PRELIMINARY CHAPTER
3. The Mixed System. — This is a combination of the
INTRODUCTION
CRIMINAL PROCEDURE
Criminal Procedure 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.
Criminal procedure is concerned with the procedural steps
through which a criminal case passes, commencing with the
initial investigation of a crime and concluding with the
unconditional release of the offender.
It is a generic term used to describe the network of laws and
rules which govern the procedural administration of criminal
justice, e.g., laws and court rules (e.g.. Rules of Criminal
Procedure) governing arrest, search and seizure, bail, etc.
SOURCES OF CRIMINAL PROCEDURE
1. The Spanish Law of Criminal Procedure.
2. General Orders No. 58, dated April 23, 1900.
3. Amendatory Acts passed by the Philippine Commission.
4. The various quasi acts, the Philippine Bill of 1902, the
Jones Law of 1916, the Tydings-McDuffie Law and the
Constitution of the Philippines.
5. The Rules of Court of 1940 and the 1964, 1985 and 1988
Rules on Criminal Procedure.
6. Various Republic Acts, e.g., R.A. No. 240; New Rule 127,
providing for attachment; R.A. No. 296, Judiciary Act of
1948 denning criminal jurisdiction, and B.P. Big. 129 as
amended by R.A. No. 7691; R.A. No. 8249, Creating the
Sandiganbayan; R.A. No. 8349, The Speedy Trial Act of
1998.
7. Presidential Decrees, e.g., P.D. No. 911; R.A. No. 732,
regulating the authority of Prosecuting Fiscals to Conduct
Preliminary Investigation.
8. Constitution — Rights of an Accused under Article III.
9. The Civil Code. (Arts. 32, 33 and 34)
10. Judicial decisions applying or interpreting our laws which
form part of our legal system.
11. R.A. No. 8493, The Speedy Trial Act of 1998.
12. Circulars.
13. The Revised Rules on Criminal Procedure.
THREE SYSTEMS OF CRIMINAL PROCEDURE
1. Inquisitorial. — The detection and prosecution of
offenders are not left to the initiative of private parties
but to the officials and agents of the law.
Resort is made to secret inquiry to discover the culprit
and violence and torture were often employed to extract
a confession.
The Judge was not limited to the evidence brought before
him but could proceed with his own inquiry which was not
confrontative.
2. Accusatorial. — The accusation is exercised by every
citizen or by a member of the group to which the injured
party belongs.
As the action is a combat between the parties, the
supposed offender has the right to be confronted by his
accuser.
The battle in the form of a public trial is judged by a
magistrate who renders the verdict.
1
inquisitorial and the accusatorial systems.
Thus, the examination of defendants and other persons
before the filing of the complaint or information may be
inquisitorial.
This is particularly true in the Preliminary examination,
for the purpose of issuing a warrant of arrest.
Under the 1985 Rules on Criminal Procedure, a criminal
action may be instituted by complaint of the offended
party or by information filed by the Fiscal and once the
criminal action is filed in court, the accused has the right
to confront and cross-examine his accuser.
It has, however, been held that:
"As a general rule, a court proceeding in our judicial set-up is
accusatorial or adversary and not inquisitorial in nature. It
contemplates two contending parties before the court which hears
them impartially and renders judgment only after trial."4
IMPORTANCE OF DUE PROCESS IN CRIMINAL CASES
"All trial courts, the Sandiganbayan included, are reminded
that they should take all the necessary measures
guaranteeing procedural due process from the inception of
custodial investigation up to rendition of judgment.
They are not to turn a blind eye to procedural irregularities
which transpired before the criminal case reached the court.
The validity and sufficiency of the information are important."
"Criminal due process requires that the accused must be proceeded
against under the orderly processes of law. In all criminal cases, the
judge should follow the step-by-step procedure required by the rules.
The reason for this is to assure that the State makes no mistake in
taking the life or liberty except that of the guilty."
CRIMINAL JURISDICTION OF COURTS
"CRIMINAL JURISDICTION"
is the authority to hear and try a particular offense and
impose the punishment for it.
The general rule is that the jurisdiction of a court is
determined by:
(1) the geographical limits of the territory over which it
presides, and
(2) the actions (civil and criminal), it is empowered to
hear and decide.
ELEMENTS OF JURISDICTION IN CRIMINAL CASES
The elements of jurisdiction of a trial court over the subject
matter in a criminal case are:
a. The nature of the offense and/or penalty attached
thereto; and
b. The fact that the offense has been committed within the
territorial jurisdiction of the court.
The non-concurrence of either of these two elements may be
challenged by an accused at any stage of the proceedings in
the court below or on appeal.

