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RULE 110— PROSECUTION OF OFFENSES (starting
with Duplicity of offenses)
1. Is it allowed to charge more than 1 offense in
the complaint or information? Is duplicity of
offense allowed in 1 information? Reason.
Exception. Art 48 complex crimes, special
complex crimes, continued crime, doctrine of
absorption
2. What are complex crimes? Example of
complex crimes. When one act results into 2 or
more grave or less grave felonies, or a felony is
committed as a means to committing another
felony. (for examples, check Art 48)
3. If automatic weapon used—is it complex or
separate offenses? Separate because the
offender will keep pressing the trigger
4. What is a continued crime? (important:
SINGLE intent) single crime consisting of a series
of acts but all arising from one criminal resolution
Note: Different firearms cannot be lumped in
one information but has to be filed differently
because of the different penalties involved
5. Is there a remedy as to duplicitous
information? Motion to quash as provided in Sec
3, Rule 117 before arraignment
6. Reason why the cause of the accusation to be
stated in the information. Relate to double
jeopardy. So the prosecutor cannot anymore file
a subsequent case that may violate a person’s
right against double jeopardy.
7. Effect of the marriage of the offended party to
the offender in private crimes. Constitutes
pardon that will erase criminal liability.
8. Is there a need to allege qualifying and
aggravating circumstances in the complaint or
information? Reason. Yes, otherwise it will not
be appreciated as such even when proven during
trial.
9. Difference between qualifying and aggravating
(generic). Qualifying circumstances change the
penalty. Generic aggravating increases the period.
10. Is it enough to state “crime was qualified with
treachery”? No. What is controlling is the recital
of facts constituting the aggravating
circumstances
11. Reason for the elements of the crime to be
alleged. Right to be informed, prevent the
violation of a person’s right against double
jeopardy
12. Venue is jurisdictional in a criminal case.
Why? Court’s authority is lodged only in its
territorial jurisdiction; court cannot render a valid
decision over a crime committed outside its
territorial jurisdiction; give accused chance to
bolster his defense and not give him a great deal
of inconvenience
13. Does the place of the commission of the crime
have to be stated in the information? When it is
essential to the crime
14. Does the place need to be proven during trial?
Reason. Implication on the court’s jurisdiction,
otherwise it may be transferred to the court with
jurisdiction
15. Remedy if venue was incorrect. Quashal of the
information before arraignment because the court
does not have jurisdiction over the offense
16. Supposing during trial, the court found out
that it does not have jurisdiction, what will the
court do? Dismiss the case because the court
does not have jurisdiction and it cannot render a
valid judgment; advise prosecution to file it in the
proper court of jurisdiction
17. Will it violate the rule on “continuing
jurisdiction”?
18. What are the exceptions of venue? Article 2,
RPC. On board a vessel. On a moving car.
Sandiganbayan. SC orders the transfer of a
criminal case to another RTC. Libel.
19. What is the rule on libel regarding venue?
Importance when public officer is involved;
RELEVANT WHEN PUBLIC OFFICER IS THE
OFFENDED PARTY
20. What is the rule on “online/ internet libel? Is
there such a thing? Residence and place where
he is in office
21. Reason for the rule.
22. Where will you file your case for perjury? (refer
to Union Bank case)
a. Modes of perjury
b. In making a false affidavit. Where
subscribed and sworn to Reason for this
rule
i. Executed in Cebu City and
filed in Lapu2x (should be filed
in Cebu City)
c. In making a false testimony in a
proceeding that is neither criminal or
civil in nature: Where oath is
undertaken
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23. BP 22 where is it filed? Place where any of the
material facts constituting BP 22 took place (e.g.
where check was issued, encashed etc.)
24. Someone took your wallet inside this
classroom then found out that one of your
classmates stole your wallet and brought it to
Cordova? Can you file it in Cordova? This is
about theft—not a continuing crime; should be
where the thing is taken
25. What is amendment? How do you effect an
amendment (by striking through the error in
the complaint or information)? (BE CAREFUL
ON THE DEFINITION CITED BY THE BOOK
REGARDING SEC 1, RULE 10 AS RULE 10 IS
PART OF CIVIL PROCEDURE; CRIMINAL
PROCEDURE STARTS FROM RULE 110-127 IN
THE ROC; HOWEVER, THIS DEFINITION IS
STILL APPLICABLE TO CRIMINAL
PROCEDURE)
a. Portion to be deleted or amended will
have a “strikethrough” in criminal
complaints to show the amended
portions and what were amended
26. Is leave of court required for an amendment?
No need when made prior before the plea
27. Exceptions to amendments before plea (With
regard to leave of court). Downgrades offense
and excludes an accused.
28. What are the requirements to effect this kind of
amendment? Motion by the prosecutor etc.
29. Why is there a need to give notice to the
offended party? There is a need to give notice to
the offended party as it may downgrade the nature
of the crime or exclude an accused. Therefore, it
may prejudice his interests over the prosecution of
the crime.
30. Why is there a need to get that leave of court?
To cut down the discretion on the part of the
prosecutor. There is a great possibility that the
accused will bribe the prosecutor to drop the case
or downgrade offense or exclude him as an
accused. That is why the discretion is being
curbed down as there is a need for the prosecutor
to file a motion, notify the offended party and get
that leave of court. Otherwise, the prosecutor will
be a very powerful prosecutor.
31. After plea, what is the rule? Only a formal
amendment
32. Why formal? Formal amendment only so it will not
prejudice the rights of the accused (against his
right to be informed of the nature and cause of the
accusation against him)
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33. After the accused enters the plea, is there an
instance that a substantial amendment is
allowed? No, there is no instance. Substantial
amendment after the plea is clearly not allowed at
this stage.
