WHERE CRIMINAL PROSECUTION
MAY BE RESTRAINED BY INJUNCTION
1. where injunction is justified by the necessity to
afford protection to the constitutional rights of
the accused
2. when necessary for the orderly administration
of justice or to avoid oppression or multiplicity
of actions
3. when there is a prejudicial question which is
sub judice
4. when the acts of the officer are without or in
excess of authority
5. where the prosecution is under an invalid law,
ordinance or regulation
6. when double jeopardy is clearly apparent
7. where the court has no jurisdiction over the
offense
8. where it is a case of persecution rather than
prosecution
9. where the charges are manifestly false and
motivated by the lust for vengeance
10.when there is clearly no prima facie case
against the accused and the motion to quash
on that ground has been denied
11.preliminary injunction has been issued by the
Supreme Court to prevent the threatened
unlawful arrest of petitioners.
Prior to the filing of the information in court, the
prosecutor has full control of the case. He
decides who should be charged in court and who
should be excluded from the information.
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DECISION OF THE
PROSECUTOR
REVIEW BY:
the Secretary of Justice who exercises
supervision and control over his actions and
who may sustain, modify or set aside his
resolution on the matter
in appropriate cases, by the courts when he
acts with grave abuse of discretion amounting
to lack of jurisdiction.
Private Prosecutor Participation:

May a public prosecutor allow a private prosecutor to
actively handle the conduct of the trial? Yes, where
the civil action arising from the crime is deemed
instituted in the criminal action.
Public Prosecutor must be present during the
proceedings and must take over the conduct of the
trial from the private prosecutor at any time the cause
of the prosecution may be adversely affected.
Thus, where the prosecutor has turned over the
active conduct of the trial to the private prosecutor
who presented testimonial evidence even when the
public prosecutor was absent during the trial, the
evidence presented could not be considered valid
evidence of the People.
However: this rule applies only to courts which are
provided by law with prosecutors, and not to
municipal courts which have no trial prosecutors, in
which case the evidence presented by the private
prosecutor can be considered as evidence for the
People.
GENERAL RULE:
In appeals, the Sol. Gen. has control. He may
abandon or discontinue the prosecution of the case in
the exercise of his sound discretion and may even
recommend the acquittal of an accused when he
believes that the evidence does not warrant his
conviction.
EXCEPTION: provided for in RA 8249 which states in
part that in all cases elevated to the Sandiganbayan
and from the SB to the SC, the Office of the
Ombudsman, through its special prosecutor, shall
represent the People of the Philippines, except in
cases filed pursuant to EO Nos. 1, 2, 14 and 14-A,
issued in 1986.
When it is said that the requirement of Art. 344 of
RPC is jurisdictional, what is meant is that it is the
complaint that starts the prosecutory proceeding. It is
not the complaint which confers jurisdiction on the
court to try the case.
People v. Yparraguire, G. R. No. 124391 (2000)
Even when a complaint is defective for being
signed and filed by the chief of police and not by the
complainant, the court may still acquire jurisdiction
over the case. The complaint required in Art. 344 of
the RPC is but a condition precedent to the exercise
by the proper authorities of the power to prosecute
the guilty parties. The complaint simply starts the
Page 174 of 289

prosecutory proceeding but does not confer
jurisdiction in the court to try the case. Art. 344 is not
determinative of the jurisdiction of courts over private
offenses because the same is governed by the
Judiciary Law and not the RPC.
Once the complaint is filed, does death of the
complainant in a crime of adultery extinguish the
criminal liability of the accused? No.
The
participation of the offended party in private crimes is
essential not for the maintenance of the criminal
action but solely for the initiation thereof. Any pardon
given by the complainant or her death after the filing
of the complaint would not deprive the court of the
jurisdiction to try the case.
REMEDIES OF THE OFFENDED PARTY IF THE
PROSECUTOR
REFUSES
TO
FILE
AN
INFORMATION:
1. File an action for mandamus, in case of grave
abuse of discretion
2. Lodge a new complaint before; the court
having jurisdiction over the offense;
3. Take up the matter with the Secretary of
Justice in accordance with the Administrative
Code;
4. Institute administrative charges against erring
prosecutor; and
5. File criminal action against the prosecutor with
the corresponding civil action for damages.
3. A defamation imputing to a person any of the

foregoing crimes of concubinage, adultery,
seduction, abduction, rape or acts of
lasciviousness can be prosecuted only by the
party or parties defamed (Article 360, last
paragraph, Revised Penal Code).
NOTE: If the offended party is of legal age and does
not suffer from physical or mental disability, she
alone can file the complaint to the exclusion of all.
Who can give pardon?
1. Concubinage and adultery only the
offended spouse not otherwise incapacitated,
can validly extend the pardon or consent
contemplated therein.
2. Seduction,
abduction
and
acts
of
lasciviousness a. the offended minor, if with sufficient
discretion can validly pardon the accused
by herself if she has no parents or where
the accused is her own father and her
mother is dead
b. the parents, grandparents or guardian of
the offended minor, in that order, cannot
extend a valid pardon in said crimes without
the conformity of the offended party, even if
the latter is a minor;
c. if the offended woman is of age and not
otherwise incapacitated, only she can
extend a valid pardon.
PROSECUTION OF PRIVATE CRIMES

Who may prosecute?
1. Concubinage and adultery only by the
offended spouse who should have the status,
capacity and legal representation at the time of
filing of the complaint regardless of age; Both
guilty parties must be included in the
complaint; The offended party did not consent
to the offense nor pardoned the offenders.
2. Seduction, Abduction and Acts of
Lasciviousness prosecuted exclusively and
successively by the following persons in this
order:
a. By the offended
woman;
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judicial guardians in that successive order,
if the offended party is a minor or of age but
suffers from physical or mental disability;
c. By the State pursuant to the doctrine of
parens patriae, when the offended party
dies or becomes incapacitated before she
could file the complaint and she has no
known parents, grandparents or guardians.
The pardon refers to pardon BEFORE filing of the

criminal complaint in court. Pardon effected after the
filing of the complaint in court does not prohibit the
continuance of the prosecution of the offense
EXCEPT in case of marriage between the offender
and the offended party.
Pardon and Consent
PARDON
Refers to past acts of
adultery.
In order to absolve the
accused from liability
must be extended to both
offenders.
CONSENT
Refers to future acts
In order to absolve the

accused from liability, it is
sufficient even if granted
only to the offending
spouse.
The SUBSEQUENT MARRIAGE between the party

and the accused extinguishes the criminal liability of
the latter, together with that of the co-principals,
accomplices and accessories, Except:
a. Where the marriage was invalid or contracted
in bad faith in order to escape criminal liability.
Page 175 of 289

b. In private libel or the libelous imputation of
the commission of the crimes of concubinage,
adultery, seduction, abduction, rape or acts of
lasciviousness and in slander by deed;
c. In multiple rape, insofar as the other accused
in the other acts of rape respectively
committed by them are concerned.
NOTE: The acquittal or death of one of the accused
in the crime of adultery does not bar the prosecution
of the other accused (People v. Topio, 35 Phil 901).
However, the death of the offended spouse before
the filing of the complaint for adultery bars further
prosecution, BUT if the offended spouse died after
the filing of the corresponding complaint, his death
will not prevent the proceeding from continuing to its
ultimate conclusion.
Effect of Desistance of Complainant
It does not bar the People from prosecuting the
criminal action. BUT: it does operate as a waiver of
the right to pursue civil indemnity.
NOTE: Substantial defect in the information cannot

be cured by evidence that would jeopardize the
accuseds right to be informed of the true nature of
the offense he is charged with.
Section 7. Name of the accused
NAME OF THE ACCUSED
1. If name is known: the name and surname of
the accused or any appellation or nickname by
which he has been or is known.
2. If name cannot be ascertained: a fictitious
name with a statement that his true name is
unknown.
If true name thereafter disclosed: such true
name shall be inserted in the complaint or
information and record.
3. While one or more persons, along with
specified and named accused, may be sued as
John Does, an information against all
accused described as John Does is void, and
an arrest warrant against them is also void.
An offended party in a criminal case has sufficient

personality to file a special civil action for certiorari, in
proper cases, even without the imprimatur of the
State. In so doing, the complainant should not bring
the action in the name of the People of the
Philippines. The action may be prosecuted in the
name of the said complainant (Perez v. Hagonoy
Rural Bank, Inc. 327 SCRA 588).
NOTE: An error in the name of the accused is not

reversible as long as his identity is sufficiently
established. This defect is curable at any stage of
the proceedings as insertion of the real name of the
accused is merely a matter of form (People v. Padica,
221 SCRA 362).
Section 6. Sufficiency of complaint or information
Section 8. Designation of the offense
A COMPLAINT IS SUFFICIENT IF IT STATES:

1. the name of the accused
2. the designation of the offense by a statute
3. the acts or omission complained of as
constituting the offense
4. the name of the offended party
5. the approximate time of the commission of the
offense
6. the place where the offense was committed.
THE INFORMATION OR COMPLAINT MUST

STATE OR DESIGNATE THE FOLLOWING
WHENEVER POSSIBLE:
1. The designation of the offense given by the
statute. If there is no designation of the
offense, reference shall be made to the section
of the statute punishing it.
2. The statement of the acts or omissions
constituting the offense, in ordinary, concise
and particular words.
3. The specific qualifying and aggravating
circumstances must be stated in ordinary and
concise language.
People v. Dela Cruz, G.R.

No. and
137967
(2001)
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eyewitnesses in the information does not preclude
the prosecutor from presenting them during trial.
PURPOSE: to safeguard the constitutional right of an
accused to be informed of the nature and cause of
the accusation against him so that he can duly
prepare his defense.
The qualifying and aggravating circumstances cannot

be appreciated even if proved unless alleged in the
information (People v. Perreras, 362 SCRA 202).
In case of allegation of aggravating circumstance of
HABITUAL DELINQUENCY, it should not be
generally averred. The information must specify:
Page 176 of 289

a. the commission of the crimes;
b. the last conviction or release;
c. the other previous conviction or release of the
accused.
In rape cases, the concurrence of the minority of the
victim and her relationship with the offender is a
special qualifying circumstance which should be both
alleged (People v. Cantos, 305 SCRA 786) and
proved (People v. Manggasin) with certainty in order
to warrant the imposition of the [maximum] penalty.
DESIGNATION OF THE OFFENSE
1. In case of a conflict between the designation of
the crime and the recital of facts constituting
the offense, the latter prevails over the former.
2. The real question is not, did he commit a crime
given in the law some technical and specific
name, but did he perform the acts alleged in
the body of the information. If he did, it is of no
consequence to him, either as a matter of
procedure or of substantive right, how the law
denominates the crime.
It is not the designation of the offense in the
complaint or information that is controlling (People v.
Samillano, 56 SCRA 573); the facts alleged therein
and not its title determine the nature of the crime
(People v. Magdowa, 73 Phil 512).
The accused may be convicted of a crime more
serious than that named in the title or preliminary part
if such crime is covered by the facts alleged in the
body of the information and its commission is
established by evidence (Buhat v. Court of Appeals,
265 SCRA 701).
An accused could not be convicted under one act
when he is charged with a violation of another if the
change from one statue to the other involves:
a. a change in the theory of the trial;
b. requires of the defendant a different defense;
or
c. surprise the accused in any way. (U.S. v.
Panlilio, 28 Phil 603).
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of
the accusation
If one or more elements of the offense have not been

alleged in the information, the accused cannot be
convicted of the offense charged, even if the missing
elements have been proved during the trial.
Even the accuseds entering a plea of guilty to such
defective information will not cure the defect, nor
justify his conviction of the offense charged.
IMPORTANT: The new rule requires that the

qualifying and aggravating circumstances be alleged
in the information.
PURPOSE:
1. To enable the court to pronounce a proper
judgment;
2. To furnish the accused with such a description
of the charge as to enable him to make a
defense;
3. As a protection against further prosecution for
the same cause. ( U.S. v. Karelsen).
RULE ON NEGATIVE AVERMENTS:
1. Where the law alleged to have been violated:
prohibits generally acts therein defined
is intended to apply to all persons
indiscriminately,
but prescribes certain limitations or
exceptions from its violation the information
is sufficient if it alleges facts which the
offender did as constituting a violation of
law, without explicitly negating the
exception, as the exception is a matter of
defense which the accused has to prove.
2. Where the law alleged to have been violated
applies only to specific classes of persons
and special conditions
the exemptions from its violation are so
incorporated in the language defining the
crime that the ingredients of the offense
cannot be accurately and clearly set forth if
the exemption is omitted, the information
must show that the accused does not fall
within the exemptions.
NOTE: When an exception or negative allegation is
not an ingredient of the offense and is a matter of
defense, it need not be alleged (U.S. v. Chan Toco,
12 Phil 262).
COMPLEX CRIMES
Where what is alleged in the information is a
complex crime and the evidence fails to support the
charge as to one of the component offenses, the
defendant can be convicted of the offense proven.
Section 10. Place of commission of the offense
GENERAL RULE:
A complaint or information is sufficient if it appears
from the allegation that the offense was committed or
some of its essential ingredients occurred at some
place, within the territorial jurisdiction of the court.
Page 177 of 289

EXCEPTION: When the place of commission is an
essential element of the offense, the place of
commission must be alleged with particularity e.g.
trespass to dwelling, destructive arson, robbery in an
inhabited house.
should be alleged in the information and proved at

the trial. The New Rules of Criminal Procedure which
took effect on Dec. 1, 2000, now specifically require
that both qualifying and aggravating circumstances to
be alleged in the information.
Section 12. Name of the offended party
PURPOSE: To show territorial jurisdiction of the

court.
May conviction be had even if it appears that the
crime was committed not at the place alleged in
the information? Yes, provided the place of actual
commission was within the jurisdiction of the court.
UNLESS: the particular place of commission is an
essential element of the offense charged.
Section 11. Date of commission of the offense
What is the determinative factor in the resolution of
the question involving a variance between the
allegation and proof in respect of the date of the
crime? The element of surprise on the part of the
accused and his inability to defend himself properly
People v. Elpedes, G.R. No. 137106-07 (2001)
The remedy against an indictment that fails to
allege the time of commission of the offense with
sufficient definiteness is a motion for bill of particulars
(Rule 116 10). The failure to move or specification
or the quashal of the information on any of the
grounds provided for in the Rules deprives the
accused of the right to object to evidence which could
be lawfully introduced and admitted under an
information of more or less general terms but which
sufficiently charges the accused with a definite crime.
Besides, the exact date of the commission of the
crime is not an essential element of the crime.
People v. Baniguid, GR No. 137714 (2000)
Death penalty is imposed for the crime of rape if
the victim is under 18 years of age and the offender
is a parent of the victim. For this purpose, the special
qualifying circumstances of the victims minority and
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and proved. The information must
state the exact age
of the victim at the time of the commission of the
crime.
People v. De Villa, G.R. No. 124639 (2001)
Under the amendatory provisions of RA 7659
11, the attendance of facts that would mandate the
imposition of the single indivisible penalty of death
are in the nature of qualifying circumstances which
The rules require the complaint or information to state

the name and surname of the persons 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 under a
fictitious name (Sayson v. People, 166 SCRA 693).
In crimes against property, if the name of the
offended party is unknown, the property must be
described with such particularity as to properly
identify the particular offense charged.
To constitute larceny, robbery, embezzlement,
obtaining money by false pretenses, malicious
mischief, etc., the property obtained must be that of
another person, and indictment for such offense must
name the owner and a variance in this respect
between the indictment and the proof will be fatal.
Section 13. Duplicity of the Offense
The information is defective when it charges two or
more DISTINCT or DIFFERENT offenses.
A
complaint or information must charge only one
offense, except when the law prescribes a single
punishment for various offenses.
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.
WAIVER
When the accused fails, BEFORE ARRAIGNMENT,
to move for the quashal of the information which
charges 2 or more offenses, he thereby waives the
objection and may be found guilty of as many
offenses as those charged and proved during the
trial.
Where the law with respect to an offense may be
committed in any of the different modes provided by
law, the indictment in the information is sufficient if
the offense is alleged to have been committed in one,
two or more modes specified therein. The various
ways of committing the offense should be considered
Page 178 of 289

as a description of only one offense and the
information cannot be dismissed on the ground of
multifariousness.
arraignment of the accused under the

amended information.
EXCEPTIONS TO THE RULE ON DUPLICITY

1. continuous crimes
2. complex crimes
3. special complex crimes
4. crimes susceptible of being committed in
various modes
5. crimes of which another offense is an
ingredient
Technically, paragraph 2 of Section 14 does not refer

to amendment, but to substitution of the complaint or
information by a new one. If the substitution is made
before the accused enters his plea, the question of
double jeopardy does not arise. If the filing of new
information is done after the plea and before
judgment on the ground that there has been a
mistake in charging the proper offense, the filing
thereof may only be allowed if it will not place the
accused twice in jeopardy.
REQUISITES OF CONTINUOUS CRIMES:

1. Plurality of acts performed separately during a
period of time;
2. Unity of penal provision infringed upon or
violated;
3. Unity of criminal intent which means that two or
more violations of the same penal provision
are united on one and the same intent leading
to the perpetration of the same criminal
purpose or claim (People v. Ledesma).
Test as to whether a defendant is prejudiced by

an amendment:
whether a defense under the information as it
originally stood would be available after the
amendment is made, and
whether any evidence defendant might have
would be equally applicable to the information
in the new form as in the other.
Section 14. Amendment or Substitution

KINDS OF AMENDMENT OR SUBSTITUTION
a. BEFORE THE ACCUSED ENTERS HIS PLEA,
THE PROSECUTOR MAY:
upgrade the offense
allege
qualifying
and
aggravating
circumstances or
change the offense charged
WITHOUT LEAVE OF COURT, provided there
is evidence thereon which has been presented
during the preliminary investigation.
HOWEVER, PROSECUTOR CANNOT:
downgrade the offense charged
exclude from the information a co-accused
without filing a motion to that effect, with
notice to the offended party, and subject to
the approval of the court. The court shall
state the reasons in resolving the motion
and copies thereof
all parties,
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especiallyarethe
offended
party.
b. AFTER THE PLEAa. If it covers only formal amendment- leave of
court is obtained and such amendment is
not prejudicial to the rights of the accused.
b. But when a fact supervenes which changes
the nature of the crime charged in the
information or upgrades it to a higher crime,
in which case, there is a need for another
GENERAL RULE:
After arraignment, the prosecutor may no longer
amend the information which changes the nature of
the crime, as it will prejudice the substantial rights of
the accused.
EXCEPTION: When a fact supervenes which
changes the nature of the crime charged in the
information or upgrades it to a higher crime, the
prosecutor, with leave of court, may amend the
information to allege such supervening fact and
upgrade the crime charged to the higher crime
brought about by such supervening fact.
HOWEVER: if the supervening event which changes
the nature of the crime to a more serious one
occurred after the accused has been convicted,
which makes the amendment of the information no
longer the remedy of the prosecution, the prosecution
can and should charge the accused for such more
serious crime, without placing the accused in double
jeopardy, there being no identity of the offense
charged in the first information and in the second
one.
Section 14 applied only to original case and not
to appealed case.
Gabionza v. CA, G.R. No. 140311 (2001)
When amendments to informations may be
allowed:
a. it does not deprive the accused of the right to
invoke prescription
Page 179 of 289

b. it does not deprive the accused of the right to
invoke prescription
c. it does not affect or alter the nature of the
offense originally charged
d. it does not involve a change in the basic theory
of the prosecution so as to require the accused
to undergo any material charge or modification
in his defense
e. it does not expose the accused to a charge
which would call for a higher penalty
f. it does not cause surprise or deprive the
accused of an opportunity to meet the new
averment.
A defendant may file a counterclaim for
interpleader against the plaintiff and a third party also
claiming the subject matter of the suit..
LIMITATION TO THE RULE ON SUBSTITUTION:
a. No judgment has yet been rendered;
b. The accused cannot be convicted of the
offense charged or of any other offense
necessarily included therein;
c. The accused would not be placed in double
jeopardy.
Amendment vs. Substitution
AMENDMENT
SUBSTITUTION
May involve either formal Involves substantial
or substantial changes.
change from original
charge.
Amendment before the
Substitution of
pleas has been entered
information must be with
can be effected without
leave of court as the
leave of court.
original information has
to be dismissed.
Amendment is only as to Another preliminary
form, there is no need for investigation is entailed
another preliminary
and the accused has to
investigation and the
plead anew to the new
retaking of the plea of the information.
accused.
An amended information
Requires or presupposes
refers to the same
that the new information
offense charged in the
involves a different
original information or to
offense which does not
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necessarily includes or is necessarily
included in
necessarily included in
the original charge,
the original charge,
hence the accused
hence substantial
cannot claim double
amendments to the
jeopardy.
information after the plea
has been taken cannot
be made over the
objection of the accused,
for if the original would

be withdrawn, the
accused could invoke
double jeopardy.
VARIANCE BETWEEN INDICTMENT AND PROOF:
1. When the offense proved is less serious than
and is necessarily included in the offense
charged, in which case, the defendant shall be
convicted of the offense proved.
2. When the offense proves is more serious than
and includes the offense charged, in which
case the defendant shall be convicted of the
offense charged;
3. When the offense proved is neither included in,
nor does it include, the offense charged and is
different therefrom, in which case the court
should dismiss the action and order the filing of
new information charging the proper offense.
(Substitution of information applies in this
case).
Section15. Place where action is to be instituted
VENUE IN CRIMINAL CASE IS JURISDICTIONAL,
BEING
AN
ESSENTIAL
ELEMENT
OF
JURISDICTION.
PURPOSE: Not to compel the defendant to move to
and appear in a different court from that of the
territory where the crime was committed as it would
cause him great inconvenience in looking for his
witnesses and other evidence in another place.
GENERAL RULE:
Penal laws are territorial; hence Philippine courts
have no jurisdiction over crimes committed outside
the Philippines.
EXCEPTIONS:
1. Those provided in Article 2 of the Revised
Penal Code. Those who commit any of the
crimes contemplated therein can be tried by
Philippine courts.
2. Where an offense is committed on a railroad
train, in an aircraft or other public or private
vehicle in the course of its trip, the criminal
action shall be instituted and tried in the court
of any municipality or territory where such
train, aircraft or other vehicle passed during its
trip, including the place of its departure and
arrival.
3. Where an offense is committed on board a
vessel in the course of its voyage, the criminal
action shall be instituted and tried in the court
of the first port of entry or of any municipality or
Page 180 of 289

4.
5.
6.
7.
territory where the vessel passed during such

voyage, subject to the generally accepted
principles of international law.
Piracy has no territorial limits as it is a crime
against all mankind.
Libel the action may be instituted at the
election of the offended party in the province or
city:
a. where the libelous article is printed or first
published;
b. If one of the offended parties is a private
individual, where said private individual
actually resides at the time of the
commission of the offense;
c. If the offended party is a public official,
where the latter holds office at the time of
the commission of the offense.
In exceptional circumstances- to ensure a fair
trial and impartial inquiry. The Supreme Court
shall have the power to order a change of
venue or place of trial to avoid the miscarriage
of justice (Sec. 5[4], Article VIII, 1987
Constitution),
B.P. 22 cases- criminal action shall be filed in
the place where the check was dishonored.
VENUE IS JURISDICTIONAL
The court has no jurisdiction to try an offense
committed outside its territorial jurisdiction. It cannot
be waived or changed by the agreement of the
parties or by consent of the defendant.
Section 16. Intervention of the offended party in
criminal action
GENERAL RULE:
Offended party has the right to intervene by counsel
in the prosecution of the criminal action where the
civil action for recovery of civil liability is instituted in
the criminal action pursuant to Rule 111.
EXCEPTIONS:
1. Where from the nature of the crime and the law
defining and punishing it, no civil liability arises
in favor of the offended party;
2. Where the offended
party has waived the right
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to civil indemnity;
or
3. Where the offended party has already
instituted an action.
Where the offended party withdrew a reservation to
file a separate civil action, the private prosecutor may
still intervene in the prosecution of the criminal case,
by conducting the examination of witnesses under
the control of the prosecutor.
HOWEVER: Once the offended party has filed a

separate civil action arising from the crime, he may
not withdraw such civil case in order to intervene in
the criminal prosecution. He loses the right to
intervene. He no longer has any standing in the
criminal case, except to be a prosecution witness.
Where a criminal action has been provisionally
dismissed upon motion of the prosecutor, can
the case be revived upon motion of the offended
party? No, because the offended party or
complaining witness cannot act for the prosecutor.
RULE 111
PROSECUTION OF CIVIL ACTION
Section 1. Institution of criminal and civil actions
GENERAL RULE:
The institution or filing of the criminal action includes
the institution therein of the civil action for recovery of
civil liability arising from the offense charged.
EXCEPTIONS: Where institution of criminal liability
does not include civil liability the offended party
WAIVES the civil action; he RESERVES his right to
institute the civil action separately; or he
INSTITUTES THE CIVIL ACTION PRIOR TO THE
CRIMINAL ACTION.
The employer may not be held civilly liable for quasidelict in the criminal action as ruled in Maniago v.
Court of Appeals since quasi-delict is not deemed
instituted with the criminal. If at all, the only civil
liability of the employer in the criminal action would
be his subsidiary liability under the Revised Penal
Code.
WHEN RESERVATION SHALL BE MADE:
a. Before the prosecution starts to present its
evidence; and
b. Under circumstances affording the offended
party a reasonable opportunity to make such
reservation.
INSTANCES WHERE NO RESERVATION SHALL
BE ALLOWED
1. Criminal action for violation of BP 22 unless
a separate civil action has been filed before the
institution of the criminal action, no such civil
action can be instituted after the criminal action
has been filed as the same has been included
therein.
Page 181 of 289