Failing in one of them, a judgment of conviction is null and
void.
REQUISITES FOR VALID EXERCISE OF CRIMINAL
JURISDICTION
Three important requisites must be present before a court can
validly exercise its power to hear and try a case:
a. It must have jurisdiction over the subject matter;
b. It must have jurisdiction over the territory where the
offense was committed;
c. It must have jurisdiction over the person of the accused.
JURISDICTION OVER THE SUBJECT MATTER is the power
to hear and determine cases of the general class to which the
proceedings in question belong.8
JURISDICTION IS CONFERRED BY LAW
The Philippine Courts have no common law jurisdiction or
power, but only those expressly conferred by the Constitution
and statutes and those necessarily implied to make the
express powers effective.
STATUTE IN FORCE AT COMMENCEMENT OF ACTIONS
DETERMINES JURISDICTION
Jurisdiction over the subject matter is determined by the stat-
ute in force at the time of the commencement of the action
and not at the time of its commission even if the penalty that
may be imposed at the time of its commission is less and
does not fall under the court's jurisdiction.
Jurisdiction is conferred only by the Constitution or by-law.
It cannot be fixed by the will of the parties nor can it be
acquired or diminished by any act of the parties.
In determining whether a case lies within or outside the
jurisdiction of a court, reference to the applicable statute on
the matter is indispensable.
It is a settled rule that jurisdiction of a court is determined by
the statute in force at the time of commencement of action.
The principle, however, is different, where jurisdiction is
dependent on the nature of the position of the accused at the
time of the commission of the offense.
In Subido v. Sandiganbayan, jurisdiction was determined by the
position of the accused at the time of the commission of the offense.
The crime of arbitrary detention was allegedly committed on June 25,
1992 when accused was a Commissioner of the BID. R.A. No. 7975
took effect on May 6, 1995 vesting the Sandiganbayan with exclusive
jurisdiction for crimes committed by public officers corresponding to
Grade 27.
The information was filed on 28 July 1995 when accused was already a
private citizen. He claimed that under the law at the time of the
commencement of the action, the Sandiganbayan has no jurisdiction
over him for the offense charged.
HELD: Republic Act No. 7975 (amended by R.A. No. 8249) as regards
the Sandiganbayan's jurisdiction, mode of appeal and other proce-
dural matters, was held as a procedural law and may validly be given
retroactive effect, there being no impairment of contractual or vested
rights.
It was held that the Sandiganbayan has no jurisdiction over an anti-
graft case allegedly committed by public officers who at the time of the
filing of the information falls below Grade 27.
2
JURISDICTION DETERMINED BY ALLEGATIONS OF
COMPLAINT
The averments in the complaint or information characterizes
the crime to be prosecuted and the court before which it must
be tried.
In order to determine the jurisdiction of the court in criminal
cases, the complaint must be examined for the purpose of
ascertaining whether or not the facts set out therein and the
punishment provided for by law for such facts fall within the
jurisdiction of the court where the complaint is filed.
The jurisdiction of courts in criminal cases is determined by
the allegations of the complaint or information and not by the
findings the court may make after the trial.
PRINCIPLES OF JURISDICTION
a. The general rule is that the jurisdiction of a court is
determined by: (1) the geographical limits of the territory
over which it presides, and (2) the action (civil and
criminal) it is empowered to hear and decide.
b. As the question of jurisdiction is always of importance, if
the prosecution fails to prove that fact, the court may
always permit it to present additional evidence to show
the fact that the crime was committed within its
jurisdiction.
c. The filing of a complaint or information in Court initiates
a criminal action.
The Court thereby acquires jurisdiction over the case,
which is the authority to hear and determine the case.
When after the filing of the complaint or information a
warrant for the arrest of the accused is issued by the trial
court and the accused either voluntarily submitted
himself to the Court or was duly arrested, the Court
thereby acquired jurisdiction over the person of the
accused.
d. Lack of jurisdiction over the subject matter of an action is
fatal and an objection based upon this ground may be
interposed at any stage of the proceedings.
Jurisdiction is conferred only by the sovereign authority
which organizes the courts.
When jurisdiction over an offense has not been conferred
by law, the accused cannot confer it by express waiver or
otherwise.
Jurisdiction over criminal cases cannot be conferred by
consent.
Even if a party fails to file a motion to quash, he may still
question the jurisdiction of the court later on.
Moreover, these objections may be raised or considered
motu proprio by the court at any stage of the
proceedings or on appeal.
e. If under the law the court has no jurisdiction over the
subject matter, it cannot take cognizance of the case,
notwithstanding the silence or acquiescence of the
accused.
The exception is when there is estoppel by laches to bar
attacks on jurisdiction.
f. Estoppel by Laches to Question Jurisdiction in Criminal
Cases
Generally, the doctrine of estoppel does not apply as
against the people in criminal prosecutions.
The principle, however, earlier laid down in the case of
Tijam v. Sibonghanoy2'' which bars a party from
attacking the jurisdiction of the court by reason of
estoppel by laches have been extended to criminal cases.
See, however, Fuzume v. Court of'Appeals, holding that
accused or the court may motu proprio raise lack of
jurisdiction over the subject matter in a criminal case for
the first time on Appeal.
Immunity from suit is a jurisdictional question.
g. Principle that there is no estoppel against State
The settled rule is that the State is not estopped by the
mistakes of its officers and employees. Indeed, in Cruz,
Jr. v. Court of Appeals, the Court declared:
. . . Estoppel does not lie against the government because of the
supposedly mistaken acts or omissions of its agents.
As we declared in People v. Castaneda, "there is the long familiar
rule that erroneous application and enforcement of the law by
public officers do not block subsequent correct application of the
statute and that the government is never estopped by mistake or
error on the part of its agents."
The Court also held in Chua v. Court of Appeals:
. . . While ordinarily, certiorari is unavailing where the appeal
period has lapsed, there are exceptions. Among them are:
(a) when public welfare and the advancement of public policy
dictates;
(b) when the broader interest of justice so requires;
(c) when the writs issued are null and void; or
(d) when the questioned order amounts to an oppressive
exercise of judicial authority... .
h. A conviction or acquittal before a court having no
jurisdiction is, like all proceedings in the case, absolutely
void, and is therefore no bar to subsequent indictment
and trial in a court which has jurisdiction of the offense.
ADHERENCE OF JURISDICTION
Once jurisdiction is vested in the court, it is retained up to the
end of the litigation.
Ordinarily, jurisdiction once acquired is not affected by
subsequent legislative enactment placing jurisdiction in
another tribunal.
It remains with the court until the case is finally terminated.
Thus, it has been held that the Sandiganbayan or the courts
as the case may be, cannot be divested of jurisdiction over
cases filed before them by reason ofR.A. No. 7975.
They retain their jurisdiction until the end of the litigation.
EXCEPTION TO PRINCIPLE OF ADHERENCE
Where, however, the subsequent statute expressly provides,
or is construed to the effect that it is applicable to operate as
to actions pending before its enactment.
Where a statute changing the jurisdiction of a court has no
retroactive effect, it cannot be applied to a case that was
3
pending prior to the enactment of the statute.
R.A. No. 7975 by virtue of Section 7 belongs to the exception
rather than a rule.
The provision is transitory in nature and expresses the
legislature's intention to apply its provisions on jurisdiction to
criminal cases in which trial has not begun in the
Sandiganbayan. To this extent R.A. No. 7975 is retroactive.
In another case, the court held that although the
Sandiganbayan has jurisdiction at the time the charge was
filed, it lost jurisdiction upon the enactment of R.A. No. 7975
because he falls below the rank of full colonel, and trial has
not yet begun.
In Lacson v. Executive Secretary, the amendment in R.A. No.
8249 that in cases where none of the accused are occupying
positions corresponding to Salary Grade "27" or higher, as
prescribed in the said Republic Act No. 6758, or military and
PNP officers mentioned above, exclusive original jurisdiction
thereof shall be vested in the proper regional trial court,
metropolitan trial court, municipal trial court, and municipal
circuit trial court, as the case may be, pursuant to their
respective jurisdictions as provided in Batas Pambansa Big.
129, as amended, was applied to the pending criminal case in
the Sandiganbayan.
The previous law vests jurisdiction in the RTC where none of
the principal accused are occupying positions corresponding
to Salary Grade 27.
The term "principal" was deleted so that under the
amendment, if an accomplice belongs to Salary Grade 27,
then jurisdiction is with the Sandiganbayan even if none of
the principals belong to a lower salary grade. The amendment
was applied retroactively.
JURISDICTION OVER OFFENSE
a. In criminal cases, the court must examine the complaint
for the purpose of ascertaining whether or not the facts
set out and the punishment provided by law for such act,
fall within the jurisdiction of the court.
If the criminal act charged is punished by law with a
penalty which pertains to the jurisdiction of the court, it
falls under the original jurisdiction thereof, although the
penalty it may have to impose in accordance with the
evidence is below that which falls under its jurisdiction.
b. Where a complaint is presented in court charging the
defendant with murder, at the close of the trial, the court
finds that the crime committed was assault and battery
only.
Justices of the peace have original jurisdiction over the
offense of assault and battery, the complaint, however,
gave the Court of First Instance jurisdiction over the
alleged crime.
It retains jurisdiction for the purpose of imposing the
penalty provided for by law for the crime proved to have
been committed.
c. Where the court has jurisdiction of the subject matter
and the person of the accused, it is not necessary, in
order to maintain that jurisdiction, to decide the case
correctly.
The Court has jurisdiction to decide wrongly as well as
rightly.
d. It is not a jurisdictional defect and one which deprives
the court of its authority to try, convict and pass
sentence, that a criminal action is brought in the name of
the City of Manila instead of the United States.
The fact constitutes a mere defect or error curable at any
stage of the action, it does not deprive the court of the
power to pronounce a valid judgment and impose a valid
sentence, and it cannot be made the basis of a writ of
habeas corpus
e. The court having jurisdiction of the offense has also
jurisdiction to determine the disposition of the instrument
used in the commission of the crime.
As an accessory penalty, the instrument used in the
commission of the offense shall be forfeited unless it
belongs to a third person who is not liable for the offense
which the instrument was used to commit.
It is the duty of the court therefore to dispose of the
same upon the application of any person interested.
The person to whom the instrument belongs has a right
to take his proceeding to the court having jurisdiction of
the offense for the purpose of having his rights in the
premises determined.
f. Where a court is given jurisdiction over a specific class of
crimes, that jurisdiction will continue whether that class
be enlarged or diminished or whether the penalty for a
violation be increased or diminished.
g. Where the military authorities had jurisdiction over the
person of a military officer at the time of the alleged
offenses, the jurisdiction having been vested, it is
retained up to the end of the proceedings.
Jurisdiction once acquired is not lost upon the instance of
the parties but continues until the case is terminated.
h. Subject matter of jurisdiction in criminal cases is deter-
mined by the authority of the court to impose the penalty
imposable under the applicable statute given the
allegation of a criminal information.
In People v. Purisima, the Court stressed that:
"x x x. In criminal prosecutions, it is settled that the jurisdiction
of the court is not determined by what may be meted out to the
offender after trial, or even by the result of the evidence that
would be presented at the trial, but by the extent of the penalty
which the law imposes for the misdemeanor, crime or violation
charged in the complaint.
If the facts recited in the complaint and the punishment provided
for by law are sufficient to show that the court in which the
complaint is presented has jurisdiction, that court must assume
jurisdiction
The same rule was set forth and amplified in People v.
Buissan in the following terms:
xxx [i]n criminal prosecutions, jurisdiction of the court is not
determined by what may be meted out to the offender after
trialor even by the result of the evidence that would be presented
during the trial but by the extent of the penalty which the law
imposes, together with other legal obligations, on the basis of the
facts as recited in the complaint or information constitutive of the
offense charged, for once jurisdiction is acquired by the court in
which the information is filed, it is retained regardless of whether
or not the evidence proves a lesser offense than that charged in
the information.
4
Thus, it may be that after trial, a penalty lesser than the
maximum imposable under the statute is proper under
the specific facts and circumstances proven at the trial.
In such a case, that lesser penalty may be imposed by
the trial court (provided it has subject-matter jurisdiction
under the rule above referred to) even if the reduced
penalty otherwise falls within the exclusive jurisdiction of
an inferior court.
TERRITORIAL JURISDICTION
It is a fundamental rule that for jurisdiction to be acquired by
courts in criminal cases, the offense should have been
committed or any one of its essential ingredients took place
within the territorial jurisdiction of the court.
Territorial jurisdiction in criminal cases is the territory where
the court has jurisdiction to take cognizance or to try the
offense allegedly committed by the accused.
Thus, it cannot take jurisdiction over a person charged with
an offense allegedly committed outside of that limited
territory.
Furthermore, the jurisdiction of a court over the criminal case
is determined by the allegations in the complaint or
information.
And once it is so shown, the court may validly take
cognizance of the case.
However, if the evidence adduced during the trial show that
the offense was committed somewhere else, the court should
dismiss the action for want of jurisdiction.
In criminal proceedings, the rule is that one cannot be held to
answer for any crime committed by him except in the
jurisdiction where it was committed.
Said rule is- based on the legal provision which prescribes the
essential requisites of a good complaint or information, one of
which is the allegation that the crime was committed within
the jurisdiction of the court where the complaint or infor-
mation is filed and that said court has authority to try it.
As was said in the case of United States v. Cunanan, the
jurisdiction of the Courts of First Instance of the Philippine
Islands, in criminal cases is limited to certain well-defined
territory, so that they cannot take jurisdiction of persons
charged with an offense alleged to have been committed
outside of that limited territory.
Jurisdiction of the Courts in criminal cases rests upon a differ-
ent footing from that in civil cases.
In criminal cases, the people of the State is a party.
The interests of the public require that, to secure the best
results and effects in the punishment of crime, it is necessary
to prosecute and punish the criminal in the very place, as
near as may be, where he committed his crime.
As a result, it has been the uniform legislation, both in
statutes and in constitution, that the venue of a criminal
action must be laid in the place where the crime was
committed.
While the laws here do not specifically and in terms require it,
it is the established custom and the uniform holding that
criminal prosecutions must be brought and conducted, except
in cases especially provided by law, in the province where the
crime is committed.
Judicial divisions or districts (now regions) are always fixed by
law so that any changes or alterations of the same can only
be effected by express legislation and not by mere inference
or deduction.
Proceedings in a criminal case before a judge acting without
jurisdiction are void, but this fact will not preclude the filing of
a new complaint upon the dismissal of the former proceeding.
WHEN PLACE OF CRIME NOT ALLEGED
Where the place of the commission of the offense was not
specifically charged, the place may be shown by the evidence.
Thus, the insufficiency of the complaint charging adultery
without stating the place where the acts of adultery were
committed, or that the accused knew the woman was married
at the time of cohabitation, assigned as error as the
conviction thereon amounted to a conviction without
informing the defendants of the nature and character of the
offense, and besides equivalent to a conviction without due
process of law.
No such question having been raised before final judgment in
the trial court, but every ingredient of the crime having been
established in the evidence, there was no error committed
upon which to base a reversal of conviction.
ACTION BY COURT WHERE IT HAS NO JURISDICTION
When the record discloses that the crime as alleged in the
complaint was not committed in the province wherein the trial
was had, and the accused was not arrested in that province
and defendant had not fled therefrom, the Court of First
Instance of that province has no jurisdiction to impose
sentence.
In such cases, if the court has reasonable ground to believe
that the crime has been committed, the accused should be
remanded to the court of proper jurisdiction for trial.
It has been held that where the court has no jurisdiction at
the time of the filing of the complaint, instead of ordering the
transfer, the court should dismiss the case.
However, in Republic v. Asuncion, and Cunanan v. Arcco, the
Court sanctioned the transfer of the cases from the RTC for
lack of jurisdiction to the Sandiganbayan, while in Lacson v.
The Executive Secretary, the Court (en bane) ordered the
transfer of the cases from the Sandiganbayan for lack of
jurisdiction to the Regional Trial Court of Quezon City which
has exclusive original jurisdiction over said cases.
In Cuyco u. Sandiganbayan, the court ordered the
Sandiganbayan to dismiss the case for lack of jurisdiction, but
informed the Ombudsman that it may re-file the cases with
the court of proper jurisdiction, the RTC of Zamboanga City.
In his concurring opinion, Chief Justice Davide, Jr., asked to
REFER the case to the RTC instead of dismissing the cases.
It is believed that under its supervisory authority, the
Supreme Court and even the Court of Appeals may properly
refer the case to the court of proper jurisdiction.
Courts of the first and second level is without authority to
order the transfer.
If the said courts believe that it has no jurisdiction over the
5
subject matter, its jurisdiction is limited to simply dismissing
the case.
JURISDICTION OF MUNICIPAL TRIAL COURTS IN
CRIMINAL CASES
Republic Act No. 7691 which took effect on April 15, 1994
amended B.P. Big. 129, otherwise known as "The Judiciary
Reorganization Act of 1980" by Expanding the Jurisdiction of
the aforementioned courts as follows:
Exclusive Original Jurisdiction
xxx SEC. 2. Section 32 of the same law is hereby amended to
read as follows:
"SEC. 32. Jurisdiction of Metropolitan Trial Courts, Municipal
Trial Courts and Municipal Circuit Trial Courts in Criminal Cases.
— Except in cases falling within the exclusive original jurisdiction of the
Regional Trial Court and of the Sandiganbayan, the Metropolitan Trial
Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall
exercise:
(1) Exclusive original jurisdiction over all violations of city or municipal
ordinances committed within their respective territorial jurisdiction;
and
(2) Exclusive original jurisdiction over all offenses punishable with
imprisonment not exceeding six (6) years irrespective of the amount
of fine, and regardless of other imposable accessory or other penalties,
including the civil liability arising from such offenses or predicated
thereon, irrespective of kind, nature, value or amount thereof:
Provided, however. That in offenses involving damage to property
through criminal negligence, they shall have exclusive original
jurisdiction thereof."
Interpreting the foregoing law, the Supreme Court issued
Administrative Circular 09-94 as follows:
Subject: Guidelines in the implementation of Republic Act No. 7691,
Entitled "An Act Expanding the Jurisdiction of the Metropolitan Trial
Courts, Municipal Trial Courts and Municipal Circuit Trial Courts,
Amending For the Purpose Batas Pambansa Big. 129, otherwise known
as the Judiciary Reorganization Act of 1980."
For the guidance of the Bench and the Bar, the following
guidelines are to be followed in the implementation of
Republic Act No. 7691, entitled "An Act Expanding the
Jurisdiction of the Metropolitan Trial Courts, Municipal Trial
Courts, and Municipal Circuit Trial Courts, Amending for the
Purpose Batas Pambansa Big. 129, otherwise known as the
'Judiciary Reorganization Act of 1980'":
(3) The criminal jurisdiction of the Metropolitan Trial Courts,
Municipal Trial Courts, and Municipal Circuit Trial Courts
under Section 32(2) ofB.P. Big. 129, as amended by R.A.
No. 7691, has been increased to cover offenses
punishable with imprisonment not exceeding six (6)
years irrespective of the amount of the fine.
As a consequence, the Regional Trial Courts have no
more original jurisdiction over offenses committed by
public officers and employees in relation to their office,
where the offense is punishable by more than four (4)
years and two (2) months up to six (6) years.
(4) The provisions of Section 32(2) of B.P. Big. 129, as
amended by R.A. No. 7691, apply only to offenses
punishable by imprisonment or fine, or both, in which
cases the amount of the fine is disregarded in
determining the jurisdiction of the court.
However, in cases where the only penalty provided by
law is a fine, the amount thereof shall determine the
 jurisdiction of the court in accordance with the original
provisions of Section 32(2) of B.P. Big. 129 which fixed
the original exclusive jurisdiction of the Metropolitan Trial
Courts, Municipal Trial Courts, and Municipal Circuit Trial
Courts over offenses punishable with a fine of not more
than Four thousand pesos.
If the amount of the fine exceeds Four thousand pesos,
the Regional Trial Courts shall have jurisdiction, including
offenses committed by public officers and employees in
relation to their office, where the amount of the fine does
not exceed Six thousand pesos.
However, this rule does not apply to offenses involving
damage to property through criminal negligence which
are under the exclusive original jurisdiction of the
Metropolitan Trial Courts, Municipal Trial Courts, and
Municipal Circuit Trial Courts, irrespective of the amount
of the imposable fine."
The opening Paragraph of Section 32 excepts cases fall-
ing within the exclusive original jurisdiction of Regional
Trial Court and of the Sandiganbayan — from the
expanded jurisdiction of the aforementioned courts even
if the offense is punishable with imprisonment not
exceeding six (6) years.
In other words, where jurisdiction is determined by the
nature of the offense and not by the penalty, jurisdiction
should remain in the Regional Trial Court or the
Sandiganbayan.
For example:
1) Libel is punishable by prision corrreccional in its
minimum and maximum period or fine or bail.
(Article 354, R.P.C.) Article 360, however, of the
same code as amended, provides that the criminal
and civil action for damages in cases of written
defamation shall be filed in the Court of First
Instance, etc."
2) Jurisdiction over Election Offenses
SEC. 268. Jurisdiction of courts. — The regional trial court shall have
the exclusive original jurisdiction to try and decide any criminal action
or proceedings for violation of this Code, except those relating to the
offense of failure to register or failure to vote which shall be under the
jurisdiction of the metropolitan or municipal trial courts.
From the decision of the courts, appeal will lie as in other criminal
cases.
3) ARTICLE X — Jurisdiction Over Dangerous Drugs Cases
SEC. 39. Jurisdiction. — The Court of First Instance, Circuit Criminal
Court, and Juvenile and Domestic Relations Court shall have
concurrent original jurisdiction over all cases involving offenses
punishable under this Act:
Provided, That in cities or provinces where there are .Juvenile and
Domestic Relations Courts, the said courts shall take exclusive
cognizance of cases where the offenders are under sixteen years of
age.
4) Cases which falls under the original and exclusive
jurisdiction of the Sandiganbayan regardless of the
imposable penalty.
Thus, the aforementioned exception refers not only to
Section 20 ofB.P. Big. 129 providing for the jurisdiction of
Regional Trial Courts in criminal cases, but also to other
laws which specifically lodged in Regional Trial Courts'
exclusive jurisdiction over specific criminal cases, e.g.,
6
(a) Article 360 of the Revised Penal Code, as amended
by R.A. Nos. 1289 and 4363 on written defamation
or libel;
(b) Decree on Intellectual Property (P.D. No. 49, as
amended), which vests upon Courts of First Instance
exclusive jurisdiction over the cases therein
mentioned regardless of the imposable penalty; and
(c) more appropriately, Section 39 of R.A. No. 6425, as
amended by P.D. No. 44, which vests on Courts of
First Instance, Circuit Criminal Courts, and the
Juvenile and Domestic Relations Courts concurrent
exclusive original jurisdiction over all cases involving
violations of said Act.
5) Cases which fall under the original and exclusive ju-
risdiction of Family Courts under Republic Act No. 8369
known as the Family Courts Act of 1997.
CIVIL LIABILITY IRRESPECTIVE OF KIND OR NATURE
Where the offense charged is within its exclusive competence
by reason of the penalty prescribed therefor, an inferior court
shall have jurisdiction to try and decide the case irrespective
of the kind and nature of the civil liability arising from the
said offense.
The jurisdiction of the court is also determined by the amount
of the fine and imprisonment.
But an indemnification or a reparation or a restitution is
merely an incident of the crime.
The jurisdiction of the courts is not fixed by the incident but
by the nature of the crime itself.
Legally speaking, the nature of the crime is determined by
the punishment imposed.
Thus, it has been held that the jurisdiction of courts of justice
of the peace over crimes is determined exclusively by the
amount of the fine and imprisonment imposed by the law,
that is by the legal nature of the crime, and in no matter and
to no extent whatever by the civil incidents which accrue to
the person injured by the commission of said crime.
Thus, an inferior court has jurisdiction over a case of simple
seduction defined and penalized under Article 338 of the
Revised Penal Code, as amended, with arresto mayor,
regardless of the civil liability that may be imposed under
Article 345 of the same code. This supersedes U.S. v.
Barredo.
Other Imposable Penalties — The additional penalty for
habitual delinquency is not considered in determining which
court shall have jurisdiction over a criminal case because such
delinquency is not a crime.
SPECIAL JURISDICTION IN CERTAIN CASES
In the absence of all the Regional Trial Judges in a province or
city, any Metropolitan Trial Judge, Municipal Trial Judge,
Municipal Circuit Trial Judge may hear and decide petitions for
a writ of habeas corpus or application for bail in criminal
cases in the province or city where the absent Regional Trial
Judges sit.
CRIMINAL JURISDICTION OF REGIONAL TRIAL COURTS
Regional Trial Courts shall exercise exclusive original jurisdic-
tion in all criminal cases not within the exclusive jurisdiction
of any court, tribunal or body, except those now falling under
the exclusive and concurrent jurisdiction of the
Sandiganbayan which shall hereafter be exclusively taken
cognizance by the latter.
JURISDICTION OVER COMPLEX CRIMES
Jurisdiction over the whole complex crime must logically be
lodged with the trial court having jurisdiction to impose the
maximum and most serious penalty imposable on an offense
forming part of the complex crime.
A complex crime must be prosecuted integrally, as it were,
and not split into its component offenses and the latter made
the subject of multiple informations possibly brought in differ-
ent courts.
ORIGINAL AND EXCLUSIVE JURISDICTION OF FAMILY
COURTS
Republic Act No. 8369 established Family Courts granting
them exclusive original jurisdiction over child and family cases
namely:
a. Criminal case where one or more of the accused is below eighteen
(18) years of age but not less than nine (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, however, shall be suspended without need of application
pursuant to Presidential Decree No. 603, otherwise known as the
"Child and Youth Welfare Code."
i. Cases against minors cognizable under the Dangerous Drugs
Acts, as amended;
j. Violations of Republic Act No. 7610, otherwise known as the
"Special Protection of Children Against Child Abuse, Exploitation
and Discrimination Act," as amended by Republic Act No. 7658;
and
k) Cases of domestic violence against:
1) Women — which are acts of gender based violence that
result, or are likely to result in physical, sexual or
psychological harm or suffering to women; and other forms
of physical abuses battering or threats and coercion which
violates a woman's personhood, integrity and freedom of
movement; and
2) Children — which include the commission of all forms of
abuse, neglect, cruelty, exploitation, violence, and
discrimination and all other conditions prejudicial to their
development.
If an act constitutes a criminal offense, the accused or batterer
shall be subject to criminal proceedings and the corresponding
penalties.
JURISDICTION OF THE SANDIGANBAYAN CHANGED BY
REPUBLIC ACT NO. 8249
The jurisdiction of the Sandiganbayan under Presidential
Decree No. 1606, as amended by Executive Order No. 184,
has been changed by REPUBLIC ACT NO. 8249 — "AN ACT TO
STRENGTHEN THE FUNCTIONAL AND STRUCTURAL
ORGANIZATION OF THE SANDIGANBAYAN, AMENDING FOR
THAT PURPOSE PRESIDENTIAL DECREE NO. 1606."
Jurisdiction. — The Sandiganbayan shall exercise exclusive
original jurisdiction in all cases involving:
"a. Violations of Republic Act No. 3019, as amended, oth-
7
erwise known as the Anti-Graft and Corrupt Practices Act,
Republic Act No. 1379, and Chapter II, Section 2, Title
VII, Book II of the Revised Penal Code, where one or
more of the accused are officials occupying the following
positions in the government, whether in a permanent,
acting or interim capacity, at the time of the commission
of the offense:
(I) Official of the executive branch occupying the posi-
tions of regional director and higher, otherwise
classified as Grade '27' and higher, of the
Compensation and Position Classification Act of 1989
(Republic Act No. 6758), specifically including:
"(a) Provincial governors, vice-governors, members
of the sangguniang panlalawigan, and provincial
treasurers, assessors, engineers, and other
provincial department heads;
"(b) City mayors, vice-mayors, members of the
sangguniang panlungsod, city treasurers,
assessors, engineers, and other city department
heads;
"(c) Officials of the diplomatic service occupying the
position of consul and higher;
"(d) Philippine army and air force colonels, naval
captains, and all officers of higher rank;
"(e) Officers of the Philippine National Police while
occupying the position of provincial director and
those holding the rank of senior superintendent
or higher;
"(f) City and provincial prosecutors and their assist-
ants, and official and prosecutors in the Office of
the Ombudsman and special prosecutor; and
"(g) Presidents, directors or trustees, or managers of
government-owned or -controlled corporations,
state universities or educational institutions or
foundations;
"(2) Members of Congress and officials thereof classified
as Grade '2' and up under the Compensation and
Position Classification Act of 1989;
"(3) Members of the judiciary without prejudice to the
provisions of the Constitution;
"(4) Chairmen and members of Constitutional Commis-
sions, without prejudice to the provisions of the
Constitution; and
"(5) All other national and local officials classified as
Grade '27' and higher under the Compensation and
Position Classification Act of 1989.
"b. Other offenses or felonies whether simple or complexed
with other crimes committed by the public officials and
employees mentioned in subsection (a) of this section in
relation to their office.
"c. Civil and criminal case filed pursuant to and in connection
with Executive Order Nos. 1, 2, 14 and 14-A, issued in
1986.
“In cases where none of the accused are occupying posi-
tions corresponding to Salary Grade '27' or higher, as
prescribed in the said Republic Act No. 6758, or military
and PNP officers mentioned above, exclusive original
 jurisdiction thereof shall be vested in the proper regional
trial court, metropolitan trial court, municipal trial court,
and municipal circuit trial court, as the case may be,
pursuant to their respective jurisdictions as provided in
Batas Pambansa Big. 129, as amended.
"The Sandiganbayan shall exercise exclusive appellate
jurisdiction over final judgments, resolutions or orders of
regional trial courts whether in the exercise of their own
original jurisdiction or of their appellate jurisdiction as
herein provided.
"The Sandiganbayan shall have exclusive original juris-
diction over petitions for the issuance of the writs of
mandamus, prohibition, certiorari, habeas corpus,
injunctions, and other ancillary writs and processes in aid
of its appellate jurisdiction and over petitions of similar
nature, including quo warranto, arising or that may arise
in cases filed or which be filed under Executive Order
Nos. 1, 2, 14 and 14-A, issued in 1986:
Provided, That the jurisdiction over these petitions shall
not be exclusive of the Supreme Court.
"In case private individuals are charged as co-principals,
accomplices or accessories with the public officers or
employees including those employed in government-
owned or -controlled corporations, they shall be tried
jointly with said public officers and employees in the
proper courts which shall exercise exclusive jurisdiction
over them."
CONSEQUENCE OF AMENDMENTS
As a consequence of these amendments, the Sandiganbayan
partly lost its exclusive original jurisdiction in cases involving:
a. Violations of R.A. No. 3019;
b. R.A. No. 1379; and
c. Chapter II, Section 2, Title VII of the Revised Penal Code.
(Article 210, Direct Bribery; Article 211, Indirect Bribery;
andArticle 212, Corruption of Public Officials).
The Sandiganbayan retains jurisdiction only in cases where
the accused are those enumerated in subsection (a) Section 4
above and, generally, national and local officials classified as
Grade "27" and higher under the Compensation and Position
Classification Act of 1989.
Moreover, its jurisdiction over other offenses or felonies
committed by public officials and employees in relation to
their office is no longer determined by the prescribed penalty,
viz., that which is higher than prision correccional or
imprisonment for six years or a fine ofP6,000.00; it is enough
that they are committed by those public officials and
employees enumerated in subsection a, Section 4 above.
However, it retains its exclusive original jurisdiction over civil
and criminal cases filed pursuant to or in connection with E.O.
No. I.
JURISDICTION OF SANDIGANBAYAN OVER PUBLIC
OFFICERS
Prior to the amendment (R.A. No. 7975), jurisdiction of the
Sandiganbayan for felonies other than violation of R.A. No.
3019 as amended, otherwise known as the Anti-Graft and
Corrupt Practices Act, Republic Act No. 1379, and Chapter II,
Section 2, Title VII of the Revised Penal Code, embrace all
other offenses provided, the offense was committed in
relation to public office and the prescribed penalty is more
than six years.
8
Under the present law, both the nature of the offense and the
positions occupied by the accused are the conditions sine qua
non before the Sandiganbayan can validly take cognizance of
the case.
DETERMINATION OF JURISDICTION
Republic Act No. 8249 collated the provisions on the exclusive
jurisdiction of the Sandiganbayan.
Its original jurisdiction as a trial court was made to depend
not on the penalty imposed by the law on crimes and offenses
within its jurisdiction but on the rank and salary grade of the
acused government officials and employees.
To determine the jurisdiction of the Sandiganbayan in cases
involving violations of Rep. Act No. 3019, the reckoning
period is the time of the commission if the offense.
Includes officials specifically mentioned even if below
Grade 27
The specific inclusion of the officials from (a) to (g)
constitutes an exception to the general qualification relating
to officials of the executive branch as "occupying the positions
of regional director and higher, otherwise classified as grade
27 and higher, of the Compensation and Classification Act of
1989.
In other words, violation of Rep. Act No. 3019 committed by
officials specifically enumerated in (a) to (g) regardless of
their salary grade.
All other officials below grade 27 shall be under the
jurisdiction of the proper trial courts.
PURPOSES OF DETERMINING THE GOVERNMENT
OFFICIALS THAT FALL WITHIN THE ORIGINAL
JURISDICTION OF THE SANDIGANBAYAN IN CASES
INVOLVING VIOLATIONS OF REP. ACT NO. 3019 AND
CHAPTER II, SECTION 2, TITLE VII OF THE REVISED
PENAL CODE — BRIBERY (ART. 210), INDIRECT
BRIBERY (ART. 211) AND CORRUPTION OF PUBLIC
OFFICIALS (ART. 212)
Rep. Act No. 7975 has grouped them into five categories, to
wit:
(1) Officials of the executive branch occupying the positions
of regional director and higher, otherwise classified as
grade 27 and higher;
(2) Members of Congress and officials thereof classified as
Grade "27" and up under the Compensation and Position
Classification Act of 1989;
(3) Members of the judiciary without prejudice to the
provisions of the Constitution;
(4) Chairmen and members of Constitutional Commissions,
without prejudice to the provisions of the Constitution;
and
(5) All other national and local officials classified as Grade
"27" and higher under the Compensation and Position
Classification Act of 1989.
The Sandiganbayan has original jurisdiction over criminal
cases involving crimes and felonies under the first
classification:
"a. Violations of Republic Act No. 3019, as amended, other-
wise known as the Anti-Graft and Corrupt Practices Act,
Republic Act No. 1379, and Chapter II, Section 2, Title
VII, Book II of the Revised Penal Code, where one or
more of the accused are officials occupying the following
positions in the government, whether in a permanent,
acting or interim capacity, at the time of the commission
of the offense.
The exclusive jurisdiction of the Sandiganbayan over
those public officers holding positions classified as Grade
27 refers to Violations ofR.A. No. 3019, Act No. 1379 and
Chapter II, Section 2, Title VII, Book II of the Revised
Penal Code referring to Malfeasance and Misfeasance in
office
(1) Art. 204, knowingly rendering an unjust judgment;
(2) Art. 205, Judgment rendered thru negligence;
(3) Art. 206, Unjust Interlocutory Order;
(4) Art. 207, Malicious Delay in the administration of
justice;
(5) Art. 208, Prosecution of offenses; negligence and
tolerance;
(6) Art. 209, Betrayal of trust by an attorney or solicitor
— Revelation of secrets;
(7) Art. 210, Direct Bribery;
(8) Art. 211, Indirect Bribery;
(9) Art. 211-A, Qualified Bribery;
(10) Art. 212, Corruption of public officials.
which does not include the crime of Rebellion or coup
d'etat. With respect to other offenses or felonies whether
simple or complexed with other crimes committed by
public officials and employees mentioned in subsection
(a) in relation to their office.
In other words, the case would fall under the
Sandiganbayan if the crime is committed "in relation to
public office except the crimes of rebellion and coup
d'etat.
Sandiganbayan has jurisdiction even if Co-Accused in
Malversation below Grade 27
Two of the felonies that belong to the first classification are
malversation defined and penalized by Article 217 of the
Revised Penal Code, and the illegal use of public funds or
property defined and penalized by Article 220 of the same
Code.
The public office of the accused Municipal Mayor Virginio E.
Villamor is a constituent element of malversation and illegal
use of public funds or property.
Accused mayor's position is classified as SG 27. Since the
Amended Informations alleged that the petitioner conspired
with her co-accused, the municipal mayor, in committing the
said felonies, the fact that her position as municipal
accountant is classified as SG 24 and as such is not an
accountable officer is of no moment; the Sandiganbayan still
has exclusive original jurisdiction over the cases lodged
against her.
It must be stressed that a public officer who is not in charge
of public funds or property by virtue of her official position, or
even a private individual, may be liable for malversation or
illegal use of public funds or property if such public officer or
private individual conspires with an accountable public officer
to commit malversation or illegal use of public funds or
property.
The determinative fact is that the position of her co-accused,
9
the municipal mayor, is classified as SG 27, and under the
last paragraph of Section 2 of Rep. Act No. 7975, if the
position of one of the principal accused is classified as SG 27,
the Sandiganbayan has original and exclusive jurisdiction over
the offense.
WHEN IS AN OFFENSE DEEMED COMMITTED IN
RELATION TO PUBLIC OFFICE
The office must be a constituent element of the crime as de-
fined in the statute.
The test is whether the offense cannot exist without the
office.
DETERMINATION OF WHEN CRIME IS IN RELATION TO
PUBLIC OFFICE
How to Determine whether information sufficiently
alleges that the crime was committed in relation to
public office
There are two ways of determining whether or not the infor-
mation charges that the offense was committed in relation to
public office.
The statement that the "committed in relation to public office"
is not sufficient.
a. Where the public office of the accused is by statute a
constituent element of the crime charged, there is no
need for the Prosecutor to state in the Information
specific factual allegations of the intimacy between the
office and the crime charged, or that the accused
committed the crime in the performance of his duties.
Thus, the public office of the accused Municipal Mayor
Virginio E. Villamor is a constituent element of
malversation and illegal use of public funds or property.
b. When specific factual allegations of crime committed in
relation to public office required
These are offenses or felonies which are intimately
connected with the public office and are perpetrated by
the public officer or employee while in the performance of
his official functions, through improper or irregular
conduct.
Where the office is not a constituent element of the offense
charged there must be specific allegation of facts that it was
intimately related to the discharge of their official duties.
The Sandiganbayan likewise has original jurisdiction over
criminal cases involving crimes or felonies committed by the
public officers and employees enumerated in Section (a)(l) to
(5) under the second classification if the Information contains
specific factual allegations showing the intimate connection
between the offense charged and the public office of the
accused, and the discharge of his official duties or functions —
whether improper or irregular.
The requirement is not complied with if the Information
merely alleges that the accused committed the crime charged
in relation to his office because such allegation is merely a
conclusion of law.
In the absence of any allegation that the offense was commit-
ted in relation to the office of the accused or was necessarily
connected with the discharge of their functions, the regional
court, not the Sandiganbayan, has jurisdiction to hear and
decide the case.