34. What is the difference between substantial and
formal amendment? Determination and
differentiation are not provided in the Rules. We
are only guided by the rulings of the SC. Before, if
the amendment changes the penalty, it is
substantial but nowadays change in penalty is
merely formal. It is deemed SUBSTANTIAL IF: (1)
it changes the nature of the offense; or (2) the
evidence at hand on the part of the accused could
no longer be used; Or (3) the theory on the part of
the defense could no longer be used. For
example, from murder to homicide, the nature of
the offense is already changed and even perhaps
the theory of the defense or the evidence of the
accused may no longer be used.
35. Do you need leave of court in case of formal
amendment? Yes
36. If subsequent amendment, will the court
allow? No, as a general rule.
37. Exceptions. (1) Doctrine of supervening event
(e.g. death, passage of a new law); (2) beneficial
to the accused (e.g. from murder to homicide)
38. From simple theft to qualified theft: Considered
as substantial; the nature of committing the
offenses are different so in effect the nature of the
offense is changed
39. The crime was homicide, the prosecutor
wanted to amend the information. He would
want to include all the aggravating
circumstances of recidivism etc because he
failed to allege the circumstances. Is there a
need to allege them? Yes, otherwise they would
not be appreciated even if proven during trial. Is
that a substantial or a formal amendment?
Formal amendment, because it only relates to the
imposable penalty.
40. If the prosecutor wrongfully designated the
name of the private offended party, can he
correct the designation? Is it a formal or
substantial amendment? Formal amendment,
because it does not change the nature
41. Suppose the prosecutor wants to amend the
designation of the information from theft to
qualified theft? Formal amendment because it is
only the designation that is amended not the
recital of facts.
42. A person was charged with several charged of
illegal recruitment and pleaded not guilty to all
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of them and the prosecutor wanted to amend 51. Supposing charge was frustrated homicide but
the information into one information of large- what was found out during trial, accused is
scale illegal recruitment. Is it allowed? No, guilty of seduction. Order the substitution of the
because it is considered a substantial amendment complaint (seduction is totally different from
because it already changed the nature of the frustrated homicide). No double jeopardy (not
offense. If it was made before his plea, of course necessarily included etc.)
it is allowed. (Note: there can only be an
amendment through lumping several informations 52. Difference between amendment and
not just striking out) substitution.

43. The prosecutor would want to include another

accused in the information. Is that allowed? Amendment Substitution
Allowed because it is only a formal amendment Either formal or Necessarily involves a
substantial substantial change
44. What is substitution? There appears, before from the original
judgment, a mistake has been made in charging charge
the proper offense. Effected without leave Must be with leave of
of court when made court as the original
45. Example. Murder charges to simple rebellion before plea information has to be
dismissed
46. What will the judge do in substitution? Dismiss When it is only in Another PI is entailed
the case once the new one charging the proper FORM—no need for and the accused has
offense is filed provided the accused will not be another PI and to plead anew to the
placed in double jeopardy (not necessarily retaking of plea new information
included in the offense charged; attempt or Amended information Presupposes that the
frustration of the offense charged; same evidence refers to the same new information
rule) offense charged in the involves a different
original information or offense which does
47. Crime charged is theft but the evidence shows to an offense which not include or is not
he should be charged with robbery. What necessarily includes necessarily included
should he be convicted for? Theft, because he or is necessarily in the original charge,
was only charged with theft under the information included in the original hence the accused
even though the evidence during trial shows charge, hence cannot claim double
robbery was committed and theft is necessarily substantial jeopardy
included in the crime of robbery. If you will convict amendments to the
him for robbery, the right of the accused to be information after the
informed of the nature and cause of the accusation plea has been taken
would be violated. cannot be made over
the objection of the
48. Crime charged is robbery but the evidence accused, for if the
shows he should be charged with theft. What original information
should he be convicted for? Theft, because would be withdrawn,
even though he was charged with robbery, such the accused could
was not proven during trial. Since the defense was invoke double
able to prove theft, he can be convicted therefor jeopardy
because THEFT IS NECESSARILY INCLUDED Where the second Where the new
IN ROBBERY (even though not charged against information involves information charges
him in the information); the same offense or an offense which is
an offense which distinct and different
49. Crime charged is slight physical injuries but necessarily includes from that initially
the crime committed is really frustrated or is necessarily charged, a
homicide. Only for slight physical injuries and he included in the first substitution is in order
was not charged with frustrated homicide. SPI is information,
necessarily included in frustrated homicide. amendment is
sufficient
50. Crime charged is frustrated homicide but
crime committed is really slight physical
injuries. Only for slight physical injuries since SPI RULE 111—PROSECUTION OF CIVIL ACTION
is necessarily included in the crime charged of
frustrated homicide. 53. What is this implied institution of a civil action
with the criminal action? Sec 1(a), Rule 111,
Rules of Court

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54. Why is there an implied institution? Criminal
case has 2 aspects (criminal and civil); offends 2
parties; speedy disposition of cases
55. Exceptions to the implied institution. waiver of
his right; reservation of his right; institution of civil
action prior to criminal action
56. Civil liability may be awarded even if accused
is acquitted. Reason. Different quantum of proof
needed
57. Instances when accused is acquitted and there
is no civil liability. Showing that the accused did
not commit the crime or the crime was not at all
committed. (Note: However if the prosecution just
failed to prove his guilt beyond reasonable doubt,
he can still be made to answer the civil liability)
58. Supposing the accused is found guilty, does it
follow that the accused should be found civilly
liable? Not necessarily, because there is a
different quantum of proof (beyond reasonable
doubt vs preponderance of evidence) needed.
There should be a separate and distinct set of
evidence presented for criminal and civil aspect
(duty of the private prosecutor is to show that truly
his client has suffered these damages). You have
to prove the amount and value of damages before
it can be awarded. More often than not, when there
is already conviction, it is already very easy for the
court to award civil damage.
59. There are crimes which do not have private
offended parties. Example. Espionage, violation
of neutrality, flight to enemy country and crime
against popular representation
60. Can there be a civil liability in plunder? Can
the state act as the private offended party?