2. A claim arising from an offense which is
cognizable by the Sandiganbayan a civil
action filed prior to the criminal action has to be
transferred to the subsequently filed criminal
action for joint hearing (Sec. 4 of PD1606 as
amended by RA 8249)
3. Tax cases (Sec. 7, par. b, no.1, RA 9282)
When the reservation of the right to institute the
separate civil actions shall be made: before the
prosecution starts to present its evidence and under
circumstances affording the offended party a
reasonable opportunity to make such a reservation.
The rule requiring reservation to file a separate civil
action does not apply to civil actions which can be
filed and prosecuted independently of the criminal
action, namely, those provided in Arts. 32, 33, 34 and
2176 of the Civil Code.
Although the criminal and civil actions may be joined
in the criminal case, they are distinct from each other.
The plaintiffs in the two actions are different.
THUS: even if the accused started serving his
sentence within the 15-day period from the
promulgation of the judgment of conviction by the
lower court, thereby making the judgment against him
final, the complainant may, within the 15-day
reglementary period, still ask that the civil liability be
fixed by the court, if the judgment does not adjudicate
any civil liability, as the judgment regarding civil
liability has not become final and the court still has
jurisdiction to adjudge the civil liability.
NOTE: Only civil liability arising from crime charged
(cause of action arising from delict) as a felony is
deemed instituted. Civil liability arising from other
sources of obligations (law, quasi-contract and quasidelict) are no longer deemed instituted like those
under Article 32, 33, 34 and 2176 of the Civil Code
which can be prosecuted even without reservation.
Purpose of Exception: to prevent the offended party

from using the prosecutors office and the court as
vehicles for recovery of the face value of the check,
without paying the corresponding filing fees therefor.
With respect to damages other than actual, if these
damages are specified in the complaint or
information, the corresponding filing fees should be
paid, otherwise, the trial court will not acquire
jurisdiction over such other damages.
Where moral, exemplary and other damages are not
specified in the complaint or information, the grant
and amount thereof are left to the sound discretion of
the trial court, the corresponding filing fees need not
be paid and shall simply constitute a first lien on the
judgment.
NOTE: Counterclaims, cross-claims, third-party
complaints are no longer allowed in a criminal
proceeding. Any claim which could have been the
subject thereof maybe litigated in a separate civil
action.
In an appeal of a criminal case, the appellate court
may impose additional damages or increase or
decrease the amounts of damages upon the
accused-appellant.
HOWEVER, additional penalties cannot be imposed
upon a co-accused who did not appeal, but
modifications of the judgment beneficial to him are
considered in his favor.
The offended party in a criminal case may appeal the
civil aspect despite the acquittal of the accused.
Where the trial court convicted the accused, but
dismissed the civil action instituted therein, the
offended party may appeal the dismissal to the CA.
RULES ON FILING FEES

GENERAL RULE: No QuickTime
filing fees
are required for
and a
amounts of actualTIFF
damages.
Compromise on civil aspect:

The offended party may compromise the civil aspect
of a crime, provided that it must be entered before or
during the litigation, and not after final judgment. A
compromise on the civil aspect is valid even if it turns
out to be unsatisfactory either to one or both of the
parties.
EXCEPTION: Criminal action for violation of BP 22

which is deemed to include the corresponding civil
action. The offended party shall, upon the filing of the
criminal and civil actions, pay in full the filing fees
based on the face value of the check as the actual
damages.
IMPORTANT: Section 1, Rule 111 now expressly

provides that no counterclaim, cross-claim or thirdparty complaint may be filed by the accused in the
criminal case, but any cause of action which could
have been subject thereof may be litigated in a
separate civil action.
REASONS:
Page 182 of 289

a. the counterclaim of the accused will
unnecessarily complicate and confuse the
criminal proceedings;
b. the trial court should confine itself to the
criminal aspect and the possible civil liability of
the accused arising out of the crime.
Section 2.
suspended
When
separate
civil
action
is
Primacy of Criminal Action over Civil Action

After the filing of the criminal action, the civil action
which has been reserved cannot be instituted until
final judgment has been rendered in the criminal
action
If the civil action is instituted before the criminal
action and the criminal action is subsequently
commenced, the pending civil action shall be
suspended until final judgment of the criminal action
has been rendered.
EXCEPTIONS:
1. In cases of independent civil actions based
upon Article 32, 33, 34 and 2176 of the Civil
Code;
2. In cases where the civil action presents a
prejudicial question; and
3. Where the civil action is not one intended to
enforce the civil liability arising from the
offense.
CONSOLIDATION OF CRIMINAL AND CIVIL
CASES
Before judgment on the merit is rendered in the civil
action, the same may, upon motion of the offended
party be consolidated with the criminal action in the
court trying the criminal action. This is a modification
on the rule on primacy of criminal action.
The consolidation must be effected in the criminal
court, irrespective of the nature of the offense, the
amount of the civil claim or the rank of the court trying
the civil case.
In cases where consolidation
is given due course, the
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evidence presented
and
admitted
in the civil case
shall be deemed automatically reproduced in the
criminal action.
The consolidated criminal and civil cases shall be
tried and decided jointly.
NOTE: Article 29 of the Civil Code merely
emphasizes that a civil action for damages is not
precluded by the acquittal of an accused for the same
criminal act or omission. It does not state that the

remedy can be availed of only in a separate civil
action.
ACQUITTAL IN A CRIMINAL CASE DOES NOT
BAR THE FILING OF THE CIVIL CASE WHERE:
1. The acquittal is based on reasonable doubt, if
the civil case has been reserved.
2. The decision contains a declaration that the
liability is not criminal but only civil in nature.
3. The civil liability is not derived from or based
on the criminal act of which the accused is
acquitted. (Sapiera v. Court of Appeals, 314
SCRA 370)
Section 3. When civil action may proceed
independently
Prior reservation is not necessary to file separate civil
action under Arts. 32, 33, 34 and 2176 of the Civil
Code. The phrase which has been reserved that
has caused conflicting rulings in the past has now
been deleted.
Actions based on quasi-delict may be filed
independently of the criminal action regardless of the
result of the criminal action, except that a plaintiff
cannot recover damages twice for the same act or
omission of the defendant.
PURPOSE: To make the courts disposition of the
criminal case of no effect whatsoever on the separate
civil case.
Section 4. Effect of death on civil actions
EFFECT OF DEATH OF THE ACCUSED ON CIVIL
ACTIONS
1. After arraignment and during the pendency
of the criminal action:
GENERAL RULE:
Death extinguishes the civil liability arising from
delict or the offense
EXCEPT: where civil liability is predicated on
other sources of obligations such as law,
contract, quasi-contract and quasi-delict.
If such civil action which survives is impliedly
instituted in the criminal action, the legal
representative or heir of the deceased shall be
substituted for the deceased. The criminal
case is reduced to a civil action.
Page 183 of 289

However, if the civil action has been reserved
and subsequently filed or such civil action has
been instituted, when the accused died, then
such civil action will proceed and substitution
of parties shall be ordered by the court
pursuant to Sec.16 Rule 3 of the Rules of
Court.
2. Before arraignment:
The civil action impliedly instituted in the
criminal action shall be dismissed without
prejudice to the offended partys filing a civil
action against the administrator of the estate of
the deceased.
NOTE: The independent civil action instituted
under Section 3 of this Rule or which thereafter
is instituted to enforce liability arising from
other sources of obligation may be continued
against the estate or legal representative of the
accused after proper substitution, or against
said estate, as the case may be.
3. Pending appeal of his conviction:
It extinguishes his criminal liability as well as
the civil liability based solely thereon.
4. Prior to final judgment:
It terminates his criminal liability and only the
civil liability directly arising from and based
solely on the offense committed.
Section 5. Judgment in civil action not a bar
The judgment in civil actions based on Arts. 32, 33,
34 and 2176 absolving the defendant from civil
liability does not bar the criminal action.
NOTE: Where the criminal case was dismissed
before trial because the offended party executed an
affidavit of desistance, the civil action thereof is
similarly dismissed.
Section 6. SuspensionQuickTime
by reason
of prejudicial
and a
question
PREJUDICIAL QUESTION
It is one which arises in a case, the resolution of
which is a logical antecedent of the issue involved
therein and the cognizance of which pertains to
another tribunal.
PURPOSE: To avoid two conflicting decisions.
NOTE: A prejudicial question is based on a fact

distinct and separate from the crime but so intimately
connected with it that it determines the guilt or
innocence of the accused.
PREJUDICIAL QUESTION
1. The prejudicial question may be raised during
the preliminary investigation of the offense or
in court before the prosecution rests its case.
2. The suspension of the criminal case due to a
prejudicial question is only a procedural matter,
and is subject to a waiver by virtue of prior acts
of the accused.
3. There is no prejudicial question where one
case is administrative and the other is civil.
Time to Plead
When the criminal action has been filed in court for
trial, the petition to suspend shall be filed in the same
criminal action at any time before the prosecution
rests.
WHERE TO FILE PETITION FOR SUSPENSION BY
REASON OF PREJUDICIAL QUESTION
1. Office of the Prosecutor; or
2. Court where the criminal action has been filed
for trial at any time before the prosecution
rests.
Section 7. Elements of prejudicial question
ELEMENTS OF A PREJUDICIAL QUESTION
1. The civil action must be instituted PRIOR to
the criminal action;
2. The civil action involves an issue similar or
intimately related to the issue raised in the
subsequent criminal action;
3. The resolution of such issue determines
whether or not the criminal action may
proceed.
RULE 112
PRELIMINARY INVESTIGATION
Section 1. Preliminary investigation defined;
when required
It is an inquiry or proceeding to determine whether
there exists sufficient ground to engender a wellfounded belief that a crime has been committed and
that the respondent is probably guilty thereof and
should be held for trial.
Page 184 of 289

PURPOSES:
1. To determine whether a crime has been
committed and whether there is probable
cause to believe that the accused is guilty
thereof.
2. To preserve evidence and keep the witnesses
within the control of the State.
3. To determine the amount of bail, if the offense
is bailable.
Preliminary investigation is required to be conducted
BEFORE the filing of a complaint or information for
an offense where the penalty prescribed by law is at
least 4 years, 1 months and 7 day without regard to
the fine.
It is not part of the trial of the criminal action in court.
Nor is its record part of the record of the case in the
RTC. The dismissal of the case by the investigator
will not constitute double jeopardy and will not bar the
filing of another complaint for the same offense, but if
re-filed, the accused is entitled to another preliminary
investigation (U.S. v. Marfori, 35 Phil 666).
It is subject to the requirements of both substantive
and procedural due process.
The right of an accused to a preliminary investigation
is not a constitutional but merely a statutory right.
Nonetheless, it is a component part of due process in
criminal justice and is a substantive right.
A personal right and may be waived expressly or by
implication.
Lack of preliminary investigation is not a ground to
quash or dismiss a complaint or information, nor does
it affect the courts jurisdiction. When there is no
preliminary investigation, the accused must invoke it
at the first opportunity and the court should hold in
abeyance or suspend proceedings and remand the
case to the office of the prosecutor for him to conduct
PI.
WAIVER:
1. Failure to claim it QuickTime
before the
accused pleaded.
and a
TIFF (Uncompressed)
decompressor
2. Silence of the
accused.
3. Failure to request it within 5 days from the time
he learns of the filing of the complaint or
information in those instances where the
accused is lawfully arrested without a warrant.
Absence of preliminary investigation does not affect
the jurisdiction of the court or invalidate the
information if no objection was raised by the accused.
If an objection was raised, the court, instead of

dismissing the complaint or information should order
the conduct of such investigation (Doromal v.
Sandiganbayan, 117 SCRA 354).
REMEDIES OF THE ACCUSED IF THERE WAS NO
PRELIMINARY INVESTIGATION:
1. Refuse to enter a plea upon arraignment and
object to further proceedings upon such
ground.
2. Insist on a preliminary investigation.
3. Raise lack of preliminary investigation as error
on appeal.
4. File a petition for certiorari.
5. File for petition for prohibition.
There is NO right of preliminary investigation when a

person is lawfully arrested without a warrant unless
there is a waiver of the provisions of Article 125 of the
Revised Penal Code.
HOWEVER, THE ACCUSED CAN ASK FOR
PRELIMINARY
INVESTIGATION
IN
THE
FOLLOWING CASES:
1. If a person is arrested, he can ask for
preliminary investigation BEFORE the filing of
the complaint/ information BUT he must sign a
waiver in accordance with Article 125, RPC.
2. AFTER the filing of the information/ complaint,
the accused may, within 5 days from the time
he learns of its filing ask for preliminary
investigation.
NOTE: This Rule has been partially amended by AM
05-0-8-26-SC. The amendments took effect on
October 3, 2005. The amendment removed the
conduct of preliminary investigation from the judges
of the first level courts.
Section 2. Officers authorized
preliminary investigation
to
conduct
OFFICERS
AUTHORIZED
TO
CONDUCT
1. provincial or city prosecutor and their
assistants
2. National and regional state prosecutors
3. Such other officers as may be authorized by
law such as the COMELEC, Ombudsman and
PCGG
4. Judges of RTCs
No longer authorized to conduct PI:
By implication, MTC judges in Manila and in
chartered cities have not been granted the authority
Page 185 of 289

to conduct PI, as the officers authorized to do so are
the prosecutors.
TWO TYPES OF OFFENSES MAY BE FILED IN
THE MTC FOR PRELIMINARY INVESTIGATION:
1. a case cognizable by the RTC may be filed
with the MTC for PI;
2. even if it is cognizable by the MTC because it
is an offense where the penalty prescribed by
law is at least 4 years 2 months and 1 day.
Regarding offenses falling within the original
jurisdiction of the Sandiganbayan:
Prosecutors or municipal trial court judges conducting
PI of offenses falling within the original jurisdiction of
the Sandiganbayan shall, after their conclusion,
transmit the records and their resolutions to the
Ombudsman or his deputy for appropriate action.
Moreover, the prosecutor or judge cannot dismiss the
complaint without the prior written authority of the
Ombudsman or his deputy, nor can the prosecutor
file an information with the Sandiganbayan without
being deputized by, and without prior written authority
of, the Ombudsman or his deputy.
Uy v. Sandiganbayan, G.R. Nos. 105965-70(2001)
The Ombudsman is clothed with authority to
conduct preliminary investigation and to prosecute all
criminal cases involving public officers and
employees, not only those within the jurisdiction of
the Sandiganbayan, but those within the jurisdiction
of the regular courts as well. 15 of RA 6770
(Ombudsman Act of 1989) does not make any
distinction. Any illegal act or omission of any public
official is broad enough to embrace any crime
committed by a public officer or employee. Such
grant of primary jurisdiction over cases cognizable by
the Sandiganbayan does not necessarily imply the
exclusion from its jurisdiction of cases involving
public officers and employees cognizable by the
other courts.
Roxas v. Vasquez, G.R. No. 114944 (2001)
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for reconsideration or
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not be limited in its review. It is clear from R. A. 6770
that the Ombudsman may motu propio conduct a
reinvestigation.
ELECTION OFFENSES:
The exclusive jurisdiction of the Comelec to
investigate and prosecute election offenses inheres
even if the offender is a private individual or public

officer or employee, and in the latter instance,
irrespective of whether the offense is committed in
relation to his official duties or not. In other words, it
is the nature of the offense, namely, an election
offense as defined in the Omnibus Election Code and
in other election laws, and not the personality of the
offender that matters.
THE OMBUDSMAN:
The power of the Ombudsman to make investigation
extends to any illegal act or omission of any public
official, whether or not the same is committed in
relation to his office.
Preliminary investigation by the Ombudsman is
limited to cases cognizable by the Sandiganbayan
and must be conducted pursuant to Rule 11 of the
Rules of Procedure of the Office of the Ombudsman.
Section 4(d) of Administrative Order No. 07 disallows
the filing of a motion to quash or dismiss a complaint
filed with the Ombudsman, except on the ground of
lack of jurisdiction.
Which remedy may an aggrieved party avail of
against resolutions of the Ombudsman in
criminal or non-administrative cases? The law is
silent. Hence, appeal is not available as a remedy
because the right to appeal is a statutory privilege
and may be availed of only if there is a statute to that
effect. However, an aggrieved party is not without
remedy, as he can resort to the special civil action of
certiorari under Rule 65.
THE OMBUDSMAN DOES NOT HAVE THE
FOLLOWING POWERS:
1. to prosecute before the Sandiganbayan any
impeachable officers with any offense which
carries with it the penalty of removal from
office, or any penalty service of which would
amount to removal from office because by
constitutional mandate, they can only be
removed from office on impeachment for, and
conviction of, culpable violation of the
Constitution, treason, bribery, graft and
corruption, other high crimes, or betrayal of
public trust
2. to prosecute public officers or employees who
have committed election offenses.
3. to file an information for an offense cognizable
by the regular courts.
EFFECTS OF AN INCOMPLETE PRELIMINARY
INVESTIGATION
Page 186 of 289

1. It does not warrant the quashal of the
information
2. It does not affect the courts jurisdiction or the
validity of the information.
Filing of the complaint

accompanied by the affidavits and
supporting documents.
Section 3. Procedure
PROCEDURE
1. By reason of the abbreviated nature of
Preliminary Investigation, a dismissal of the
charges as a result thereof is not equivalent to
a judicial pronouncement of acquittal.
2. The accused or respondent in a criminal
prosecution may avail himself of discovery
remedies
either
during
preliminary
investigation or when the information has
already been filed in court.
3. A motion to dismiss is now a prohibited
pleading during preliminary investigation.
4. The respondent is now required to submit
counter-affidavits
and
other
supporting
documents relied upon by him for his defense.
5. The respondent now has the right to examine
the evidence submitted by the complainant of
which he may not have been furnished and to
obtain copies thereof at his expense.
Within 10 days after the filing, the

investigating officer shall either
dismiss or issue subpoena.
If subpoena is issued, respondent

shall submit a counter-affidavit and
other supporting documents within
10 days from receipt thereof.
Hearing (optional). It shall be held

within 10 days from submission of
counter-affidavits or from the
expiration of the period of their
submission.
Resolution of investigating
prosecutor.
If respondent cannot be subpoenaed, or if
subpoenaed but does not submit his counter-affidavit
within 10 days, investigating officer shall resolve the
complaint based on the evidence presented by the
complainant.
RIGHTS OF RESPONDENT IN A PRELIMINARY
INVESTIGATION:
1. To submit counter-affidavit.
2. To examine the evidence submitted by the
complainant
3. To be present in the clarificatory hearing.
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NOTE: The Rules does not require the presence of

the respondent in the Preliminary Investigation. What
is required is that he be given the opportunity to
controvert the evidence of the complainant by
submitting counter-affidavits.
Section 4. Resolution of investigating prosecutor
and its review
Resolution of investigating prosecutor and its
review
After having filed the information, the prosecutor is
called upon to prosecute the case in court. It has
Page 187 of 289

been said that at this stage, unlike judges who are
mandated to display cold neutrality in hearing cases,
the prosecutors are not required to divest themselves
of their personal convictions and refrain from
exhibiting partiality. But while he may strike hard
blows, he is not at liberty to strike foul ones.
If there is probable
cause to hold
respondent liable,
prepare resolution.
If no
probable
cause
exists,
dismiss the
case
Within 5 days from resolution,

forward the record of the case to
1) provincial or city prosecutor;
2) chief state prosecutor; 3)
Ombudsman or his deputy, in
cases cognizable by the
Sandiganbayan in the exercise
of its original jurisdiction.
The abovementioned officers

shall act on the resolution
within10 days from receipt
thereof and shall immediately
inform the parties of such action.
HE SHALL CERTIFY UNDER OATH IN THE

INFORMATION THAT:
1. he or an authorized officer personally
examined the complainant and his witnesses;
2. there is reasonable ground a crime has been
committed and the accused is probably guilty
thereof;
3. the accused was informed of the complaint and
the evidence against him; and
4. the accused was given an opportunity to
submit controverting
evidence.
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No complaint or information may be filed or

dismissed by an investigating prosecutor without the
prior written authority or approval of the provincial or
city prosecutor or the Ombudsman or his deputy.
EFFECTS OF EXCLUSION OF OTHER PERSONS
FROM THE INFORMATION
1. If during the trial, evidence is shown that such
persons should have been charged, the fact
that they were not included in the information

does not relieve them of criminal liability, and
they can be subsequently prosecuted.
2. The accused who has been charged with the
offense is not allowed to escape punishment
merely because it develops in the course of the
trial that there were other guilty participants in
the crime.
3. It does not vitiate the validity of the information.
Neither is the same a ground for a motion to
quash.
Role of Secretary Of Justice
The Secretary of Justice is not prevented from
entertaining an appeal from the accused or from the
offended party even after the information has been
filed and the trial court has arraigned the accused.
Section 4 of DOJ 223 should be construed as merely
enjoining the Secretary of Justice to refrain, as far as
practicable, from entertaining a petition for review or
appeal from the action of the prosecutor once the
complaint or information is filed in court. If the
Secretary reverses the ruling of the prosecutor, the
latter has to file the necessary motion to dismiss the
complaint or information, the grant or denial of which
is subject to the discretion of the trial court.
EFFECT IF THE INFORMATION IS FILED BY
SOMEONE NOT AUTHORIZED BY LAW
The court does not acquire jurisdiction.
The
accuseds failure to assert lack of authority on the
part of the prosecutor in filing the information does
not constitute a waiver thereof.
The prosecutor is required to resolve the complaint
based on the evidence presented by the complainant
in the event that the respondent cannot be
subpoenaed or the respondent, if subpoenaed, does
not submit a counter-affidavit within the 10-day
period.
Section 5. Resolution of investigating judge and
its review (DELETED)
RESOLUTION OF INVESTIGATING JUDGE AND
ITS REVIEW
A.M. No. 05-8-26-SC:
All First Level Courts shall continue with the
preliminary investigation of cases pending with them
and terminate them not later than December 31,
2005.
Upon the effectivity of these amendments, First Level
Courts shall no longer accept new cases for
Page 188 of 289

preliminary investigation which fall under
exclusive jurisdiction of courts of other levels.
the
These amendments shall take effect on October 3,

2005 following their publication in a newspaper of
general circulation not later than September 15,
2005.
Section 6. When warrant of arrest may issue
WHEN WARRANT OF ARREST MAY ISSUE
If the judge finds probable cause, he shall issue a
warrant of arrest or a commitment order if the
accused had already been arrested and hold him for
trial. If the judge is satisfied that there is no necessity
for placing the accused under custody, he may issue
summons instead of warrant of arrest.
Judges of the RTCs and inferior courts need not
personally examine the complainant and his
witnesses in the determination of probable cause for
the issuance of the warrant of arrest. He is only
required to:
1. Personally evaluate the report and supporting
documents submitted by the prosecutor;
2. On the basis of the report, he may:
a. Dismiss
b. Issue a warrant
c. Require further affidavits
INVALID: A warrant issued by the judge solely on the
basis of the report and recommendation of the
investigating
prosecutor,
without
personally
determining the existence of probable cause by
independently
examining
sufficient
evidence
submitted by the parties during the Preliminary
Investigation.
Effect of a finding of probable cause
It merely binds over the suspect to stand trial. It is
not a pronouncement of guilt.
WHAT THE ACCUSED, WHO BELIEVES THAT
THERE IS NO PROBABLE CAUSE TO HOLD
HIM FOR TRIAL, MAY DO:
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2. if the warrant of arrest has been issued, the
accused may file a motion to quash the arrest
warrant or to recall the same on the ground of
lack of probable cause.
Where an information has already been filed in
court, and the Secretary of Justice reversed the
prosecutors finding of probable cause, what
should the trial court do upon the prosecutors

motion to dismiss?
He must make his own
assessment of the evidence and not just rely on the
conclusion of the prosecutor; otherwise the court
becomes a mere rubber stamp.
REINVESTIGATION:
Once the complaint or information is filed in court,
any motion for reinvestigation is addressed to the
sound discretion of the court.
While the trial court judge has the power to order the
reinvestigation of the case by the prosecutor, he may
not, before the prosecutor concluded the
reinvestigation, recall said order, set the case for
arraignment and trial, without gravely abusing his
discretion.
MUNICIPAL JUDGE MAY ISSUE ARREST
WARRANT
BEFORE
CONCLUSION
OF
PRELIMINARY INVESTIGATION IF:
1. he finds that probable cause exists and
2. there is a necessity of placing respondent
under immediate custody.
IMPORTANT: The rule is now that the investigating
judges power to order the arrest of the accused is
limited to instances in which there is a necessity for
placing him in custody in order not to frustrate the
ends of justice. Thus, even if the judge finds probable
cause, he cannot, on such ground alone, issue a
warrant of arrest. He must further find there is a
necessity of placing the accused under immediate
custody in order not to frustrate the ends of justice.
The investigating judge has no power to reduce
or change the crime charged in order to justify
the grant of bail to the accused. The power
belongs to the prosecutor.
After the conclusion of his PI, the judge has to
transmit to the provincial prosecutor his resolution
and entire records of the case, regardless of whether
he finds a probable cause or sufficient ground to
issue a warrant of arrest.
Section 7. When accused lawfully arrested
without warrant
GENERAL RULE:
No complaint or information shall be filed for an
offense which is penalized by imprisonment of not
less than 4 years, 2 months and 1 day without PI.
EXCEPTION: When the accused has been lawfully
arrested without warrant, in which case, an inquest
Page 189 of 289

must be conducted by an inquest prosecutor who will
determine whether his arrest without warrant is
lawful. The inquest prosecutor may order the release
of the arrested person if he finds no sufficient ground
to hold him without prejudice to conducting further
investigation, or file complaint or information within
the period specified in Art. 125 of the RPC.
In case a person is arrested without a warrant, a
complaint or information may only be filed after an
inquest conducted in accordance with existing rules.
Provided: that 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 filing of a complaint or information, the
person arrested without a warrant may ask for a
preliminary investigation by a proper officer, but he
must sign a waiver of the provisions of Art. 125 of the
RPC.
If the accused allows himself to be arraigned without
asking for a preliminary investigation, he is deemed
to have waived the right to such PI.
When the complaint or information was filed without
PI, the accused may, within 5 days from the time he
learns of the filing of the information ask for a
preliminary investigation with the same right to
adduce evidence in his favor in the manner
prescribed in this Rule.
NOTE: The 5 day period is MANDATORY, failure to
file the motion within the said period amounts to a
waiver of the right to ask for preliminary investigation.
Where the information was amended without a new
PI having been conducted, the 5-day period is
computed from the time the accused learns of the
filing of said amended information.
Where the trial court has granted a motion for
reinvestigation, it must
hold in abeyance the
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prosecutor shall have conducted and made a report
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Right to Bail Pending Preliminary Investigation
A person lawfully arrested may post bail before the
filing of the information or even after the filing without
waiving his right to PI, provided that he asks for a PI
by the proper officer within the period fixed in the said
rule. (People v. Court of Appeals, May 29, 1995).
Section 8. Records
An information or complaint filed in court shall be
supported by the affidavits and counter-affidavits of
the parties and their witnesses, together with the
other supporting evidence and the resolution on the
case.
Records of the preliminary investigation shall NOT
automatically form part of the records of the case.
Courts are not compelled to take judicial notice
thereof. It must be introduced as evidence.
Section 9. Cases not requiring preliminary
investigation nor covered by the Rule on
Summary Procedure
Cases where the punishment does not exceed 4
years 2 months and 1 day.
PROCEDURE TO BE FOLLOWED:
a. Evaluate the evidence presented;
b. Conduct searching questions or answers;
c. Require the submission of additional evidence.
For cases under the Revised Rules on Summary
Procedure, no warrant shall be issued except where
the accused fails to appear after being summoned.
CONDITIONS FOR THE ISSUANCE OF WARRANT
OF ARREST:
1. Must examine in writing and under oath the
complainant and his witnesses by searching
questions and answers.
2. Be satisfied that a probable cause exists.
3. That there is a need to place respondent under
immediate custody in order not to frustrate the
ends of justice.
RULE 113
ARREST
Section 1. Definition of Arrest
ARREST
It is the taking of a person into custody in order that
he may be bound to answer for the commission of an
offense.
Page 190 of 289