Thus, for jurisdiction over crimes committed by public officers
in relation to public office to fall within jurisdiction of the
Sandiganbayan — the intimate relation between the offense
charged and the discharge of official duties must be alleged in
the information.
There must be specific factual averments of this relation,
except when the office is a constituent element of the offense
charged.
For instance, although public office is not an element of the
crime of murder in abstract, where the offense therein
charged in the information is intimately connected with the
respective offices of the accused and was perpetuated while
they were in the performance, though irregular or improper,
of their officials functions and had no personal motive to
commit the crime and would not have committed it had they
not held their public office and merely obeyed the instruc-don
of their superior officer, the offense may be said to have been
committed in relation to their office.
As explained by the Court —
"In People v. Montejo, where the amended information alleged —
Leroy S. Brown, City Mayor of Basilan City, as such, has organized
groups of police patrol and civilian commandos consisting of regular
policemen and x x x special policemen, appointed and provided by him
with pistols and high power guns and then established a camp x x x at
Tipo-tipo which is under his command x x x supervision and control
where his co-defendants were stationed, entertained criminal
complaints and conducted the corresponding investigations, as well as
assumed the authority to arrest and detain persons without due
process of law and without bringing them to the proper court, and that
in line with this set-up established by said Mayor of Basilan City as
such, and acting upon his orders his co-defendants arrested and
maltreated Awalin Tebag who died in consequence thereof.
The court held that the offense charged was committed in
relation to the office of the accused because it was
perpetrated while they were in the performance, though
improper or irregular of their official functions and would not
have been committed had they not held their office, besides,
the accused had no personal motive in committing the crime,
thus, there was an intimate connection between the offense
and the office of the accused.
In the afore-cited case of People v. Montejo, it is noteworthy
that the phrase committed in relation to public office does not
appear in the information, which only signifies that the said
phrase is not what determines the jurisdiction of the
Sandiganbayan.
What is controlling is the specific factual allegations in the
information that would indicate the close intimacy between
the discharge of the accused's official duties and the
commission of the offense charged, in order to qualify the
crime as having been committed in relation to public office.
Where however, from the allegations of the information, it
does not appear that the official positions of the accused were
connected with the offenses charged, it cannot be said that
they are charged of an offense committed in relation to their
official position.
The difference between Montilla and Montejo is that, whereas
in the former (Montilla), the murder was committed outside
office hours and for personal or political motives, the victim in
the latter case (Montejo) was killed while he was undergoing
custodial investigation in the police substation.
The crime in Montejo would not have been committed were it
not for the fact that the accused were actually discharging
10
official functions at the time.
Thus, the offense charged in Montejo was committed in rela-
tion to the office of the accused because it was perpetrated
while they were in the performance, though improper or
irregular of their official functions and would not have been
committed had they not held their office; besides, the
accused had no personal motive in committing the crime;
thus, there was an intimate connection between the offense
and the office of the accused.
Upon the otherhand, although the information alleged that
the principal accused committed the crime in relation to their
public office, but there is no specific allegation of facts that
the shooting of the victim by the said principal accused was
intimately related to the discharge of their official duties as
police officers, or does not indicate that the said accused
arrested and investigated the victim and then killed the latter
while in their custody, the offense charged in the subject
criminal cases is plain murder and therefore, within the
exclusive original jurisdiction of the Regional Trial Court, and
not the Sandiganbayan.
"Thus, the informations do not indicate that the accused arrested and
investigated the victims and then killed the latter in the course of the
investigation but merely allege that the accused, for the purpose of
extracting or extorting the sum of P353,000.00 abducted, kidnapped
and detained the two victims, and failing in their common purpose,
they shot and killed the said victims.
For the purpose of determining jurisdiction, it is these allegations that
shall control, and not the evidence presented by the prosecution at the
trial.
Consequently, for failure to show in the amended
informations that the charge of murder was intimately
connected with the dis-charge of official functions of the
accused PNP officers, the offense charged in the subject
criminal cases is plain murder and, therefore, within the
exclusive original jurisdiction of the Regional Trial Court, not
the Sandiganbayan.
1. Falsification of an official document is not within the
jurisdiction of the Sandiganbayan unless committed in
relation to the public office of the public officer.
Thus, in the case of Bartolome, there is no showing that
the alleged falsification was committed by the accused, if
at all, as a consequence of, and while they were
discharging official functions.
The information does not allege that there was an
intimate connection between the discharge of official
duties and of the offense.
The case did not come under the jurisdiction of the
Sandiganbayan.
For purposes, however, of acquisition of jurisdiction by
the Sandiganbayan, the requirement imposed by R.A. No.
8249 that the offense be "committed in relation" to the
offender's office is entirely distinct from the concept of
taking advantage of one's position as provided under
Articles 171 and 172 of the Revised Penal Code.
2. The crime of rape with homicide is not an offense
committed in relation to the office of the petitioner.
In Montilla v. Hilario, this Court, described the "offense
committed in relation to the office" as follows:
"The taking of human life is either murder or homicide whether
done by a private citizen or public servant, and the penalty is the
 same except when the perpetrator, being a public functionary,
took advantage of his office, as alleged in this case, in which
event the penalty is increased.
But the use or abuse of office does not adhere to the crime as an
element; and even as an aggravating circumstance, its
materiality arises, not from the allegations but on the proof; not
from the fact that the criminals are public officials but from the
manner of the cornmission of the crime.
There is no direct relation between the commission of the crime
of rape with homicide and the petitioner's office as municipal
mayor because public office is not an essential element of the
crime charged.
The offense can stand independently of the office.
Moreover, it is not even alleged in the information that the
commission of the crime charged was intimately connected with
the performance of the petitioner's official functions to make it
fall under the exception laid down in People v. Montejo."
3. Acts of Lasciviousness filed against an MTC Judge com-
mitted against Court personnel whom he is authorized to
recommend appointment under Supreme Court circular
— and used his official position in committing the act
complained of, the crime was held as having been
committed in relation to his office.
While public office is not an element of the crime of
lasciviousness — he could not have committed the crime
charged were it not for the fact that as Presiding Judge of
the MTCC branch, he has authority to recommend her
appointment as bookbinder.
The crime committed as alleged in the amended
information are intimately connected with his office.
A mere allegation that the crime was committed in
relation to public office is not what determines the
jurisdiction of the Sandiganbayan.
What is controlling is the specific factual allegation in the
information that would indicate the close intimacy
between the discharge of the accuser's official duties and
the commission of the of the offense charged, in order to
qualify the crime as having been committed in relation to
public office.
4. Where the killing committed by a PNP officer was com-
mitted while in the course of trying to restore local public
order which had been breached by a fistfight between the
victim and two other individuals, the killing was
committed in relation to the accused's public office.
5. Where the amended information contained allegations
that the accused, petitioner took advantage of his official
functions as municipal mayor ofMeycauayan, Bulacan
when he committed the crime of grave threats as defined
in Article 282 of the Revised Penal Code against
complainant Simeon G. Legaspi, a municipal councilor;
and. The Office of the Special Prosecutor charged
petitioner with aiming a gun at and threatening to kill
Legaspi during a public hearing, after the latter had
rendered a privilege speech critical of petitioner's
administration.
Clearly, based on such allegations, the crime charged is
intimately connected with the discharge of petitioner's
official functions.
If he was not the mayor, he would not have been
irritated or angered by whatever private complainant
might have said during said privilege speech."
11
Thus, based on the allegations in the information, the
Sandiganbayan correctly assumed jurisdiction over the
case.
6. The same principles were stressed in Soller v.
Sandiganbayan, where the Municipal Mayor and others
were charged in the Sandiganbayan with Obstruction of
Apprehension and Prosecution of Criminal Offenses as
denned and penalized under P.D. No. 1829 for tampering
with the autopsy and police reports to mislead the
investigation of the fatal shootout of the victim.
But aside from noting the absence of specific factual
allegations, that the offense was committed in relation to
public office, the court found that the preparation of
police and autopsy reports and the presentation and
gathering of evidence in the investigation of criminal
cases are not among the duties and functions and the
broad responsibility to maintain peace and order cannot
be basis for construing that that the criminal acts
imputed to the mayor.
Of tampering and falsifying the autopsy reports, were
committed in relation to his office.
7. Where the Informations allege that petitioner, then a
"public officer," committed the crimes of murder and
frustrated murder "in relation to his office," i.e., as
"Community Environment and Natural Resources Officer"
of the DENR.
It is apparent from this allegation that the offenses
charged are intimately connected with petitioner's office
and were perpetrated while he was in the performance of
his official functions.
In its Resolution dated August 25, 1992, the
Sandiganbayan held that petitioner was "on duty up in
order to prevent incursions into the forest and wooded
area," and that petitioner, as a guard, was "precisely
furnished with a firearm in order to resist entry by force
or intimidation."
Indeed, if petitioner was not on duty at the DENR
checkpoint on January 14, 1990, he would not have had
the bloody encounter with Mayor Cortez and his men.
Thus, based on the allegations in the Informations, the
Sandiganbayan correctly assumed jurisdiction over the
cases.
JURISDICTION NOT DETERMINED BY ALLEGATIONS
EXPLAINED
In Republic u. Asuncion, the Court stressed that the foregoing
requisites must be alleged in the information for the
Sandiganbayan to have jurisdiction.
It was, however, held in one case that under Section 4, P.D.
No. 1606, when the penalty prescribed by law is higher than
Prision Correccional, the Sandiganbayan has jurisdiction,
without stating that the offense was committed in relation to
the offender's office.
This was a mistake that misled the prosecution in subsequent
cases.
Thus, in Republic v. Asuncion, the information did not disclose
that the offense of homicide charged against the accused who
was a member of the PNP was committed in relation to the
office of the accused, but the trial court, during the progress
of the trial dismissed the case without prejudice for refiling in
the Sandiganbayan.
The Supreme Court en bane speaking thru Justice Davide, Jr.,
surmised that the absence of an allegation that the crime was
committed "in relation to his office" was because of the
erroneous doctrine in Deloso u. Domingo which conveyed the
impression that this was not necessary.
Hence, the court a quo was directed to conduct a preliminary
hearing to determine whether the crime charged was
committed by the respondents in relation to his office.
If it be determined in the affirmative, then it shall order the
transfer of the case to the Sandiganbayan which shall
forthwith docket and proceed with the case as if the same
were originally filed with it.
Otherwise, the court a quo shall proceed with the case.
In Cunanan u. Arceo, the information for murder against a
PNP contained no averment that the offense charged was in
relation to his public office, hence, the court proceeded to trial
and after ooth parties have presented their evidence declared
the case submitted for decision.
The trial court applied Republic v. Asuncion, and conducted a
hearing solely to ascertain if accused had committed the
offense charged in relation to his office, and found that he
did.
The trial court accordingly dismissed the case for lack of
jurisdiction for refiling with the Sandiganbayan pursuant to
the "Asuncion Ruling."
In a further order, the trial judge modified the dismissal by
ordering instead the transfer of the case to the
Sandiganbayan.
The Supreme Court speaking thru the Third Division did not
consider the absence of an allegation in the information that
the offense was committed in relation to his office.
The Court stated:
It is firmly settled that jurisdiction over the offense charged is a matter
that is conferred by law. Whenever the above two (2) requisites are
present, jurisdiction over the offense is vested in the Sandiganbayan.
This is true even though the information originally Sled before the RTC
did not aver that the accused public officer public had committed the
offense charged in relation to his office.
In other words, the absence in the old information filed before the RTC
af an allegation that petitioner Cunanan has committed the offense in
relation to his office is immaterial insofar as determination of the locus
of jurisdiction is concerned.
Indeed, it may be recalled that bhe Asuncion ruling involved a
situation where the information similarly did not contain an averment
that the accused public officer had committed the offense charged
while carrying out his official duties.
It was precisely to address the situation that the Supreme Court in
Asuncion fashioned the rule directing the conduct of a preliminary ar
separate hearing by a trial court to determine the presence or absence
of that jurisdictional element.
The RTC's initial assumption of jurisdiction over the offense
charged in this case did not, therefore, prevent it from
subsequently declaring itself to be without jurisdiction, lack of
jurisdiction having become apparent from subsequent
proceedings in that case.
JURISDICTION MUST BE DETERMINED BY THE
12
ALLEGATIONS IN THE COMPLAINT
The foregoing pronouncements is not in accord with the well-
settled rule that jurisdiction is determined by the allegations
of the complaint and not by the finding of the court after trial.
The Asuncion case did not hold that the absence of an
allegation of the offense having been committed "in relation
to his office" as immaterial, but justified the absence thereof
as having been caused by the erroneous ruling in the case of
Deloso v. Domingo.
The court did not fashion the rule directing the conduct of a
preliminary or separate hearing to determine the absence or
presence of that jurisdictional element.
It did so only because of the peculiar circumstance that the
omission may have been due to inadvertence in view of the
misleading pronouncement in Deloso.
Asuncion has not, however, departed from the rule that
jurisdiction is to be determined by the allegations of the
complaint.
On the contrary, Asuncion stressed that the public officers or
employees committed the crime in relation to their office
must, however be alleged in the information for the
Sandiganbayan to have jurisdiction over a case under Section
4(a)(2).
This allegation is necessary because of the unbending rule
that jurisdiction is determined by the allegations of the
information.
In the subsequent case of People v. Magallanes, where the
accused were charged with kidnapping for ransom with
murder wherein some of the accused were members of the
PNP, the information does not indicate that the accused
arrested and investigated the victims and then killed the
latter in the course of the investigation.
The informations merely alleged that the accused, for the
purpose of extracting and extorting money, abducted,
kidnapped and detained the two victims, and failing in their
common purpose, they shot and killed the said victims.
The Supreme Court thru the First Division speaking thru
Justice Davide, Jr., also the ponente in the Asuncion case
stated: "For the purpose of determining jurisdiction, it is
these allegations that shall control, and not the evidence pre-
sented by the prosecution at the trial." (Italics Supplied)
The court held that the allegations of "taking advantage of his
position or their respective positions" incorporated in the
informations is not sufficient to bring the offenses within the
definition of "offenses commited in relation to public office."
In Montilla u. Hilario, such an allegation was merely
considered as an allegation of an aggravating circumstance
and not as one that qualifies the crime as having been
committed in relation to public office.
Also, in Bartolome u. People of the Philippines, despite the
allegations that the accused public official committed the
crime of falsification of official document by "taking advantage
of their official positions," the court held that the
Sandiganbayan had no jurisdiction over the case, because
"the information (did) not allege that there was an intimate
connection between the discharge of official duties and the
commissison of the offense."
Accordingly, for lack of an allegation in the informations that
the offenses were committed in relation to the office of the
accused.
PNP officer or were intimately connected with the discharge of
the functions of the accused, the subject cases come within
the jurisdiction of the Regional Trial Court and not of the
Sandiganbayan.
This was also the ruling in Lacson v. Executive Secretary.
It should, however, be noted that under Republic Act No.
7975, jurisdiction of the Sandiganbayan over other offenses
or felonies committed by public officials and employees in
relation to their office is no longer determined by the
prescribed penalty.
It is enough that theyare committed by those public officials
and employees enumerated in subsection a, Section 4, R.A.
No. 8249.
It is when the erring public official is not among the
enumerated functionaries, that jurisdiction by courts other
than the Sandiganbayan is to be determined by the penalty
prescribed by law.
EXCLUSIVE JURISDICTION OF SANDIGANBAYAN OVER
a. PCGG
Under Section 2 of Executive Order No. 14, the
Sandiganbayan has exclusive and original jurisdiction
over all cases regarding the "funds, moneys, assets and
properties illegally acquired by former President
Ferdinand E. Marcos x x x civil or criminal, including in-
cidents arising from such cases.
The decision of the Sandiganbayan is subject to review
on certiorari exclusively by the Supreme Court."
In the exercise of its functions, the PCGG is a co-equal
body with the Regional Trial Courts and co-equal bodies
have no power to control the other.
The Regional Trial Courts and the Court of Appeals have
no jurisdiction over the PCGG in the exercise of its
powers under the applicable Executive Orders and
Section 26, Article XVIII of the 1987 Constitution and,
therefore, may not interfere with and restrain or set
aside the orders and actions of the PCGG acting for and
in behalf of said Commission.
b. Exclusive Jurisdiction over Cases Filed by PCGG
The exclusive jurisdiction of the Sandiganbayan over civil
and criminal cases filed by PCGG, as well as incidents
arising from, incidental or related to such cases is subject
to review on certiorari exclusively by the Supreme Court.
The fact of sequestration alone does not, however,
automatically oust the RTC of jurisdiction to decide upon
the question of ownership (of the subject gaming and
office equipment of the Philippine Casino Operators
Corporation).
The PCGG must be a party to the suit in order that the
Sandiganbayan's exclusive jurisdiction may be correctly
invoked.
But where the PCGG is not a party to the case, and the
complaint is solely between PAGCOR and PCOC, the RTC
has jurisdiction under Sec. 19 ofB.P. Big. 129 over
PAGCOR's action for recovery of personal property, even
13
if said property was under sequestration by the PCGG.
c. Sandiganbayan jurisdiction includes all incidents
from, incidental to or related to principal causes of
action
In subsequent cases jointly decided on August 10, 1988,
the Court pointed out that: "(the) exclusive jurisdiction
conferred on the Sandiganbayan would evidently extend
not only to the principal causes of action, i.e., the
recovery of alleged ill-gotten wealth, but also to 'all
incidents arising from, incidental to, or related to, such
cases,' such as the dispute over the sale of shares, the
propriety of the issuance of ancillary writs or provisional
remedies relative thereto, the sequestration thereof,
which may not be made the subject of separate actions
or proceedings in another forum."
Likewise, in the case of Republic v. Sandiganbayan, the
Court ruled that while the PCGG is ordinarily allowed a
free hand in the exercise of its administrative or
executive function, the Sandiganbayan is empowered to
determine in an appropriate case, if in the exercise of
such functions, the PCGG has gravely abused its discre-
tion or has overstepped the boundaries of the power
conferred upon it by law.
The Court stated:
Any act or order transgressing the parameter of the objectives for
which the PCGG was created, if tainted with abuse of discretion,
is subject to a remedial action by the Sandiganbayan, the court
vested with exclusive and original jurisdiction over cases
involving the PCGG including cases filed by those who challenge
PCGG's acts or orders
Settled is the rule that when a law confers jurisdiction upon a
court, it is deemed to have all the incidental powers necessary to
render the exercise of such jurisdiction effective
In PCGG v. Sandiganbayan, the Court stated that there is
a need to vigorously guard sequestered assets and
preserve them pending resolution of the sequestration
case before the Sandiganbayan, considering the
paramount public policy for the recovery of ill-gotten
wealth.
The Court ruled that sequestered assets and corporations
are legally and technically in custodia legis, under the
administration of the PCGG. Executive Order No. 2
specifically prohibits the transfer, conveyance,
encumbrance, or otherwise depletion or concealment of
such assets and properties, under pain of penalties pre-
scribed by law.
Thus, an action which can result in the deterioration and
disappearance of the sequestered assets cannot be
allowed, unless there is a final adjudication and
disposition of the issue as to whether these assets are ill-
gotten or not, since it may result in damage or prejudice
to the Republic of the Philippines.
The Sandiganbayan has jurisdiction to annul a judgment
of partition by the RTC involving a sequestration related
property.
d. Jurisdiction Does Not Include Questions of
Business Judgment
The Court, however, ruled that Sandiganbayan is without
jurisdiction where the matter does not really seek to
question the propriety of the sequestration by the PCGG
or any matter incidental to or arising out of such
 sequestration but deals mainly with what is a business
judgment.
The Court pointed to Holiday Inn (Phils.), Inc. u.
Sandiganbayan, where the issue related to a
management agreement terminated by the Board of
Directors of a sequestered corporation, 2/3 of the
members of such board being composed by PCGG
nominees.
The action for intervention was lodged with the
Sandiganbayan in the main sequestration case.
The petitioners in that case averred that the
Sandiganbayan has jurisdiction over the action since the
action to terminate the management agreement bears
the imprimatur of the PCGG nominees sitting at the
Board, making PCGG the real party-in-interest.
The Resolution of the Sandiganbayan, which was upheld
by the Supreme Court, ruled on the contrary, thus:
This Court is of the view that its jurisdiction refers to acts of the
PCGG acting as such whether alone or with other persons, natural
or juridical, and not generally where PCGG representatives act as
part of another juridical person or entity.
A rule of thumb might be thus: if the PCGG can be properly
impleaded on a cause of action asserted before this Court as a
distinct entity, then this Court would generally exercise
jurisdiction; otherwise, it would not, because, then the 'PCGG
character' of the act or omission in question may, at best, be only
incidental.
After all, the presence of PCGG representatives in sequestered
companies does not automatically tear down the corporate veil
that distinguishes the corporation from its officers, directors or
stockholders.
Corporate officers whether nominated by the PCGG or not act,
insofar as third parties are concerned, are (sic) corporate officers.
Contracts entered into by the San Miguel Corporation, for
example, in connection with its poultry operations and the
cancellations thereof, are not PCGG activities which would justify
the invocation of this Court's jurisdiction, even if the contract or
suit were unanimously approved by its board of directors where
PCGG representatives sit.
This Court added:
The subject matter of petitioner's proposed complaint-in-
intervention involves basically, an interpretation of contract, i.e.,
whether or not the right of first refusal could and/or should have
been observed.
The question of whether or not the sequestered property was
lawfully acquired by Roberto S. Benedicto has no bearing on the
legality of the termination of the management contract by
NRHDC's Board of Directors.
The two are independent and unrelated issues and resolution of
which may proceed independently of each other.
. . . (T)he Sandiganbayan correctly denied jurisdiction over the
proposed complaint-in-intervention.
The original and exclusive jurisdiction given to the Sandiganbayan
over PCGG cases pertains to (a) cases filed by the PCGG,
pursuant to the exercise of its power under Executive Order Nos.
1, 2 and 14, as amended by the Office of the President, and
Article XVIII, Section 26 of the Constitution, i.e., where the
principal cause of action is the recovery of ill-gotten wealth, as
well as all incidents arising from, incidental to or related to such
cases and (b) cases filed by those who wish to question or
challenge the commission's acts or orders in such cases.
JURISDICTION OVER FORFEITURE CASES
14
After reviewing the legislative history of the Sandiganbayan
and the Office of the Ombudsman, the Court declared that —
"Under R.A. No. 8249, the Sandiganbayan is vested with exclusive
original jurisdiction in all cases involving violations of R.A. No. 3019,
R.A. No. 1379, and Chapter II, Sec. 2, Title VII, Book II of the Revised
Penal Code, where one or more of the accused are officials occupying
the following positions whether in a permanent, acting or interim
capacity, at the time of the commission of the offense.
It is a civil procreedings in rem but criminal in nature
JURISDICTION OVER MONEY LAUNDERING CASES
The Anti money-laundering law provides for two kinds of
cases which are independent of each other.
The criminal action for anti-money — laundering offense (Sec.
4) and the civil forfeiture proceedings (Sec. 12) which may be
filed separately and proceed independently of the criminal
prosecution.
a. The Criminal Action
Republic Act No. 9160 as amended (The Anti-Money
Laundering Act of 2001) defines
Money Laundering Offense. — Money laundering is a
crime whereby the proceeds of an unlawful activity are
transacted, thereby making them appear to have
originated from legitimate sources. It is committed by the
following:
(a) Any person knowing that any monetary instrument
or property represents, involves, or relates to the
proceeds of any unlawful activity, transacts or
attempts to transact said monetary instrument or
property.
(b) Any person knowing that any monetary instrument
or property involves the proceeds of any unlawful
activity, performs or fails to perform any act as a
result of which he facilitates the offense of money
laundering referred to in paragraph (a) above.
(c) Any person knowing that any monetary instrument
or property is required under this Act to be disclosed
and filed with the Anti-Money Laundering Council
(AMLC), fails to do so.
JURISDICTION OF MONEY LAUNDERING CASES
The regional trial courts shall have jurisdiction to try all cases
on money laundering.
Those committed by public officers and private persons who
are in conspiracy with such public officers shall be under the
jurisdiction of the Sandiganbayan.
The foregoing section apparently refers to the criminal offense
of anti-money laundering as defined in Section 4 of the law.
a. The Civil Forfeiture Proceedings
The law provided that in petitions for civil forfeiture the
Revised Rules of Court shall apply.
In consequence thereof, the Supreme Court issued the —
RULE OF PROCEDURE IN CASES OF CIVIL FORFEITURE,
ASSET PRESERVATION, AND FREEZING OF MONETARY
INSTRUMENT, PROPERTY, OR PROCEEDS
REPRESENTING, INVOLVING, OR RELATING TO AN
 UNLAWFUL ACTIVITY OR MONEY LAUNDERING OFFENSE
UNDER REPUBLIC ACT NO. 9160, AS AMENDED.
The Rule expressly provided that —
The Rule shall govern all proceedings for civil forfeiture,
asset preservation and freezing of monetary instrument,
property, or proceeds representing, involving, or relating
to an unlawful activity or a money laundering offense
under Republic Act No. 9160, as amended.
The Revised Rules of Court shall apply suppletorily when
not inconsistent with the provisions of this special Rule.
Title II of the Rule provided only for Civil Forfeiture in the
Regional Trial Court. Thus —
SEC. 2. Party to Institute Proceedings. — The Republic of
the Philippines, through the Anti-Money Laundering
Council, represented by the Office of the Solicitor
General, may institute actions for civil forfeiture and all
other remedial proceedings in favor of the State of any
monetary instrument, property, or proceeds represent-
ing, involving, or relating to an unlawful activity or a
money laundering offense.
SEC. 3. Venue of Cases Cognizable by the Regional Trial
Court. — A petition for civil forfeiture shall be filed in any
regional trial court of the judicial region where the
monetary instrument, property, or proceeds
representing, involving, or relating to an unlawful activity
or to a money laundering offense are located;
provided, however, that where all or any portion of the
monetary instrument, property, or proceeds is located
outside the Philippines, the petition may be filed in the
regional trial court in Manila or of the judicial region
where any portion of the monetary instrument, property,
or proceeds is located, at the option of the petitioner.
b. The Rule Does Not Provide for Civil Forfeiture
Before the Sandiganbayan
The law created an Anti-Money Laundering Council
(AMLC) — tasked with implementing the law, was
empowered x x x
(3) to institute civil forfeiture proceedings and all other
remedial proceedings through the Office of the
Solicitor General;
(4) to cause the filing of complaints with the Department
of Justice or the Ombudsman for the prosecution of
money laundering offenses;
(5) to initiate investigations of covered transactions,
money laundering activities and other violations of
this Act.
CIVIL AND CRIMINAL FORFEITURE DISTINGUISHED
It is to be noted that under the Anti-Money Laundering Act,
so far as Civil Forfeiture is concerned it is the AMLC that is
authorized to institute civil forfeiture proceedings and all
other remedial proceedings through the Office of the Solicitor
General with the Regional Trial Court.
There is no similar authority to file such cases with the
Sandiganbayan.
It is only in criminal cases that the AMLC is authorized to
cause the filing of complaints with the Department of Justice
15
or the Ombudsman for the prosecution of money laundering
offenses.
But unlike Civil Forfeiture under R.A. No. 1379 which spe-
cifically authorized its filing by the Ombudsman or thru the
Office of Special Prosecutor in the Sandiganbayan.
No similar authority have been granted the Ombudsman with
respect to civil forfeiture under the Anti-money Laundering
Law.
JURISDICTION OF SANDIGANBAYAN TO BE
DISTINGUISHED FROM JURISDICTION OF OMBUDSMAN
OVER PUBLIC OFFICERS
a. The Jurisdiction of the Ombudsman to investigate and
prosecute Public Officers for any illegal act or omission is
not exclusive but a shared concurrent authority in respect
of the offense charged.
b. The Ombudsman's primary power to investigate is
dependent on the cases cognizable by Sandiganbayan.
The Ombudsman's primary jurisdiction is dependent on
the cases cognizable by the former.
But the authority is concurrent with other similarly
authorized agencies.
However, the Ombudsman may take over the investi-
gation of such case at any stage from any investigative
agency of the Government.
This is only directory.
SANDIGANBAYAN NOW WITH CERTIORARI
JURISDICTION
R.A. No. 7975 expressly conferred certiorari jurisdiction in the
Sandiganbayan, in aid of its appellate jurisdiction.
WHERE PUBLIC OFFICIAL CHARGED AS MERE
ACCOMPLICE OF PRIVATE INDIVIDUAL
Section 4 of Presidential Decree No. 1606, as amended by
Presidential Decree No. 1861, provides in part "that in case
private individuals are charged as co-principals, accomplices,
or accessories with the public officers or employees, including
those employed in government-owned or -controlled
corporations, they shall be tried jointly with said public
officers and employees."
The rule that "accessory follows the principal" appears to
underlie the provision of Presidential Decree No. 1606, for
when private individuals are charged as co-principals,
accomplices or accessories with the public officers or
employees, the implication is that the latter was charged as
principal.
Hence, if a public officer or employee is charged as a mere
accomplice or accessory with a private individual, as principal,
the corollary implication is that the former shall be tried
jointly with the latter in the ordinary courts.
The rationale is justified by the total absence of a provision in
Presidential Decree No. 1606 directing that all criminal cases
involving public officers and employees, without distinction,
be tried by the Sandiganbayan, even if the criminal
involvement of the public officer is minor or subordinate and
inferior to that of the private individuals charged as principals
in the case.
The jurisdiction of the Sandiganbayan is not meant to be so
broad and all-encompassing.
EXCLUSIVE JURISDICTION OF SANDIGANBAYAN OVER
PCGG
Under Section 2 of Executive Order No. 14, the
Sandiganbayan has exclusive and original jurisdiction over all
cases regarding the "funds, moneys, assets and properties
illegally acquired by former President Ferdinant E. Marcos x x
x" civil or criminal, including incidents arising from such
cases.
The decision of the Sandiganbayan is subject to review on
certiorari exclusively by the Supreme Court.
In the exercise of its functions, the PCGG is a co-equal body
with the Regional Trial Courts and co-equal bodies have no
power to control the other.
The Regional Trial Courts and the Court of Appeals have no
jurisdiction over the PCGG in the exercise of its powers under
the applicable Executive Orders and Section 26, Article XVIII
of the 1987 Constitution and, therefore, may not interfere
with and restrain or set aside the orders and actions of the
PCGG acting for and in behalf of said Commission.
EXCLUSIVE JURISDICTION OVER CASES FILED BY PCGG
The exclusive jurisdiction of Sandiganbayan over civil and
criminal cases filed by PCGG, as well as incidents arising
from, incidental or related to such cases is subject to review
on certiorari exclusively by the Supreme Court.
JURISDICTION TO ANNUL JUDGMENTS
The Sandiganbayan has jurisdiction to annul judgments of the
Regional Trial Court in a sequestration related case, such as a
judgment of the Regional Trial Court for the enforcement of a
foreign judgment involving property that has been lawfully
sequestered.
JURISDICTION OVER MILITARY AND PNP
Republic Act No. 7055 — AN ACT STRENGTHENING CIVILIAN
SUPREMACY OVER THE MILITARY BY RETURNING TO THE
CIVIL COURTS THE JURISDICTION OVER CERTAIN OFFENSES
INVOLVING MEMBERS OF THE ARMED FORCES OF THE
PHILIPPINES, OTHER PERSONS SUBJECT TO MILITARY LAW,
AND THE MEMBERS OF THE PHILIPPINE NATIONAL POLICE,
REPEALING FOR THE PURPOSE CERTAIN PRESIDENTIAL
DECREES.
SECTION 1. Members of the Armed Forces of the Philippines
and other persons subject to military law, including members
of the Citizens Armed Forces Geographical Units, who commit
crimes or offenses penalized under the Revised Penal Code,
other special penal laws, or local government ordinance,
regardless of whether or not civilians are co-accused, victims,
or offended parties which may be natural or juridical persons,
shall be tried by the proper civil court, except when the
offense, as determined before arraignment by the civil court,
is service-connected, in which case the offense shall be tried
by court-martial:
Provided, That the President of the Philippines may, in the
interest of justice, order or direct at any time before
arraignment that any such crimes or offenses be tried by the
proper civil courts.
As used in this Section, service-connected crimes or offenses
shall be limited to those defined in Articles 54 to 70, Articles
16
72 to 92, and Articles 95 to 97 of Commonwealth Act No.
408, as amended.
In imposing the penalty for such crimes or offenses, the
court-martial may take into consideration the penalty
prescribed therefor in the Revised Penal Code, other special
penal laws, or local government ordinances.
SEC. 2. Subject to the provisions of Section 1 hereof, all
cases filed or pending for filing with court-martial or other
similar bodies except those where the accused had already
been arraigned, shall, within thirty (30) days following the
effectivity of this Act, be transferred to the proper civil courts:
Provided, That the Chief of the Armed Forces of the
Philippines shall, upon petition before commencement of trial
and with the written consent of the accused, order the trans-
fer of such expected case or cases to the proper civil courts
for trial and resolution.
SEC. 3. Presidential Decree Nos. 1822, 1822-A, 1850 and
1952, and all acts general orders, executive orders, and other
presidential issuances, rules and regulations inconsistent with
this Act are hereby repealed or amended accordingly.
The law does not include violations of Republic Act 3019
otherwise known as the Anti-Graft Law even if service-
connected. Violation of this law falls under the jurisdiction of
the Sandiganbayan or the Regional Trial Court depending on
the nature of the position of the offender.
JURISDICTION OVER THE PNP BY REGULAR COURTS
SEC. 46. Jurisdiction in Criminal Cases. — Any provision of
law to the contrary notwithstanding, criminal cases involving
PNP members shall be within the exclusive jurisdiction of the
regular courts;
Provided, That the courts-martial appointed pursuant to
Presidential Decree No. 1850 shall continue to try PC-INP
members who have already been arraigned, to include
appropriate actions thereon by the reviewing authorities
pursuant to Commonwealth Act No. 408, otherwise known as
the Articles of War, as amended and Executive Order No. 178,
otherwise known as the Manual for Courts-Martial;
Provided, further, That criminal cases against PC-INP mem-
bers who may have not yet been arraigned upon the
effectivity of this Act shall be transferred to the proper city or
provincial prosecutor or municipal trial court judge. 143
MEANING OF REGULAR COURTS
It has been held that the term regular courts in Section 46 of
R.A. No. 6975 means civil courts.
There could have been no other meaning intended since the
primary purpose of the law is to remove from courts martial
the jurisdiction over criminal cases involving members of the
PNP and to vest it in the courts within the judicial system,
i.e., the civil courts which as contradistinguished from courts
martial, are the regular courts.
Courts martial are not courts within the Philippine judicial
system; they pertain to the executive department of the
government and are simply instrumentalities of the executive
power.
Otherwise stated, courts martial are not regular courts.
The Sandiganbayan are regular courts within the law's
contemplation.