The government can act as a private offended
party (e.g. Province of Cebu as a governmental
entity). The Sandiganbayan can order the
governor to restitute the amount pocketed, as well
as other damages proper on the basis of the
evidence shown during the trial.
61. In perjury, is there a private offended party?
Example, perjury was shown to be hurtful to the
credence of the person against whom the
testimony was made (Lee Pue Liong v Chua Pue
Chin Lee). At all times? Passed a false affidavit
in Certificate of Forum Shopping. Note: If you
believe you have suffered damage because of
the false testimony etc., you can be a private
offended party; case to case basis
62. What is this independent civil action? Civil
action not arising from crime
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63. Do you need to reserve the same? No, it is
considered separate and distinct
64. What are cases where reservation is not
allowed, meaning you need to institute the
civil liability in the same case as your criminal
case? BP 22 cases Reason. Prevent clogging of
court. Another example. Tax cases Reason.
Cases need to be resolved speedily because tax
is the lifeblood of the government. Another
example. Cognizable by the SB because SB is
primarily a criminal court. You cannot separate
the criminal case in the SB and the civil aspect in
the RTC.
65. If you reserve your right to file the civil action
arising from crime, supposing there is already
a criminal case and you reserve your right.
Can you now file the civil action while the
criminal case is pending? The reserved civil
action should be filed after the termination of the
criminal action.
66. Supposing you instituted the civil action
ahead of the criminal and the prosecutor filed
the criminal case, what will happen to the civil
action? Civil action will be suspended and be
revived after the termination of the criminal case.
67. What is the option of the offended party? Ask
for a consolidation of the cases.
68. What happens to the evidence presented in
the civil action? Deemed reproduced in the
criminal case
69. What is a counterclaim? It may be a compulsory
(arose from the same transaction) or permissive
(not arise from the same transaction)
counterclaim. In a CIVIL case, plaintiff alleges a
cause of action (there is a right, there is a violation
of the right and you suffered some damages). The
defendant files his Answer (responses to the
allegations; counterclaim that you are the one
who is damaged in the transaction).
70. Is that allowed under a criminal case? No (Sec
1(a), Rule 111: No counterclaim, cross-claim or
third-party complaint may be filed by the accused
in the criminal case, but any cause of action which
could have been the subject thereof may be
litigated in a separate civil action). It may be made
subject of a separate civil action. E.g. reckless
imprudence resulting to damage of property; car
owner alleges his car was totally wrecked by the
driver (supposedly accused has a compulsory
counterclaim that he is actually the one who is
damaged but he cannot put the same in the same
criminal case as counterclaims are not allowed in
criminal proceedings)
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71. What are cross-claims? One plaintiff with
several defendants and one of the defendants
avers that he is not liable but only the other
defendants.
72. What is a third-party claim? Claim by a person
not yet a party to this case.
73. Should filing fees be paid? Paid when damages
are being claimed by the offended party. No filing
fees required for actual damages (damages
suffered by a person on the basis of pecuniary
estimation of the actual loss) claimed except
those violations of BP 22 and Estafa (courts are
made collection agents of the creditors). In BP 22
cases, the filing fees shall be based on the
amount of the check and shall be paid in full. In
estafa, the filing fees shall be paid based on the
amount involved.
74. What about other types of damages? If the
filing fees are specified, it should be paid by the
offended party. If it is not specified, it will be
regarded as a first lien on the judgment (whatever
is the award granted to the offended party, the
filing fees should be deducted)
75. What is a moral damage? Sleepless nights,
besmirched reputation, serious anxiety, mental
anguish
76. What is a temperate damage? Actual damage
is proven but the court cannot substantiate his
claim.
77. What is a nominal damage? No proof of actual
damage.
78. What is an exemplary damage? Corrective type
of damage that will set as an example; e.g.
offense is so grave
Note: After arraignment, accused dies—both civil and
criminal liability are extinguished; before
arraignment, accused dies—only criminal liability is
extinguished but civil liability may be proven against
the estate. REMEMBER THE DEMARCATION OF
“BEFORE ARRAIGNMENT”
Ruling in Bayotas:
1. Death of the accused pending appeal of his
conviction extinguishes his criminal liability
as well as the civil liability based solely
thereon. As opined by Justice Regalado, in this
regard, "the death of the accused prior to final
judgment terminates his criminal liability
and only the civil liability directly arising from and
based solely on the offense committed, i.e., civil
liability ex delicto in senso strictiore."
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2. Corollarily, the claim for civil liability survives
notwithstanding the death of accused, if the
same may also be predicated on a source of
obligation other than delict. Article 1157 of the
Civil Code enumeratesthese other sources of
obligation from which the civil liability may arise
as a result of the same act or omission:
a) Law
b) Contracts
c) Quasi-contracts
d) x x x
e) Quasi-delicts
3. Where the civil liability survives, as explained in
Number 2 above, an action for recovery therefor may
be pursued but only by way of filing a separate civil
action and subject to Section 1, Rule 111 of the 1985
Rules on Criminal Procedure as amended. This
separate civil action may be enforced either against the
executor/administrator or the estate of the accused,
depending on the source of obligation upon which the
same is based as explained above.
4. Finally, the private offended party need not fear a
forfeiture of his right to file this separate civil action by
prescription, in cases where during the prosecution of the
criminal action and prior to its extinction, the private-
offended party instituted together therewith the civil
action. In such case, the statute of limitations on the civil
liability is deemed interrupted during the pendency of the
criminal case, conformably with provisions of Article 1155
of the Civil Code, that should thereby avoid any
apprehension on a possible deprivation of right by
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prescription. (Emphases supplied)
79. Supposing X is convicted with murder in the
RTC. While his case is pending on appeal, he
died. What happens to the criminal liability? It
is extinguished
80. Person charged with rape. During trial, he
died. What happens to the criminal liability? It
is extinguished.
81. What about his civil liability? Civil liability
arising from the crime is extinguished, as well.