The application of actual force, manual touching of
the body, physical restraint or formal declaration of
arrest is not required. Arrest includes submission to
the custody of the person making the arrest.
Section 2. Arrest; how made
MODES OF ARREST:
1. Arrest by virtue of a warrant
2. Arrest without a warrant under exceptional
circumstances as may be provided by statute
ESSENTIAL REQUISITES OF A VALID WARRANT
OF ARREST:
1. It must be issued upon probable cause which
must be determined personally by a judge after
examination under oath or affirmation of the
complainant and the witnesses he may
produce.
2. The warrant must particularly describe the
person to be seized.
reason for this is there is yet no evidence

on record upon which he may determine
the existence of probable cause.
A warrant of arrest has no expiry date. It remains
valid until arrest is effected or the warrant is lifted.
However, Sec. 4 of Rule 113 requires the head of the
office who applied for warrant to execute the same
within 10 days from receipt thereof and for the
arresting officer assigned to execute the same to
submit, within 10 days from the expiration of the first
10-day period, a report to the judge who issued the
warrant.
NOTE: The return mentioned in this section refers not
to the physical delivery of the very same copy of the
process to the issuing court, but the report of the
officer charged with its execution on the action taken
by him thereon. (People v. Givera, 349 SCRA 513)
Section 5. Arrest without a warrant; when lawful
A warrant of arrest has no expiry date. It remains

valid until arrest is effected or the warrant is lifted.
Section 3. Duty of arresting officer
1. Arrest the accused
2. Deliver him to the nearest police station or jail
without unnecessary delay
Section 4. Execution of warrant
THE JUDGE ISSUES A WARRANT OF ARREST IN
2 INSTANCES:
1. Upon the filing of the information by the
prosecutor.
In issuing this kind of warrant, the judge
does
not
personally
examine
the
complainant and the witnesses he may
produce, but he merely evaluates
personally the report and supporting
documents and other evidence adduced
during the preliminary investigation and
submitted to him by the prosecutor, and if
he finds probable
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2. Upon application of a peace officer.
In this kind of warrant, the judge must
personally examine the applicant and the
witnesses he may produce, to find out
whether there exists probable cause,
otherwise the warrant issued is null and
void. He must subject the complainant and
the witnesses to searching questions. The
LAWFUL WARRANTLESS ARREST:

1. When IN HIS PRESENCE, the person to be
arrested has committed, is actually committing
or is attempting to commit an offense (in
flagrante delicto arrests).
2. When an offense has in fact been committed
and he has probable cause to believe based
on PERSONAL KNOWLEDGE of fact and
circumstance that the person to be arrested
has committed it (Doctrine of Hot Pursuit).
3. When the person to be arrested is a prisoner
who has escaped from a penal establishment
or place where he is serving final judgment or
temporarily confined while his case is pending
or has escaped while being transferred from
one confinement to another.
4. When a person who has been lawfully arrested
escapes or is rescued (Sec. 13, Rule 113).
5. By the bondsman for the purpose of
surrendering the accused (Sec. 23, Rule 113).
6. Where the accused attempts to leave the
country without permission of the court (Sec.
23, Rule 114).
NOTES:
1. In a citizens arrest, the person may be
arrested and searched of his body and of his
personal effects or belongings, for dangerous
weapons or anything which may be used as
proof of the commission of an offense, without
need of a search warrant.
Page 191 of 289

2. Sec. 5(a) refers to arrest in flagrante delicto
while Sec. 5(b) refers to hot pursuit.
3. Sec. 5(b) authorizes warrantless arrest when
an offense has in fact just been committed.
The word just implies immediacy in point of
time.
4. Delivery of the detained person to the proper
judicial authorities means the filing of the
complaint or information with the municipal trial
court or with the inquest fiscal or prosecutor
who shall then decide either to order the
release of the detained person or to file the
corresponding information in court.
An accused who enters his plea of NOT guilty and
participates in the trial waives the illegality of the
arrest. Objection to the illegality must be raised
before arraignment, other wise it is deemed waived,
as the accused had voluntarily submitted himself to
the jurisdiction of the court.
Section 6. Time of making arrest
It may be made on any day and at any time of the
day or night.
Section 7. Method of Arrest by officer
by virtue of warrant
When making an arrest by virtue of a warrant the
officer shall inform the person to be arrested of the
cause of the arrest and the fact that a warrant has
been issued for his arrest.
EXCEPTIONS:
1. when he flees; or
2. forcibly resists before the officer has
opportunity to so inform him; or
3. when the giving of such information will imperil
his arrest.
The officer need not have the warrant in his
possession at the time of the arrest but after the
arrest, if the person arrested
so requires, the warrant
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Section 8. Method of arrest by officer without a
warrant
When making an arrest by virtue of a warrant the
officer shall inform the person to be arrested his
authority and the cause of the arrest.
1. When the person is engaged in the

commission of an offense; or
2. Pursued immediately after its commission; or
3. Has escaped, flees; or
4. Forcibly resists before the officer has
5. When giving of such information will imperil the
arrest.
Section 9. Method of arrest by private person
When making an arrest, a private person shall inform
the person to be arrested of the intention to arrest
him and the cause of the arrest.
EXCEPTIONS:
1. The person to be arrested is engaged in the
commission of an offense; or
2. Pursued immediately after its commission; or
3. Has escaped, flees; or
4. Forcibly resists before the officer has
5. When giving of such information will imperil the
arrest.
Section 10. Officer may summon assistance
Arresting officer may orally summon as many
persons as he deems necessary to assist him in
effecting the arrest.
NOTE: This rule does not cover a private individual
making an arrest.
Section 11. Right of officer to break into building
or enclosure
REQUISITES BEFORE AN OFFICER CAN BREAK
INTO A BUILDING OR ENCLOSURE TO MAKE AN
ARREST:
1. That the person to be arrested is or is
reasonably believed to be in the said building;
2. That he has announced his authority and
purpose for entering therein;
3. That he has requested and been denied
admittance.
NOTE: Rule is applicable both where there is a
warrant and where there is a valid arrest without a
warrant.
Section 12. Right to break out of the building or
enclosure to effect release
EXCEPTIONS:
Page 192 of 289

An officer making an arrest who has entered a
building or enclosure may break out therefrom when
necessary to liberate himself.
Does
not
apply
during
in-custody
investigation, nor can it prevail over the
constitutional right of the accused to be
presumed innocent.
Section 13. Arrest after escape or rescue

If a person arrested escapes or is rescued, any
person may immediately pursue or retake him without
a warrant at any time and in any place within the
Philippines.
Section 14. Right of an attorney or relative to visit
the person arrested
The attorney of the person arrested have the right to
visit and confer privately with such person in jail or
any place of custody at any hour of the day or night.
RA 7438 defined the RIGHTS OF PERSONS
ARRESTED, DETAINED OR UNDER CUSTODIAL
INVESTIGATION with the penalties for violation
thereof.
1. Custodial investigation
Involves any questioning initiated by law
enforcement officers after a person has
been taken into custody or otherwise
deprived of his freedom of action in any
significant way.
It is only after investigation ceases to be a
general inquiry into an unsolved crime and
begins to focus on a particular suspect, the
suspect is taken into custody, and the
police
carries
out
a
process
of
interrogations that lends itself to eliciting
incriminating statements that the rule
begins to operate.
Embraced in custodial investigation:
invited for questioning
re-enactment
Not embraced in custodial investigation:
police line-up
ultraviolet ray examination
normal audit examination by the COA of
the accountability of a public officer
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2. When the threat or promise was made by, or in

the presence of, a person in authority, who
has, OR is supposed by the accused to have
power or authority to fulfill the threat or
promise, the confession of the accused is
inadmissible.
4. The arresting officer may be held civilly liable

for damages under Art. 32 of the Civil Code.
The very nature of Art. 32 is that the wrong
may be civil or criminal. It is not necessary
that there should be malice or bad faith.
5. On Civil Procedure:
Section 20 Rule 14 of the 1997 Rules of
Civil Procedure provides in part that the
inclusion in a motion to dismiss of other
grounds aside from lack of jurisdiction over
the person of the defendant shall not be
deemed a voluntary appearance. Section 8
Rule 15 provides that subject to the
provisions of Section 1 Rule 9, a motion
attacking a pleading, order, judgment or
proceeding shall include all objections then
available, and all objections not so included
shall be deemed waived. These changes in
the 1997 Rules of Civil Procedure are
applicable to criminal cases as Section 3
Rule 1 thereof provides that these rules
shall govern the procedure to be observed
in actions, civil or criminal, and special
proceedings.
Moreover, the omnibus
motion rule applies to motions to quash.
6. Section 26 of Rule 114 of the New Rules of
Criminal Procedure provides that bail is not a
bar to objection on illegal arrest, lack of or
irregular preliminary investigation. This is
an abandonment of the Cojuangco, Jr. v.
Sandiganbayan ruling.
RULE 114
BAIL
Section 1. Bail defined
BAIL
It is the security given for the release of a person in
custody of the law, furnished by him or a bondsman,
to guarantee his appearance before any court as
required under the conditions hereinafter specified.
Bail may be given in the form of a corporate surety,
property bond, cash deposit or recognizance.
3. Presumption of regularity in the performance

of duties:
Page 193 of 289

PURPOSES OF A BAIL:
1. to honor the presumption of innocence until his
guilt is proven beyond reasonable doubt
2. to enable him to prepare his defense without
being subject to punishment prior to conviction.
FORMS OF BAIL:
1. corporate surety
2. property bond
3. cash deposit
4. recognizance
Bail Bond vs. Recognizance
BAIL BOND
RECOGNIZANCE
An obligation under seal
An obligation of record,
given by the accused
entered into before some
with one or more sureties court or magistrate duly
and made payable to the authorized to take it with
proper officer with the
the condition to do some
condition to be void upon particular act.
performance by the
accused of such acts as
he may legally be require
to perform.
NOTE: A person is in the custody of law when he has
been arrested or otherwise deprived of his freedom
or when he has voluntarily submitted himself to the
jurisdiction of the court by surrendering to the proper
authorities.
All persons, except those charged with offenses
punishable by reclusion perpetua when evidence of
guilt is strong shall, before conviction, be bailable.
PROSECUTION WITNESSES MAY ALSO BE
REQUIRED TO POST BAIL TO ENSURE THEIR
APPEARANCE AT THE TRIAL OF THE CASE
WHERE:
a. There is a substitution of information (Sec. 4,
Rule 110)
b. Where the court believes that a material
witness may not appear at the trial. (Sec. 14,
Rule 119)
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As bail is intended to obtain or secure ones

provisional liberty, the same cannot be posted before
custody over him has been acquired by the court.
REQUIRING ARRAIGNMENT BEFORE GRANT OF

BAIL IS NOT VALID BECAUSE:
a. The trial court could ensure the presence of
the accuse at the arraignment precisely by
granting bail and ordering his presence at any
stage of the proceedings such as arraignment
(Sec. 2[b], Rule 114);
b. The accused will be placed in a position where
has to choose between filing a motion to
quash and thus delay his release on bail and
foregoing the filing of a motion to quash so that
he can be arraigned at once and thereafter be
released on bail. (Lavides v. Court of Appeals,
324 SCRA 321)
Section 2. Condition of the Bail; Requirements
THE SURETYS LIABILITY COVERS ALL THESE 3
STAGES:
a. trial
b. promulgation
c. the execution of the sentence.
Unless the court directs otherwise, the bail bond
posted by an accused remains in force at all stages
of the case until its final determination.
The accused shall appear before the proper court
whenever required by the court or rules.
Failure of the accused to appear at the trial without
justification despite due notice shall be deemed a
waiver of his right to be present thereat. The trial
may proceed in absentia.
The bondsman shall surrender the accused to court
for execution of the final judgment.
If the accused presents his notice of appeal, the trial
court will order the accused to be taken into custody
in the absence of a new bail bond on appeal duly
approved by the court. If the accused does not
appeal, the bondsman must produce the accused on
the 15th day from promulgation of sentence for
service of sentence.
Yap v. CA and the People, G.R. No. 141529 (2001)
The prohibition against requiring excessive bail is
enshrined in the Constitution. The obvious rationale
is that imposing bail in an excessive amount could
render meaningless the right to bail. The court has
wide latitude in fixing the amount of bail. Where it
fears that the accused may jump bail, it is certainly
not precluded from installing devices to ensure
against the same. Options may include increasing the
bail bond to an appropriate level, or requiring the
Page 194 of 289

person to report periodically to the court and to make
an accounting of his movements. Although an
increase in the amount of bail while the case is on
appeal may be meritorious, the SC found that the
setting of the amount at P5.5M is unreasonable,
excessive, and constitutes an effective denial of As
right to bail.
The Bail Bond Guide, a circular of the
Department of Justice for the guidance of state
prosecutors, although technically not binding upon
the courts, merits attention, being in a sense an
expression of policy of the Executive Branch, through
the DOJ, in the enforcement of criminal laws. Thus,
courts are advised that they must not only be aware
but should also consider the Bail Bond Guide due to
its significance in the administration of criminal
justice. This notwithstanding, the Court is not
precluded from imposing in As case an amount
higher than P40T (based on the Bail Bond Guide)
where it perceives that an appropriate increase is
dictated by the circumstances.
Section 3. No release or transfer except on court
order or bail
No person under detention by legal process shall be
released or transferred except upon order of the court
or when he is admitted to bail.
speedy, lest the purpose for which it is available is

rendered nugatory.
Right to bail may be waived.
BAIL IN COURT-MARTIAL OFFENSES:
The right to bail of an accused military personnel
triable by courts-martial does not exist, as an
exception to the general rule that an accused is
entitled to bail except in a capital offense where the
evidence of guilt is strong.
RATIONALE: The unique structure of the military
justifies exempting military men from the
constitutional coverage on the right to bail.
The right to bail is not available to military personnel
or officer charged with a violation of the Articles of
War. (Aswat v. Galido, 204 SCRA 205)
Notice of hearing required:
Whether bail is a matter of right or of discretion,
reasonable notice of hearing is required to be given
to the prosecutor or fiscal or at least he must be
asked for his recommendation because in fixing the
amount of bail, the judge is required to take into
account a number of factors such as the applicants
character and reputation, forfeiture of other bonds or
whether he is a fugitive from justice.
Section 4. Bail, a matter of right; exception

WHEN BAIL IS A MATTER OF RIGHT:
1. before or after conviction by the MTC
2. before conviction, for all offenses punishable
by lower than reclusion perpetua
prosecution does not have the right to
oppose or to present evidence for its denial.
WHEN BAIL IS A MATTER OF DISCRETION:
1. before conviction, in offenses punishable by
death, reclusion perpetua or life imprisonment
2. after conviction by the RTC of a non-capital
offense
prosecution is entitled to present evidence
for its denial.
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People v. Singh, et.
No.
129782 (2001)
In hearing the petition for bail, the prosecution
has the burden of showing that the evidence of guilt
is strong pursuant to 8 Rule 114. In bail
proceedings, the prosecution must be given ample
opportunity to show that the evidence of guilt is
strong. While the proceeding is conducted as a
regular trial, it must be limited to the determination of
the bailability of the accused. It should be brief and
Hearing is not required if bail is recommended by

prosecution and it is a matter of right.
Summary of the evidence for the prosecution
The courts order granting or refusing bail must
contain a summary of the evidence for the
prosecution, otherwise the order granting or denying
bail may be invalidated because the summary of the
evidence for the prosecution which contains the
judges evaluation of the evidence may be
considered as an aspect of procedural due process
for both the prosecution and the defense.
It would be premature, not to say incongruous, to file
a petition for bail for someone whose freedom has
yet to be curtailed.
Section 5. Bail, when discretionary
1. Not entitled to bail:
An accused who has been convicted of an
offense which carries a penalty of more
than 20 years is not entitled to bail during
the pendency of his appeal.
An accused who is convicted of a capital
offense is no longer entitled to bail on
Page 195 of 289

appeal since his conviction imports that the
evidence of guilt is strong.
2. Trial court may grant bail before appeal is
perfected
Whether bail is a matter of right or
discretion, the trial court may grant bail and
approve the amount of the bail bond before
the accused has perfected his appeal,
appeal being perfected upon filing of a
written notice of appeal and furnishing the
adverse party copy thereof.
However if the decision of the trial court
convicting the accused changed the nature
of the offense from non-bailable to bailable,
the application for bail can only be filed with
and resolved by the appellate court.
Even if there is no notice of appeal, if the
decision of the TC convicting the accused
changed the nature of the offense from
non-bailable to bailable, the application for
bail can only be filed with and resolved by
the appellate court.
3. After appeal is perfected, the trial court
loses jurisdiction to grant bail and to
approve bail bond.
However, the accused may apply for bail or
provisional liberty with the appellate court.
IF THE PENALTY IMPOSED BY THE TRIAL
COURT IS IMPRISONMENT EXCEEDING 6
YEARS, THE ACCUSED SHALL BE DENIED BAIL
OR HIS BAIL BE CANCELLED UPON A SHOWING
BY THE PROSECUTION OF THE FOLLOWING:
a. Recidivism,
quasi-recidivist
or
habitual
delinquent or has committed the crime
aggravated by the circumstance of reiteration;
b. That he has previously escaped from legal
confinement, evaded sentence or violated the
condition of his bail without valid justification;
c. That he committed the offense while under
probation, parole or conditional pardon;
d. That the circumstances of his case indicate the
probability of flight if released on bail; or
e. That there is undue
riskandthat
he may commit
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Section 6. Capital offense, defined
CAPITAL OFFENSE
It is an offense which, under the law existing at the
time of its commission and of the application for
admission to bail may be punished with death.
The capital nature of an offense is determined by the

penalty prescribed by law, and not by the penalty that
may be imposed after trial and on the basis of the
evidence adduced and the presence of aggravating
or mitigating circumstance.
NOTE: Republic
Act
No.
9346
entitled
An Act Prohibiting the Imposition of Death Penalty in
the Philippines was enacted on June 24, 2006
repealing R.A. No. 8177 and R. A. No. 7659 and
abolishing the death penalty.
Section 7. Capital offense or an offense
punishable by reclusion perpetua or life
imprisonment or life imprisonment
CONVICTION
This refers to conviction by the trial court, which has
not become final, as the accused still has the right to
appeal. After conviction by the trial court, the
accused convicted of a capital offense is no longer
entitled to bail, and can only be released when the
conviction is reversed by the appellate court. Section
13, Article III of the 1987 Constitution
Section 8. Burden of proof in bail application
Prosecution has burden of proof
At the hearing of an application for bail filed by a
person in custody for the commission of an offense
punishable
by
reclusion
perpetua
or
life
imprisonment, the prosecution has the burden of
showing that evidence of guilt is strong.
EVIDENCE OF GUILT in the Constitution and the
Rules refers to a finding of innocence or culpability,
regardless of the modifying circumstances.
Regarding Minors Charged with a Capital
Offense
If the person charged with a capital offense, such as
murder, admittedly a minor, which would entitle him,
if convicted, to a penalty next lower than that
prescribed by law, he is entitled to bail regardless of
whether the evidence of guilt is strong. The reason
for this is that one who faces a probable death
sentence has a particularly strong temptation to flee.
This reason does not hold where the accused has
been established without objection to be minor who
by law cannot be sentenced to death.
Duty of judge to conduct hearing
Where the prosecution agrees with the accuseds
application for bail or foregoes the introduction of
evidence, the court must nonetheless set the
application for hearing. It is mandatory for the judge
Page 196 of 289

to conduct a hearing and ask searching and
clarificatory questions for the purpose of determining
the existence of strong evidence against the
accused; and the order, after such hearing, should
make a finding that the evidence against the accused
is strong.
Section 9. Amount of bail; guidelines
THE JUDGE SHALL FIX A REASONABLE
AMOUNT OF BAIL CONSIDERING PRIMARILY,
BUT NOT LIMITED TO THE FOLLOWING
FACTORS:
a.
b.
c.
d.
e.
f.
g.
Financial ability of the accused to give bail;

Nature and circumstances of the offense;
Penalty for the offense charged;
Character and reputation of the accused;
Age and health of the accused;
Weight of the evidence against the accused;
Probability of the accused appearing at the
trial;
h. Forfeiture of other bail;
i. The fact that the accused was a fugitive from
justice when arrested; and
j. Pendency of other cases where the accused is
on bail.
Section 10. Corporate Surety
Any domestic or foreign corporation, licensed as
surety in accordance with law and currently
authorized to act as such, may provide bail by bond
subscribed jointly by the accused and an officer of
the corporation duly authorized by the board of
directors.
The term of the bail bond is not dependent upon
faithful payment of the bond premium.
Section 11. Property bond; how posted
PROPERTY BOND
It is an undertaking constituted as a lien on the real
property given as security for the amount of the bail.
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Within 10 days after the approval of the bond, the

accused shall annotate the lien on the certificate of
title with the Registry of Deeds and on the
corresponding tax declaration in the office of the
provincial, city and municipal assessor concerned.
Failure to do so shall be sufficient cause for
cancellation of the property bond and his re-arrest
and detention.
Section 12. Qualifications of sureties in property

bond
QUALIFICATIONS:
a. Each must be a resident owner of real property
within the Philippines;
b. Where there is only one surety, his real estate
must be worth at least the amount of the
undertaking;
c. If there are two or more sureties, each may
justify in an amount less than that expressed
in the undertaking but the aggregate of the
justified sums be equivalent to the whole
amount of the bail demanded.
d. Every surety must be worth the amount
specified in his own undertaking over and
above all just debts, obligations and properties
exempt from execution.
Section 13. Justification of Sureties
BEFORE ACCEPTING A SURETY OR BAIL BOND,
THE FOLLOWING REQUISITES MUST BE
COMPLIED WITH:
a. photographs of the accused;
b. affidavit of justification;
c. clearance from the Supreme Court;
d. certificate of compliance with Circular No. 66
dated September 19, 1996;
e. authority of the agent; and
f. current certificate of authority issued by the
Insurance Commissioner with a financial
statement showing the maximum underwriting
capacity of the surety company.
NOTE: The purpose of requiring the affidavit of
qualification by the surety before the judge is to
enable the latter to determine whether or not the
surety possesses the qualification to act as such,
especially his financial worth as required in the
previous section.
Section 14. Deposit of cash as bail
The accused or any person acting on his behalf may
deposit cash with the nearest collector of internal
revenue or provincial, city or municipal treasurer the
amount of bail fixed by the court or recommended by
the prosecutor who investigated or filed the case.
The trial judge has no authority to strictly require that
only cash bond, instead of a surety bond, be
deposited for the provisional release of the accused.
Section 15. Recognizance
Page 197 of 289