JURISDICTION OF MILITARY COURT
A military officer being dropped from the roll amounts to a
dishonorable discharge which does not terminate his
amenability for the trial in a court martial for the offense he
had committed while an officer of the military.
The fact that Colonel Abadilla was dropped from the rolls
should not lead to the conclusion that he is now beyond the
jurisdiction of the military authorities.
If such a conclusion were to prevail, his very own refusal to
clear his name and protect his honor before his superior
officers in the manner prescribed for and expected from a
ranking military officer would be his shield against
prosecution.
His refusal to report for duty or to surrender when ordered
arrested, which led to his name being dropped from the roll of
regular officers of the military cannot thereby render him
beyond the jurisdiction of the military courts for offenses he
committed while still in the military service.
MILITARY COURTS HAVE NO JURISDICTION OVER
CIVILIANS
A military commission or tribunal cannot try and exercise
jurisdiction over civilians for offenses allegedly committed by
them as long as civil courts are open and functioning.
Any judgment rendered by such body relating to a civilian is
null and void for lack of jurisdiction.
The Supreme Court clarified in Tan u. Barrios that "Olaguer
should, in principle, be applied prospectively only to future
cases and cases still ongoing or not yet final when that
decision was promulgated.
Hence, there should be no retroactive nullification of final
judgments, whether of conviction or acquittal, rendered by
military courts against civilians before the promulgation of the
Olaguer decision.
Such final sentences should not be disturbed by the State."
The Supreme Court went on to state:
"Only in particular cases where the convicted person or the State
shows that there was a serious denial of the Constitutional rights of
the accused, should the nullity of the sentence be declared and retrial
be ordered based on the violation of the constitutional rights of the
accused, and not on Olaguer doctrine.
If a retrial is no longer possible, the accused should be released since
the judgment against him is null on account of the violation of his
constitutional rights and denial of due process."
JURISDICTION OVER THE PERSON WHEN ACQUIRED
Jurisdiction over the person of the accused is acquired upon
his arrest or upon his voluntary appearance.
RULE IN MILITARY PROCEEDINGS
The rule that jurisdiction over a person is acquired by his
arrest applies only to criminal proceedings instituted before
the regular courts.
It does not apply to proceedings under military law.
WAIVER
17
Any objection to the procedure leading to the arrest must be
opportunely raised before the accused enters his plea.
The accused is also barred from raising the question of
jurisdiction over his person if he enters his plea instead of
objecting to the irregularity of the issuance of the warrant of
arrest.
VOLUNTARY APPEARANCE
In a prosecution under Republic Act No. 3019, the Anti-Graft
and Corrupt Practices Act, the appearance of a counsel for an
accused who has not been arrested, in the pre-suspension
hearing required under said law, is a voluntary appearance.
The filing of a motion to dismiss presupposes that the accused
is within Philippine territory; otherwise, the "voluntary
appearance" is an exercise in futility.
Physical control is indispensable.
If the accused is outside of the Philippines, he cannot be said
to be under the physical control of the Court.
Voluntary appearance is accomplished by appearing for
arraignment.
Such jurisdiction once acquired is not lost upon the instance
of the parties, such as when the accused escapes from the
custody of the law, but continues until the case is terminated.
In such case, the Court may proceed with the trial in absentia
of the accused, provided that there has been an arraignment.
The cases holding that where the accused, after his arrest,
filed a petition for bail, it is too late for him to object
thereafter to the regularity of the issuance of the warrant of
arrest are no longer true.
Under Section 26, Rule 114 of the 2000 Rules on Criminal
Procedure:
SEC. 26. Bail not a bar to objections on illegal arrest, lack of or
irregular preliminary investigation. — An application for or admission
to bail shall not bar the accused from challenging the validity of his
arrest or the legality of the warrant issued thereof, or from assailing
the regularity or questioning the absence of a preliminary investigation
of the charge against him, provided that he raises them before
entering his plea.
The court shall resolve the matter as early as practicable but not later
than the start of the trial of the case.
In applications for bail, however, the ACCUSED MUST BE IN
CUSTODY OF LAW to be entitled to bail.
If the accused is charged with a capital offense or an offense
punishable by reclusion perpetua or life imprisonment, the
Judge must have jurisdiction over the person of accused and
over the case.
The rationale behind the rule is that it discourages and
prevents resort to the former pernicious practice whereby the
accused could just send another in his stead to post his bail,
without recognizing the jurisdiction of the court by his
personal appearance therein and compliance with the
requirements therefor.
Thus, in Feliciano v. Pasicolan, where the petitioner who had
been charged with kidnapping with murder went into hiding
without surrendering himself, and shortly thereafter, filed a
motion asking the court to fix the amount of bail bond for his
release pending trial, the Supreme Court categorically
pronounced that said petitioner was not eligible for admission
to bail.
The person seeking his provisional release under the auspices
of bail need not even wait for a formal complaint or
information to be filed against him as it is available to "all
persons" where the offense is bailable.
This rule is, of course, subject to the condition or limitation
that the applicant is in the custody of the law.
The Court should not even allow a motion for bail to be set for
hearing unless it has acquired jurisdiction over the person of
the accused and the case by its filing in Court.
Custody How Acquired: The accused must be in custody of
the law, either:
a) By virtue of a warrant or warrantless arrest; or
b) When he voluntarily submitted himself to the jurisdiction
of the Court by surrendering to the proper authorities.
The mere filing of an application for bail is not sufficient.
This principle is, however, only for purposes of bail.
In other cases, the filing of motion or other papers invoking
affirmative relief is a submission to court's jurisdiction.
Hence, an application for admission to bail of a person against
whom a criminal action has been filed, but who is still at large
is premature.
As a matter of course, upon voluntary appearance of the
accused, the judge should require another motion for bail and
set the same for hearing, with the prosecution notified
thereof.
Unless the accused is in the custody of the law, the court may
not even set his application for bail for hearing.
EXCEPTIONS WHEN MERE FILING OF MOTION
SUFFICIENT
In Paderanga v. Court of Appeals (supra), the accused having
filed his motion for admission to bail before he was actually
and physically placed under arrest, as he was then confined
at the hospital, and his counsel manifested before the court at
the hearing of the motion that he was submitting custody of
the person of the accused to the local chapter president of the
Integrated Bar of the Philippines, and for purposes of said
hearing on his bail application, he be considered as being in
the custody of the law, the Supreme Court held that he may
at that point and in the factual ambiance thereof, be
considered as being constructively and legally under custody.
Thus, in the likewise peculiar circumstances which attended
the filing of his bail application with the trial court, for
purposes of the hearing thereof he should be deemed to have
voluntarily submitted his person to the custody of the law and
necessarily, to the jurisdiction of the trial court which
thereafter granted bail as prayed for.
In fact, an arrest is made either by an actual restraint of the
arrestee or merely by his submission to the custody of the
person making the arrest.
The latter mode may be exemplified by the so-called "house
arrest" or, in case of military offenders, by being "confined to
quarters" or restricted to the military camp area.
The accused who desires to question the jurisdiction of a
18
court over his person must appear in court only for the
specific purpose, and if he raises other questions, he waived
the objection to question the jurisdiction over her person.
Failure to quash the information on the ground that, by the
defective arrest, the court did not acquire jurisdiction over the
person of the accused is a waiver to question jurisdiction over
his person.
Under Section 20, Rule 14 of the 1997 Rules on Civil
Procedure: "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."
There is, however, an exception to the rule that filing plead-
ings seeking affirmative relief constitutes voluntary
appearance, and the consequent submission of one's person
to the jurisdiction of the court.
This is in the case of pleadings whose prayer is precisely for
the avoidance of the jurisdiction of the court, which only leads
to a special appearance.
These pleadings are:
(1) in civil cases, motions to dismiss on the ground of lack of
jurisdiction over the person of the defendant, whether or
not other grounds for dismissal are included;
(2) in criminal cases, motions to quash a complaint on the
ground of lack of jurisdiction over the person of the
accused; and
(3) motions to quash a warrant of arrest. The first two are
consequences of the fact that failure to file them would
constitute a waiver of the defense of lack of jurisdiction
over the person.
The third is a consequence of the fact that it is the very
legality of the court process forcing the submission of the
person of the accused that is the very issue in a motion to
quash a warrant of arrest.
To recapitulate what we have discussed so far, in criminal
cases, jurisdiction over the person of the accused is deemed
waived by the accused when he files any pleading seeking an
affirmative relief, except in cases when he invokes the special
jurisdiction of the court by impugning such jurisdiction over
his person.
Therefore, in narrow cases involving special appearances, an
accused can invoke the processes of the court even though
there is neither jurisdiction over the person nor custody of the
law.
However, if a person invoking the special jurisdiction of the
court applies for bail, he must first submit himself to the
custody of the law.
In cases not involving the so-called special appearance, the
general rule applies, i.e., the accused is deemed to have
submitted himself to the jurisdiction of the court upon seeking
affirmative relief
Notwithstanding this, there is no requirement for him to be in
the custody of the law.
JURISDICTION OVER THE PERSON OF THE ACCUSED BY
ARREST OR VOLUNTARY SURRENDER NOT CONDITION
FOR COURT TO GRANT AFFIRMATIVE RELIEF
Except in applications for bail, it is not necessary for the court
to first acquire jurisdiction over the person of the accused to
dismiss the case or grant other relief.
The outright dismissal of the case even aefore the court
acquires jurisdiction over the person of the accused s
authorized under Section 6(a), Rule 112 of the Revised Rules
of criminal Procedure and the Revised Rules on Summary
Procedure.
In Allado v. Diokno, the case was dismissed on motion of the
iccused for lack of probable cause without the accused having
been arrested.
In Paul Roberts v. Court of Appeals, the Court was ordered to
hold the issuance of a warrant of arrest in abeyance pending
review by the Secretary of Justice.
And in Lacson v. Executive Secretary, the Court ordered the
case transferred from the Sandiganbayan to the RTC which
eventually ordered the dismissal of the case for lack of
probable cause.
It was held in People v. Chun, that where the accused
believed that the order of the holding that bail for the crime
charged against him is not a matter of right is null and void,
he need not wait to be arrested before filing the
corresponding petition in an appropriate proceeding assailing
the order.
THE REVISED RULES OF CRIMINAL PROCEDURE
(A.M. No. 00-5-03-SC)
EFFECTIVE DECEMBER 1, 2000
RULE 110
PROSECUTION OF OFFENSES
SECTION 1.
Institution of Criminal Actions
There are three (3) amendments in this rule:
First: The removal of cases governed by the Rule on Sum-
mary Procedure in special cases from the manner of institu-
tion of criminal actions above provided for.
The opening phrase in the former Rule — "For offenses not
subject to the rule on summary procedure in special cases" —
was deleted.
This phrase was ane of the basis of the ruling of the Supreme
Court in the case of Zaidivia v. Reye1 excluding offenses
subject to summary procedure from the general rule on the
interruption of the period of prescription.
Under the amendment, the institution of all criminal actions
shall be the same.
Second: Under the former rule, the commencement of actions
by filing the complaint with the appropriate officer for
preliminary investigation were limited to cases falling under
the jurisdiction of the Regional Trial Court.
This is no longer true.
Under Section 1 of Rule 112, except as provided in Section 7
19
of said rule, referring to lawful arrests without a warrant,
preliminary investigation is required for an offense punishable
by imprisonment of at least four (4) years, two (2) months
and one (1) day.
The reason why originally there was no preliminary investiga-
tion in cases triable by justice of the peace or municipal
courts was because they involved only minor offenses or
misdemeanors.
The criminal cases then exclusively triable by municipal courts
were those where the penalty provided by law did not exceed
six months imprisonment and/or a P200.00 fine.
Subsequently, however, the offenses exclusively triable by
municipal courts were increased to those punishable with
imprisonment of not exceeding four years and two months
and/or a fine ofP4.000.00 and were further increased to those
punishable with imprisonment not exceeding six (6) years
irrespective of the amount of the fine.
Clearly, therefore, these offenses were not minor or
misdemeanors and yet no preliminary investigation was
required.
Since, the type of offenses that requires preliminary investigation have
been expanded by amendment to Section 1, Rule 112 to offenses
punishable by imprisonment of at least four (4) years, two (2) months
and one (1) day, Section 1 required such cases to first be filed for
preliminary investigation.
Section 1 has accordingly been amended by removing
therefrom the limitation to offenses commenced by complaint
before the appropriate officer for preliminary investigation
only to those offenses cognizable by the Regional Trial Court,
but included to a limited extent cases cognizable by the mu-
nicipal trial courts.
It should also be noted section 5, Rule II of Administrative
No. 8 of the Office of the Ombudsman provides that: "Cases
falling under the jurisdiction of the Office of the Ombudsman
which are cognizable by municipal trial courts, including those
subject to the Rule on Summary Procedure may only be filed
in court by Information approved by the Ombudsman, or the
proper Deputy Ombudsman in all other cases."
Third: Under the former rule, prescription is interrupted in all
cases upon the institution of the criminal action.
The 1988 Amendments abandoned the ruling of the Supreme
Court in People u. Olarte and adopts the ruling in Francisco u.
Court of Appeals, to the effect that the filing of the complaint
with the fiscal's office also interrupts the period of
prescription of the offense charged.
This includes cases filed with the ombudsman for preliminary
investigation.
The Rule does not apply to violations of municipal ordinances
and special laws.
In Zaidivia u. Reyes, the court held that the interruption of
the prescriptive period upon the institution of the complaint
under Section 1 of Rule 110, does not apply to cases for
violation of special acts and municipal ordinances.