82. May the offended party still file for an
independent civil action? Yes. Just those
damages not arising from crime
83. Before arraignment, said rapist died. What
happens to the criminal liability? Extinguished
84. What about the civil liability? Civil liability is not
automatically extinguished. Rule provides civil
liability can be against his estate which is the
continuation of the personality of the deceased up
to a certain extent (Sec 4, Rule 111)
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85. After arraignment and he died, what happens?
Both the criminal and civil liability are
extinguished.
86. Will novation extinguish criminal liability? No.
BUT IT MAY ONLY PREVENT What is
novation? Note: Guingona v City Fiscal of
Manila (1984)—VERY IMPORTANT CASE
where SC said novation may, in effect, prevent
the incipient criminal liability to arise for as long
as novation is made prior to the institution of the
criminal proceedings. However, if novation is
made after the institution, it will not affect the
criminal liability.
87. Supposing a person was charged with
robbery then after charge was filed in court,
he returned the amount to the private
offended party. Will he still be criminally
liable? Yes, compromise agreement between the
accused and the private offended party will not
affect the prosecution of the criminal case
88. Supposing X filed an ICA against Y for
physical injuries, the court denied his claim.
Later on, he filed a civil case against Y for
damages arising from the same criminal act.
Will the subsequent claim for damages
prosper? What the law prevents is double
recovery; it is based on different sources of
obligation
89. What is subsidiary liability? If the party who is
bound to pay but cannot because he is insolvent,
a person may be bound to pay for him subject to
certain conditions (e.g. employer for his
employee); liability is not direct—the offender
must be insolvent
90. What is a prejudicial question? Question based
on a fact distinct and separate from the crime but
it is so intimately connected with the crime that it
determines the guilt or innocence of the accused;
jurisdiction of the case is lodged in a different
tribunal
91. Reason. Avoid 2 conflicting decisions in the civil
and criminal case
92. Requisites. Section 7, Rule 111: (1) previously
instituted civil action involves an issue similar or
intimately related to the issue raised in the
subsequent criminal action, and (2) resolution of
such issue determines whether or not the criminal
action may proceed (and (3) jurisdiction to try said
question must be lodged in another tribunal)
93. When can you apply the doctrine of a
prejudicial question? Previously instituted civil
action and a subsequent criminal case (EXCEPT:
one admin and one crim case involving HLURB
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and specific performance to deliver the TCTs—
San Miguel Properties v Perez)
94. X filed estafa against Y; Y filed specific
performance against X. Can prejudicial
question be invoked? No, criminal case is filed
before civil case.
95. Effects of the prejudicial question. The
suspension of the criminal case
96. Supposing there is only one RTC in the area
and the criminal case and civil case was
lodged in the same court. May the judge motu
propio suspend the criminal case? No,
suspension of the criminal case is only on the
basis of the petition filed by the parties
97. Supposing X commenced a civil case against
Y and Y filed a complaint in the office of the
prosecutor. May the party concerned ask for
suspension of the criminal case? Yes, it is
sufficient that the case be in the stage of
preliminary investigation, hence it may be filed
with the office of the prosecutor
98. Is dismissal the same as suspension?
Suspension only of the criminal case, not a
dismissal thereof
99. Supposing a person was accused of
committing murder against his wife. Then a
case was filed against him. After the filing of
the parricide case, there was a civil action
filed for declaration of nullity of the marriage.
Can he ask for suspension of the criminal
case? No, the civil action was filed subsequent to
the criminal action.
100. Supposing a civil action was filed for
challenging the authority of the one acting for
the corporation. Thereafter, a criminal case
was filed involving the one acting for the
corporation charged with estafa (acting in
behalf of the corporation). Can there be a
prejudicial question? Yes, if it is determined in
the civil case that the one acting for the
corporation really does not have authority then
estafa case cannot prosper. Since the alleged
offended party is the corporation, validity of the
demand rests upon the authority of the person
making such demand. If the supposed authority
of the petitioner is found to be defective, it is as if
no demand was ever made, hence estafa cannot
prosper.
101. Is there a prejudicial question involving
specific performance and BP 22 case? No, in
BP 22, what is penalized is the mere issuance of
the check with the knowledge of having
insufficient funds. The only issue to be resolved in
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the BP 22 case is whether or not you issued that
worthless check and put it into circulation.
102. Whether or not bigamy case can be
suspended based on a previous filing of
declaration of nullity of marriage (void from
the very beginning; annulment= valid until
annulled). No. Without a judicial declaration of its
nullity, the first marriage is presumed to be
subsisting. It is not upon you to decide that your
marriage is void, you must get that declaration of
nullity first. (same with bigamy and annulment;
concubinage and annulment—for as long as the
marriage is subsisting, there will be no prejudicial
question there)
103. ICA, is it a ground for prejudicial question?
No, ICA can be filed separately. It is based on a
different cause. It proceeds independently of the
criminal action (specific right given by law)
RULE 112—PRELIMINARY INVESTIGATION
104. What is PI? Inquiry or a proceeding to determine
whether there is sufficient ground to engender a
well-founded belief that a crime has been
committed and the respondent is probably guilty
thereof (Sec 1, Rule 112)
105. Purposes of conducting PI. Determine WON a
crime has been committed and respondent is
probably guilty thereof; secure innocent against
hasty, malicious and oppressive prosecution and
the State from the trouble of a public trial; minimize
clogging of dockets in court; preserve evidence
and keep the witnesses within the control of the
State and to determine the amount of bail if
offense is bailable
106. Why do you say it is an executive function?
Conduct of PI is a function that belongs to the
prosecutor
107. What is probable cause? Facts and
circumstances that would lead a reasonable and
prudent person to believe that a crime has been
committed and the person is probably guilty
thereof
108. Why is it said to be part and parcel of due
process? Accords the respondent opportunity to
be hear (produce his response and evidence)
109. Why is it said to be a statutory right only not a
constitutional right? PI is only given when it is
provided to be given by law
110. When a person is denied of his right to PI,
what is his remedy, if any? Motion to conduct PI
to court so the court can suspend the proceedings
and forward all the documents to the prosecutor to
conduct the necessary PI
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111. When are you supposed to ask for the PI?