RECOGNIZANCE
It is an obligation of record, entered into before some
court or officer authorized to take it with a condition to
do some particular act, the most usual condition in
criminal cases being the appearance of the accused
for trial.
The release of the accused may be on his own
recognizance, which means that he has become his
own jailer. It may be to a responsible person.
Persons charged with offenses falling under the Rule
on Summary Procedure may be released either on
bail or on recognizance of a responsible citizen
acceptable to the court.
Espiritu v. Jovellanos, A.M. No. MTJ-97-1139
(1997)
THE FOLLOWING ARE CASES WHERE THE
COURT MAY ORDER THE RELEASE ON
RECOGNIZANCE OF ANY PERSON UNDER
DETENTION
a. when the offense charged is for violation of an
ordinance, a light, or a criminal offense, the
imposable penalty of which does not exceed 6
months imprisonment and/or P2000 fine, under
the circumstances provided in RA No. 6036
b. where a person has been in custody for a
period equal to or more than the minimum of
the imposable principal penalty, without
application of the Indeterminate Sentence Law
or any modifying circumstance, in which case
the court, in its discretion, may allow his
release on his own recognizance
c. where the accused has applied for probation,
pending resolution of the case but no bail was
filed or the accused is incapable of filing one
d. in case of a youthful offender held for physical
and mental examination, trial, or appeal, if he
is unable to furnish bail and under
circumstances envisaged in PD No. 603 as
amended.
Section 16. Bail, when not required; reduced bail
or recognizance
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this picture. THE LAW OR
BAIL IS NOT REQUIRED
RULES PROVIDE:
1. Offense charged is violation of an ordinance,
light felony or criminal offense the imposable
penalty does not exceed 6 months of
imprisonment and/or fine of P2,000 under RA
6036.
2. Where the accused applied for probation and
before the same has been resolved but no bail
was filed or the accused is incapable of filing
one, in which case he may be released on his

own recognizance.
3. In case of a youthful offender held for physical
or mental examination, trial or appeal, if unable
to furnish bail and under the circumstances
provided by P.D. 603, as amended.
4. A person who has been in custody for a period
equal to or more than the possible maximum
imprisonment prescribed for the offense
charged, without prejudice to the continuation
of the trial or the proceedings on appeal.
5. A person accused of an offense with a
maximum penalty of destierro shall be
released after 30 days of preventive
imprisonment.
Reduced Bail
A person in custody for a period to or more than the
minimum of the principal penalty prescribed for the
offense charged, without application of the
Indeterminate Sentence Law or any modifying
circumstance, shall be released on a reduced bail or
on his own recognizance at the discretion of the
court.
Section 17. Bail, where filed
WHERE BAIL IS FILED:
1. May be filed with the court where the case is
pending; or
2. In the absence or unavailability of the judge
thereof, with the regional trial judge or any
inferior court judge in the province, city or
municipality;
3. If the accused was arrested in a province, city
or municipality other than the case is pending,
bail may be filed with the RTC of the said place
or if no judge is available, with any inferior
court judge therein;
4. Where bail is a matter of discretion or the
accused
seeks
to
be
released
on
recognizance, it may only be filed in the court
where the case is pending, whether on trial or
appeal;
5. Any person not yet charged in court may apply
for bail with any court in the province, city or
municipality where he is held;
6. If the accused was convicted and the nature of
the offense changed from non-bailable to
bailable, the application can be made with and
resolved by the appellate court.
A judge presiding in one branch has no power to
grant bail to an accused who is being tried in another
branch presided by another judge who is not absent
or unavailable, and his act of releasing him on bail
Page 198 of 289

constitutes ignorance of law which subjects him to
disciplinary sanction.
Section 18. Notice of application to prosecutor
Court to give reasonable notice of the hearing to the
prosecutor or require him to submit his
recommendation.
Section 19. Release on bail
Upon approval of the bail by the judge, the accused
must be discharged.
An officer who fails or refuses to release him from
detention notwithstanding the approval by the proper
court of his bail bond may be held liable under Art.
126 if the Revised Penal Code for delaying release.
Section 20. Increase or reduction of bail
The Court may, upon good cause, either increase or
reduce the amount of the bail.
If the accused does not give the increased amount of
bail within a reasonable time will be committed to
custody.
NOTE: Where the offense is bailable, the mere
probability that the accused will escape or if he had
previously escaped while under detention does not
deprive him of his right to bail. The remedy is to
increase the amount of bail, provided the amount is
not excessive. (Sy Guan v. Amparo, 79 Phil 670)
Section 21. Forfeiture of bail
1. When bail bond forfeited:
only in instances where the presence of the
accused is specifically required by the court
or the Rules of Court and, despite due
notice to the bondsmen to produce him
before the court on a given date, the
accused fails to appear in person as so
required.
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bond or reduction thereof, two requisites must
be satisfied:
production or surrender of the person of the
accused within 30 days from notice of the
order of the court to produce the body of
the accused or giving reasons for its nonproduction
satisfactory explanations for the nonappearance of the accused when first

required by the trial court to appear.
Compliance with the first requisite
without meeting the second requisite will
not justify non-forfeiture of a bail bond or
reduction of liability.
Failure to PRODUCE the body of the
principal or give a reason for his nonproduction and EXPLAIN why the accused
did not appear before the court when first
required to do so, the court shall render a
judgment against the bondsmen, jointly and
severally for the amount of the bail.
The period of 30 days cannot be shortened
by the court but may be extended for good
cause shown.
Order of Forfeiture vs. Order of Confiscation
ORDER OF
ORDER OF
FORFEITURE
CONFISCATION
Conditional and
Not independent of the
interlocutory. It is not
order of forfeiture. It is a
appealable
judgment ultimately
determining the liability of
the surety thereunder
and therefore final.
Execution may issue at
once.
Section 22. Cancellation of bail
BAIL IS CANCELLED:
1. Upon application of the bondsmen with due
notice to the prosecutor, upon surrender of the
accused or proof of his death;
2. Upon acquittal of the accused;
3. Upon dismissal of the case; or
4. Execution of judgment of conviction.
Without prejudice to any liability on the bail.
Section 23. Arrest of accused out on bail
The bondsmen who put the bail bond for the accused
become the jailers and they or the police officer to
whom authority is endorsed may arrest the accused
for the purpose of surrendering him to the court. The
accused cannot leave the country without the
permission of the bondsmen and the court.
HOW SURETIES MAY BE RELIEVED FROM
RESPONSIBILITY OVER THE ACCUSED:
1. Arrest the principal and deliver him to the
proper authorities.
Page 199 of 289

2. They may cause the arrest of the accused to
be made by any police officer or other person
of suitable age or discretion.
3. By endorsing the authority to arrest upon a
certified copy of the undertaking and delivering
it to such officer or person.
An accused released on bail may be re-arrested
without the necessity of a warrant if he attempts to
depart from the Philippines without permission of the
court where the case is pending.
HOLD-DEPARTURE ORDERS
Supreme Court Circular No. 39-97 dated June 19,
1997 limits the authority to issue hold departure
orders to the RTCs in criminal cases within their
exclusive jurisdiction. Consequently, MTC judges
have no authority to issue hold-departure orders,
following the maxim, express mention implies the
exclusion. Neither does he have authority to cancel
one which he issued.
Section 24. No bail after final judgment; exception
GENERAL RULE:
No bail shall be allowed after the judgment has
become final, as what is left is for him to serve the
sentence.
2. The legality of the warrant issued therefore; or

3. From assailing the regularity or questioning
the absence of a preliminary investigation of
the charge against him.
Provided that the accused raises them before
entering his plea.
The court shall observe the matter as early as
practicable, but not later than the start of the
trial of the case.
RULE 115
RIGHTS OF ACCUSED
The rule enumerates the rights of a person accused
of an offense, which are both constitutional as well as
statutory, save the right to appeal which is purely
statutory in character
DUE PROCESS
1. Substantive considers the intrinsic validity
of the law
2. Procedural based on the principle that a
court hears before it condemns. Requirement
of notice and hearing.
Section 1. Rights of accused at trial
EXCEPTION: When he has applied for probation

before commencing to serve sentence, the penalty
and the offense being within the purview of the
Probation Law. The application for probation must be
filed within the period of perfecting an appeal. Such
filing operates as a waiver of the right to appeal.
A. TO BE PRESUMED INNOCENT
In all criminal prosecutions, the accused is presumed
innocent until the contrary is proved beyond
reasonable doubt.
EXCEPTION TO THE EXCEPTION: The accused

shall not be allowed to be released on bail after he
has commenced to serve his sentence.
The conviction should be based on the strength of

the prosecution and not on the weakness of the
defense, an accusation is not synonymous with guilt.
Section 25. Court supervision of detainees
REASONABLE DOUBT
It is the doubt engendered by an investigation of the
whole proof and inability, after such investigation, to
let the mind rest easy upon the certainty of guilt.
Absolute certainty of guilt is not demanded by the law
to convict of any criminal charge but moral certainty
is required as to every proposition of proof requisite
to constitute the offense.
The court shall exercise supervision over all persons

in custody for the purpose of eliminating unnecessary
detention. The executive judges of RTCs shall
conduct monthly personal
inspections of provincial,
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and
the
prisoners within their
respective jurisdictions.
Section 26. Bail is not a bar to objections on
illegal arrest, lack of or irregular preliminary
investigation
AN APPLICATION FOR ADMISSION TO BAIL
SHALL NOT BAR THE ACCUSED FROM:
1. Challenging the validity of his arrest; or
REASON: the slightest possibility of an innocent man

being convicted for an offense he has not committed
for an offense he has not committed would be far
more dreaded than letting a guilty person go
unpunished or for a crime he may have perpetrated.
EQUIPOSE RULE
Page 200 of 289

where the evidence of the parties in a criminal case
are evenly balanced, the constitutional presumption
of innocence should tilt in favor of the accused who
must be acquitted.
EXCEPTIONS
INNOCENCE
TO
THE
PRESUMPTION
OF
People v. Mingoa, 92 Phil 856 (1953)

The legislature may enact that when certain facts
have been proved, they shall be prima facie evidence
of the existence of guilt of the accused and shift the
burden of proof provided there be a rational
connection between the facts proved and the ultimate
fact presumed so that the inference of the one from
proof of the other is not unreasonable and arbitrary
experience.
In cases of self defense, the person who invokes
self defense is presumed guilty. In this case a
REVERSE TRIAL will be held.
B. TO BE INFORMED OF THE NATURE AND THE
CAUSE OF THE ACCUSATION AGAINST HIM
The right requires that the information should state
the facts and the circumstances constituting the
crime charged in such a way that a person of
common understanding may easily comprehend and
be informed of what it is about.
People v. Ortega, 276 SCRA 166 (2003)
An accused may not be convicted of an offense
unless it is clearly charged in the complaint or
information. To convict him of an offense other than
that charged in the complaint or information would be
a violation of this constitutional right.
When a person is charged in a complaint with a crime
and the evidence does not show that he is guilty
thereof, but does show that he is guilty of some other
crime or a lesser offense, the court may sentence
him for the lesser offense, PROVIDED that the lesser
offense is a cognate offense and is included in the
complaint filed in court.
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The qualifying or aggravating circumstances must be

ALLEGED and PROVED in order to be considered by
the court.
C. TO BE PRESENT AND DEFEND IN PERSON
AND BY COUSEL AT EVERY STAGE OF THE
PROCEEDING
1. During arraignment (Sec. 1b, Rule 116)

2. Promulgation of judgment EXCEPT when
the conviction is for a light offense, in which
case, it may be pronounced in the presence of
his counsel or representative.
3. when ordered by the court for purposes of
identification
Not applicable in the SC and CA
The law securing to an accused person the right to
be present at every stage at the proceedings has no
application to the proceedings before the CA and the
SC nor to the entry and promulgation of the
judgments. The defendant need not be present
during the hearing of the appeal. (Sec. 9, Rule 124)
Aquino, Jr. v. Military Commission, 63 SCRA 546
(1975)
The accused may waive his right to be present
during the trial. However, his presence may be
compelled when he is to be identified.
EFFECTS OF WAIVER OF THE RIGHT TO
APPEAR BY THE ACCUSED
1. waiver of the right to present evidence
2. prosecution can present evidence if the
accused fails to appear
3. the court can decide without the evidence of
the accused
Trial in Absencia
It is important to state that the provision of the
Constitution authorizing the trial in absentia of the
accused in case of his non-appearance AFTER
ARRAIGNMENT despite due notice simply means
that he thereby waives his right to meet the witnesses
face to face, among others.
Such waiver of a right of the accused does not mean
a release of the accused from his obligation under
bond to appear in court when so required. The
accused may waive his right but not his duty or
obligation to the court.
REQUIREMENTS FOR TRIAL IN ABSENTIA
1. accused has been arraigned
2. he has been duly notified of the trial
3. his failure to appear is unjustified
Gimenez v. Nazareno, 160 SCRA 1 (1988)
an escapee who has been duly tried in absentia
waives his right to present evidence on his own
behalf and to confront and cross-examine witnesses
that have testified against him.
PRESENCE OF THE ACCUSED IS REQUIRED

Page 201 of 289

D. RIGHT TO COUNSEL
Importance: Without the aid of counsel, a person
may be convicted, not because he is guilty but
because he does not know how to establish his
innocence.
The right covers the period beginning from the
custodial investigation, well into the rendition of the
judgment and even on appeal. (People v. Serzo, Jr.
274 SCRA 553) the right to counsel can be invoked
at any stage of the proceedings, even on appeal
CUSTODIAL INVESTIGATION
It is the questioning by law enforcement officers of a
SUSPECT taken into custody or otherwise deprived
of his freedom of action in a significant way. it
includes the practice of issuing an invitation to a
person who is investigated in connection with an
offense he is suspected to have committed. (RA
7437)
People v. Morial, 363 SCRA 96 (2001)
If during the investigation the assisting lawyer
leaves, comes and goes, the statement signed by the
accused is still inadmissible because the lawyer
should assist his client from the time the confessant
answers the first question asked by the investigating
officer until the signing of the extrajudicial confession.
The right to counsel and the right to remain silent do
not cease even after a criminal complaint/information
has already been filed against the accused AS LONG
AS he is still in custody.
The duty of the court to appoint a counsel de oficio
when the accused has no legal counsel of choice and
a desire to employ one is MANDATORY only at the
time of ARRAIGNMENT (sec. 6, Rule 116)
DIFFERENCE BETWEEN THE RIGHT TO
COUNSEL DURING CUSTODIAL INVESTIGATION
ANF DURING THE TRIAL
A. During trial the right to counsel means
EFFECTIVE counsel. Counsel is here not to
prevent the accused
from
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and a confessing but to
defend the accused.
B. Custodial
Investigation
stricter
requirement, it requires the presence of
competent and independent counsel who is
preferably the choice of the accused. Since a
custodial investigation is not done in public
there is a danger that confessions can be
exacted against the will of the accused.
The right to counsel is NOT ABSOLUTE, it subject to

being exercised within a reasonable time and manner
(Laranaga v. CA, 281 SCRA 254) he cannot insist on
one that he cannot afford, one who is not a member
of the bar and one who declines for a valid reason
such as conflict of interest. (People v. Servo, 274
SCRA 553)
Waiver of Right to Counsel
This is when the accused voluntarily submits himself
to the jurisdiction of the court and proceeds with his
defense.
Jurisprudence provides that the defendant cannot
raise the question of his right to have an attorney the
first time on appeal.
The accused may defend himself in person only if the
court is convinced that he can properly protect his
rights even without the assistance of counsel.
US v. Escalante, 36 Phil. 743 (1917)
If the question is not raised in the trial court, the
prosecution may go to trial.
People v. Nang Kay, 88 Phil. 515 (1951)
the question will not be considered in the
appellate court for the first time when the accused
fails to raise it in the lower court..
Delgado v. CA, 145 SCRA 357 (1986)
The mistake of counsel will bind his client. The
only exception is when the counsel represents
himself as a lawyer and is not one because in that
case the accused is denied of his right to counsel and
due process.
E. TO TESTIFY AS A WITNESS IN HIS OWN
BEHALF
People v. Santiago, 46 Phil 734 (1922)
A denial of the defendants right to testify on his
own behalf would constitute an unjustifiable violation
of his constitutional right.
If the accused testifies, he may be cross-examined
ONLY on matters covered by his direct examination,
unlike an ordinary witness who can be crossexamined as to any matter stated in the direct
examination or connected therewith (Section 6, Rule
132). His failure to testify will not be taken against
him but his failure to present evidence in his behalf
shall be taken against him (US v. Bay, 97 SCRA
495).
Page 202 of 289

The testimony of an accused who testifies on his own
behalf but refuses to be cross examined will not be
given weight and will have no probative value
because the prosecution will not be able to test its
credibility.
he will give or the evidence that he will produce

would have the tendency to incriminate him for the
crime that he was charged. But he MAY refuse to
answer any question incriminating him for an offense
distinct from that for which he is charged.
F. RIGHT AGAINST SELF-INCRIMINATION
RIGHTS OF THE ACCUSED IN THE MATTER OF

TESTIFYING OF PRODUCING EVIDENCE
Before the case:
1. Right to be informed
2. Right to remain silent and to counsel
3. right not to be subjected to force or violence or
any other means which vitiate free will
4. right to have the evidence obtained in violation
of these rights rejected
After the case is filed in court:
1. right to refuse to be a witness
2. right to not have any prejudice whatsoever
result to him by such refusal
3. the right to testify on his own behalf subject to
cross-examination by the prosecution
4. while testifying the right to refuse a specific
question which tends to incriminate him for
some other crime.
The scope of this right covers only testimonial

compulsion only and not the compulsion to produce
real and physical evidence using the body of the
accused.
DNA TESTING is not covered in the right against
self-incrimination
RATIONALE FOR PROTECTING THE RIGHT
AGAINST SELF INCRIMINATION:
1. humanitarian reasons, to prevent the state
from using its coercive powers.
2. practical reasons- the accused is more likely to
commit perjury.
The accused in protected under this rule from
questions that tend to incriminate him, which means
those that may subject him to penal liability.
The right may be waived by the failure of the accused
to invoke the privilege at the proper time, that is
AFTER the incriminating question is asked and
BEFORE his answer.
The privilege of the accused to be exempt from
testifying as a witness, involves a prohibition against
testimonial compulsion only and the production by
the accused of incriminating documents and articles
demanded off him. (US v. Tan Teng, 23 Phil, 145)
EXCEPTIONS: immunity statutes such as:
1. RA 1379 (Forfeiture of illegally obtained wealth)
2. RA 749 Bribery and Graft cases
RIGHT OF THE ACCUSED V. RIGHT OF AN
ORDINARY WITNESS
The ordinary witness may be compelled to take the
witness stand and claim
the privilege as each and
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thrown at him while an
accused may refuse to take the witness stand and
refuse to answer any and all questions. The accused
may also refuse to answer on his past criminality only
if he can still be prosecuted for it.
However, if the accused testifies in his own behalf,
then he may be cross-examined as any other
witness. He may NOT on cross examination refuse to
answer any question on the ground that the answer
USE IMMUNITY
Witness compelled
testimony and the fruits
thereof cannot be used
in subsequent
prosecution of a crime
against him
Witness can still be
prosecuted but the
compelled testimony
cannot be used against
him.
TRANSACTIONAL
IMMUNITY
Witness immune from
prosecution of a crime to
which his compelled
testimony relates.
witness cannot be
prosecuted at all
Effect of Refusal of Accused to Testify

GENERAL RULE:
Silence should not prejudice the accused.
EXCEPTION: Unfavorable inference is drawn when:
1. the prosecution has already established a
prima facie case, the accused must present
proof to overturn the evidence
2. the defense of the accused is an alibi and he
does not testify, the interference is that the alibi
is not believable.
G. RIGHT TO CONFRONT AND CROSS EXAMINE
WITNESSES AGAINST HIM AT TRIAL (RIGHT
OF CONFRONTATION)
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CONFRONTATION
It is the act of setting a witness face to face with the
accused so that the latter may make any objection he
has to the witness, and the witness may identify the
accused, and this must take place in the presence of
the court having jurisdiction to permit the privilege of
cross examination.
The main purpose of this right to confrontation is to
secure the opportunity of cross examination and the
second purpose is to enable the judge to observe the
demeanor of the witness.
By way of exception to this rule, it is provided that the
court may utilize as part of its evidence the testimony
of a witness who is deceased, out of or with due
diligence cannot be found in the Philippines,
unavailable or otherwise unable to testify, given in
another proceeding, judicial or administrative,
involving the same parties and subject matter, the
adverse party having had the opportunity to crossexamine him. (Rule 130, Sec 47)
In any criminal proceeding, the defendant enjoys the
right to have compulsory process to secure the
attendance of witnesses and the production of
evidence on his behalf.
WAIVER OF RIGHT TO CONFRONTATION
a. May be done expressly or impliedly.
b. It is implied when the accused waives his right
to be present at trial or when he was given the
opportunity but fails to take advantage of it.
2. reason for the delay

3. the accuseds assertion or non assertion of the
right
4. prejudice to the accused resulting from the
delay.
Rules on Speedy Trial
The limitation of this right is that the State must not
be deprived of its day in court and the right of the
State and the prosecution of due process must be
respected.
There is NO violation of the right where the delay is
imputable to the accused. (Solis v. Agloro, 64 SCRA
370)
The right to a speedy trial is violated when there are
UNJUSTIFIED postponements (People v. Declaro,
170 SCRA 143)
REMEDIES AVAILABLE TO THE ACCUSED WHEN
HIS RIGHT TO A SPEEDY TRIAL IS VIOLATED
1. He should ask for the trial of the case, not the
dismissal.
2. Unreasonable delay of the trial of a criminal
case as to make the detention of the defendant
illegal gives ground for habeas corpus as a
remedy for obtaining release as to avoid
detention for a reasonable period of time.
3. Accused would be entitled to relief in a
mandamus proceeding to compel the dismissal
of the information.
4. ask for the trial of the case and then move to
dismiss (Gandicela v. Lutero, 88 Phil. 790)
H. RIGHT TO COMPULSORY PROCESS

This is the right of the accused to have a subpoena
and/or a subpoena duces tecum issued in his behalf
in order to compel the attendance of witnesses and
the production of other evidence.
If a witness refuses to testify when required is in
contempt of court. The court may order a witness to
give bail or to be arrested.
I. RIGHT TO A SPEEDY,
IMPARTIAL
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PUBLIC TRIAL
AND
The right to a speedy trial is intended to avoid

oppression and to prevent delay by imposing on the
courts and on the prosecution an obligation to
proceed with reasonable dispatch.
FACTS CONSIDERED TO DETERMINE IF RIGHT
TO SPEEDY TRIAL HAS BEEN VIOLATED
1. length of the delay
Impartial Trial
Due process requires a hearing before an impartial
and disinterested tribunal and that every litigant is
entitled to nothing less that the cold neutrality of an
impartial judge. (Mateo, Jr. v. VIllaluz, 50 SCRA 180)
Like Caesars wife, a judge must not be only pure
but beyond suspicion. (Palang v. Zosa, 58 SCRA
776)
Public Trial
One held open or publicly; anyone interested in
observing the way the judge conducts his
proceedings in a courtroom may do so (Garcia v.
Domingo, 52 SCRA 143) it is sufficient that relatives
and friends who want to watch the proceedings are
given the opportunity to witness the proceedings. It is
done in public to prevent abuses that may be
committed by the court and the accused is entitled to
moral support from his friends and relatives. If it is
done in the judges chambers, it is still valid because
Page 204 of 289

the public is not excluded. (Garcia v. Domingo, 52
SCRA 143)
EXCLUSION OF THE PUBLIC IS VALID WHEN:
1. evidence to be produced is offensive to
decency or public morals
2. upon motion of the accused (Section 21, Rule
119)
Rule on Trial by Publicity
The right of the accused to a fair trial is NOT
incompatible to free press. Pervasive publicity is no
per se as prejudicial to the right to a fair trial. To
warrant the finding of prejudicial publicity, there must
be allegations and proof that judges have been
unduly influenced, not simply that they might be due
to the barrage of publicity. (People v. Teehankee,
249 SCRA 54)
J. RIGHT TO APPEAL ON ALL CASES ALLOWED
BY LAW AND IN THE MANNER PRESCRIBED
BY LAW
The right to appeal from a judgment of the conviction
is fundamentally of statutory origin. It is not a matter
of absolute right that is independent of constitutional
or statutory provisions allowing such appeal.
Waiver of Right to Appeal
The right to appeal is personal to the accused and it
may be waved either expressly or by implication.
HOWEVER, where the death penalty is imposed,
such right cannot be waived as the review of the
judgment by the SUPREME COURT is automatic and
mandatory (A.M. No. 00-5-03 SC)
Ozaeta v. CA, 179 SCRA 800 (1989)
Anyone who seeks to exercise the right to appeal
must comply with the requirements of the rules.
Otherwise the right to appeal is lost
People v. Ang Gioc, 74 Phil. 366 (1941)
When the accused flees, after the case has bee
submitted to court for decision, he will be deemed to
have waived his right to appeal from the judgment
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NOTE: such may no be reviewed by the CA.