This is governed by Act No. 3326 and is interrupted only by
the institution of judicial proceedings for its investigation and
punishment.
The Court clarified in Reodica u. Court of Appeals, that even if
the case is governed by the Revised Rule on Summary
Procedure (which is not a violation of a municipal ordinance or
special law), such as reckless imprudence resulting in slight
physical injuries, prescription is interrupted with the filing of
the complaint in the Fiscal's office.
In view, however, of the ruling in Zaidivia v. Reyes, that the
rules cannot amend special laws, and under Act No. 3326, the
period of prescription for offenses punishable by special laws,
prescription shall only be interrupted upon the institution of
judicial proceedings for its investigation and punishment, the
rule has accordingly been amended to except therefrom
offenses punishable by special laws so far as prescription is
concerned.
The main basis of the said ruling of the Supreme Court was
that under Act No. 3326 as amended, the prescriptive period
for violation of special laws and municipal ordinances was
interrupted only upon the filing of the complaint or
information in court.
This ruling was confirmed in the case of Reodica v. Court
ofAppeals11 as an exception to the general rule under Article
91 of the Revised Penal Code that the filing of the complaint,
whether for preliminary investigation or for action on the
merits, interrupts prescription.
Hence, the phrase "unless otherwise provided in special laws"
was inserted as an exception to the general rule that such
institution shall interrupt the period of prescription of the
offense charged.
Act No. 3326, as amended is entitled: "An Act To Establish
Periods of Prescription for Violations Penalized By Special
Laws and Municipal Ordinances and to Provide When
Prescription Shall Begin To Run."
It provides among others that "violations penalized by
municipal ordinances shall prescribe after two months."
The exception therefore, includes violations of municipal
ordinances.
A distinction is made between the "institution" and the
"commencement" of a criminal action.
For offenses which require a preliminary investigation, the
criminal action is instituted by filing the complaint with the
appropriate officer for preliminary investigation.
The appropriate officer may be the fiscal or the municipal
circuit trial court.
The criminal action is commenced when the complaint or
information is filed in court.
In offenses cognizable by inferior courts, the complaint or
20
information is filed directly with said courts, or the complaint
is filed with the fiscal. However, in Metro Manila and other
chartered cities, the complaint may be filed only with the
fiscal.
It may, however also be noted that under the Katarungan
Pambarangay Law while the dispute is under mediation
conciliation, or arbitration, the prescriptive periods for
offenses and cause of action under existing laws shall be
interrupted upon filing of the complaint with punong
barangay.
The prescriptive periods shall resume upon receipt by the
complainant of the complaint or the certificate or repudiation
or of the certification to file action issued by the lupon or
pangkat secretary:
Provided, however, That such interruption shall not exceed
sixty (60) days from the filing of the complaint with the
punong barangay
And is interrupted even if the case filed is not within the
jurisdiction of the court.
PRESCRIPTION INTERRUPTED EVEN IF COURT IS
WITHOUT JURISDICTION
Prescription is interrupted with the filing of the case even if
the court is without jurisdiction.
The Court, citing Olarte and the subsequent cases of
Francisco v. Court of Appeals and People v. Cuaresma.
Thus, even if preliminary investigation is not required, "the
prescriptive period for the quasi offenses was interrupted by
the filing of complaint with the fiscal's office three days after
the vehicular mishap and remained tolled pending the
termination of the case."
Exceptions: Unless otherwise provided by special laws (Act
3326) includes violations of municipal ordinance) Prescription
Commences from commission or discovery until institution of
judicial proceedings.
For Violation of Special Laws
It has been settled that Section 2 of Act No. 3326 governs the
computation of prescription of offenses defined and penalized
by special laws.
Section 2 of Act No. 3326 was correctly applied by the anti-
graft court in determining the reckoning period for
prescription in a case involving the crime of violation of
Republic Act No. 3019, as amended.
Since the law alleged to have been violated, i.e., paragraphs
(e) and (g) of Section 3, R.A. No. 3019, as amended, is a
special law, the applicable rule in the computation of the
prescriptive period is Section 2 of Act No. 3326, as amended,
which provides:
Sec. 2. Prescription should begin to run from the day of the
commission of the violation of the law, and if the same be not
known at the time, from the discovery thereof and institution
of judicial proceedings for its investigation and punishment.
The prescription shall be interrupted when the proceedings
are instituted against the guilty person and shall begin to run
again if the proceedings are dismissed for reasons not
constituting double jeopardy
This simply means that if the commission of the crime is
known, the prescriptive period shall commence to run on the
day it was committed.
The Civil Law rules on prescription is applicable to criminal
Condition Precedent to Filing of Case
The Local Government Code of 1991 which took effect on
January 1, 1992, expressly repealed Presidential Decree No.
1508, otherwise known as the Katarungang Pambarangay
Law.
In lieu thereof, Chapter 7, Title I, Book III provides for the
Katarungang Pambarangay.
compatible with the national legal system and with
internationally recognized human rights.
When disputes involve ICCs/Ps, customary laws and practices
shall be used to resolve the dispute.
The National Commission on ICCs/Ps NCIP through its
regional offices shall have jurisdiction over all claims and
disputes involving ICCs/Ps, provided, however, that no such
dispute shall be brought to the NCIP unless the parties have
exhausted all remedies provided under their customary laws
to settle the dispute as certified to by the Council of
Elders/Leaders who participated in the attempt at such
settlement.
Decisions of the NCIP shall be appealable to the Court of Appeals by
way of a petition for review.
SEC. 408. Subject Matter for Amicable Settlement; Exception
Thereto. — The lupon of each barangay shall have the
authority to bring together the parties actually residing in the
same city or municipality for amicable settlement of all
disputes except:

(a) Where one party is the government or any subdivision or

Pertinent provisions of the law are as follows:
instrumentality thereof;

SEC. 412. Conciliation. —

(b) Where one party is a public officer or employee, and the
dispute relates to the performance of his official
(a) Pre-condition to filing of complaint in court. — No functions;
complaint, petition, action, or proceeding involving any
matter within the authority of the lupon shall be filed or
(c) Offenses punishable by imprisonment exceeding one (1)
instituted directly in court or any other government office
year or a fine exceeding Five thousand pesos
for adjudication, unless there has been a confrontation
(P5,000.00);
between the parties before the Lupon chairman or the
pangkat, and that no conciliation or settlement has been
reached as certified by the Lupon secretary or pangkat (d) Offenses where there is no private offended party;
secretary as attested to by the Lupon chairman or
pangkat chairman or unless the settlement has been
repudiated by the parties thereto. (e) Where the dispute involves real properties located in
different cities or municipalities unless the parties thereto
agree to submit their differences to amicable settlement
(b) Where parties may go directly to court. — The parties by an appropriate lupon;
may go directly to court in the following instances:
(f) Disputes involving parties who actually reside in
(1) Where the accused is under detention; barangays of different cities or municipalities, except
where such barangay units adjoin each other and the
(2) Where a person has otherwise been deprived of
parties thereto agree to submit their differences to
personal liberty calling for habeas corpus
amicable settlement by an appropriate lupon;and
proceedings;
(3) Where actions are coupled with provisional remedies
such as preliminary injunction, attachment, delivery (g) Such other classes of disputes which the President may
of personal property, and support pendente life; and determine in the interest of justice or upon the
recommendation of the Secretary of Justice.
(4) Where the action, may otherwise, be barred by the
statute of limitations.
The court in which non-criminal cases not falling within the
authority of the lupon under this Code are filed may, at any
(c) Conciliation among members of indigenous cultural
time before trial, motu proprio refer the case to the lupon
communities. — The customs and traditions of
concerned for amicable settlement.
indigenous cultural communities shall be applied in
settling disputes between members of the cultural
communities. SEC. 2.
The Complaint or Information
However, under Republic Act No. 837, the ICCs/Ps shall have
the right to use their own commonly accepted justice
Criminal actions must be commenced in the name of the
systems, conflict resolution institutions, peace building
People of the Philippines. — But the defect is merely of form
processes or mechanisms and other customary laws and
and curable at any stage of the trial.
practices within their respective communities and as may be

21
 SEC. 3.
Complaint Defined f. A criminal action cannot be instituted against a juridical
person.
Who May File Complaint
g. To subscribe and swear to criminal complaint is not
a. The offended party. ministerial.

b. Any peace officer. But the absence of an oath does not invalidate the
complaint.
c. Other public officer charged with the enforcement or
execution of the law violated. Unless the complaint charged is a private offense.

The provincial fiscal is not among the three. h. The right to file complaint is personal and abated upon
death.
The information filed by him which instituted the
proceeding cannot be considered as a complaint. MAY INJUNCTION ISSUE TO RESTRAIN CRIMINAL
PROSECUTION

1) Meaning of the term "offended party." — The person

actually injured and whose feeling is offended. The general rule is that criminal prosecution may not be
restrained or stayed by injunction, preliminary or final.
2) A widow, however, maybe considered an offended
party within the meaning of the applicable rules of Public interest requires that criminal acts be immediately
court entitled to file a complaint for the murder of investigated and prosecuted for the protection of society.
her husband.2
There are, however, exceptions, among which are:
Justice Davide, Jr., citing Section 12, Rule 110 refers to an
"offended party" in the commission of a crime, public or
private, as the party to whom the offender is civilly liable in a. To afford adequate protection to the constitutional rights
light of Article 100 of the Revised Penal Code that "every of the accused;
person criminally liable is also civilly liable.

b. When necessary for the orderly administration of justice

Invariably then, the private individual to whom the or to avoid oppression or multiplicity of actions;
offender is civilly liable is the offended party.

c. When there is a prejudicial question;

In bigamy both the first and second spouses may be
the offended parties depending on the circumstances
d. When the acts of the officer are without or in excess of
authority;
3) The right to commence criminal prosecution is con-
fined to representatives of the government and
persons injured; otherwise, it shall be dismissed. e. Where the prosecution is under an invalid law, ordinance
or regulation;
d. But One who is not the offended party file a complaint for
preliminary investigation. f. When double jeopardy is clearly apparent;

Unless the offense subject of the complaint is one that g. Where the court has no jurisdiction over the offense;
cannot be prosecuted de oficio, any competent person
may file a complaint for preliminary investigation.
h. Where it is a case of persecution rather than prosecution;

As a general rule, a criminal action is commenced by a

complaint or information, or both of which are filed in i. Where the charges are manifestly false and motivated by
court. the lust for vengeance;

If a complaint is filed directly in court, the same must be j. When there is clearly no prima facie case against the
filed by the offended party and in case of an information, accused and a motion to quash on that ground has been
the same may be filed by the fiscal. However, a denied; and
"complaint" filed with the fiscal prior to judicial action
may be filed by any person. k. Preliminary injunction has been issued by the Supreme
Court to prevent the threatened unlawful arrest of
e. Private persons may denounce a violation of banking petitioners.
laws.