Before plea or within 5 days upon learning about
the filing of the information in court
112. What’s the effect if the accused already enters
his plea before asking for PI? Deemed waived.
It is as if he already submitted himself to the JD of
the court.
113. “Based on reasonable belief”, what does this
mean? Calibration of evidence in PI is necessary.
Higher than mere suspicion. Not absolute certainty
114. Can it be based on hearsay? As long as based
on substantial basis; not for the prosecutor to
appraise evidence; what is only needed is a
reasonable basis to believe that a crime has been
committed and the respondent is probably guilty
thereof
115. What is hearsay? Information was never
attained by the witness using his personal
knowledge (information passed to him using his
senses)
116. “Doctrine of independent relevant statement”.
Hearsay testimony may be admitted to prove a
fact but not of the crime (e.g. to prove that A and
B talked about the commission of the crime BUT
NOT to prove that C committed that crime to A)
117. Difference between PI and PE. (focus on judicial
determination of PC and executive determination
of PC; filing of information in court and issuance of
warrant of arrest)
118. Judicial review and filing of information by the
prosecutor. It is based on the principle of
separation of powers.
119. Importance of the prosecutor’s discretion in
determining PC to file information. Prosecutor
is deemed to exercise his best judgment in the
exercise of his exclusive function. You cannot
supplant the decision of the prosecutor by going to
court. EXCEPTION when there is already a grave
abuse of discretion (not based on any evidence;
evasion of a positive duty) amounting to lack or
excess in jurisdiction (discretion is exercised in a
very whimsical or despotic manner)
120. What is your remedy of the aggrieved party of
the resolution of the prosecutor? Motion for
Recon is not necessary, but of course you are not
prevented to file the MR so you may give the
prosecutor the opportunity to correct his errors.
121.From the office of the prosecutor, where will
you go? Depends on the crime involved
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122.When can you appeal to the Regional State
Prosecutor? When the crime is cognizable by the
MTC
123.When are you supposed to go to the Office of
the Secretary Justice? When the crime is
cognizable by the RTC
124. From RSP, where can you appeal? Resolution
of the RSP is final. DOJ through Secretary of
Justice MAY review the resolution of the RSP in
the exercise of its supervision over RSP. Rule of
thumb: don’t go to the Secretary of Justice—he will
most probably just dismiss the appeal.
HOWEVER, ATTY’S ADVICE is go to the CA by
way of filing MR
125. Why do you file an MR first rather than filing
by way of Rule 65 directly? Because under Rule
65, it is required that “there is no other adequate
plain speedy remedy”. So before you can file Rule
65, you must first exhaust all your remedies first
which is the MR
126. From the Office of the Secretary of Justice
(crime is cognizable by the RTC), where can
you go? Office of the President under the given
conditions. You do not go to the CA.
127. Supposing penalty is below reclusion
perpetua, what is your remedy? MR then CA
under Rule 65 (MR IS ALWAYS NECESSARY
BEFORE YOU CAN AVAIL OF RULE 65)
128. If there is already a resolution in the Office of
the President, where can you go? CA by Rule
43 (by filing a verified petition for review). NOT
RULE 65 BECAUSE YOU HAVE ANOTHER
AVAILABLE REMEDY UNDER RULE 43
129. REMEMBER the 3 instances that the
resolution can go to the CA. appeal from the
RSP under Rule 65, appeal from the Sec of Justice
under Rule 65 and from the Office of the President
under Rule 43. (REMEMBER BEFORE RULE 65
CAN BE AVAILED OF, ALWAYS FILE AN MR)
130. After CA, where can you go? SC under Rule 45
on PURE QUESTIONS OF LAW.
131. Can you include mixed questions of law and
fact? No. SC is not a trier of facts. It only resolves
PURE QUESTIONS OF LAW
132. What is a question of fact? Factual issues
133. What is a question of law? Facts are already not
in issue. Question of the application of law to the
set of facts.
134. Instances when PC is required. Determined by
prosecutors (for filing of information in court).
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Determined by judges (for issuance of warrant of
arrest). Determined by peace officer or private
individual (in warrantless arrest). Determined by
judge (for issuance of search warrant)
135. When does PC apply in warrantless arrest?
Hot pursuit under Sec 5(b) of Rule 113. Personal
knowledge of FACTS AND CIRCUMSTANCES
(not necessarily of the crime itself) enough to
believe that a crime has been committed and the
person is probably guilty thereof.
136. Who may conduct PI? Section 2, Rule 113.
Prosecutors. In certain instances, COMELEC
(through duly authorized legal officers for
violations of Omnibus Election Code; DOJ can
conduct PI; “power, CONCURRENT with the other
prosecuting arms of the government”),
Ombudsman (PRIMARY jurisdiction of crimes
cognizable by SB; ANY ACT OR OMISSION OF
ANY PUBLIC OFFICER OR EMPLOYEE,
OFFICE OR AGENCY WHEN SUCH ACT OR
OMISSION APPEARS TO BE ILLEGAL,
UNJUST, IMPROPER OR INEFFICIENT) and
PCGG (with the assistance of the OSG and other
government agencies; to investigate, file and
prosecute cases investigated by it under EO 14)
137. Even if the crime was not committed in
relation to his office, can the Ombudsman
investigate? YES, THE ANSWER IS YES
CLASS. THE OMBUDSMAN CAN IVESTIGATE
FROM THE HIGHEST OF THE HIGH TO THE
LOWEST OF THE LOW, FOR AS LONG AS THE
PERSON RECEIVES EMOLUMENTS FROM
THE RP, with the exception of IMPEACHABLE
OFFICERS, ombudsman can investigate but it
cannot file an information in court. NOTE ALSO
CLASS, THE INVESTIGATION IS NOT LIMITED
TO THE CRIMINAL LIABILITY BUT ALSO TO
ADMINISTRATIVE MATTERS OR
INFRACTIONS (Ombudsman sits as a judge; to
render a decision in the administrative case). In
criminal matters, Ombudsman does not determine
the guilt as a judge. He can only investigate to
determine PRO-BA-BLE CAUSE and if he finds
PROBABLE CAUSE, HE MAY NOW FIIIIILEEEE
THE INFORMATION IN COURT. (PLEASE
REMEMBER THIS KAY SI ATTY SOLENG
GRABE SIG HAPAK SA TABLE ANI HUHU)
138. Supposing Ombudsman learned that DOJ
(since Ombudsman JD is concurrent with the
DOJ) investigated a public officer accused of
rape, may he conduct the investigation? DOJ
is not precluded HOWEVER Ombudsman has
discretion to take over the investigation AND
prosecution (primary jurisdiction).