THE SPEEDY TRIAL ACT OF 1998 (RA 8493)
DUTY
OF
THE
COURT
AFTER
THE
ARRAIGNMENT OF THE ACCUSED
The court SHALL order a pre-trial conference to
consider the following:
1.
2.
3.
4.
plea bargaining
stipulation of facts
marking and identification of evidence
waiver of objections to admissibility of
evidence
5. such other matters as will promote a fair and
expeditious trial
Time Limit for Trial in Criminal Cases
Shall not exceed 180 days from the first day of trial,
however the rule is not absolute. The EXCEPTIONS:
1. those governed by the Rules on Summary
Procedure
2. where the penalty prescribed by law does NOT
exceed 6 months imprisonment or a fine of
P1,000 or both
3. those authorized by the Chief Justice of the SC
Period of Arraignment of Accused
Within 30 days from the filing of the information, or
from the date the accused appealed before the
justice/judge/court in which the charge is pending,
whichever date last occurs.
When Shall Trial Commence After Arraignment
Within 30 days from arraignment, HOWEVER, it may
be extended BUT only:
1. for the 180 days for the first 12 calendar month
period from the effectivity of the law
2. 120 days for the second 12 month period
3. 80 days for the third 12 month period
RULE 116
ARRAIGNMENT AND PLEA
ARRAIGNMENT
It means for bringing the accused into court and
informing him of the nature and cause of the
accusation against him.
Section 1. Arraignment and plea; how made
HOW ARRAIGNMENT IS MADE:
1. in open court where the complaint or
information has been filed or assigned for trial
2. by the judge or clerk of court
3. by furnishing the accused with a copy of the
complaint or information
4. reading it in a language or dialect known to
the accused
5. asking accused whether he pleads guilty or
not guilty
When Arraignment Should be Held
Page 205 of 289

Accused should be arraigned within 30 days from
the date the court acquires jurisdiction over his
person, unless a shorter period is provided for by
law. The time of the pendency of a motion to quash
or a bill of particulars or other causes justifying
suspension of arraignment shall be excluded in
computing the period.
WHEN ARRAIGNMENT IS HELD WITHIN A
SHORTER PERIOD:
1. When an accused is under preventive
detention, his case should be raffled within 3
days from filing and accused shall be arraigned
within 10 days from receipt by the judge of the
records of the case (RA 8493 Speedy Trial
Act)
2. where the complainant is about to depart
from the Philippines with no definite date of
return, the accused should be arraigned
without delay (RA 4908)
3. Cases under RA 7610 (Child Abuse Act), the
trial shall be commenced within 3 days from
arraignment
4. Cases under the Dangerous Drugs Act
5. Cases under SC AO 104-96, i.e., heinous
crimes, violations of the Intellectual
Property Rights Law, these cases must be
tried continuously until terminated within 60
days from commencement of the trial and to be
decided within 30 days from the submission of
the case
Notes on Arraignment:
Trial in absentia may be conducted only after
valid arraignment
Accused must personally appear during
arraignment and enter his plea (counsel cannot
enter plea for accused)
Accused is presumed to have been validly
arraigned in the absence of proof to the
contrary
Generally, judgment is void if accused has not
been validly arraigned
If accused went into trial without being
arraigned, subsequent arraignment will cure
the error provided
that the
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to present evidence
cross-examine the
witnesses of the prosecution during trial.
WHEN A PLEA OF NOT GUILTY SHOULD BE
ENTERED:
1. When accused so pleaded
2. When he refuses to plead
3. When he makes a conditional or qualified plea
of guilt (Ex. Accused pleads guilty but adds
pero hindi ko sinasadya)
4. When the plea is indefinite or ambiguous

5. When he pleads guilty but presents
exculpatory evidence (ex. Evidence to prove
complete self-defense)
NOTE: if the accused who pleaded guilty
presents exculpatory evidence, his plea of guilty
is withdrawn. The judge must order the accused
to plead again or at least direct that a new plea of
not guilty be entered for him, otherwise there
shall be no standing plea for the accused. This is
significant because if there is no standing plea,
the accused cannot invoke double jeopardy later
on.
Presence of Offended Party
The private offended party is required to appear in
the arraignment for the purpose of plea bargaining,
determination of civil liability and other matters
requiring his presence.
In case the offended party fails to appear despite due
notice, the trial court may allow the accused to plead
guilty to a lesser offense necessarily included in the
offense charged with the conformity of the trial
prosecutor alone.
Section 2. Plea of guilty to a lesser offense
PLEA BARGAINING
It is process whereby the accused, the offended party
and the prosecution work out a mutually satisfactory
disposition of the case subject to the courts approval.
it usually involves the defendants pleading guilty to a
lesser offense or to only one or some of the counts of
a multi-count indictment in return for a lighter
sentence than that for the graver charge.
It precludes the filing and prosecution of the offense
originally charged in the information, except when the
plea of guilty to a lesser offense is without the
consent of the offended party and the prosecutor.
Plea to Lesser Offense During Arraignment
During arraignment, the accused may enter a plea of
guilty to a lesser offense PROVIDED there is consent
of the offended party AND of the prosecutor to the
plea of guilty to a lesser offense that is necessarily
included in the offense charged.
Plea to Lesser Offense After Arraignment but
Before Trial
After arraignment but BEFORE trial, the accused
may still be allowed to plead guilty to a lesser offense
after withdrawing his previous plea of not guilty. No
Page 206 of 289

amendment to the complaint or information is
necessary.
Plea to Lesser Offense After Trial has Begun
After the prosecution has rested its case, a change of
plea to a lesser offense may be granted by the judge,
with the approval of the prosecutor and the offended
party if the prosecution does not have sufficient
evidence to establish the guilt of the accused for the
crime charged. The judge cannot on its own grant
the change of plea.
Presence and Consent of the Offended Party
The consent of the offended party is necessary
before the accused may be allowed to plead guilty to
a lesser offense. If the plea of guilty to a lesser
offense is made without the consent of the prosecutor
and the offended party, the conviction of the accused
shall not be a bar to another prosecution for an
offense which necessarily includes the offense
charged in the former information (No double
jeopardy).
If the offended party fails to appear during
arraignment, the court may allow the accused to
plead guilty to a lesser offense with the conformity of
the trial prosecutor alone
Section 3. Plea of guilty to capital offense;
reception of evidence
IMPROVIDENT PLEA
It is a plea without information as to all the
circumstances affecting it; based upon a mistaken
assumption or misleading information or advice.
DUTY OF THE COURT WHEN ACCUSED PLEADS
GUILTY TO A CAPITAL OFFENSE:
1. Conduct a searching inquiry into the
voluntariness and full comprehension of the
consequences of the plea
2. require prosecution to present evidence to
prove the guilt and precise degree of culpability
of the accused
3. ask the accused if he desires to present
evidence in his behalf
and allow him to do so if
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ELEMENTS OF SEARCHING INQUIRY
1. Judge must convince himself that accused is
entering the plea voluntarily and intelligently
2. Judge must convince himself that there exists
a rational bass for the finding of guilt based on
accuseds testimony
3. Inform the accused of the exact length of

imprisonment and the certainty that he will
serve it in a national penitentiary
Effects of Improvident Plea
The conviction will be set aside if the plea of guilty is
the sole basis for the judgment.
However, the court may validly convict the accused if
such conviction is supported by adequate evidence of
guilt independent of the plea itself.
Section 4. Plea of guilty to non-capital offense;
reception of evidence, discretionary
Consequences of Plea of Guilty
As a rule, a plea of guilty is an unqualified admission
of the crime and of the attending circumstances
(aggravating and/or qualifying) alleged in the
complaint. Such plea removes the necessity of
presenting further evidence and for all intents and
purposes the case is deemed tried on its merits and
submitted for decision. However, the court may,
upon motion, allow the presentation of evidence to
prove aggravating and mitigating circumstances.
The trial court may allow an accused to plead guilty
and at the same time allow him to prove other
mitigating circumstances.
However, if what the
accused would prove is an exempting circumstance,
which would amount to a withdrawal of his plea of not
guilty.
If the accused is permitted to present evidence after
his plea of guilty to a non-capital offense and such
shows that the accused is not guilty of the crime
charged, the accused must be acquitted, for there is
no rule which provides that simply because the
accused pleaded guilty to the charge that his
conviction automatically follows. Additional evidence
independent of the plea may be considered to
convince the judge that it was intelligently made.
For non-capital offenses, the reception of
evidence is merely discretionary on the part of the
court. If the information or complaint is sufficient for
the judge to render judgment on a non-capital
offense, he may do so. But if the case involves a
capital offense, the reception of evidence to prove
the guilt and degree of culpability of the accused is
mandatory.
Section 5. Withdrawal of improvident plea of
guilty
INSTANCES OF IMPROVIDENT PLEA:
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1. Plea of guilty was compelled by violence or
intimidation
2. Accused did not fully understand the
meaning and consequences of his plea
3. Insufficient
information
to
sustain
conviction of the offense charged
4. Information does not charge an offense
5. Court has no jurisdiction
When Improvident Plea may be Withdrawn
At any time before judgment of conviction becomes
final, the court may permit and improvident plea of
guilty to be withdrawn and be substituted by a plea of
not guilty
People vs Lambino, 103 Phil 504 (1958)
The withdrawal of a plea of guilty is not a matter of
right to the accused but of sound discretion to the trial
court.
The reason for this is that trial has already begun and
the withdrawal of the plea will change the theory of
the case and put all past proceedings to waste.
Moreover, at this point, there is a presumption that
the plea was made voluntarily.
Section 6. Duty of court to inform accused of his
right to counsel
4-FOLD DUTY OF COURT WHEN ACCUSED
APPEARS WITHOUT COUNSEL:
1. Inform the defendant that he has a right to an
attorney before being arraigned
2. After informing him, court must ask the
defendant if he desires to have the aid of an
attorney
3. If he desires but is unable to employ one, the
court must assign an attorney de oficio to
defend him
4. If the accused desires to procure an attorney of
his own, the court must grant him reasonable
time to do so
Failure to comply with this 4-fold duty amounts
to a violation due process
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Section 7. Appointment
of counsel
de oficio
COUNSEL DE OFICIO
He is counsel appointed by the court to represent and
defend the accused in case he cannot afford to
employ one himself
WHO MAY BE APPOINTED COUNSEL DE OFICIO:
1. Such members of the bar in good standing
who can competently defend the accused
2. In localities where such members of the bar

are not available, any resident of the province
of good repute for probity and ability.
Duty of the Court to Appoint Counsel During
Arraignment vs During Trial
During arraignment, the court has an affirmative duty
to inform the accused of his right to counsel and to
provide him with one in case he cannot afford it. The
court must act on its own volition unless the right is
waived by the accused.
During trial, it is the accused who must assert his
right to counsel. The court will not act unless the
accused invokes his rights.
Section 8. Time for counsel de oficio to prepare
for arraignment
What Constitutes Reasonable Time
It depends on the circumstances surrounding the
case such as the gravity of the offense, complexity of
the allegations, whether a motion to quash or a bill of
particulars has to be filed, etc.
Generally, reasonable time to prepare for trial is 215 days
Generally, reasonably time to
arraignment is 30 mins to 1 hour
prepare
for
NOTE: Counsel for the accused must expressly

demand the right to be given reasonable time to
consult with the accused. Only when so demanded
does denial thereof constitute reversible error and a
ground for new trial.
Section 9. Bill of Particulars
Rules for Bill of Particulars
Accused must move for a bill of particulars BEFORE
arraignment to enable him to properly plead and
prepare for trial, otherwise it is deemed waived.
The motion for bill of particulars must contain (1) the
alleged defects in the complaint or information and
(2) details desired.
Rule 12 on Bill of Particulars applies by analogy to
Bill of Particulars as provided in Sec. 9 of Rule 116.
The remedy against an information that fails to allege
the time of the commission of the crime with sufficient
definiteness is a bill of particulars, not a motion to
quash.
Page 208 of 289

IT IS NOT THE OFFICE OF THE BILL OF
PARTICULARS TO:
a. Supply material allegation necessary to the
validity of a pleading
b. Change a cause of action or defense stated in
the pleading, or to state a cause of action or
defense other than the one stated.
c. Set forth the pleaders theory of his cause of
action or a rule of evidence on which he
intends to rely.
d. Furnish evidentiary information whether such
information consists of evidence which the
pleader proposes to introduce or of facts which
constitute a defense or offset for the other
party or which will enable the opposite party to
establish an affirmative defense not yet
pleaded.
The filing of a motion for bill of particulars suspends
the period to file a responsive pleading.
If the motion is granted, the moving party has the
remaining period or at least 5 days to file his answer
from service of the bill of particulars.
If the motion is denied, he has the same period to file
his responsive pleading from receipt of the order
denying the motion.
Section 10. Production or inspection of material
evidence in possession of prosecution
Right to Modes of Discovery
Right of the accused to move for the production of
material evidence in the possession of the
prosecution. It authorizes the defense to inspect,
copy or photograph any evidence of the prosecution
in its possession after obtaining permission of the
court.
The purpose of such right is to prevent surprises to
the accused and the suppression or alteration of
evidence.
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constitutional right
life,
liberty
and
property
of the
accused.
Section 11. Suspension of arraignment
GROUNDS FOR SUSPENSION
1. There exists a prejudicial question
2. Accused appears to be suffering from an
unsound mental condition which renders him
unable to understand the charge against him

and to plead intelligently thereto.
3. There is a petition for review pending before
the DOJ or Office of the President, however
the period of suspension shall not exceed 60
days counted from the filing of the petition
for review.
RULE 117
MOTION TO QUASH
Section 1. Time to move to quash
QUASHAL VS. NOLLE PROSEQUI:
The quashal of the complaint or information is
different from a nolle prosequi, although both have
one result, which is the dismissal of the case.
A nolle prosequi is initiated by the prosecutor
while a quashal of information is upon motion to
quash filed by the accused.
A nolle prosequi is a dismissal of the criminal case by
the government before the accused is placed on trial
and before he is called to plead, with the approval of
the court in the exercise of its judicial discretion. It
partakes of the nature of a nonuser or discontinuance
in a civil suit and leaves the matter in the same
condition in which it was before the commencement
of the prosecution. It is not an acquittal; it is not a
final disposition of the case; and it does not bar a
subsequent prosecution for the same offense.
Time to File Motion to Quash
GENERAL RULE:
A motion to quash (MTQ) may be filed by the
accused at any time before the accused enters his
plea. Thereafter, no MTQ can be entertained by the
court.
EXCEPTION: Under Sec. 9, Rule 117, which adopts
the omnibus motion rule. This means that a MTQ
may still be filed after arraignment on the ground (1)
that the facts alleged in the information charge no
offense, (2) that the court has no jurisdiction over the
offense charged, (3) that the offense or penalty has
prescribed, or (4) that the doctrine of double jeopardy
precludes the filing of the information.
Right to File MTQ Belongs Only to the Accused.
There is nothing in the rules which authorizes the
court or judge to motu proprio initiate a MTQ by
Page 209 of 289

issuing an order requiring why the information may
not be quashed on the ground stated in said order.
Section 2. Form and contents
REQUIRED FORM OF MTQ
1. It must be in writing
2. It must be signed by the accused OR his
counsel
3. It must specify the factual and legal grounds on
which it is based.
NOTE: Generally, the court cannot consider any
other ground other than those specifically stated in
the motion to quash, EXCEPT when the ground for
quashal is lack of jurisdiction over the offense
charged. If this is the ground for dismissing the case,
it need not be alleged in the MTQ because it goes
into the very competence of the court to pass upon
the case.
The fact that the allegations in the complaint or

information are vague or broad, is not generally a
ground for a motion to quash, the remedy being to file
a motion for bill of particulars.
Lack of Jurisdiction over the Person
The inclusion of other grounds other than lack of
jurisdiction over the person of the accused in an MTQ
does not amount to voluntary submission or a waiver
of such ground.
Officer Filing the Information Had No Authority
The prosecutor who signed the information must
have territorial jurisdiction to conduct the preliminary
investigation of the offense, otherwise the information
filed by him would be invalid and can be quashed on
such ground
Lack of authority of the officer is not cured by silence,
acquiescence or express consent or even by
amendment
Section 3. Grounds
GROUNDS FOR MOTION TO QUASH
1. Facts charged do not constitute an offense
2. Court trying the case has no jurisdiction over
the offense charged
the person of the accused
4. Officer who filed the information had no
authority to do so
5. Information does not conform substantially to
the prescribed form
6. That more than one offense is charged
(duplicitous information)
7. Criminal action or liability has been
extinguished
8. Information contains averments which, if true,
would constitute a legal excuse or
justification
9. double jeopardy
NOTE: the grounds enumerated in this section are
the EXCLUSIVE grounds for a MTQ.
Facts Alleged Do Not Constitute
an Offense
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The test to determine
if
the
facts
charged
constitute
an offense is to determine WON all the essential
elements of the crime have been alleged.
The trial court should limit its inquiry to:
the averments in the information (these are
deemed hypothetically admitted);
facts admitted by the prosecution; and
Indubitable facts.
Legal Excuse or Justification

The term legal excuse or justification only includes
exempting circumstances and NOT justifying
circumstances. Justifying circumstances such as selfdefense or defense of a stranger is a matter of
defense that must be proven in trial.
HOW CRIMINAL LIABILITY IS EXTINGUISHED
1. Death of the accused, but as to pecuniary
penalties, liability therefor is extinguished only
if death occurs before final judgment
2. Amnesty
3. Marriage of the offended woman, as stated in
Art 344 of the RPC
4. Prescription of the crime
5. Service of sentence
6. Absolute pardon
7. Prescription of penalty
HOW CRIMINAL LIABILITY IS PARTIALLY
EXTINGUISHED
1. Conditional pardon
2. Commutation of sentence
3. Allowances earned for good conduct while
serving sentence
AMNESTY
Given for political
crimes
Given to a class of
persons
Needs concurrence of
Congress
Beneficiary need not
PARDON
Given for common
crimes
Given to an individual
Concurrence of
congress not needed
Distinct acts of
Page 210 of 289

accept (but must admit
to being a part of the
class granted amnesty)
Courts take judicial
notice of amnesty
(need not be proved in
court or may be proven
even if not alleged)
Abolishes the offense
(looks backward)
Granted before or after
prosecution
acceptance needed if
pardon is conditional
Courts do not take
judicial notice of
pardon (must be
proved in court)
Relieves the offender
of liability (looks
forward)
Granted only after
conviction
Rules on Prescription
The period of prescription of violation of special laws
or offenses not penalized by the Revised Penal Code
but by special laws, and municipal ordinances is
governed by Act No. 3326 which took effect on
December 4, 1926.
Where an accused has been found to have
committed a lesser offense includible within the
offense charged, he cannot be convicted of the lesser
offense if it has already prescribed.
To hold
otherwise would be to sanction the circumvention of
the law on prescription by the simple expedient of
accusing the defendant of the graver offense.
The rule that if the last day falls on a Sunday or a
holiday, the act can still be done the following day
does not apply to the computation of the period of
prescription of a crime, in which the rule is that if the
last day in the period of prescription of a felony falls
on a Sunday or legal holiday, the information
concerning said felony cannot be filed on the next
working day, as the offense has by then already
prescribed.
The period of a continuing crimes prescription is
counted from the latest or last act constituting the
series of acts continuing the single crime.
The prescriptive period of offenses penalized by
special laws and ordinances is interrupted only by the
filing of complaint or information
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covered by the Rule on Summary Procedure.
The period of prescription does not run when the
offender is absent from the Philippines.
Rule on Contentious Motions
Contentious motions in criminal cases must comply
with the requirements that they be set for hearing at a
specified date with prior notice to the adverse party or
the prosecutor at least 3 days before the hearing, the

notice of hearing should be addressed to adverse
counsel or the prosecutor, and proof of service of the
motion upon the adverse party or prosecutor at least
3 days prior to such hearing. This is mandatory.
Section 4.
information
Amendment
of
complaint
or
If the alleged defect in the complaint or information

may be cured by amendment, the court shall order
the amendment instead of quashing the complaint or
information. However, if the prosecution fails to
amend the complaint or if after the amendment the
defect is still not cured, the MTQ shall be granted.
A good tactical move would be to have the accused
first plead to the information and thereafter file a
motion to quash either before or after the prosecution
has presented its evidence. Pursuant to Sec. 9 of
Rule 117, an accused, even after he has entered his
plea, may still move to quash the information on the
ground that it does not charge an offense. If the case
is dismissed on such ground, the prosecution may
not be permitted to correct the information because
the accused has already pleaded and to allow such
amendment may place the accused twice in
jeopardy.
Section 5. Effect of sustaining the motion to
quash
EFFECTS IF MOTION TO QUASH IS SUSTAINED:
1. If the ground for the motion is either:
a. Facts charged do not constitute an offense
b. Officer who filed the information had no
authority to do so
c. Information does not conform substantially
to the prescribed form
d. duplicitous information
The court may order that another information
be filed or an amendment thereof be made, as
the case may be, within a definite period. If
such order is not made, or if having been
made, another information is not filed within
the time specified in the order or within such
time as the court may order, the accused, if in
custody, shall be discharged therefrom, unless
he is also in custody on some other charge.
2. If the motion is based on the following grounds:
a. Criminal action or liability has been
extinguished
Page 211 of 289

b. Information contains averments which, if
true, would constitute a legal excuse or
justification
c. double jeopardy
The court must state, in the order granting the
motion, the release of the accused if he is in
custody or the cancellation of his bond if he is
on bail.
3. If the ground for the MTQ was that the court
has no jurisdiction over the offense, the better
practice is to forward or remand the case to the
proper court, not to quash the complaint or
information.
PROCEDURE IF MOTION TO QUASH IS DENIED:
1. Accused should plead
2. Accused should go to trial without prejudice to
the special defenses he invoked in the motion
3. Appeal from the judgment of conviction, if any,
and interpose the denial of the motion as an
error.
Remedy of Aggrieved Party
An order granting a MTQ is appealable, as the
proper remedy. The accused would not be placed in
double jeopardy because the accused has not been
arraigned yet.
Newsweek Inc. vs IAC, 142 SCRA 443 (1986)
An order denying a MTQ is not appealable
because such order is merely interlocutory. However,
if the court, in denying the MTQ, acts with grave
abuse of discretion, the certiorari or prohibition will
lie.
This rule does not preclude the aggrieved party from
filing a special civil action of certiorari, as a substitute
for the remedy of a lost appeal, where there is a
patent, capricious and whimsical exercise of
discretion by a trial judge or where an appeal will not
promptly relieve the aggrieved party from the
injurious effect of the disputed order, as in the
quashal of an information for incomplete preliminary
investigation.
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Section 6. Order sustaining the motion to quash

not a bar to another prosecution; exception
GENERAL RULE:
An order sustaining a MTQ is not a bar to another
prosecution for the same offense
EXCEPTIONS: When the ground for the MTQ is any
of the following:
1. Criminal action
extinguished
2. double jeopardy
or
liability
has
been
Section 7. Former conviction or acquittal; double

jeopardy
KINDS OF DOUBLE JEOPARDY:
1. No person shall be put twice in jeopardy for the
SAME OFFENSE
2. When an act punished by a law and an
ordinance, conviction or acquittal under either
shall be a bar to another prosecution for the
SAME ACT
IDENTITY RULE
There is identity between two offenses not only when
the second offense is exactly the same as the first,
but also when the second offense is includes or is
necessarily included in the first offense or is an
attempt or frustration of thereof
EXCEPTIONS TO IDENTITY RULE:
1. The graver offense developed due to
supervening facts arising out of the same act
or omission constituting the former charge
2. The facts constituting the graver offense
became known or were discovered only after a
plea was entered in the former complaint or
information.
3. the plea of guilty to a lesser offense was made
without the consent of the prosecutor and the
offended party
REQUISITES TO RAISE DOUBLE JEOPARDY:
1. first jeopardy must have attached
2. first jeopardy must have been terminated
3. the second jeopardy must be for the same
offense or the second offense includes or is
necessarily included in the offense charged in
the first information or is an attempt or
frustration thereof.
REQUISITES FOR 1ST JEOPARDY TO ATTACH:
1. valid complaint or information
2. court of competent jurisdiction
3. valid arraignment
4. valid plea
5. the defendant was acquitted, convicted, or the
case was dismissed without his express
consent or authority.
NOTE: In order to raise double jeopardy for the
SAME ACT, there must be an acquittal or conviction.
For double jeopardy for the SAME OFFENSE it is
Page 212 of 289

sufficient that the case was dismissed without his
express consent.
Perez vs. CA, 163 SCRA 236 (1988)
If a single act is punished by two different laws,
but each requires proof of an additional fact which the
other does not require, conviction or acquittal in one
will not bar a prosecution for the other.
An order discharging an accused as a state witness

amounts to an acquittal, hence double jeopardy will
apply.
However, if he fails or refuses to testify against his
co-accused in accordance with his sworn statement,
he may be prosecuted again.
Section 8. Provisional dismissal
Ex. Violation of BP 22 and Estafa

Double Jeopardy will not apply in case of a conviction
of a crime under a special law, which also constitutes
an offense under the Revised Penal Code. This is
because the former is malum prohibitum, while the
latter is mala in se.
In order for double jeopardy to attach, the judgment
must be reading its entirety (promulgation of
judgment). If only the dispositive portion is read, then
double jeopardy will not attach.
Test for Valid Complaint or Information
In general, if it can support a valid conviction. This
means that all the necessary elements of the crime
are alleged
What is controlling for purposes of determining the
presence of double jeopardy is the crime charged in
the complaint not the crime proven in trial.
DISMISSAL
Does not decide the
case on the merits, does
not determine
defendants guilt or
innocence
Double Jeopardy will not
always attach
ACQUITTAL
Always based on the
merits. Defendant is
acquitted bec. guilt
wasnt proven beyond
reasonable doubt
Double Jeopardy always
attaches
WHEN DISMISSAL = ACQUITTAL:

1. Demurrer to evidence
2. Dismissal due to violation of right to speedy
trial (even if dismissal was upon motion of the
accused or with his express consent)
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Rules Regarding Without Express Consent

If dismissal was upon motion of the accused or
counsel, such is deemed to be with defendants
express consent.
Silence of the accused does not mean consent.
Statement of no objection is express consent.
Rules Regarding State Witnesses
REQUISITES PROVISIONAL DISMISSAL:

1. consent of the prosecutor
2. consent of the accused
3. notice to the offended party
NOTE: If a case is provisionally dismissed, the failure
to revive or reinstate the case within the periods set
by law will make the dismissal permanent.
HOW TO REVIVE A CASE:
1. Refiling of the information
2. Filing a new information for the same offense
or one necessarily included in the original
offense charged
PERIODS FOR REINSTATEMENT/REVIVAL:
1. 1 YEAR for offenses punishable
imprisonment not exceeding 6 years
2. 2 YEARS for offenses punishable
imprisonment exceeding 6 years
by
by
GENERAL RULE:
When a case is reinstated there is no need to
conduct a new preliminary investigation
EXCEPTIONS:
Original witnesses or some of them recant
their testimony, are no longer available (died)
or when new witnesses have emerged
Other persons are charged under the new
complaint
Original charge has been upgraded
Criminal liability of the accused has been
upgraded (ex. accomplice principal)
Section 9. Failure to move to quash or to allege
any ground therefor
ALL THE GROUNDS FOR A MTQ ARE DEEMED
WAIVED IF NOT SEASONABLY RAISED, EXCEPT:
1. Facts charged do not constitute an offense
the offense charged
3. Criminal action or liability has been
extinguished
4. double jeopardy
Page 213 of 289

this is in order to enforce the mandatory nature of
pre-trial in criminal cases.
RULE 118
PRE-TRIAL
Section 1. Pre-trial; mandatory in criminal cases
Pre-trial is MANDATORY in all criminal cases
The court shall after arraignment and within 30 days
from the time the court acquires jurisdiction over the
person of the accused, unless a shorter period is
provided for by law, order a pre-trial. Its main
objective is to achieve an expeditious resolution of
the case.
THINGS CONSIDERED DURING PRE-TRIAL:
1. plea bargaining
2. stipulation of facts
3. marking for identification of evidence
4. waiver of objections to admissibility of
evidence
5. modification of the order of trial if the
accused admits the charge but interposes a
lawful defense (reverse trial)
6. other matters that will promote a fair and
expeditious trial of the civil and criminal
aspects of the case
The sanctions may be in the form of reprimand, fine,

or imprisonment. Inasmuch as this is similar to
indirect contempt of court, the penalty for indirect
contempt of court may be imposed.
He court may only impose sanctions for nonappearance on counsel or the prosecutor, not on the
accused. The reason why the accused is not required
to appear is that to include him among the mandatory
parties might violate his constitutional right to remain
silent.
Section 4. Pre-trial order
PRE-TRIAL ORDER
It is an order issued by the court reciting the actions
taken, the facts stipulated and the evidence marked
during the pre-trial conference. Such order binds the
parties and limits the trial to those matters not
disposed of.
RULE 119
TRIAL
Section 1. Time to prepare for trial
Section 2. Pre-trial agreement