A complaint with the fiscal prior to a judicial action may

be filed by any person.
22

SEC. 4.
Information defined
Distinguish Information from Complaint
As distinguished from information, a complaint is:
a. Executed by a private party, etc.;
b. Supported by oath of the complainant; and
c. Need not necessarily be filed with the court.
An information not properly signed cannot be cured by
silence, acquiescence or even by express consent.
It must be filed with the court, otherwise it is not an
information.
SEC. 5.
Who must prosecute criminal actions
Under the 1985 amendments, the following sentences were added to
the first paragraph of Sec. 4 of the old Rule 110, to wit:
"However, in the Municipal Court or Municipal Trial Courts
when there is no fiscal available, the offended party, any
peace officer or public officer charged with the enforcement of
the law violated may prosecute the case.
This authority ceases upon actual intervention of the fiscal or upon
elevation of the case to the Regional Trial Court. This is based on the
Resolution of the Supreme Court in People v. Beriales."
In the third paragraph of Section 4 of the old Rule 110, the
fol-owing was added:
"In case the offended party dies or becomes incapacitated before she
could file the complaint and has no known parents, grandparents or
guardian, the State shall initiate the criminal action in her behalf. This
is based on the doctrine of parens patriae."
Rape is now a crime against person and consequently can be
prosecuted even without a complaint filed by the offended
party.
[A.M. No. 02-2-07-SC. April 10, 2002]
RE: PROPOSED AMENDMENTS TO SECTION 5, RULE 110
OF THE REVISED RULES OF CRIMINAL PROCEDURE
Acting on the Memorandum dated 2 February 2002 of Court
administrator Presbitero J. Velasco, Jr. submitting for this Court's
consideration and approval the proposed amendment to Sec. 5, Rule
L10 of the Revised Rules of Criminal Procedure, the Court Resolved to
APPROVE the amendment to Sec. 5, Rule 110 so as to read as follows:
Section 5. Who must prosecute criminal actions. — All criminal actions
either commenced by complaint or by information shall be prosecuted
under the direction and control of a public prosecutor.
In case of heavy work schedule of the public prosecutor or in the event
of lack of public prosecutors, the private prosecutor may be authorized
in writing by the Chief of the Prosecution Office or the Regional State
Prosecutor to prosecute the case subject to the approval of the court.
23
Once so authorized to prosecute the criminal action, the private
prosecutor shall continue to prosecute the case up to the end of the
trial even in the absence of a public prosecutor, unless the authority is
revoked or otherwise withdrawn.
This amendment to Rule 110 shall take effect on the first day of May
2002 following its publication in two newspapers of general circulation
on or before 30 April, 2002.
The amendment inadvertently failed to reproduce the statement that:
However, in Municipal Trial Courts or Municipal Circuit Trial Courts
when the prosecutor assigned thereto or to the case is not available,
the offended party, any peace officer, or public officer charged with the
enforcement of the law violated may prosecute the case.
This authority shall cease upon actual intervention of the prosecutor or
upon elevation of the case to the Regional Trial Court.
This does not, however, mean that the persons mentioned therein may
no longer prosecute the case under the conditions mentioned in the
old rule.
The amendment was merely intended to regulate the appearance of
the private prosecutor and stress the direction and control of the
public prosecutor in the prosecution of criminal cases.
EFFECT OF LACK OF INTERVENTION BY FISCAL IN
TRIAL OF A CRIMINAL CASE
Before the 1985 amendment, the Supreme Court, in Garcia v.
Domingo, citing Cariaga v. Justo, held that the absence of the
Assistant Fiscal is not a jurisdictional defect but the court
should have cited the public prosecutor to intervene.
The rule was modified in People v. Beriales where it was held
that although the Fiscal turns over the active conduct of the
trial to the private prosecutor, he should be present during
the proceedings —
Thus, in the case of People v. Munar, the Court upheld the
right of the private prosecutor therein to conduct the
examination of the witnesses because the government
prosecutors were present at the hearing; hence, the
prosecution of the case remained under their supervision and
control.
In the present case, although the private prosecutor had
previously been authorized by the special counsel Rosario R.
Polines to present the evidence for the prosecution,
nevertheless, in view of the absence of the City Fiscal at the
hearing on December 13, 1974, it cannot be said that the
prosecution of the case was under the control of the City
Fiscal.
It follows that the evidence presented by the private
prosecutor at said hearing could not be considered as evi-
dence for the plaintiff, the People of the Philippines.
There was, therefore, no evidence at all to speak of which
could have been the basis of the decision of the trial court.
Moreover, as aptly observed by the Solicitor General, "to per-
mit such prosecution of a criminal case by the private
prosecutor with the fiscal in absentia can set an obnoxious
precedent that can be taken advantage of by some indolent
members of the prosecuting arm of the government as well
as those who are oblivious of their bounden duty to see to it
not only that the guilty should be convicted, but that the
innocent should be acquitted — a duty that can only be
effectively and sincerely performed if they actively
participated in the conduct of the case, especially in the
examination of the witnesses and the presentation of
documentary evidence for both parties.
The decision appealed from was set aside and the case
remanded to the trial court for another arraignment and trial.
The same principle was not, however, observed in People v.
Malinao, where the Supreme Court did not consider the
absence of the fiscal prejudicial to the accused "for only Dr.
Nicanor L. Tansingco was presented to testify on his autopsy
report on the deceased Manang.
Since no objection was interposed by appellant's counsel,
either to Dr. Tansingco's competency or his post mortem
findings, the doctor's testimony was dispensed with.
The defense likewise waived the fiscal's presence on that
date.
In Bravo v. Court of Appeals — The proceedings was held to
be valid even without the physical presence of Fiscal as
distinguished from Beriales case, where no Fiscal appeared to
prosecute.
Here, the Fiscal appeared but left the prosecution to the
private prosecutor under his supervision and control.
The Court noted in a subsequent case that the public prosecu-
tor may turn over the actual prosecution of the criminal case,
in the exercise of his discretion, but he may, at any time,
take over the actual conduct of the trial.
However, it is necessary that the public prosecutor be present
at the trial until the final termination of the case; otherwise, if
he is absent, it cannot be gainsaid that the trial is under his
supervision and control.
The absence, however, of a prosecutor cannot be raised by an
accused to invalidate the testimony of a state witness if he
cannot prove personal prejudice.
Necessity of Service to Government Counsel
Failure to serve pleadings and orders upon government coun-
sel renders the court orders issued uponsuch petitions or
motions of an accused as void.
Notice, however, given to the fiscal is notice to the private
prosecutor.
The authority, however, of the provincial prosecutor to appeal
for the People of the Philippines is confined only to the
proceedings before the trial court.
In appeals before the Court of Appeals or to the Supreme
Court either by petition for review or certiorari, the Solicitor
General is the sole representative of the People.
24
Service thru the Provincial Prosecutor is inefficacious
and shall be sufficient ground for dismissal on the petition as
provided in section 3, Rule 46.
Fiscal's Discretion in Prosecution
Prior to the filing of a case in court:
a. A prosecuting attorney cannot be compelled to file a par-
ticular criminal information.
b. The Court cannot interfere with the Fiscal's discretion and
control of criminal prosecution.
c. The Court cannot compel the fiscal to prosecute or file
information within a certain period of time.
It is the rule that a fiscal by the nature of his office is under
no compulsion to file a particular criminal information where
he is not convinced that he has evidence to support the
allegations thereof.
Although this power and prerogative of the Fiscal to
determine whether or not the evidence at hand is sufficient to
form a reasonable belief that a person committed an offense,
is not absolute and subject to judicial review, it would be
embarrassing for the prosecuting attorney to be compelled to
prosecute a case when he is in no position to do so, because
in his opinion, he does not have the necessary evidence to
secure a conviction, or he is not convinced of the merits of
the case.
The better procedure would be to appeal the Fiscal's decision
to the Ministry of Justice and/or ask for a special prosecutor.
The failure of the Fiscal to include the other public officials
who appear to be responsible for the offense charged as co-
accused in the information does not vitiate the validity of the
information since the matter of prosecuting witnesses for the
People is a prerogative of bhe prosecuting fiscal.
The manner by which the prosecution of a case is handled is
within the sound discretion of the prosecutor and the non-
inclusion if other guilty persons is irrelevant to the case
against the accused.
The prosecutor cannot be compelled to include in the
information, a person against whom he believes no sufficient
evidence of guilt exists.
While the prosecuting officer is required by law to charge all
those who, in his opinion, appear to be guilty, he nevertheless
cannot be compelled to include in the information a person
against whom he believes no sufficient evidence of guilt
exists.
The appreciation of the evidence involves the use of discretion
on the part of the prosecutor.
The decision of the prosecutor may be reversed or modified
by the Secretary of Justice or in special cases by the
President of the Philippines.
But even the Supreme Court cannot order the prosecution of
a person against whom the prosecutor does not find sufficient
evidence to support at least aprima facie case.
The courts try and/or convict the accused but as a rule have
no part in the initial decision to prosecute him.
The possible exception is where there is an unmistakable
showing of a grave abuse of discretion that will justify judicial
intrusion into the precincts of the executive.
But in such a case, the proper remedy to call for such
exception is a petition for mandamus, not certiorari or
prohibition.
Moreover, before resorting to this relief, the party seeking the
inclusion of another person as a co-accused in the same case
must first avail itself of other adequate remedies such as the
filing of a motion for such inclusion.
A case dismissed before arraignment maybe refiled.
FULL CONTROL BY THE COURT ONCE INFORMATION
FILED IN COURT
However, in cases where the information had already been
filed in court, the latter acquires jurisdiction over them.
Otherwise stated, the jurisdiction of the court become vested
upon the filing of the information and, once acquired, its
jurisdiction continues until the termination of the case.
Where the information had already been filed in court, it
should therefore dispose of them, one way or the other,
resolving all motions brought before it including motions to
dismiss, filed by the Fiscal, or deciding the cases on the merit.
The prosecuting fiscal has no more control over said cases,
the same having been transferred to the court.
The situation is akin to the pronouncement made in Lansang
u. Garcia, that whenever a formal complaint is presented in
court against an individual, the court steps in and takes
control thereof until the same is finally disposed of.
However, the matter of instituting an information should be
distinguished from a motion by the fiscal for the dismissal of a
case already filed in court.
The judge may properly deny the motion where, judging from
the record of the preliminary investigation, there appears to
be sufficient evidence to sustain the prosecution.
This is, as it should be, because the case is already in court
and, therefore, within its discretion and control.
In the landmark case ofCrespo u. Mogul, the Supreme Court,
sifter a review of past precedents held:
"The rule therefore in this jurisdiction is that once a complaint
or information is filed in Court, any disposition of the case as
its dismissal or the conviction or acquittal of the accused rests
in the sound discretion of the Court.
25
Although the fiscal retains the direction and control of the prosecution
of criminal cases even while the case is already in Court, he cannot
impose his opinion on the trial court.
The Court is the best and sole judge on what to do with the case
before it.
The determination of the case is within its exclusive jurisdiction and
competence.
A motion to dismiss the case filed by the Fiscal should be addressed to
the Court who has the option to grant or deny the same.
It does not matter if this is done before or after the arraignment of the
accused or that the motion was filed after a reinvestigation or upon
instructions of the Secretary of Justice who reviewed the records of the
investigation.
Thus, it is now settled that once a complaint or information is filed in
court any disposition of the case as to its dismissal or the conviction or
the acquittal of the accused rests in the sound discretion of the court.
A motion to dismiss the case filed by the fiscal should be addressed to
the court, who has the option to grant or deny the same.
It does not matter if this is done before or after the arraignment of the
accused or that the motion was filed after a reinvestigation or upon
instruction of the Secretary of Justice who reviewed the records of the
investigation."
THE PRINCIPLE WAS FURTHER STRESSED IN
DIMATULAC V. VILLON
In this case, the accused were charged with murder before
the Municipal Court which found a probable cause for murder
and issued warrants for the arrest of the accused without
bond, after which the records were forwarded to the
Provincial Fiscal.
Without the accused having been arrested, the Fiscal
conducted a reinvestigation and received the evidence of the
accused, found the case to be homicide.
The offended party appealed to the Secretary of Justice.
In the meantime, despite the appeal, the prosecutor filed the
information for homicide, and despite the objections of the
offended party on the ground that they have appealed the
resolution of the Fiscal to the Secretary of Justice, on the
ground that the crime committed was murder, the RTC
refused to defer the arraignment, and allowed the accused to
post bail in the sum of P20,000 each.
The accused were arraigned and entered a plea of not guilty.
The Secretary of Justice found the case to be murder, but
withdrew its recommendation to amend the information to
murder upon learning the accused have already been
arraigned.
The Court found the Fiscal and Judges concerned to have
gravely abused their discretion in not deferring the
arraignment pending disposition of the appeal to the
Secretary of Justice.
The Court should have suspended the arraignment of this
information for homicide and await resolution on the petition
for review to DOJ on the ground that the crime is for murder.
Otherwise, the arraignment may be set aside, and
information amended if DOJ finds that the proper information
should be murder.
MOTION FOR REINVESTIGATION TO BE ADDRESSED TO
COURT
In Velasquez v. Tuquero, it was held that a motion for
reinvestigation should, after the court had acquired
jurisdiction over the case, be addressed to the trial judge and
to him alone.
Neither the Secretary of Justice, the State Prosecutor, nor the
fiscal may interfere with the judge's disposition of the case,
much less impose upon the court their opinion regarding the
guilt or innocence of the accused, for the Court is the sole
judge of that.
Thus, should the fiscal find it proper to conduct a
reinvestigation of the case, the permission of the court must
be secured.
After such reinvestigation, the finding and recommendations
of the fiscal should be submitted to the court for appropriate
action.
The Supreme Court clarified that while the fiscal has the
quasi-judicial discretion to determine whether or not a
criminal case should be filed in court, once the case had
already been brought to the Court whatever disposition the
fiscal may feel should be proper in the case thereafter should
be addressed for the consideration of the court.
The only qualification is that the action of the court must not
impair the substantial rights of the accused or the right of the
people to due process.
The Court has the final say on any subsequent disposition or
action, since the case is brought before it which will not be
disturbed by the appellate court unless it is shown that the
trial court acted without jurisdiction or in excess of its
jurisdiction or otherwise committed a grave abuse of
discretion amounting to such lack or excess of jurisdiction.
COMPLAINT CANNOT BE WITHDRAWN BY FISCAL
WITHOUT COURT'S CONSENT
The complaint cannot be withdrawn by the Fiscal without the
court's consent.
The provincial fiscals are not clothed with power, without the
consent of the court, to dismiss or nolle prosequi criminal
actions actually instituted and pending further proceedings.
The power to dismiss is vested solely in the court, i.e., the
presiding judge.
See however, Galvez v. Court of Appeals, upholding the right
of the prosecution to withdraw the information for homicide,
the evident purpose was to refile a case of murder against the
26
same accused before arraignment even without notice and
hearing.
Fiscal Entitled to be Heard on Motion to Dismiss
However, while the trial court is the sole judge on whether a
criminal case should be dismissed (after the complaint or
information has been filed in court) still, any move on the
part of the complainant or offended party to dismiss the
criminal case, even if without objection of the accused should
first be referred to the prosecuting fiscal for his own view on
the matter.
He is, after all, in control of the prosecution of the case and
he may have his own reasons why the case should not be
dismissed.
It is only after hearing the prosecuting fiscal's view that the
Court should exercise its exclusive authority to continue or
dismiss the case.
The Parameters of the Court's Control
The Supreme Court, clarified in Marcelo v. Court of Appeals,
that there is nothing in Crespo v. Mogul, which bars the DOJ
from taking cognizance of an appeal, by way of petition for
review, by an accused in a criminal case from an unfavorable
ruling of the investigating prosecutor.
It merely advised the DOJ to, "as far as practicable, refrain
from entertaining a petition for review or appeal from the
action of the fiscal, when the complaint or information has al-
ready been filed in court."
Moreover, where the DOJ had already given due course to the
petitioner's petition for review, it was premature for
respondent judge to deny the motions to suspend
proceedings and to defer arraignment on the ground that
"since the case is already pending for trial, to follow whatever
opinion the Secretary of Justice may have on the matter
would undermine the independence and integrity of this
court.
Thus, where the judge granted the motion for reinvestigation
and directed the Office of the Provincial Prosecutor to conduct
the reinvestigation, the former was deemed to have deferred
to the authority of the prosecution arm of the Government to
consider the so-called new relevant and material evidence
and determine whether the information it had filed should
stand.
Having done so, it behooved the judge to wait for a final
resolution of the incident.
VALID BASIS OF JUDGE'S FINAL ACTION WHERE
FISCAL STANDS ON INFORMATION
The findings and conclusion of the Provincial Prosecutor,
being the final disposition on the reinvestigation, should be
the sole and only valid basis of the judge's final action (not
that of the Assistant Provincial Prosecutor).
Where the Provincial Prosecutor to which the judge had
deferred the matter for reinvestigation, had finally resolved to
stand on the information and to present evidence to prove the
guilt of the accused for the crime charged, the judge did not
have the option to dismiss the case on the basis of the
disapproved resolution of the Assistant Provincial Prosecutor.
The only option of the judge was to proceed with the
arraignment of the accused and, thereafter, conduct a pre-
trial and trial on the merits, should he enter a plea of not
guilty.
It does not, however, necessarily follow that the court should
merely adopt the recommendation of the Prosecutor.
In Montesa, the stand of the prosecution is to maintain the
information, in which case there is nothing more for the court
to do but to proceed with the case.
The situation is different if the motion of the fiscal is for the
dismissal or withdrawal of the information.
ULTIMATE TEST OF TRIAL COURT'S INDEPENDENCE IS
WHERE FISCAL FILES A MOTION TO DISMISS
The Supreme Court stressed that the real and ultimate test of
the independence and integrity of the trial court is not the
filing of the motions to suspend proceedings and defer
arraignment at that stage of the proceedings but the filing of
a motion to dismiss or to withdraw the information on the
basis of a resolution of the petition for review reversing the
Joint Resolution of the investigating prosecutor.
Before that time, the pronouncement in Crespo u. Mogul, that
"once a complaint or information is filed in Court, any
disposition of the case as its dismissal or the conviction of the
accused or acquittal of the accused rests in the sound
discretion of the court," did not yet become relevant or
applicable.
However, once a motion to dismiss or withdraw the informa-
tion is filed, the trial judge may grant or deny it, not out of
subservience to the Secretary of Justice, but in faithful
exercise of judicial prerogative.
The trial judge must himself be convinced that there was
indeed no sufficient evidence against the accused, and this
conclusion can be arrived at only after an assessment of the
evidence in the possession of the prosecution.
What is imperatively required is the trial judge's own
assessment of such evidence, it not being sufficient for the
valid and proper exercise of judicial discretion merely to
accept or reject the prosecution's word for its supposed
insufficiency or to simply rely on Crespo v. Mogul.
In the absence of a finding of grave abuse of discretion, the
court's bare denial of a motion to withdraw information
pursuant tc the Secretary's resolution is void.
FISCAL MAY BE COMPELLED TO PROSECUTE CASES ALREADY
FILED
Notwithstanding his personal convictions or opinions, the
fiscal must proceed with his duty of presenting evidence to
the court to enable the court to arrive at its own independent
judgment as to the culpability of the accused.
27
The fiscal should not shirk from his responsibility much less
leave the prosecution of the case at the hands of a private
prosecutor.
At all times, the criminal action shall be prosecuted under his
direction and control.
Otherwise, the entire proceedings will be null and void.
In the trial of criminal cases, it is the duty of the public
prosecutor to appear for the government "since an offense is
an outrage to the sovereignty of the State."
This is so because "the prosecuting officer is the
representative not of an ordinary party to a controversy but
of a sovereignty where the obligation to govern impartially is
as compelling as its obligation to govern at all; and whose
interest, therefore, in criminal prosecution is not that it shall
win a case, but that justice shall be done.
As such, he is in a peculiar and very definite sense, the
servant of the law, the two-fold aim of which is that guilt shall
not escape or innocence suffers.
Accordingly, if the fiscal is not at all convinced that a prima
facie case exists, he simply cannot move for the dismissal of
the case and, when denied, refuse to prosecute the same.
He is obliged by law to proceed and prosecute the criminal
action.
He cannot impose his opinion on the trial court.
At least what he can do is to continue appearing for the
prosecution and then turn over the presentation of evidence
to another fiscal or a private prosecutor subject to his
direction and control.
Where there is no other prosecutor available, he should
proceed to discharge his duty and present the evidence to the
best of his ability and let the court decide the merits of the
case on the basis of the evidence adduced by both parties.
The supervision and control of the prosecutor extends to the
civil liability instituted with the criminal action if it was not
filed separately, reserved or there is no private prosecutor
who intervened.
DEVELOPMENTS FROM CRESPO TO DIMATULAC:
a. Distinction between control of prosecution and control of
court
I. Control by Prosecution
1. What case to file;
2. Whom to prosecute;
3. Manner of prosecution; and
4. Right of Prosecution to Withdraw information
before arraignment even without notice and
hearing. There must be leave of court after
prior notice and hearing.