139. What is meant by “primary jurisdiction of the
Office of the Ombudsman”? Primary jurisdiction
over those cases cognizable by the
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Sandiganbayan; at any stage of the proceedings,
the Ombudsman may come in and take that
investigation from the entity currently conducting
the investigation.
Ombudsman Conchita and then Secretary of Justice Leila
(who is already in jail hehe) entered in a MOA in 2012 that
if upon the filing of the complaint, the prosecution office of
the DOJ determines that the crime falls in the exclusive
jurisdiction of the SB, it will advise complainant to bring
the complainant to the office of the ombudsman. In
another instance when DOJ prosecution office receives a
complaint cognizable by the SB, it will immediately
endorse the matter to the OMB. (SO: upon receipt—
advise complainant to go to OMB; received complaint
already—immediately endorse the same to the OMB). In
a case of multiple respondents where one of the
respondents is cognizable by the SB, DOJ will remand the
case to the ombudsman. OMB and DOJ have
CONCURRENT JURISDICTION for the crimes by
government officers or employees who fall outside the
jurisdiction of the SB (first one who takes cognizance of
the case will proceed over the exclusion of other courts
provided further OMB MAY refer or endorse any
complaint to the DOJ if it is filed first therein—recognize
that OMB lacks resources to prosecute BUT IT CANNOT
BE REVERSED; IF THE MATTER IS FILED FIRST IN
THE DOJ, IT CANNOT REFER THE SAME TO THE
OMB)
Note: due to the MOA, our discussion in primary
jurisdiction of the Office of the Ombudsman is somehow
changed since when DOJ receives a complaint
cognizable by the SB, it will immediately endorse the
same to the OMB
140. Discuss the case against Leila de Lima. Why
was the same not forwarded by the DOJ to the
OMB? Because the DOJ, class WAS NOT OF
THE OPINION THAT THE SAME IS NOT
COGNIZABLE IN THE SB. It opined that the crime
committed by De Lima is cognizable in RTC not in
the SB, that is why it did not endorse the same to
OMB.
141. When is PI not required? Crime is punishable by
less than 4 years, 2 months and 1 day.
142. How do you initiate your complaint if PI is not
required? 2 modes of instituting—directly file a
complaint with Office of the prosecutor, or file
directly a complaint or information in the MTC
Note class: when you say “complaint directly filed in court”
is not the same as the “complaint filed in the prosecutor”.
The complaint directly filed in court is entirely separate
and distinct form that filed in the prosecutor. To be
sufficient in form and substance, the complaint filed
directly in court should have all the elements. IT MUST
BE IN THE NAME OF THE RP NOT THE NAME OF THE
COMPLAINANT. The second complaint filed in the
prosecutor’s class is just a simple complaint affidavit in
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the NAME OF THE COMPLAINANT/ OFFENDED
PARTY.
Note further: In Manila and other chartered cities, there is
no other option but to FILE THE COMPLAINT IN THE
PROSECUTOR’S OFFICE for the prosecutor to
determine PC even if it does not require PI in the basis of
the documents submitted to it. The only difference is that
he will not anymore conduct a full-blown PI. BUT if you
are the counsel of the other party, you should insist to file
your counter-affidavit to the prosecutor so he can also
read your client’s defenses.
143. In the conduct of his investigation where PI is
not required, and the Prosecutor determines
PC, what should the prosecutor do? Prosecutor
may now file the information in court
144.Supposing the information is now filed in court
and you are the judge, what will you do? Judge
will determine PC and dismiss the same if he does
not find PC. Judge may issue a warrant of arrest if
PC is determined. But if the accused is already
arrested, he will issue a commitment order. If the
court finds there is no need to issue the same, he
may issue summons.
145. If the complaint is directly filed in MTC
because PI is not required, what will the judge
do? Sec 8, Rule 112. The judge should determine
PC by personally examining in writing and under
oath, the complainant and his witnesses in the
form of searching questions and answers. Judge
may also require the submission of additional
evidence within 10 days from notice. If the judge
finds no PC within 10 days, he will dismiss the
complaint. If the judge finds PC, he shall issue
WOA but if accused is already arrested, the court
shall issue a commitment order. When the judge
is satisfied that there is no necessity for placing the
accused under custody, he may issue summons
instead of a warrant. The judge will issue
summons so the COURT CAN ACQUIRE
JURISDICTION OVER THE PERSON of the
accused (JD over person is acquired through
arrest or voluntary submission to the JD of the
court). In civil cases, court acquires JD over
person of defendant by serving summons or
voluntary submission to the JD of the court.
However, when the judge issues a warrant based
solely in the statement of a witness who was not
even personally examined in writing and under
oath and in the form of searching questions and
answers, it may be said that he abused his
discretion in issuing a warrant.
146. Why does the court issue summons? When
the judge does not find the necessity to put the
accused in his custody or the crime is punishable
by fine only or the offense is charged under the
Rules of Summary Procedure.