REQUIRED FORM OF PRE-TRIAL AGREEMENT:
1. must be in writing
2. signed by the accused
3. signed by counsel
NOTE: If the required form is not observed, the pretrial agreement cannot be used against the accused.
This is contrary to the rule on stipulations of facts
during trial which only requires the signature of
counsel in order to be valid.
Purpose of the Rule
The requirements in Section 2 are intended to further
safeguard the rights QuickTime
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accused against
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agreements or
admissions which his counsel may have entered into
without his knowledge
Section 3. Non-appearance at pre-trial conference
The court may impose proper penalties and
sanctions for non-appearance during the pre-trial
conference by the counsel for the accused or the
prosecutor without acceptable cause. The reason for
TRIAL
It is the examination before a competent tribunal
according to the laws of the land, of the facts put in
issue in a case for the purpose of determining such
issue
HEARING
It is not confined to trial but embraces the several
stages of litigation, including the pre-trial stage.
Republic v. Sandiganbayan, 416 SCRA 133 (2003)
A hearing does not necessarily imply the
presentation of oral or documentary evidence in open
court but that the parties are afforded an opportunity
to be heard.
After a plea of guilty is entered, the accused shall
have at least 15 days to prepare for trial.
The trial shall commence within 30 days from receipt
of the pre-trial order
The trial judge does not lose jurisdiction to try the
case after the 180-day limit. He may, however, be
penalized with disciplinary sanctions for failure to
Page 214 of 289

observe the prescribed limit without
authorization by the Supreme Court.
proper
hearing, unless for meritorious reasons an extension

is permitted.
REQUISITES FOR TRIAL IN ABSENTIA:

1. The accused has been arraigned
2. He has been notified of the trial
3. His failure to appear is unjustified
The non-appearance of the prosecution at the trial,

despite due notice, justified a provisional dismissal or
an absolute dismissal depending upon the
circumstances
People v. Agbulos, G.R. No. 73907 (1993)

The purpose of trial in absentia is to speed up
the disposition of criminal cases.
CASES
WHERE
TIME
LIMITATION
IS
INAPPLICABLE:
1. Criminal cases covered by the Rule on
Summary Procedure or those where the
penalty does not exceed 6 months
imprisonment or a fine of P1,000 as governed
by the Rules on Summary Procedure
2. When the offended party is about to depart
with no definite date of return
3. Child abuse cases
4. Violations of Dangerous Drugs Law
5. Kidnapping, robbing in a band, robbery against
banking or financial institution, Violation of
Carnapping Act and other heinous crimes
Effects of trial in absentia:

People v. Landicho, G.R. No. 119527 (1996)
The accused waives the right to present evidence
and cross-examine the witnesses against him
The accuseds waiver does not mean, however, that
the prosecution is deprived of the right to require the
presence of the accused for purposes of identification
by the witnesses which is vital for conviction of the
accused, except where he unqualifiedly admits in
open court after his arraignment that he is the person
named as defendant in the case on trial.
INSTANCES WHERE THE PRESENCE OF THE
ACCUSED IS REQUIRED BY LAW:
1. On arraignment;
2. On promulgation of judgment except for light
offenses;
3. For identification purposes;
4. When the court with due notice requires so.
Section 2. Continuous trial until terminated;
postponements
CONTINUOUS TRIAL SYSTEM
Trial once commenced shall continue from day to day
as far as practicable until terminated; but it may be
postponed for a reasonable period of time for good
cause
Trial shall in no case exceed 180 days from the first
day of trial, except as otherwise provided by the
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The SC adopted the continuous trial system as a

mode of judicial fact-finding and adjudication
conducted with speed and dispatch so that trials are
held on the scheduled dates without postponement,
the factual issues for trial well-defined at pre-trial and
the whole proceedings terminated and ready for
judgment within 90 days from the date of initial
REQUISITES BEFORE A TRIAL CAN BE PUT ON

ACCOUNT OF THE ABSENCE OF WITNESS:
1. That the witness is material and appears to
the court to be so;
2. that the party who applies has been guilty of
no neglect;
3. that the witnesses can be had at the time to
which the trial is deferred and incidentally
that no similar evidence could be obtained;
4. that an affidavit showing the existence of the
above circumstances must be filed.
REMEDIES
OF
ACCUSED
WHERE
A
PROSECUTING OFFICER WITHOUT GOOD
CAUSE SECURES POSTPONEMENTS OF THE
TRIAL OF A DEFENDANT AGAINST HIS
PROTEST BEYOND A REASONABLE PERIOD OF
TIME:
1. Mandamus to compel
2. if he is restrained of his liberty, by habeas
corpus to obtain his freedom
DUTIES OF PRESIDING JUDGE UNDER THE
CONTINUOUS TRIAL SYSTEM:
1. Adhere faithfully to the session hours
prescribed by laws;
2. maintain full control of the proceedings;
3. efficiently allocate and use time and court
resources to avoid court delays
Section 3. Exclusions
Page 215 of 289

EXCLUSIONS IN COMPUTATION OF TIME WITHIN
WHICH TRIAL MUST COMMENCE:
A. Any period of delay resulting from other
proceedings concerning the accused,
including but not limited to the following:
1. Delay resulting from an examination of the
physical and mental condition of the
accused;
2. Delay resulting from proceedings with
respect to other criminal charges against
the accused;
3. Delay resulting from extraordinary remedies
against interlocutory orders;
4. Delay resulting from pre-trial proceedings;
provided, that the delay does not exceed
thirty (30) days;
5. Delay resulting from orders of inhibition, or
proceedings relating to change of venue of
cases or transfer from other courts;
6. Delay resulting from a finding of existence
of a prejudicial question; and
7. Delay reasonably attributable to any period,
not to exceed thirty (30) days, during which
any proceeding concerning the accused is
actually under advisement.
B. Any period of delay resulting from the absence
or unavailability of an essential witness.
C. Any period of delay resulting from the mental
incompetence or physical inability of the
accused to stand trial.
D. If the information is dismissed upon motion of
the prosecution and thereafter a charge is filed
against the accused for the same offense, any
period of delay from the date the charge was
dismissed to the date the time limitation
would commence to run as to the
subsequent charge had there been no
previous charge.
E. A reasonable period of delay when the
accused is joined for trial with a coaccused over whom the court has not
acquired jurisdiction, or, as to whom the time
for trial has not run and no motion for separate
trial has been granted.
F. Any period of delay resulting from a
continuance granted
by any court motu
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proprio, or TIFF
onare(Uncompressed)
motion
of
either the accused or
his counsel, or the prosecution, if the court
granted the continuance on the basis of its
findings set forth in the order that the ends of
justice served by taking such action outweigh
the best interest of the public and the accused
in a speedy trial.
ABSENT
When the whereabouts are unknown or cannot be

determined with due diligence
UNAVAILABLE
When his whereabouts are known but his presence
at the trial cannot be obtained with due diligence
Section 4. Factors granting continuance
FACTORS FOR GRANTING CONTINUANCE:
1. Whether the failure to grant continuance would
make a continuation of the proceeding
impossible or result in a miscarriage of justice.
2. The case, as a whole, is novel, unusual and
complex, or it is unreasonable to expect
adequate preparation within the periods of time
established therein.
The grant of a motion for continuance is NOT a
matter of right
The purpose of this rule is to control the discretion of
the judge in the grant of continuance on his instance
or on motion of any party litigant.
Section 5. Time limit following an order for new
trial
GENERAL RULE:
After an order for new trial is issued, the trial
commences within 30 days from notice of the order.
EXCEPTION: If the 30-day period becomes
impractical due to unavailability of the witnesses and
other factors, it may be extended by the court but in
no case should it exceed 180 days from notice of
said order for new trial.
Section 6. Extended time limit
Section 7. Public attorneys duties where accused
is imprisoned
PUBLIC ATTORNEYS DUTIES:
1. Promptly undertake to obtain the presence of
the prisoner for trial or cause a notice to be
served on the person having custody of the
prisoner requiring such person to so advise the
prisoner of his right and demand trial.
2. Upon receipt of that notice, the custodian of
the prisoner shall promptly advise the prisoner
of the charge and of his right to demand trial. If
at anytime thereafter the prisoner informs his
custodian that he demands such trial, the latter
shall cause notice to that effect to be sent
promptly to the public attorney.
Page 216 of 289

3. Upon receipt of such notice, the public attorney
shall promptly seek to obtain the presence of
the prisoner for trial.
4. When the custodian of the prisoner receives
from the public attorney a properly supported
request for the availability of the prisoner for
purpose of trial, the prisoner shall be made
available accordingly.
Public Attorneys referred to in this section are those
attorneys of the Public Attorneys Office of the
Department of Justice who are assisting accused not
financially capable to have a counsel of their own.
These public attorneys enter their appearance in
behalf of the accused upon his request or that of his
relative or upon being appointed as counsel de oficio
by the court.
The sanctions are designed to speed up the trial and
disposition of the cases and to encourage the
lawyers to go to court ready for trial and not ready to
postpone.
Section 8. Sanctions
ACTS WHICH EVOKE THE SANCTION:
1. Knowingly allowing the case to be set on trial
without disclosing that a necessary witness
would be unavailable;
2. Files a motion solely for delay, knowing it to be
frivolous and without merit;
3. Knowingly makes a false statement in order to
obtain continuance;
4. Willfully fails to proceed to trial without
justification.
THE SANCTIONS:
a) Private Defense Counsel fine not
exceeding P20, 000 + criminal sanctions, if
any.
b) Counsel de officio, Public Attorney or
Prosecutor fine not exceeding P5, 000 +
criminal sanctions, if any.
c) Defense Counsel or Prosecutor denial of
the right to practice before the court trying the
case for a period
not exceeding 30 days +
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criminal sanctions,
if
any.
KINDS OF SANCTIONS UNDER THIS SECTION:
1. Criminal;
2. Administrative;
3. Contempt of court.
Section 9. Remedy where accused is not brought
to trial within the time limit
Arraignment must be set within 30 days from the date

the court acquires jurisdiction over the person of the
accused, and within the same period, the court must
set the case for pre-trial, and within 30 days from the
receipt of the pre-trial order, the trial must be
commenced.
The remedy of the accused is to file a motion to
dismiss the information on the ground of denial of his
right to speedy trial. Failure of the accused to move
for dismissal prior to trial shall constitute a waiver of
his right to dismiss under this section
The dismissal shall be subject to the rules on double
jeopardy. So if the dismissal is with prejudice, the
case cannot be revived anymore. But if the dismissal
is without prejudice, the revival of the case is proper.
Section 10. Law on speedy trial not a bar to
provision on speedy trial in the Constitution
The accused should be brought to trial within 30 days
from the date the court acquires jurisdiction over the
person of the accused (Rule 116, Section 1g). If he
is not brought to trial within the period specified, he
may quash the information on the ground of denial of
his right to speedy trial. Failure to move for dismissal
prior to trial shall constitute a waiver of the right to
dismiss under Section 9, Rule 120.
Arraignment must be set within 30 days from the date
the court acquires jurisdiction over the person of the
accused, and within the same period, the court must
set the case for pre-trial, and within 30 days from the
receipt of the pre-trial order, the trial must be
commenced.
Section 11. Order of trial
ORDER OF TRIAL:
1. Prosecution presents evidence to prove the
charge and, in the proper case, the civil
liability.
2. The accused presents evidence to prove his
defense and damages, if any.
3. The prosecution, then the defense, may
present rebuttal and sur-rebuttal evidence
unless the court, in furtherance of justice,
permits them to present additional evidence.
4. Upon admission of the evidence by the parties,
the case is deemed submitted for decision.
GENERAL RULE:
The order in the presentation of evidence must be
followed. The accused may not be required to
Page 217 of 289

present his evidence first before the prosecution
adduces its own proof.
Section 12. Application for examination

witness for accused before trial
EXCEPTION: Where a reverse procedure was

adopted without the objection of the defendant and
such procedure did not prejudice his substantial
rights, the defect is not a reversible error.
Accused may have his witness examined

conditionally in his behalf BEFORE trial upon motion
with notice to all other parties:
REVERSE TRIAL
When the accused admits the act or omission
charged in the complaint/information but interposes a
lawful defense, the trial court may allow the accused
to present his defense first and thereafter give the
prosecution the opportunity to present his rebuttal
evidence.
A departure from the order of the trial is NOT
reversible error as where it was agreed upon or not
seasonably objected to, but not where the change in
the order of the trial was timely objected by the
defense.
Where the order of the trial set forth under this
section was not followed by the court to the extent of
denying the prosecution an opportunity to present its
evidence, the judgment is a NULLITY.
Prosecution begins because it has the burden of
proving the guilt of the accused, relying on the
strength of its own evidence and NOT on the
weakness of the defense.
If there is not enough evidence to prove the
accuseds guilt beyond reasonable doubt, then the
defense should file Demurrer to Evidence
People v. Gutierrez, 302 SCRA 643 (1999)
Refusal of the trial court to reverse the order of
trial upon demand of the accused who pleads selfdefense as a defense is not a reversible error
NEGATIVE DEFENSE
AFFIRMATIVE
DEFENSE
Requires the prosecution The accused admits the
to prove the guilt of the
act or omission charged,
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reasonable doubt are needed to see
which
if proven, would
exculpate him
Accused claims that one
of the elements of the
offense charged is not
present. It is incumbent
upon the prosecution to
prove the existence of
this element
of
SUCH MOTION MUST STATE:

1. Name and residence of the witness;
2. substance of testimony;
3. witness is so sick to afford reasonable ground
to believe that he will not be able to attend the
trial OR resides more than 100km and has no
means to attend the same or other similar
circumstances
Section 13. Examination of defense witness; how
made
DEPOSITION
It is the testimony of a witness taken upon oral
questions or written interrogatories, in open court, but
in pursuance of a commission to take testimony
issued by a court, or under a general law or court rule
on the subject, and reduced to writing and duly
authenticated, and intended to be used in preparation
and upon the trial of a civil or criminal prosecution.
PURPOSE OF TAKING DEPOSITIONS:

1. Greater assistance to the parties in
ascertaining the truth and checking and
preventing perjury
2. Provide an effective means of detecting and
exposing false, fraudulent claims and defenses
3. Make available in a simple, convenient and
inexpensive way, facts which otherwise could
not be proved except with greater difficulty
4. Educate the parties in advance of trial as to the
real value of their claims and defenses thereby
encouraging settlements
5. Expedite litigation
6. Prevent delay
7. Simplify and narrow the issues
8. Expedite and facilitate both preparation and
trial
WHO SHOULD MAKE THE EXAMINATION?
1. judge;
2. a member of the Bar in good standing so
designated by the judge;
3. before an inferior court designated in the order
of a superior court
Section 14. Bail to secure appearance of material
witness
Page 218 of 289

People v Montejo, 21 SCRA 722 (1967)
Even if the witness has been cited to appear
before a court sitting outside of the province in which
he resides and the distance is more than 50km (now
100km) from his place of residence by the usual
course of travel, he is still bound by the subpoena.
Rule 23 applies only in civil cases.
If the court is satisfied upon proof or oath that a
material witness will not testify when required, it may
order the witness to post bail in such sum as may be
deemed proper. If the witness refuses to post bail,
the court shall imprison him until he complies or is
legally discharged after his testimony has been
taken.
Section 15. Examination of witness for the
prosecution
EXAMINATION
OF
WITNESS
FOR
THE
PROSECUTION:
1. The witness for the prosecution may be
conditionally examined by the court where the
case is pending if said witness is:
a. Too sick to appear at the trial; or
b. Has to leave the Philippines with no definite
date of return.
2. Such examination should be in the presence of
the accused or in his absence after reasonable
notice to attend the examination has been
served on him.
3. Examination of child witnesses is tackled under
the Rule on Examination of a Child Witness
which took effect on December 15, 2000.
EXAMINATION OF
DEFENSE WITNESS
EXAMINATION OF
PROSECUTION
WITNESS
Conducted ONLY before
the judge or the court
where the case is
pending
Right to cross-examine
Conducted before any

judge, member of the bar
in good standing or
before any inferior court
No right to crossexamine
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and a be made even if
May be made if the
Cannot
are
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eeded
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ee
this
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witness resides more
the witness
resides more
than 100km from the
than 100km from the
place of trial
place of trial
Section 16. Trial of several accused
When two or more defendants are jointly charged
with any offense, they shall be tried jointly, unless the
court, in its discretion upon motion of the prosecution

or any of the defendants, orders a separate trial.
The motion for separate trial must be filed BEFORE
the commencement of the trial and cannot be raised
for the first time on appeal.
If a separate trial is granted, the testimony of one
accused imputing the crime to his co-accused is not
admissible against the latter. It would be admissible if
the latter had the opportunity for cross-examination.
Where the conditions are fulfilled, joint trial is
automatic, without need for the trial court to issue an
order to that effect.
The grant of separate trial rests in the sound
discretion of the court and is not a matter of right to
the accused, especially where it is sought after the
presentation of the evidence of the prosecution. In
such separate trial, only the accused presenting
evidence has to be present. And the evidence to be
adduced by each accused should not be considered
as evidence against the other accused.
When a separate trial is demanded and granted, it is
the duty of the prosecution to repeat and produce all
its evidence at each and every trial, unless it has
been agreed by the parties that the evidence for the
prosecution would not have to be repeated at the
second trial and all the accused had been present
during the presentation of the evidence of the
prosecution and their lawyer had the opportunity to
cross-examine the witnesses for the prosecution.
People v. Ellasos and Obillo, G.R. No. 139323
(2001)
The trial judge gravely erred in rendering a
judgment of conviction against both accused. Since
the trial of B did not take place, the trial court should
have rendered a decision only against A.
Section 17. Discharge of accused to be state
witness
Section 18. Discharge of accused operates as
acquittal
STATE WITNESS
One of two or more persons jointly charged with the
commission of a crime but who is discharged with his
consent as such accused so that he may be a
witness for the state.
REQUISITES TO BE A STATE WITNESS:
1. Two or more persons are jointly charged
with the commission of an offense
Page 219 of 289

2. The application for discharge is filed by the
prosecution before it rests its case
3. Absolute necessity for the testimony of the
accused
Absolute necessity means that he alone
has knowledge of the crime, and not when
his testimony would simply corroborate or
otherwise strengthen the evidence in the
hands of the prosecutor.
4. There is no other direct evidence available
for the proper prosecution of the offense.
5. Testimony
of
the
accused
can
be
substantially corroborated in its material
points.
6. Accused does not appear to be the most guilty
Means that he does not appear to have the
highest degree of culpability in terms of
participation in the commission of the
offense and not necessarily in the severity
of the penalty imposed.
The fact that there was conspiracy does not
preclude one from being discharged as a
state witness. What the court takes into
account is the gravity or nature of acts
committed by the accused to be discharged
compared to those of his co-accused, and
not merely the fact that in law the same or
equal penalty is imposable on all of them.
7. Accused has not been convicted of any
offense involving moral turpitude.
TWO TYPES OF IMMUNITY:
a. TRANSACTIONAL IMMUNITY witness can
no longer be prosecuted for any offense
whatsoever arising out of the act or
transaction.
b. USE-AND-DERIVATIVE-USE-IMMUNITY
witness is only assured that his or her

particular testimony and evidence derived from
it will not be used against him or her in a
subsequent prosecution.
The application for discharge of the state witness
must be made upon motion of the prosecution
BEFORE resting its case.
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The defense should
beto seeafforded
opportunity to
are needed
this picture.
oppose the motion to discharge an accused to be a
state witness.
Any question against the order of the court to

discharge an accused to be used as state witness
must be raised in the trial court; it cannot be
considered on appeal. Where there is, however, a
showing of grave abuse of discretion, the order of the
trial court may be challenged in a petition for

certiorari and prohibition.
A discharge under the original information is just as
binding upon the subsequent amended information,
since the amended information is just a continuation
of the original.
The subsequent amendment of the information does
not affect the discharge of an accused as a state
witness because the amended information is not
anew information but is a continuation of the original
proceeding.
GENERAL RULE:
A co-conspirator may testify against the other coconspirator even if not done clandestinely
PROVIDED it must be received by court with caution
and must be substantially corroborated in its material
points.
The EXCEPTION to this rule is even if
uncorroborated but the testimony was given in a
straightforward manner and it contains details which
could not have been the result of deliberate
afterthought.
It is not necessary that there be a hearing of the
motion to discharge as long as the court is able to
receive evidence for and against the discharge of an
accused to become a witness. (People v Sunga)
GENERAL RULE:
The discharge of an accused to be a state witness
amounts to an acquittal and is a bar to future
prosecution for the same offense.
Where an accused has been discharged to be
utilized as state witness and he thus testified, the fact
that the discharge was erroneous as the conditions
for discharge were not complied with did not thereby
nullify his being precluded from re-inclusion in the
information or from being charged anew for the same
offense or for an attempt or frustration thereof, or for
crimes necessarily included in or necessarily
including those offense.
EXCEPTIONS:
a. If accused fails or refuses to testify against the
co-accused;
b. If he was granted immunity and fails to keep
his part of the agreement, his confession of his
participation in the commission of the offense
is admissible in evidence against him.
Page 220 of 289

Section 19. When mistake has been made in
charging the proper offense
When, at any time before judgment, it becomes
manifest that a mistake has been made in charging
the proper offense and the accused cannot be
convicted of the offense charged or any other offense
necessarily included therein, the said accused shall
not be discharged if there appears to be good cause
to detain him.
If there appears to be good cause to detain the
accused, the court shall commit the accused and
dismiss the original case upon the filing of the proper
information.
When the offense proved is neither included in, nor
does it include, the offense charged and is different
therefrom, the court should dismiss the action and
order the filing of a new information charging the
proper offense.
US v. Campo, 23 Phil. 369 (1912)
This rule is predicated on the fact that an accused
person has the right to be informed of the nature and
cause of the accusation against him, and to convict
him of an offense different from that charged in the
complaint or information would be an unauthorized
denial of that right.
Section 20. Appointment of acting prosecutor
When a prosecutor, his assistant or deputy is
disqualified to act, the judge or the prosecutor shall
communicate with the Secretary of Justice in order
that the latter may appoint an acting prosecutor.
Section 21. Exclusion of the public
GENERAL RULE:
The accused has the right to public trial and under
ordinary circumstances, the court may not close the
door of the courtroom to the general public.
EXCEPTION: The public may be excluded from the
courtroom when evidence
to beand
produced
is offensive
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a
to decency or publicaremorals.
The court may also, on motion of the accused,
exclude the public from the trial except court
personnel and the counsel of the parties.
Section 22. Consolidation of trials of related
offenses
THIS CONTEMPLATES A SITUATION WHERE

SEPARATE MOTIONS ARE FILED:
1. for offenses founded on the same facts;
2. for offenses which form part of a series of
offenses of similar character.
The purpose of consolidation is to avoid multiplicity of
suits, guard against oppression or abuse, prevent
delay, clear congested dockets, simplify the work of
the trial court, and save unnecessary cost or
expense; in short, the attainment of justice with the
least expense and vexation to the party litigants.
While consolidation of cases and joint trial of related
offenses and the rendition of a consolidated decision
are allowed, the court cannot convict an accused of a
complex crime constitutive of the various crimes
alleged in the consolidated cases.
Section 23. Demurrer to evidence
DEMURRER TO EVIDENCE
It is an objection by one of the parties in an action, to
the effect that the evidence which his adversary
produced is insufficient in point of law, whether true
or not, to make out a case or sustain the issue.
AFTER THE PROSECUTION SHALL HAVE
RESTED ITS CASE, THE CASE MAY BE
DISMISSED IN ANY OF THE FOLLOWING
MANNER:
a. Court on its own initiative can dismiss the case
after giving prosecution opportunity to be heard
b. Accused files demurrer with or without leave of
court
c. If the demurrer is denied:
With leave of court, accused can present
his evidence
Without leave of court, accused waives
right to present evidence
With or Without Leave of Court
a) With leave
if the motion is denied, he can still present
evidence.
The motion must be filed within a nonextendible period of 5 days after the
prosecution rests its case.
If leave is granted, the accused shall file the
demurrer to evidence within a nonextendible period of 10 days from notice of
the grant of leave of court.
The prosecution may oppose the demurrer
to evidence within a non-extendible period
of 10 days from receipt of the demurrer.
Page 221 of 289

b) Without leave
if the motion is denied, he loses the right to
present evidence and the case will be
deemed submitted for decision
If there are two or more accused and only one of
them presents a demurrer to evidence, without leave
of court, the trial court may defer resolution thereof
until the decision is rendered on the other accused.
If judgment is not put in writing, the proper remedy

would be to file a petition for mandamus to compel
the judge to put in writing the decision of the court.
Article VIII, Section 14, par. 1 of the Constitution
requires that the decisions of the court shall contain
the facts and the law on which they are based. The
rationale is that the losing party is entitled to know
why he lost, so he may appeal to a higher court.
An order denying the motion for leave of court to file

a demurer shall NOT be reviewable by appeal or by
certiorari before judgment. This is because demurrer
is merely interlocutory. However, if there was grave
abuse of discretion, then certiorari may apply.
The judge who penned the decision need not be the

one who heard the case. The judge can rely on the
transcript of stenographic notes taken during the trial.
If the court denies the demurrer to evidence without

leave of court, the accused is deemed to have
waived his right to present evidence and submits the
case for judgment on the basis of the evidence of the
prosecution.
CONTENTS OF A JUDGMENT OF CONVICTION:

1. The legal qualifications of the offense
constituted by the acts committed by the
accused and the aggravating and mitigating
circumstances
which
attended
its
commission.
2. Participation of the accused either as
principal, accomplice or accessory
3. penalty imposed on the accused
4. civil liability or damages, if any, unless a
separate civil action has been reserved or
waived.
Section 24. Reopening

At any time before finality of judgment of conviction,
judge may, motu proprio or upon motion, with hearing
in either case reopen to avoid miscarriage of justice.
RULE 120
JUDGMENT
Section 1. Judgment; definition and form
JUDGMENT
It is an adjudication by the court that the accused is
guilty or not guilty of the offense charged and the
imposition of the proper penalty and civil liability, if
any. It is a judicial act which settles the issues, fixes
the rights and liabilities of the parties, and determines
the proceeding, and is regarded as the sentence of
the law pronounced by the court on the action or
question before it.
REQUISITES OF A JUDGMENT:
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1. Written in official
language
are needed
2. Personally and directly prepared by the judge
3. Signed by him
4. Contains clearly and distinctly a statement of
the facts and the law upon which it is based.
A verbal order does not meet the requisites. As
such, it can be rescinded without prejudicing the
rights of the accused. It has no legal force and effect.
Section 2. Contents of judgment
Alternative Penalties
A judge cannot impose alternative penalties
(reclusion perpetua or P10,000 fine) because this
would allow the accused to choose which penalty to
serve, giving the accused discretion properly
belonging to the court.
CONTENTS OF A JUDGMENT OF ACQUITTAL:
1. Whether the evidence absolutely failed to
prove the guilt of the accused or merely failed
to prove it beyond reasonable doubt
2. If the act or omission from which civil liability
may arise did not exist
REASONABLE DOUBT state of the case which,
after full consideration of all the evidence, leaves the
mind of the judge in such a condition that he cannot
say that he feels an abiding conviction, to a moral
certainty, of the truth of the charge.
Barbers vs Laguio, Jr., 351 SCRA 606 (2001)
It is well settled that acquittal, in a criminal case is
immediately final and executory upon its
promulgation, and that accordingly, the State may not
seek its review without placing the accused in double
jeopardy.
Page 222 of 289

Effect of Acquittal on Civil Liability
Acquittal of an accused based on reasonable ground
does not bar the offended party from filing a separate
civil action based on a quasi-delict. In fact, the court
may hold an accused civilly liable even when it
acquits him.
It is the reading of the judgment or sentence in the

presence of the accused and the judge of the court
who rendered it.
Rules on Promulgation of Judgment
Judgment must be rendered and promulgated during
the incumbency of the judge who signed it
Section 3. Judgment for two or more offenses

Prohibition on Duplicitous Information & Waiver
A complaint or information must charge only one
offense. However, if the accused does not object to
the duplicity before he enters his plea, he is deemed
to have waived the defect. He may be found guilty
for as many offenses as alleged in the complaint or
information as may have been duly proved.
Maximum Sentence
In the service of sentence, the maximum duration of
the sentence shall not be more than 3-fold the time of
the most severe penalty imposed, and such
maximum shall in no case exceed 40 years.
Section 4. Judgment in case of variance between
allegation and proof
Section 5. When an offense includes or is
included in another
GENERAL RULE:
The accused may only be convicted of a crime that is
both charged and proved.
EXCEPTION: If there is variance between the crime
charged and the crime proved the accused shall be
convicted of the offense proved which is included in
the offense charged or of the offense charged which
is included in the offense proved.
In other words, if there is variance, the accused can
only be convicted of the lesser offense which is
included in the graver offense.
Inclusion of Offenses
An offense charged necessarily includes the offense
proved when some of the essential elements or
ingredients of the formerQuickTime
constitute
the latter.
and a
An offense charged is necessarily included in the

offense proved, when the essential ingredients of the
former constitute or form part of those constituting the
latter.
Section 6. Promulgation of judgment
PROMULGATION OF JUDGMENT IN CRIMINAL
CASES
The judgment must be read in its entirety for double

jeopardy to attach
The presence of counsel during promulgation is not
necessary
Generally, the accused must be present during
promulgation of judgment. (but see the following
exceptions to this general rule)
INSTANCES OF PROMULGATION IN ABSENCIA
1. Judgment is for a light offense, in which case
judgment may be promulgated in he presence
of counsel for the accused or a representative.
2. Accused fails to attend the promulgation
despite due notice or if he jumped bail or
escaped form prison. Notice must be given to
the bondsmen, warden, accuseds bailor and
counsel.
How Promulgation In Absencia is Conducted
Promulgation shall be made by recording the
judgment in the criminal docket and serving the
accused a copy thereof at his last known address or
through his counsel.
If judgment is one of conviction and the accused is
absent without justifiable cause, the court shall order
his arrest and he shall lose the remedies available in
the Rules against the judgment.
However, the accused may surrender and file a
motion for leave of court to avail of these remedies
within 15 days from promulgation of judgment. If such
motion is granted, he may avail of these remedies
within 15 days from notice of such order granting the
motion.
Section 7. Modification of judgment
Upon motion of the accused, a judgment of
conviction may be modified or set aside before it
becomes final or before appeal is perfected.
NOTE: The prosecutor cannot ask for the
modification of the judgment, because the rules are
clear that modification is only upon motion of the
accused
Page 223 of 289

FINALITY OF JUDGMENT
1. After the lapse of the period for perfecting
an appeal; or
2. When the sentence has been partially or
totally satisfied or served; or
3. When the accused has waived in writing his
right to appeal; or
4. Accused has applied for probation.
NOTE: When the Death Penalty is imposed by the
trial court, the SC automatically reviews the decision.
Modification of Civil Aspect of Case
The trial court may validly modify the civil aspect of
its decision within 15 days from promulgation thereof
even though an appeal from the judgment had
already be perfected by the accused
WHEN TRIAL COURT MAY LOSE JURISDICTION
EVEN BEFORE LAPSE OF 15 DAYS
1. defendant voluntarily submits to the execution
of the judgment
2. defendant perfects an appeal
3. defendant withdraws his appeal
4. accused expressly waives in writing his right to
appeal
5. accused files for probation
Section 8. Entry of judgment
How Entry of Judgment is Made
The recording of the judgment or order in the book of
entries of judgments shall constitute its entry. The
record shall contain the dispositive portion or order
and shall be signed by the clerk of court with a
certificate that such judgment or order has become
final and executory.
MITTIMUS
It is a process issued by the court after conviction to
carry out the final judgment.
Section 9. Existing provisions governing
suspension of sentence, probation and parole not
affected by this Rule
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decompressor
EXCEPTIONS FOR
SUSPENSION
OF SENTENCE
OF YOUTHFUL OFFENDERS
1. offender has enjoyed previous suspension of
sentence
2. offender is convicted of crime punishable by
death or life imprisonment
3. offender is convicted by a military tribunal
4. offender is already of age at the time of
sentencing even if he was a minor at the time
of the commission of the crime
PROBATION
The period to file an application for probation is after
the accused shall have been convicted by the trial
court and within the period for perfecting an appeal.
Probation is a mere privilege and is revocable before
final discharge of the probationer by the court.
The basis of the coverage of the Probation Law is
gravity of the offense.
Fixing the cut-off at a
maximum term of 6 years imprisonment is based on
the assumption that those sentenced to higher
penalties pose too great a risk to society, not just
because of their demonstrated capability for serious
wrongdoing but because of the gravity of serious
consequences of the offense they might further
commit.
OFFENDERS DISQUALIFIED FROM PROBATION
1. Those sentenced to serve a maximum term of
imprisonment of more than 6 years
2. Those charged with subversion or any crime
against national security or public order
3. Those previously convicted by final judgment
of an offense punished by imprisonment not
less than 1 month and 1 day and/or a fine not
less than P200
4. Those who have been once on probation
5. Those who are already serving sentence at the
time the Probation Law of 1976 became
applicable
WHEN THE COURT SHOULD DENY PROBATION
1. Offender is in need of treatment that can be
provided most effectively by his commitment to
an institution
2. There is an undue risk that offender will
commit another crime during the period of
probation
3. When
probation
will
depreciate
the
seriousness of the crime
SENTENCE IMPOSED
Not more than 1year
More than 1 year
Fine only, but offender
serves subsidiary
imprisonment
PERIOD OF PROBATION
Not more than 2 years
Not more than 6 years
At least equal to the
number of days of
subsidiary imprisonment
but not more than twice
such period
RULE 121
NEW TRIAL OR RECONSIDERATION
Page 224 of 289

Section 1. New trial or reconsideration
NEW TRIAL
The rehearing of a case already decided but before
the judgment of conviction therein rendered has
become final, whereby errors of law or irregularities
are expunged from the record or new evidence is
introduced or both steps are taken.
NEW TRIAL
Proper only
AFTER
rendition or
promulgatio
n of
judgment
(15 days
from
promulgatio
n of
judgment)
requires
consent of
the accused
made at the
instance of
the accused
or upon the
initiative of
the court but
with the
consent of
the accused
Interrupts
the period
for
perfecting
an appeal
from the
RECONSI
DERATIO
N
may be
filed in
order to
correct
errors of
law or fact
in
judgment;
does not
require
any further
proceedin
g.
Judgment
will be
based on
the
pleadings
submitted
by the
parties
REOPENI
NG OF
TRIAL
may be
properly
presented
only after
either both
parties
have
formally
offered
and closed
their
evidence
BUT
BEFORE
judgment
possible to
have trials
or
hearings
or
reception
of justice
in order to
avoid
miscarriag
e of justice
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interrupts
the period
for
perfecting
an appeal
from the
REOPENI
NG OF
CASE
made by
the court
before
judgment
is
rendered
in the
exercise of
sound
discretion
time of its
filing until
notice of the
order
overruling
the motion
shall have
been served
upon the
accused or
his counsel.
time of its
filing until
notice of
the order
overruling
the motion
shall have
been
served
upon the
accused or
his
counsel.
Once the appeal is perfected, the trial court steps out

of the case and the appellate court steps in. When
new material evidence has been discovered, the
accused may file a motion for new trial with the
appellate court.
TRIAL COURT LOSES JURISDICTION OVER ITS
SENTENCE EVEN BEFORE THE LAPSE OF 15
DAYS
1. when the defendant voluntarily submits to
the execution of the sentence
2. when the defendant perfects his appeal.
does not
require the
consent of
the
accused
may be
made at
the
instance of
either
party who
can
thereafter
present
additional
evidence
The moment the appeal is perfected the court a quo

loses jurisdiction over it, except for the purpose of
correcting clerical errors
Section 2. Grounds for new trial
GROUNDS FOR A NEW TRIAL IN CRIMINAL
CASES
1. errors of law or irregularities prejudicial to the
substantial rights of the accused have been
committed during the trial (errors of law or
irregularities)
2. new and material evidence discovered which
the accused could not with reasonable
diligence have been discovered and produced
at the trial and which if introduced and
admitted would probably change the judgment
(newly discovered evidence)
3. other grounds which the court may determine
in the exercise of its discretion
REQUISITES BEFORE A NEW TRIAL MAY BE
GRANTED ON THE GROUND OF NEWLY
DISCOVERED EVIDENCE
1. that the evidence was discovered after trial
2. that such evidence could not have been
discovered and produced at the trial even with
the exercise of reasonable diligence
Page 225 of 289

3. that it is material, not merely cumulative,
corroborative, or impeaching
4. the evidence is of such weight that it would
probably change the judgment if admitted
Mistake of counsel generally binds the client and is
not a ground for new trial EXCEPT when the
incompetence of the counsel is so great that the
defendant is prejudiced and prevented from fairly
presenting his defense and where the error of
counsel is so serious.
Recantation is the public and formal withdrawal of a
witness of his prior statement. It is not a ground for
new trial because it makes a mockery of the court
and would place the investigation of truth at the
mercy of the unscrupulous witness.
Moreover,
retractions are easy to extort out of witness. In
contrast, their statements are made under oath, in
the presence of judge, and with the opportunity to
cross-examine.
EXCEPT when aside from the testimony of the
retracting witness, there is no other evidence to
support the conviction of the accused. In this case,
the retraction by the sole witness creates a doubt in
the mind of the judge as to the guilt of the accused
RECANTATION
AFFIDAVIT OF
DESISTANCE
A witness who
The complainant
previously gave a
states that he did not
testimony subsequently
really intend to
declares that his
institute the case and
statements were not true that he is no longer
interested in testifying
or prosecuting
It is a ground for
dismissing the case
only if the prosecution
can no longer prove
the guilt of the
accused beyond
reasonable doubt
without the testimony
of
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ethe
and a offended party
Section 3. Ground for reconsideration

GROUNDS FOR RECONSIDERATION
1. errors of law
2. errors of fact in judgment
The principle underlying this rule is to afford the trial
court the opportunity to correct its own mistakes and
to avoid unnecessary appeals from being taken. The
grant by the court of reconsideration should require

no further proceedings, such as taking of additional
proof.
Section 4. Form of motion and notice to the
prosecutor.
FORM OF MOTION
RECONSIDERATION
1.
2.
3.
4.
FOR
NEW
TRIAL
OR
in writing
filed in court
state the grounds on which it is based
if based on newly discovered evidence (for
new trial), must be supported by affidavits of
witnesses by whom such evidence is expected
to be given or authenticated copies of
documents to be introduced in evidence
Notice of the motion for new trial or reconsideration

should be given to the prosecutor.
Upon
receipt
of
the
motion
for
new
trial/reconsideration, the court should conduct a
hearing regarding the motion in order to determine
the merits of the motion.
While the rule requires that an affidavit of merits be
attached to support a motion for new trial based on
newly discovered evidence, the defect or lack of it
may be cured by testimony under oath of the
defendant at the hearing of the motion (Paredes v
Borja, 3 SCRA 495).
Section 5. Hearing on motion
The purpose of hearing is to determine whether the
new trial is requested should be granted or not.
Section 6. Effects of granting a new trial or
reconsideration
EFFECTS OF GRANTING A NEW TRIAL OR
RECONSIDERATION
a. When a new trial is granted on the ground of
errors of law or irregularities committed during
the trial, all proceedings and evidence affected
thereby shall be set aside and taken anew.
The court may, in the interest of justice, allow
the introduction of additional evidence.
b. When a new trial is granted on the ground of
newly-discovered evidence, the evidence
already adduced shall stand and the newlydiscovered and such other evidence as the
court may, in the interest of justice, allow to be
introduced shall be taken and considered
Page 226 of 289

together with the evidence already in the
record.
c. In all cases, when the court grants new trial or
reconsideration, the original judgment shall be
set aside or vacated and a new judgment
rendered accordingly.
The effect of the granting a new trial is not to acquit
the accused of the crime of which the judgment finds
him guilty but precisely to set aside said judgment so
that the case may be tried de novo as if no trial had
been conducted before.
Unlike the rule in civil cases, the remedy of the
aggrieved party being appeal in due time, an order
granting a new trial rendered in criminal cases is also
interlocutory BUT is controllable by certiorari or
prohibition at the instance of the prosecution.
Appeals in criminal cases are perfected when the

interested parties have personally or through their
counsel filed with the clerk of court a written notice
expressly stating the appeal. (U.S. vs. Tenorio, 37
Phil 7; Elegado vs. Tavora, 59 Phil. 140)
When an appeal has been perfected, the court a quo
loses jurisdiction.
Effect of an Appeal
An appeal in a criminal case opens the whole case
for review. This includes the review of the penalty,
indemnity, and the damages involved.
Only final judgments and orders can be appealed.
APPEAL OF A
JUDGMENT
Must be perfected within
15 days from
promulgation
RULE 122
APPEAL
Section 1. Who may appeal.
APPEAL
A proceeding for review by which the whole case is
transferred on the higher court
Appeal is not a part of due process except when
provided by law or by the Constitution.
It is statutory and must be exercised in accordance
with the procedure laid down by law.
It is compellable by mandamus.
GENERAL RULE:
An appeal by the prosecution from the order of
dismissal is not allowed because it will violate the rule
on double jeopardy.
EXCEPTIONS:
1. The dismissal is made upon the motion or with
the express consent
of the defendants
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decompressor
2. The dismissal
is
not
an
acquittal or based upon
consideration of the evidence or the merits of
the case
3. Question to be passed upon by the appellate
court is purely legal so that should the
dismissal be found incorrect, the case would
be remanded to the court of origin for further
proceedings
APPEAL OF AN
ORDER
Must be perfected
within 15 days from
notice of the final
order
Section 2. Where to appeal

Section 3. How appeal taken
FROM DECISION OF
MTC, from a case
decided in its original
jurisdiction
APPEAL
TO
CA
RTC in the exercise

of its original
jurisdiction for an
imposed penalty less
than reclusion
perpetua, life
imprisonment (and
death)
RTC in the exercise
of its appellate
jurisdiction
CA
RTC where the

penalty imposed is
reclusion perpetua of
life imprisonment, OR
where a lesser
penalty is imposed for
offenses committed
on the same occasion
or which arose out of
the same occurrence
CA
CA
HOW
File a notice of
appeal with the
MTC and serve
a copy of the
notice to the
adverse party
File a notice of
appeal with the
RTC and serve a
copy of the
notice to the
adverse party
File a petition for

review with the
CA under Rule
42
Automatic
review
Page 227 of 289

EXCEPTION:
The civil award in a criminal case may be appealed
by the private prosecutor on behalf of the offended
party or his successors.
that gave rise to the

offense punishable by
(death) reclusion
perpetua or life
imprisonment
All other appeals
SC
Sandiganbayan
SC
Sandiganbayan in its
original jurisdiction
where penalty
imposed is (death)
reclusion perpetua
Sandiganbayan in its
appellate jurisdiction
where penalty
imposed is (death),
reclusion perpetua, or
life imprisonment
SC
SC
Petition for
review on
certiorari under
Rule 45
Petition for
review on
certiorari under
Rule 45
Automatic
review
File a notice of
appeal
FROM
A
JUDGMENT
CONVICTING
THE
ACCUSED, TWO APPEALS MAY ACCORDINGLY
BE TAKEN:
1. The accused may seek a review of said
judgment as regards both civil and criminal
actions
2. The complainant may appeal only with respect
to the civil action either because the lower
court has refused or failed to award damages
or because the award made is unsatisfactory
to him
A judgment of acquittal becomes final immediately
after promulgation. It cannot even be the subject of
certiorari.
The reason for this rule is that an appeal would place
the accused in double jeopardy. However, the
offended party may appeal the civil aspect of the
case.
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GENERAL RULE: are needed to see this picture.

A private prosecutor in a criminal case has NO
authority to act for the People of the Philippines
before a court on appeal; it is the governments
counsel, the Solicitor General who appears in
criminal cases or their incidents before the Supreme
Court. At the very least, the Provincial Fiscal himself,
with the conformity of the Solicitor General shall act
for the People of the Philippines.
MODES OF REVIEW
The Rules of court recognizes 4 modes by which the
decision of the final order of the court may be
reviewed by a higher tribunal
1. ordinary appeal
2. petition for review
3. petition for review on certiorari
4. automatic appeal
Section 4. Publication of notice of appeal
SERVICE OF NOTICE OF APPEAL
SERVICE BY SUBSTITUTED PUBLICATION
REGISTERED
SERVICE
OF NOTICE
MAIL
OF APPEAL
delivering the
made in a
By depositing
newspaper of
the copy in the copy to the
clerk of court
general
post office
-in a sealed
with proof of
circulation in
envelope
failure of both
the vicinity
-plainly
personal
once a week
addressed to
service and
for a period not
the party or
service by mail exceeding 30
his counsel at
days
his office, if
known,
otherwise at
his residence
if known
-with postage
fully pre-paid
-and with
instructions to
the post
master to
return the mail
to the sender
after 10 days
if undelivered
Section 5. Waiver of notice
The appellee may waive his right to notice of appeal.
However, the appellate court may, in its discretion,
entertain an appeal notwithstanding failure to give
such notice if the interests of justice so require
(Llamas vs. Muscoso, 95 Phil. 735).
Section 6. When appeal to be taken
Page 228 of 289

Appeal is taken within 15 days from promulgation of
the judgment. This period shall be suspended from
the time a motion for new trial or reconsideration is
filed until notice of overruling the motion has been
served upon the accused at which time the balance
of the period begins to run.
Section 12. Withdrawal of appeal
The period of appeal seems to have been amended

by the SC ruling in Domingo Neypes et.al., vs CA,
et.al, G.R. No. 141524 Sept. 24, 2005 (469 SCRA
633). To standardize the appeals period provided in
the Rules and to afford litigants fair opportunity to
appeal their cases, the court deems it practical to
allow a fresh period rule of 15 days within which to
file the notice of appeal on the RTC, counted from the
receipt of the order dismissing a motion for new trial
or motion for reconsideration.
The court may also, in its discretion, allow the

appellant to withdraw his appeal, provided a motion
to that effect is filed before the rendition of judgment
in the case on appeal (People v. Madrigal-Gonzales,
117 SCRA 956).
NOTE: Although the SC has made this ruling on a

civil case, it is submitted that if the court has applied
this rule to all other appeals involving civil cases, with
more reason should the defendant in a criminal case
be given ample time to file his appeal (Sabio, Jose L.
Criminal Procedure Rules 110-127, p 228)
An appellant may withdraw his appeal before the

record has been forwarded by the clerk of court of the
proper appellate court as provided by Sec. 8 in which
case the judgment shall become final.
Once appeal is withdrawn, the decision or judgment

appealed from becomes at once final and executory.
(People v. Dueo, 90 SCRA 23).
Section 13. Appointment of counsel de oficio for
accused on appeal
The duty of the counsel de oficio does not terminate
upon judgment of the case. It continues until appeal.
RULE 123
PROCEDURE IN MUNICIPAL TRIAL COURTS
Section 7. Transcribing and filing notes of

stenographic reporter upon appeal
Section 8. Transmission of papers to appellate
court upon appeal
Section 1. Uniform procedure
Within 5 days from the filing of the notice of appeal,

the clerk of court with whom the notice of appeal was
filed must transmit to the clerk of court of the
appellate court the complete record of the case
together with said notice.
GENERAL RULE
The procedure in the Regional Trial Court shall be
applicable to the procedure in Metropolitan Trial
Courts, Municipal Trial Courts, and Municipal Circuit
Trial Court.
Section 9. Appeal to the Regional Trial Courts

Section 10. Transmission of records in case of
death penalty
Section 11. Effect of appeal by any of several
accused
EXCEPTIONS
1. Particular provision is made applicable only to
either of such courts
2. In cases governed by the Rule on Summary
Procedure
Effects of Appeal by Any of the Accused

An appeal taken by one or more of the several
accused shall not affect those who did not appeal
except insofar as the judgment
of the appellate court
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TIFF (Uncompressed)
decompressor
is favorable and applicable
to
the
latter.
RULE 124
PROCEDURE IN THE COURT OF APPEALS
The appeal of the offended party from the civil aspect

shall not affect the criminal aspect of the judgment or
order appealed from.
Upon perfection of the appeal, the execution of the
judgment or final order appealed from shall be stayed
as to the appealing party.
COURT OF APPEALS
The Court of Appeals has no jurisdiction without
judgment of conviction.
The Court of Appeals shall give precedence in the
disposition of appeals of accused who is under
detention. It shall hear and decide the appeal at the
earliest practicable time with due regard to the rights
of the parties.
Page 229 of 289

Rights of Accused Appellant
An accused-appellant may change his theory on
appeal; thus the case opens the whole action for
review on any questioning including those not raised
by the parties.
When the accused appeals a judgment of conviction,
he waives the constitutional safeguard against double
jeopardy; but every circumstance in favor of the
accused should be considered.
Section 1. Title of the case
Section 2. Appointment of counsel de oficio for
the accused
WHEN ACCUSED MAY BE GIVEN COUNSEL DE
OFICIO ON APPEAL
1. accused is confined in prison
2. he is without counsel de parte on appeal
3. he signed the notice of appeal himself
An appellant who is not confined in prison may
request for counsel de oficio within 10 days from
receipt of notice to file appellants brief and the right
thereto is established by affidavit
Section 3. When brief for appellant to be filed
7 copies of the brief shall be filed within 30 days from
receipt by the appellant or his counsel of the notice
from the clerk of court that the evidence, oral and
documentary, are already attached to the record.
BRIEF
It literally means a short or condensed statement.
The purpose of the brief is to present to the court in
concise form the points and questions in controversy,
and by fair argument on the facts and law of the
case, to assist the court in arriving at a just and
proper conclusion.
Section 4. When brief for appellee to be filed;
reply brief of appellant
The appellee shall file 7QuickTime
copiesandof
the brief with the
a
TIFF (Uncompressed)
decompressor
clerk of court within
30
days
from
receipt of the
appellants brief accompanied by proof of service of 2
copies thereof to the appellant.
Section 5. Extension of time for filing briefs
Generally not allowed except for good and sufficient
cause and only if the motion for extension is filed
before the expiration of the period sought to be
extended.
Section 6. Form of briefs