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147. When can we dispense with PI even if it is
required? Valid warrantless arrest and the
accused is deemed to have waived his right to a
PI
148. What is an inquest? Summary proceeding
conducted when person is validly arrested without
a warrant involving even an offense which requires
a PI. Informal proceedings, summary in nature
(has to be decide by the prosecutor within a limited
period of time) if a person is LAWFULLY take note
LAW-FULLY arrested without a warrant, then the
prosecutor will conduct inquest proceedings
149. What is the purpose of inquest? Determine if
the accused has been validly arrested without a
warrant and whether the person detained should
remain under custody and then charged in court
150. What if the person is UNLAWFULLY arrested
without a warrant? The inquest proceeding will
not proceed. The inquest prosecutor shall
recommend the release of the detainee.
Prosecutor will determine if the detained person
has been lawfully arrested by summarily
examining the ARRESTING OFFICERS ON THE
CIRCUMSTANCES surrounding the arrest
151. During the conduct of PI, what should the
prosecutor do? Prosecutor should inform the
accused that he can avail of PI but the accused
shall execute a waiver under Article 125 of the
RPC
152. Supposing there is no inquest prosecutor and
the accused was validly arrested without a
warrant, what shall happen? An inquest may be
dispensed with. The rule allows the filing of the
complaint directly with the proper court by the
offended party or arresting officer.
153.Can a person arrested lawfully without a
warrant ask for PI? Yes, even when an inquest
should apply, a person may nevertheless ask for a
PI in accordance with Rule 112, before the
complaint or information is filed. However, he must
sign a waiver of the provisions of Art 125 of RPC
in the presence of his counsel.
154. Can the accused apply for bail even pending
resolution of the prosecutor? Yes. If your client
is already behind, your client has the right to post
bail in order to get that temporary liberty. Even
during inquest proceedings class, there is no need
to wait for PI. Even if the inquest has not yet
begun, once your client is already in the custody
of the law, you can already apply for bail. All you
need to present to the trial court is the affidavit of
the arresting officer. No need for that information
to be filed in court in order to apply for bail.
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155. Where do you post bail? Where your client was
withheld.
156. Can a person still ask for PI even he already
posted bail? Yes, application for bail does not bar
the person to avail of PI
157. Is judgment of conviction valid even with the
absence of PI when it is required? It is invalid
since it is a denial of the person’s right to due
process, but it is a different matter if you raised it
properly in the right time then the trial court
disregards your request. Then in that case it is
already tainted with grave abuse of discretion.
158. Is it a ground for a motion to quash? No, it is
not one of the grounds enumerated in Sec 3, Rule
117
159. Who conducts the inquest? Inquest officers
who are prosecutors
160. When is inquest deemed to have
commenced? When inquest officer receives the
referral documents and complaint from the police
officer (SISA—statements of the complainant and
witnesses, investigation report, supporting
evidence gathered and affidavit of arrest)
161. What is the duty of the inquest officer?
Determine WON arrest was lawfully made without
warrant
162. When it is found that the arrest was lawfully
made without warrant, what shall he do?
continue with the inquest proceedings so that he
will determine WON accused will continue to be in
custody of the law. IO will first ask the detained
person if he desires to avail himself of a PI and if
he does, he must execute a waiver under Art 124
of the RPC with the assistance of counsel. PI may
be conducted by the IO or by any other Assistant
Prosecutor. If the IO finds PC exists, he shall
prepare the corresponding information with the
recommendation that the same be filed in court. If
no PC is found, he shall recommend the release
of the detained person.
163. When it is found that the arrest was unlawfully
made, what shall he do? Recommend the
release of the accused from detention. However, it
does not mean the accused is absolved from
liability. It cannot be a ground to preclude the state
from prosecuting its offenders. PI may be done
when the evidence warrants such (Notice of PI
served upon accused)
164. Can the prosecutor include VAWC even when
the culprits were arrested for concubinage?
No, the inquest conducted must be for the offense
for which the detainee was arrested.
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165. After they were arrested for concubinage, can
the prosecutor conduct another PI to
determine liability for VAWC? Yes, prosecutor
may conduct a separate PI for VAWC but the
inquest must proceed only with regard to
concubinage, the offense they were arrested for. If
the facts and circumstances would show that they
also violated VAWC, offended party may also
execute affidavits to conduct a separate PI.
166. First step in conducting PI. File a complaint
with the investigating prosecutor
167. What shall be the content of the complaint
filed with the prosecutor for PI? Address of the
respondent, affidavits of the complainant,
affidavits of his witnesses and other supporting
documents. Each respondent must be furnished a
copy and additional 2 copies for the official file.
168. Should it be subscribed? Yes
169. Why is it necessary? To present that the
document is not tainted with any malicious error
170. With whom shall be the affidavit be
subscribed to? Any public prosecutor or before
any government official authorized to administer
oaths. In their absence or in case they are
unavailable, the affidavits may be subscribed and
sworn to before a notary public.
171. If you are the prosecutor and you receive the
complaint, what shall you do next? Dismiss the
complaint if he finds no ground to conduct the
investigation or to issue a subpoena to the
respondent in case he finds the need to continue
the investigation, in which case the subpoena shall
be accompanied with a copy of the complaint and
its supporting affidavits and documents
172. Can the prosecutor immediately dismiss the
case if he finds no ground to conduct the
investigation? Yes, if he determines so within 10
days from the receipt
173. After issuing the subpoena, what shall the
prosecutor do? Order the submission of the
counter-affidavit
174. May the respondent gather or examine the
complaints or evidence against him? Yes, the
respondent has the right to examine such and to
copy them at his expense. If the evidence is
voluminous, the complainant may be required to
specify which of those he intends to present
against the respondent and these shall be made
available for examination or copying by the
respondent at his expense. Objects as evidence
need not be furnished to a party but shall be made
available for examination.
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175. After the counter-affidavit is filed, a reply-
affidavit or rejoinder-affidavit are filed, is that
allowed? It may be allowed but the prosecutor
may inhibit as in the Rules, what is required is only
the counter-affidavit
176. What is the effect if the respondent will not
submit a counter-affidavit? The prosecutor will
resolve the complaint based on the evidence
presented by the complainant (ex parte
investigation—respondent cannot participate in
the proceedings)
177. What if the complainant puts in the wrong
address of the respondent? May the
prosecutor still resolve the case? Yes, the
prosecutor cannot know that the address is correct
or not. He will only rely on the information stated
in the complaint. For as long as he exhausted his
efforts to subpoena the respondent, he can
resolve the same ex parte. However, the
proceedings may be reopened to allow the
accused to submit his counter-affidavit upon a
proper motion to be done before the prosecutor
has issued a resolution. In that instance, you can
file a petition for bail unless it is bailable. But, you
can always file left-and-right cases against the
complainant who acted maliciously in stating your
wrong address, or even in such cases where there
was no deception on the part of the complainant.
Sometimes, that subpoena will not arrive or you
will receive such very late, your remedy is to post
bail and ask for you PI to be conducted.
178. What is meant by clarificatory hearing? Within
10 days from the submission of the counter-
affidavit or 10 days from the expiration of the
period for their submission, a hearing may be set
by the IO if there are facts and issues to be
clarified either from a party or a witness. It is not
indispensable and it is only within the discretion of
the IO. There is no right to cross-examine in a PI.
179. If there is PC, what shall prosecutor do? He
shall prepare both the resolution and information
with the certification. However, if there is no such
certification, the information is still considered
valid (it is the absence of PI that is not allowed).
Within 5 days from his resolution, he shall forward
the record of the case to the provincial or city
prosecutor or chief state prosecutor or OMB who
shall act on the resolution within 10 days from their
receipt thereof.
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
CHIEF STATE PROSECUTOR OR OMB. THUS,
THE RESOLUTION OF THE INVESTIGATING
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PROSECUTOR MAY BE REVERSED OR
AFFIRMED.
180. If there is no PC, what shall prosecutor do? He
shall recommend the dismissal of the complaint.
181. What should the City Prosecutor do upon
receipt of the recommendation of the
investigating prosecutor? He may by himself
affirm or disapprove the recommendation of the
investigating prosecutor.
182. What if the City Prosecutor will not agree with
the recommendation of dismissal? He may, by
himself file the information against the respondent
or direct another assistant prosecutor or state
prosecutor to do so without conducting another PI.
183. Can you file an MR with respect to the
resolution of the prosecutor? Yes, within 15
days from receipt of the assailed resolution
184. May the City Prosecutor file an information in
court knowing for a fact that a petition for
review is pending with the Sec of Justice?
185. Supposing you are the respondent in that
case, what should you do? File for a motion for
the suspension of the arraignment. It is suspended
only for 60 days. After 60 days, the court will now
schedule your arraignment which will now resume.
The court cannot grant a suspension of
arraignment for more than 60 days, otherwise the
judge will be liable administratively. This is why
smart lawyers will file for motion for suspension of
proceedings which the court can grant based on
its sound discretion. The judge may or may not
grant, subject to his sound discretion. The judge if
he grants will simply put it to hold.
186. From DOJ, where will you go on tax matters?
Court of Tax Appeals not CA when matters are tax
and tariff offenses
187. What is your remedy from the decision of the
OMB in criminal matters? In CRIMINAL
MATTERS, OMB ruling shall be elevated to the SC
by way of Rule 65. Ruling of OMB is restricted only
to determining grave abuse of discretion. The
remedy is not certiorari under Rule 45.
188. What if it is on administrative matters by the
OMB? CA under Rule 43.
189. Records of the PI, is it part of the records of
the case? No, but the court, on its own initiative or
on motion of any party may order the production of
the record or any of its part when the court
considers it necessary in the resolution of the case
or when it is introduced as an evidence in the case
by the requesting party
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190. What shall the judge do upon the filing of the
complaint or information? Dismiss if there is no
PC (considered as a final order—appeal is the
proper remedy), issue the WOA if there is PC or if
there is doubt, order the prosecutor to submit
additional evidence.
191. What if the judge dismisses the case, what is
the remedy of the prosecutor? Notice of Appeal
to the CA because the dismissal of the judge is a
final order (Sec 1, Rule 122—ordinary rules on
appeal). Herein, there is no violation of double
jeopardy since the first jeopardy has not attached.
There is no arraignment.
192. What is there is already an information but
there is a pending appeal in the DOJ and
subsequently, he finds that there is no PC to
begin with. What will the prosecutor do? Follow
the orders of his superior (Note: our Secretary of
Justice is Vitaliano Aguirre II and our OMB is
Conchita Carpio Morales)
193. What will the judge do when he is presented a
motion to withdraw information? The judge
must make his independent judgment. Although
the recommendation of the prosecutor is
persuasive, it is the court’s bounded duty to
assess independently the merits of the motion. If
the case is filed in court, it is not automatic that the
judge will grant that motion for withdrawal. It is
always subject to the sound discretion of the court.
Any disposition of the case or dismissal or
acquittal or conviction rests upon within the
exclusive jurisdiction, competence and discretion
of the trial court (see: Crespo v Mogul).
194. What if the court granted that motion to
withdraw and you are the offended party, what
will you do? Appeal to the CA (?)
RULE 113—ARREST
195. What is arrest? Arrest is the taking of a person
into custody in order that he may be bound to
answer for the commission of an offense
196. How do you effect a valid arrest? Actual
restraint is not needed. A submission to the
custody of the person making the arrest already
constitutes an arrest.
197. What is you committed an offense in the
presence of a peace officer, how will you effect
the arrest? Officer shall inform the person to be
arrested his authority and the cause of his arrest
unless giving of the information falls under the
exceptions.
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