Section 7. Contents of brief
Unlike in civil actions, it is not necessary for the
appellant to make assignment of errors in his brief, as
on appeal, the whole record of the case is submitted
to and reviewable by the appellate court.
Section 8. Dismissal of appeal for abandonment
or failure to prosecute
GROUNDS FOR DISMISSAL OF APPEAL

1. Failure on the part of the appellant to file his
brief within the reglementary period, except
when he is represented by counsel de oficio
2. Escape of the appellant from prison
3. Appellant jumps bail
4. Flight of the appellant to a foreign country
during the pendency of the appeal
NOTE: Ground (1) is deemed abandonment of
appeal, grounds (2) (3) (4) are deemed failure to
prosecute
EFFECT OF FAILURE TO PROSECUTE APPEAL
1. judgment of the court below becomes final
2. accused cannot be afforded the right to appeal
unless
a. he voluntarily submits to the jurisdiction of
the court or
b. he is otherwise arrested within 15 days
from notice of judgment against him
Section 9. Prompt disposition of appeals
It is discretionary on the appellate court whether it will
order a hearing of the case or decide the appeal
solely on the evidence submitted to the trial court. If
the CA chooses not to conduct a hearing, the justices
composing the division deliberate on the case,
evaluate the evidence and then decide.
Section 10. Judgment not to be reversed or
modified except for substantial error
Judgment of the lower courts shall be reversed or
modified only when the Court of Appeals is of the
opinion that error was committed which injuriously
affected the substantial rights of the appellant after it
examined the record and evidence adduced by the
parties.
Although not often done in the judicial system, the
case of People v. Calayca states that the appellate
Page 230 of 289

court may reverse the trial courts decision on the
basis of grounds other than those that the parties
raised as errors.
Section 11. Scope of judgment
certified and immediately elevated to the Supreme

Court for review.
Section 14. Motion for new trial
Section 15. Where new trial conducted
SCOPE OF JUDGMENT OF CA
1. reverse, affirm or modify the judgment
2. increase or reduce the penalty imposed
3. remand the case to the trial court for new trial
or retrial
4. dismiss the case
The appellant may move for a new trial any time after
the appeal from the lower court has been perfected
and before the judgment of the Court of Appeals
convicting him becomes final.
NOTE: CA cannot revise the judgment because this

would violate the rule that the judge must write the
decision personally.
A motion for reconsideration shall be made within 15

days after notice of the decision or final order of the
Court of Appeals.
Modify vs Revise
In modifying the decision, the CA bases its
modification on errors of law or fact. In revision, the
court merely changes manner the decision is written.
Section 17. Judgment transmitted and filed in trial

court
Section 12. Power to receive evidence

POWERS OF THE CA
1. to try cases and conduct hearings
2. to receive evidence
3. to perform any and all acts necessary to
resolve factual issues raised in cases:
a. falling within its original and appellate
jurisdiction
b. claims for damages arising from provisional
remedies
c. where the court grants a new trial based
only on the ground of newly discovered
evidence
Section 13. Certification or appeal of case to the
Supreme Court
Section 16. Reconsideration
When the entry of judgment of the Court of Appeals

is issued, a certified true copy of the judgment shall
be attached to the original record which shall be
remanded to the clerk of court from which the appeal
was taken.
Section 18. Application of certain rules in civil
procedure to criminal cases
NOTE: Rule 47 does NOT APPLY TO CRIMINAL
ACTIONS. The proper remedy for lack of jurisdiction
or extrinsic fraud is certiorari (Rule 65) or Habeas
Corpus ( Rule 102)
RULE 125
PROCEDURE IN THE SUPREME COURT
Section 1. Uniform procedure
Three Justices constitute a quorum for the sessions

of a division
Unanimous vote of the 3 Justices of a division shall
be necessary to pronounce a judgment or a final
resolution. In the eventQuickTime
that there
is no unanimous
and a
TIFF (Uncompressed)
decompressor
vote, the Presiding
Justice
shall
direct the raffle
committee of the Court to designate two additional
Justices in the division hearing the case and the
concurrence of a majority of such division shall be
necessary for the pronouncement pf a judgment or
final order.
Should the Court of Appeals impose the penalty of
death, reclusion perpetua, or life imprisonment after
discussing the evidence and law involved, the case is
Procedure in the SC in appealed cases is the same

as in the CA, unless otherwise provided by the
Constitution or law.
Appeal the SC is not a matter of right, but a matter of
sound judicial discretion
A direct appeal to the SC on questions of law in
cases where the penalty imposed is not reclusion
perpetua or death precludes a review of the facts.
Section 2. Review of decisions of the Court of
Appeals
Page 231 of 289

INSTANCES WHEN FINDINGS OF FACTS OF CA
ARE NOT CONCLUSIVE ON SC
1. the finding is grounded entirely on speculation,
conjectures and surmises
2. when the inference made is manifestly absurd,
mistaken or impossible
3. when there is grave abuse of discretion in the
appreciation of facts
4. judgment is premised on a misapprehension of
facts
5. findings of facts are conflicting
6. when the CA went beyond the issues of the
case and the same is contrary to the
admissions of both appellant and appellee
7. when certain material facts had been
overlooked which, if taken into account would
alter the result as it would give rise to
reasonable doubt to acquit the accused.
c. It is not for the maintenance of any private

right.
d. It is INTERLOCUTORY in character it leaves
something more to be done, the determination
of the guilt of the accused
GENERAL WARRANT
It is a process which authorizes the search and
seizure of things, in a general manner. It does not
specify or describe with particularity the things to be
searched and seized. This kind of warrant is VOID
as it infringes on the constitutional mandate requiring
particular description of the things to be seized.
Object of a Search Warrant
To obtain the goods, and bring the person in whose
custody they are found, either to be recognized as a
witness or to be subject to such further proceedings
as the ends of justice may require.
Section 3. Decision if opinion is equally divided

A criminal case shall be reheard by the Supreme
Court en banc when the court en banc is equally
divided in the opinion or the necessary majority
cannot be had. If no decision is reached, the
conviction of the lower court shall be reversed and
the accused acquitted.
RULE 126
SEARCH AND SEIZURE
Section 1. Search warrant defined
SEARCH WARRANT
An order in writing signed by judge in the name of the
People of the Philippines commanding a peace
officer to search for personal property and bring it
before the court.
ELEMENTS OF A SEARCH WARRANT
1. order in writing
2. signed by judge in the name of the People of
the Philippines
QuickTime officer
and a
3. commanding
a peace
to search for
to
see
this
picture.
are
needed
personal property
4. to bring the property before the court
NATURE OF A SEARCH WARRANT
a. It is in the nature of a criminal process and
may be invoked only in furtherance of public
prosecutions. It has no relation to civil
processes or trials
b. It is not available to individuals in the course of
civil proceedings;
A search warrant must conform strictly to the

requirements of the constitutional and statutory
provisions under which it is issued, otherwise it is
VOID
It will always be construed strictly without going the
full length of requiring technical accuracy.
No presumptions of regularity are to be invoked in aid
of the process when an officer undertakes to justify
under it.
Garaygay v. People, G.R. No. 138758 (2000)
Where a search warrant is issued by one court
and the criminal action based on the results of the
search is afterwards commenced in another court, a
motion to quash the warrant/to retrieve things
thereunder seized may be filed for the first time in
either the issuing court or that in which the criminal
action is pending. However, the remedy is alternative,
not cumulative.
People v. Ko, G.R. No. 133254-55 (2001)
The Dangerous Drugs Act of 1972 is a special
law that deals specifically with dangerous drugs
which are subsumed into prohibited and regulated
drugs and defines and penalizes categories of
offenses which are closely related or which belong to
the same class or species. Accordingly, one search
warrant may thus be validly issued for the said
violations of the Dangerous Drugs Act.
SEARCH WARRANT
WARRANT OF
ARREST
Page 232 of 289

The applicant must
show:
1. that the items
sought are in fact
sizeable by virtue of
being connected with
criminal activity;
2. that the items will be
found in the place to
be searched.
The judge must
conduct a personal,
searching
examination of the
applicant and his
witnesses
Valid only for 10 days

May be served on any
day and at any time of
day or night
The applicant must

show:
1. probable cause that
an offense has been
committed;
2. that the person to
be arrested committed
it.
The judge need not

conduct a personal
examination of the
applicant and his
witnesses. He may
rely on the affidavits of
the witnesses and the
recommendation of the
prosecutor.
Does not become stale
To be served only
during the daytime,
unless affidavit alleges
that the property is on
the person or in the
place to be searched
In general, the requirements for the issuance of a

search warrant is more stringent than the
requirements for the issuance of a warrant of
arrest. The violation of the right to privacy produces
a humiliating effect which cannot be rectified
anymore. This is why there is no other justification for
a search, except a warrant. On the other hand, in a
warrant of arrest, the person to be arrested can
always post bail to prevent the deprivation of liberty.
GENERAL RULE:
It should be filed with the court within whose territorial
jurisdiction the crime was committed.
EXCEPTIONS:
1. for compelling reasons, it can be filed with the
court within whose judicial region the offense
was committed or where the warrant is to be
served.
2. But if the criminal action has already been
filed, the application for a search warrant can
only be made in the court where the criminal
action is pending.
Section 3. Personal property to be seized
KINDS OF PERSONAL PROPERTY TO BE
SEIZED:
1. Subject of the offense;
2. Proceeds or fruits of the offense; and
3. The means used or intended to be used for
committing an offense
SEARCH WARRANTS HAVE BEEN ALLOWED TO
SEARCH FOR THE FF:
1. Stolen goods
2. Those supposed to have been smuggled into
the country in violation of the revenue laws
3. Implements of gaming and counterfeiting
4. Lottery tickets
5. Prohibited liquors kept for sale contrary to law
6. Obscene books and papers kept for sale or
circulation
7. Powder and other explosive and dangerous
materials so kept as to endanger public safety
8. Slot machines, being gambling devices
SEARCH
It is an examination of a mans house, buildings or
other premises, or of his person, with a view to the
discovery of some evidence of guilt to be used in the
prosecution of a criminal action for some offense with
which he is charged.
Notes on Seizure of Personal Property:

Property seized is not required to be owned by the
person against whom the search warrant is directed
SEIZURE
It is the physical taking
of aand thing
into custody;
QuickTime
a
contemplates a forcible
disposition
of the owner
are needed
The fact that a thing is a corpus delicti of a crime

does not justify the seizure without a warrant
Note: A search warrant to be valid requires strict

compliance with the Constitution. Section 2 Article III
of the 1987 Constitution is the constitutional basis of
the rule on search and seizure
Section 2. Court where application for search
warrant shall be filed
It is not necessary that there be arrest or prosecution

before seizure could be affected
Section 4. Requisites for issuing search warrant

Section 5. Examination of complainant; record
REQUISITES FOR ISSUING A SEARCH
WARRANT
1. there must be probable cause
2. which must be determined personally by the
judge
Page 233 of 289

3. upon personal examination in writing and
under oath of the complainant and his
witnesses in the form of probing and
searching questions and answers on facts
personally known to them
4. the probable cause must be in connection
with one specific offense
5. particularly describing the place to be
searched and the items to be seized
6. the sworn statements together with the
affidavits of the witnesses must be attached to
the record.
PROBABLE CAUSE (IN GENERAL)
Such facts and circumstances antecedent to the
issuance of the warrant, that are in themselves
sufficient to induce a cautious man to believe that the
person against whom the search warrant is applied
had committed or is about to commit a crime
PROBABLE CAUSE FOR A SEARCH
It is defined as such facts and circumstances which
would lead a reasonably discreet and prudent man to
believe that an offense has been committed and that
the objects sought in connection with the offense are
in the place sought to be searched.
Determination of Probable Cause
Probable cause presupposes the introduction of
competent proof that the party against whom it is
sought has performed particular acts or committed
specific omissions violating a given provision of our
criminal laws.
Probable cause is determined in the light of the
conditions obtaining in given situations, but there is
no general formula or fixed rule for the determination
of the existence of probable cause.
A good and practical rule of thumb is to measure the
nearness of time given in the affidavit as to the date
of the alleged offense, and the time of the making the
affidavit. The nearer the time at which the
observation of the offense is alleged to have been
made, the more reasonable the conclusion of
establishment of probable
cause
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REQUISITES OF PERSONAL EXAMINATION BY

THE JUDGE
1. The judge must examine the witnesses
personally
2. It must be under oath
3. Examination must be reduced to writing in
the form of probing and searching questions.
The examination must be probing and exhaustive,

not merely routinary or pro forma
The questions must not merely be answerable by yes
or no.
Answers given cannot be based merely on reliable
information.
Application for a search warrant is heard ex-parte,
there is neither a trial nor a part of the trial.
Test to determine if an affidavit or testimony of the
witness is based on personal knowledge is whether
perjury could be charged against the witness.
Probable Cause Must be in Connection with One
Specific Offense
The purpose of this rule is to outlaw general
warrants. Otherwise, this would place the sanctity of
the domicile and the privacy of communication and
correspondence at the mercy of the whims, caprice
or passion of peace officers.
A warrant issued for the seizure of drugs connected
with violation of the Dangerous Drugs Law is valid.
Although there are many ways of violating the
Dangerous Drugs Law, it is not a scatter shot warrant
since it is in connection with only one penal law.
SCATTER SHOT WARRANT
It is a warrant that is issued for more than one
offense. It is void, since the law requires that a
warrant should only be issued in connection with one
specific offense.
Particularity of Description
The warrant must particularly describe the place to
be searched and the persons or things to be seized;
The constitution requires that it be a description
which particularly points to a definitely ascertainable
place, so as to exclude all others.
The description must be so particular that the officer
charged with the execution of the warrant will be
left with no discretion respecting the property to be
taken.
It may be said that the person to be searched is
particularly described in the search warrant when his
name is stated in the search warrant, or if the name
is unknown, he is designated by words sufficient to
enable the officer to identify him without difficulty.
Probing and Searching Questions

Page 234 of 289

Search warrant is severable, and those items not
particularly described may be cut off without
destroying the whole warrant
if theres an error in the warrant, the officers should
go to the court to have it corrected
Anything not included in the warrant cannot be seized
EXCEPT if it is mala prohibita, in which case, the
seizure can be justified under the plain view doctrine.
Even if the object was related to the crime, but it is
not mentioned in the warrant nor is it mala prohibita,
it still cannot be seized.
Section 6. Issuance and form of search warrant
Form of Search Warrant
The search warrant must be in writing and must
contain such particulars as the name of the person
against whom it is to be enforced, offense for which it
was issued, place to be searched and the specific
things to be seized
Section 7. Right to break door or window to effect
search
If the officer acts within the command of his warrant,
he is protected even if the complaint is proven to
have been unfounded.
KNOCK AND ANNOUNCE PRINCIPLE
GENERALLY, OFFICERS EXECUTING A SEARCH
MUST DO THE FOLLOWING ACTS:
1. announce their presence
2. identify themselves to the accused and to the
persons who rightfully have possession of the
premises to be searched
3. show to them the search warrant
4. explain the warrant in a language or dialect
known and understood by them
WHEN
UNANNOUNCED
INTRUSION
IS
PERMISSIBLE
1. person in premises refuses to open it upon
demand
2. person in the premises
already knew of the
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(Uncompressed)
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identity andTIFF
authority
of
the
officers
3. when officers have an honest belief that there
is an imminent danger to life and limb
4. when those in the premises, aware of the
presence of someone outside, are then
engaged in activities which justifies the officers
to believe that an escape or the destruction of
evidence is imminent
Section 8. Search of house, room, or premises to

be made in presence of two witnesses
In searching a house, room or other premises, such
shall be done in the presence of a lawful occupant or
any member of his family, or in the presence of at
least 2 witnesses of sufficient age and discretion,
residing in the same locality
The searching officer should also be considerate of
the premises searched; he should mar the premises
as little as possible, and should carefully replace
anything he finds necessary to remove.
Note: The 2 witnesses rule applies only if there is no
other occupant of the home
Section 9. Time of making search
GENERAL RULE
Warrant must be directed and served in the daytime
EXCEPTIONS:
1. if there are emergencies
2. property is on the person or place to
be searched
The general rule prohibits search in the night
because sometimes robberies happen, under the
pretense of searches
Section 10. Validity of search warrant
A warrant is valid for ten days from its date. After
such time, it is VOID.
A search warrant cannot be used everyday for 10
days, and for a different purpose each day warrant
used to seize one thing cannot be used as authority
to make another search
This rule is NOT APPLICABLE when the search for a
property mentioned in the warrant was not completed
on the day when the warrant was issued and had to
be continued the next day
Section 11. Receipt for the property seized
Section 12. Delivery of property and inventory
thereof to court; return and proceedings thereon
Officer seizing the property under the warrant must
give a detailed receipt for the same to the lawful
occupant or any member of the family or at least 2
witnesses of sufficient age and discretion residing in
the same locality. The property will then be held in
custodia legis
Page 235 of 289

Section 13. Search incident to lawful arrest
ALLOWABLE WARRANTLESS SEARCHES AND
SEIZURES:
1. Incidental to lawful arrest
2. Consented search (waiver of right)
3. Search of moving vehicles
4. Enforcement of customs laws
5. Checkpoints
6. RA requiring inspections or body checks in
airports
7. When there are illegal articles open to the eye
and hand (plain view)
8. Stop-and-frisk situations
9. Emergency
10.Enforcement of health and sanitary laws
REQUISIITES FOR PLAIN VIEW DOCTRINE
1. valid intrusion
2. item must be visible seen without any further
search; e.g. in a transparent bag
3. inadvertent discovery
Ex. police officer chasing a suspect, sees a box,
takes a peak and sees drugs
can be seized because malum prohibitum but
cannot be introduced as evidence because not
in plain view
if detected through smell, not case of plain
view but probable cause
if detected by canines - as if police themselves
have smelled it
if police chases a person, accidentally hits a
jar, where drugs pour out not plain view
Searches Incident to Lawful Arrest
This right includes searching the person who is
arrested, in order to find and seize the things
connected with the crime as its fruits or as the means
by which it was committed
Search made without a warrant cannot be justified as
an incident of arrest unless the arrest itself was lawful
A search is not incidental
to the
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the
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contemporaneously with the arrest.
The area that may be validly searched is limited to
the area within the immediate control of the person
arrested
REQUISITES FOR VALID WAIVER OF RIGHT
(CONSENTED SEARCH)
1. right exists
2. person making the consent knows that he has

the right
3. in spite of knowledge of the right, he voluntarily
and intelligently gives consent
Search of Moving Vehicles
Vessels and aircrafts may be searched and seized
without a warrant because a vessel can be quickly
moved out of the locality before a warrant could be
secured.
Validity of Checkpoints
Checkpoints are not per se invalid provided that
searches conducted therein are limited to a mere
cursory inspection (Valmonte case)
UNREASONABLE SEARCH AND SEIZURE
It is such where it is not authorized by statute, or
where the conditions prescribed by the stature have
not been met.
Rules on Reasonableness of Search
What constitutes a reasonable or unreasonable
search or seizure in any particular case is purely a
judicial question
Such is determinable from a consideration of the
circumstances involved, including the ff:
The purpose of the search
Presence or absence of probable cause
Manner in which the search and seizure was
made
Place or thing searched
Character of the articles procured.
Searches and seizure inside
presumptively unreasonable
home
are
Constitutional prohibition against unlawful searches

and seizure applies as a restraint directed only
against the government and its agencies tasked with
the enforcement of the law. It could thus only be
invoked against the State.
Who May Question the Validity of a Search
The legality of a seizure can be contested only by the
party whose rights have been impaired thereby.
The objection to an unlawful search and seizure is
purely personal and cannot be availed by third
parties.
The remedy for questioning the validity of a search
warrant can only be sought in the court that issued it,
not in the sala of another judge of concurrent
jurisdiction.
Page 236 of 289

Objections to the legality of the search warrant and to
the admissibility of the evidence obtained are
deemed waived when no objection to the legality of
the search warrant was raised during the trial.
Section 14. Motion to quash a search warrant or
suppress evidence; where to file
REMEDIES OF PARTY ADVERSELY AFFECTED
BY A SEARCH WARRANT:
1. Motion to quash the search warrant with the
issuing court; or
2. Motion to suppress evidence with the court
trying the criminal case.
NOTE: These remedies are ALTERNATIVE, hence if
a motion to quash is denied, a motion to suppress
evidence cannot be availed of subsequently
NOTE: A third option would be to file an action for
replevin if the properties seized were lawfully
possessed.
The Moncado Ruling, saying that illegally seized
documents, papers and things are admissible in
evidence has already been ABANDONED.
The exclusion of such evidence is the only practical
means of enforcing the constitutional injunction
against unreasonable searches and seizures.
WHERE TO FILE MOTION TO QUASH WARRANT
1. May be filed and acted upon ONLY by the
court where the action has been instituted
2. If not criminal action has been instituted, MTQ
may be filed with the court who issued the
warrant. However, if such court failed to
resolve the motion and a criminal action is
subsequently filed in another court, the motion
shall be resolved by the latter court
RULE 127
PROVISIONAL REMEDIES
IN CRIMINAL CASES
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Section 1. Availability of provisional remedies

PROVISIONAL REMEDY
It is one provided for present need or one that is
adopted to meet a particular exigency.
PROVISIONAL REMEDIES UNDER THE RULES
OF COURT:
1. Attachment (Rule 57)
2.
3.
4.
5.
Injunction (Rule 58)

Receivership (Rule 59)
Replevin (Rule 60)
Support Pendente Lite (Rule 61)
Purpose of Provisional Remedies

Provisional remedies are applied pending litigation, to
secure the judgment or preserve the status quo
If provisional remedies are applied for after judgment,
it is in order to preserve or dispose of the subject
matter.
Although civil action is suspended until final judgment
in the criminal case, the court is not deprived of its
authority to issue preliminary and auxiliary writs
which do not go into the merits of the case.
Preliminary writs and auxiliary writs referred to are
those such as the ff:
Preliminary injunction
Attachment
Appointment of receiver
Fixing amounts of bonds
Section 2. Attachment
ATTACHMENT
It is a remedy afforded to the offended party to have
the property of the accused attached as security for
the satisfaction of any judgment that may be
recovered from the accused
CASES WHERE ATTACHMENT IS AVAILABLE:
1. When action for recovery is on a cause of
action arising from law, contract, quasicontract, delict, or quasi-delict and accused is
about to abscond from the Philippines;
2. When the criminal action is based on a claim
for money or property embezzled or
fraudulently misapplied or converted to the use
of the accused who is a public officer, or any
officer of a corporation, or an attorney, factor,
broker, agent, or clerk, in the course of his
employment as such, or by any person in a
fiduciary capacity, or for a willful violation of
duty;
3. When the accused has concealed, removed or
disposed of his property or is about to do so;
4. When action is against a party guilty of fraud in
contracting the debt upon which action is
brought, or in the performance of incurred
obligation;
5. When action is against a party who removed or
disposed of his property or is about to do so,
with intent to defraud his creditors; and
Page 237 of 289

6. When the
Philippines
accused
resides
outside
the
Mindanao Savings, etc. vs CA, 172 SCRA 480

(1989)
No notice to the adverse party or hearing on the
application is necessary before a writ of preliminary
attachment may issue.
This may be filed at the commencement of a criminal
action or at any time before entry of judgment as
security for the satisfaction of any judgment that may
be recovered in the aforementioned cases.
Public prosecutor has the authority to apply for
preliminary attachment as may be necessary to
protect the interest of the offended party.
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Page 238 of 289

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ATENEO CENTRAL BAR OPERATIONS 2007

Objection that the court

If the accused fails to

What determines jurisdiction

Remedial Law Summer Reviewer

ONCE VESTED, JURISDICTION CANNOT BE

Criminal Jurisdiction of the Sandiganbayan

Offenses or felonies, whether simple or complexed

Page 171 of 289

Remedial Law Summer Reviewer

Jurisdiction over Crimes Punishable by Destierro

Effect of institution of the Criminal Action:

Remedial Law Summer Reviewer

Section 4. Information QuickTime

4. It must be filed in court.

Information and Complaint distinguished

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Private Prosecutor Participation:

Remedial Law Summer Reviewer

3. A defamation imputing to a person any of the

PROSECUTION OF PRIVATE CRIMES

The pardon refers to pardon BEFORE filing of the

In order to absolve the

The SUBSEQUENT MARRIAGE between the party

Remedial Law Summer Reviewer

NOTE: Substantial defect in the information cannot

An offended party in a criminal case has sufficient

NOTE: An error in the name of the accused is not

Section 6. Sufficiency of complaint or information

Section 8. Designation of the offense

A COMPLAINT IS SUFFICIENT IF IT STATES:

THE INFORMATION OR COMPLAINT MUST

People v. Dela Cruz, G.R.

The qualifying and aggravating circumstances cannot

Remedial Law Summer Reviewer

If one or more elements of the offense have not been

IMPORTANT: The new rule requires that the

Remedial Law Summer Reviewer

should be alleged in the information and proved at

PURPOSE: To show territorial jurisdiction of the

The rules require the complaint or information to state

Remedial Law Summer Reviewer

arraignment of the accused under the

EXCEPTIONS TO THE RULE ON DUPLICITY

Technically, paragraph 2 of Section 14 does not refer

REQUISITES OF CONTINUOUS CRIMES:

Test as to whether a defendant is prejudiced by

Section 14. Amendment or Substitution

Remedial Law Summer Reviewer

for if the original would

Remedial Law Summer Reviewer

territory where the vessel passed during such

HOWEVER: Once the offended party has filed a

Page 181 of 289

Remedial Law Summer Reviewer

Purpose of Exception: to prevent the offended party

RULES ON FILING FEES

Compromise on civil aspect:

EXCEPTION: Criminal action for violation of BP 22

IMPORTANT: Section 1, Rule 111 now expressly

Remedial Law Summer Reviewer

Primacy of Criminal Action over Civil Action

criminal act or omission. It does not state that the