II. Control by Court Once Case is Filed
1. Suspension of Arraignment;
2. Reinvestigation;
3. Prosecution by Fiscal;
4. Dismissal; and
5. Downgrading offense or dropping of accused
even before plea.
III. Limitations on Control by Court
1. Prosecution entitled to notice of hearing;
2. Court must await result of petition for review;
3. Prosecution's stand to maintain prosecution
should be respected by court;
4. Ultimate test of court's independence is where
fiscal files motion to dismiss or to withdraw
information;
5. Court has authority to review (power of Judicial
Review)
Secretary's recommendation and reject it if
there is grave abuse of discretion.
*See, however, Sec. ll(c), Rule 116, Suspension
of arraignment does not exceed sixty (60) days.
The Resolution of the Secretary of Justice may
be appealed to the Office of the President in
offenses punishable by death or reclusion
perpetua.
6. To reject or grant motion to dismiss court must
make own independent assessment of evidence.
7. Judgment is void if there is no independent
assessment and finding of grave abuse of
discretion.
CRIMES PROSECUTED UPON COMPLAINT OF OFFENDED
PARTY
The rule on crimes that must be prosecuted upon complaint
filed by the offended party may be classified into three
categories:
a. In crimes of adultery and concubinage;
b. In offenses of seduction, abduction, or acts of lascivious-
ness;
c. Criminal actions for defamation which consist in the
imputation of an offense mentioned above.
Rape was excluded as a private crime in view of R.A. No.
8353, the Anti-Rape Law of 1997 which took effect on
October 22, 1997, and reclassifying rape as a crime against
28
person and is now a "public crime."
Concept of Private Crimes
The term "private crimes" in reference to felonies which
cannot be prosecuted except upon complaint filed by the
aggrieved party, is misleading.
Far from what it implies, it is not only the aggrieved party
who is offended in such crimes but also the State.
Every violation of penal laws results in the disturbance of
public order and safety which the State is committed to
uphold and protect.
If the law imposes the condition that private crimes like
adultery shall not be prosecuted except upon complaint filed
by the offended party, it is, "out of consideration for the
aggrieved party who might prefer to suffer the outrage in
silence rather than go through the scandal of a public trial."
Once a complaint is filed, the will of the offended party is
ascertained and the action proceeds just as in any other
crime.
This is shown by the fact that after filing a complaint, any
pardon given by the complainant to the offender would be
unavailing.
It is true, the institution of the action in so-called private
crimes is at the option of the aggrieved party.
But it is equally true that once the choice is made manifest,
the law will be applied in full force beyond the control of, and
in spite of the complainant, his death notwithstanding.
Purpose of Rule
The complaint required (in Article 344 of the Revised Penal
Code) was not enacted for the specific purpose of benefitting
the accused, but is a condition precedent to the exercise by
the proper authorities of the power to prosecute the guilty
parties.
Such condition has been imposed out of consideration for the
offended women and her family who might prefer to suffer
the outrage in silence rather than go through with the scandal
of a public trial.
Thus, while the complaint filed by a mental retardate may
have been technically defective in the sense that complainant
was incompetent, this defect has been cured when
complainant's brother Pernando Alcala took the witness stand
for the prosecution.
The brother's testimony shows that consent and willingness of
the family of the complainant, who cannot give her consent
obviously, to have the private offense committed against the
latter publicly tried.
Substantially, this is what is required by the rules.
Evidently, by undergoing trial, the family of complainant
chose to denounce the injustice committed against the latter
in public and thus agreed to bear the personal effects of said
exposure.
Undoubtedly, therefore, the trial court had jurisdiction to try
the case.
Compliance with Rule Is Jurisdictional
While the complaint required in said Art. 344 is merely a
condition precedent to the exercise by the proper authorities
of the power to prosecute the guilty parties, and such
condition has been imposed out of consideration for the
offended woman and her family who might prefer to suffer
the outrage in silence rather than go through with the scandal
of a public trial.
Compliance with Rule 110, Section 5, is Jurisdictional and not
merely a formal requirement.
Under Article 344 of the Revised Penal Code, the crime of
adultery, as well as four other crimes against chastity, cannot
be prosecuted except upon a sworn written complaint filed by
the offended spouse.
It has since long been established, with unwavering consist-
ency, that compliance with this rule is a Jurisdictional, and not
merely a formal requirement.
While in point of strict law, the jurisdiction of the court over
the offense is vested in it by the Judiciary Law, the
requirement for a sworn written complaint is just as
Jurisdictional a mandate since it is that complaint which starts
the prosecutory proceeding and without which the Court
cannot exercise its jurisdiction to try the case.
MEANING OF TERM "JURISDICTIONAL"
It was explained in People v. Tanada (supra), that this provi-
sion does not determine, however, the jurisdiction of our
courts over the offenses therein enumerated.
It could not affect said jurisdiction, because the same is
governed by the Judiciary Act of 1948, not by the Revised
Penal Code, which deals primarily with the definition of crimes
and the factors pertinent to the punishment of the culprit.
When it is said that the requirement in Article 344 that there
should be a complaint of the offended party or his relative is
Jurisdictional, what is meant is that it is the complaint that
starts the prosecutory proceeding.
It is not the complaint which confers jurisdiction in the court
to try the case.
The Court's jurisdiction is vested in it by the Judiciary Law.
IN PROSECUTIONS FOR ADULTERY AND CONCUBINAGE,
THE PERSON WHO CAN LEGALLY FILE THE COMPLAINT
SHOULD BE THE OFFENDED SPOUSE, AND NOBODY
ELSE
Unlike the offenses of seduction, abduction, rape and acts of
29
lasciviousness, no provision is made for the prosecution of the
crimes of adultery and concubinage by the parents,
grandparents or guardian of the offended party.
The so-called exclusive and successive rule in the prosecution
of the first four offenses above mentioned do not apply to
adultery and concubinage.
It is significant that while the State, as parens patriae, was
added and vested by the 1985 Rules on Criminal Procedure
with the power to initiate the criminal action for a deceased or
incapacitated victim in the aforesaid offenses of seduction,
abduction, [rape] and acts of lasciviousness, in default of her
parents, grandparents or guardian, such amendment did not
include the crimes of adultery and concubinage.
In other words, only the offended spouse, and no other, is
authorized by law to initiate the action therefor.
OFFENDED PARTY IN ADULTERY MUST HAVE THE
STATUS, CAPACITY AND LEGAL REPRESENTATION AT
THE TIME OF FILING OF ACTION FOR ADULTERY
Where the complainant had already been divorced, he can no
longer file the complaint. Said the Supreme Court:
Corollary to such exclusive grant of power to the offended
spouse to institute the action, it necessarily follows that such
initiator must have the status, capacity or legal
representation to do so at the time of the filing of the criminal
action.
This is a familiar and express rule in civil actions; in fact, lack of legal
capacity to sue, as a ground for a motion to dismiss in civil cases, is
determined as of the filing of the complaint or petition.
The absence of an equivalent explicit rule in the prosecution of criminal
cases does not mean that the same requirement and rationale would
not apply.
Understandably, it may not have been found necessary since criminal
actions are generally and fundamentally commenced by the State,
through the People of the Philippines, the offended party, being merely
the complaining witness therein.
However, in the so-called "private crimes," or those which cannot be
prosecuted de oficio, and the present prosecution for adultery is of
such genre, the offended spouse assumes a more predominant role
since the right to commence the action, or to refrain therefrom, is a
matter exclusively within his power and option.
In these cases, therefore, it is indispensable that the status and
capacity of the complainant to commence the action be definitely es-
tablished and, as already demonstrated, such status or capacity must
indubitably exist at the time he initiates the action.
It would be absurd if his capacity to bring the action would be
determined by his status before or subsequent to the commencement
thereof, where such capacity or status existed prior to but ceased
before, or was acquired subsequent to but did not exist at the time of,
the institution of the case. We would thereby have the anomalous
spectacle of a party bringing suit at the very time when he is without
the legal capacity to do
Exclusive Right of Offended Party When of Age
If the offended party is of age, the right to file the complaint
is exclusive and successive. — None of these persons has
authority to proceed if there is any other person previously
mentioned therein with legal capacity to appear and institute
an action.
Where, however, the victim who was also of age is
incapacitated by reason of insanity or physical incapacity, the
complaint filed by the father is valid.
OVERRIDING CONSIDERATION IN DETERMINATION OF
COMPLIANCE WITH RULE
The overriding consideration in determining the issue of
whether or not the condition prescribed in Article 344 of the
Revised Penal Code has been complied with is the interest of
the aggrieved party to seek judicial redress for the affront
committed.
DEATH OF COMPLAINANT DURING PENDENCY OF CASE
DOES NOT EXTINGUISH CRIMINAL LIABILITY
The death of the complainant during the pendency of the case
is not a ground for extinguishment of criminal liability
whether total or partial.
DEATH OF COMPLAINANT BEFORE FILING OF CASE IN
COURT
The fact that before a criminal information for adultery could
be filed, the offended party who had already filed a sworn
complaint with the fiscal died, is not sufficient justification for
dismissal of the information, the desire of the offended party
to bring his wife and the alleged paramour to justice being
too evident.
FILING OF VERIFIED STATEMENT BEFORE COURT
SUFFICIENT
In a case where the Fiscal filed an Information charging the
accused with 'telling some people in the neighborhood that
said Fausta Bravo (a married woman) was a paramour of one
Sangalang, a man not her husband,' and Fausta Bravo did not
subscribe to the complaint, the Supreme Court held that the
trial court had no jurisdiction over the case.
It ruled that since the accused imputed to Fausta Bravo the
commission of adultery, a crime which cannot be prosecuted
de officio, the Information filed by the Fiscal cannot confer
jurisdiction upon the court of origin.
It must be noted, however, that this error could be corrected
without sustaining the motion to quash and dismissing the
case. Pursuant to Section 1 of paragraph (a) of P.D. No. 77,
under which the Assistant City Fiscal conducted the
preliminary investigation, the statement of the complainant
was sworn to before the aforesaid Investigating Fiscal.
Assuming that the recitals in said sworn statement contain all
those required of a complaint under the rules, a copy of said
verified statement of the complainant under the rules should
be filed with respondent court in order to comply with the
requirements of Article 360 of the Revised Penal Code;
otherwise, the respondent Fiscal should file with said court, a
verified complaint of the offended party.
COMPLAINT FILED BY OFFENDED PARTY IN INFERIOR
COURT SUFFICIENT; OFFENDED PARTY NEED NOT
SUBSCRIBE INFORMATION
30
In this case, the complaint for abduction with rape 'against
Bulaong was filed in the city court by the offended girl and
her father. That complaint was sworn to before the city judge.
It was the basis of the preliminary examination. The judge
examined the witnesses under oath. The examination was
reduced to writing in the form of searching questions and
answers. On the basis of that examination, a warrant of
arrest was issued.
In his appeal, Bulaong contends through his counsel de officio that the
lower court did not acquire jurisdiction over the case because the
information filed by the city fiscal is fatally defective for not containing
the verification required in Form 24 of the Appendix to the Rules of
Court.
The contention has no merit.
The forms prescribed in the Rules of Court "serve as mere
illustrations."
Jurisdiction over the crime charged in this case is conferred by law, not
by the complaint or information which is merely the means by which
jurisdiction is invoked or which gives the court the occasion for
exercising its jurisdiction.
INITIATION OF COMPLAINT IN FISCAL'S OFFICE IS
SUFFICIENT COMPLIANCE
A "Salaysay" or sworn statement of the offended party, which
prompted the Fiscal to con-duct a preliminary investigation
and then to file an information in court, is not the complaint
contemplated/required by Article 344 of the Revised Penal
Code.
The Rule was modified in Valdepenas u. People, which
held that the complaint filed by the offended woman and her
mother before the Justice of the Peace Court and forwarded
to the CFI of Cagayan, in which the corresponding information
for forcible abduction with rape was filed and was considered
as sufficient compliance with the law.
It is not necessary for the complainant to sign and verify the
information filed by the Fiscal.
The complaint adopted by the Fiscal and attached to and
made part of the corresponding information filed after investi-
gation is sufficient.
In People v. Sunpongco, the failure of the prosecution to
formally offer in evidence the sworn complaint of the offended
party or the failure to adhere to the rules is not fatal and does
not oust the court of its jurisdiction to hear and decide the
case.
If the complaint is forwarded to the Court as part of the
record of the preliminary investigation of the case, the court
can take judicial notice of the same without the necessity of
its formal introduction as evidence of the prosecution.
Seduction, Abduction, Act of Lasciviousness
The right is exclusively and successively reposed in the
offended party, her parents or guardian in the order in which
they are named.
This is out of consideration for the aggrieved party who might
prefer to suffer the outrage in silence rather than go through
the scandal of a public trial.
NO NEED TO FILE INFORMATION; FILING OF
COMPLAINT IS SUFFICIENT
In a case involving crimes against chastity, the prosecution
may be conducted by the fiscal on the basis of the complaint
filed in the inferior court. There is no need to file an
information.
Hence, the other contention of the accused that the informa-
tion should have been signed by the offended girl is wrong.
Article 344 of the Revised Penal Code, reproduced in Section
4, Rule 110 of the Rules of Court, does not require that the
offended girl in a crime against chastity should sign the
information filed by the fiscal.
Since the filing of a complaint for any of the offenses
enumerated in Article 344 of the Revised Penal Code, by the
person or persons mentioned therein is jurisdictional, the
filing thereof is sufficient to initiate a valid prosecution, and
no information need be Sled any longer by the Fiscal.
EFFECT OF VARIANCE BETWEEN COMPLAINT AND
INFORMATION AND THE EVIDENCE
A distinction should be made where there is a variance in the
allegations in the complaint of the manner the crime was
committed and the allegations in the information; and a
variance between the allegations in the information and the
evidence adduced by the prosecution.
a. Where the complaint filed was for forcible abduction,
while the information filed by the Fiscal was for rape
inasmuch as the crime if rape is different from the crime
of forcible abduction alleged in the complaint, said
complaint could not serve as a basis for the court to
acquire jurisdiction over the crime actually committed.
b. Where, however, the complaint was for rape, a change in
the manner of committing the crime of rape from that as
alleged in the complaint does not divest the court of its
jurisdiction.
The power of jurisdiction of the court is not over the
crime of rape when committed on a minor and demented
girl, but over rape, irrespective of the manner in which
the same may have been committed.
The court, therefore, erred in holding that it had no
jurisdiction to try the crime charged in the information
simply because it charges the accused with having
committed the crime on a demented girl, instead of
through the use offeree and intimidation.
The right and power of the court to try the accused for
the crime of rape attaches upon the filing of the
complaint, and a change in the allegations thereof as the
manner of committing the crime should not operate to
divest the court of the jurisdiction it has already
acquired.
31
The right or power to try the case should be
distinguished from the right of the accused to demand an
acquittal unless it is shown that he has committed the
offense charged in the information even if he be found
guilty of another offense; in the latter case, however,
even if the court has no right to find the accused guilty
because the crime alleged is different from that proved,
it cannot be stated that the court has no jurisdiction over
the case.
c. Where the complaint signed by the complainant charged
the accused with abduction with rape detailed in her
sworn statement which form part of the records of the
preliminary investigation, even if the body of the
complaint does not specify the elements of forcible
abduction, if the information sufficiently charged the
complex crime forcible abduction with rape, the court
validly acquired jurisdiction.
d. Where the information, however, charged the accused of
rape by force and intimidation, he cannot be convicted of
rape on the ground that the victim was raped while she
was unconscious or otherwise deprived of reason as it
would violate his right to be informed of the nature and
cause of the accusation against him, except when there
is a failure to object thereto during the trial in which case
the accused may be convicted of the rape proved even if
committed in a manner different from that alleged in the
information.
Other Cases
a. The father has no preferential right over the mother to
file the complaint.
b. A complaint must be filed by the legal guardian. An oath
that he is the guardian was held as sufficient.
c. Where the complaint is for attempted rape, the city court
has jurisdiction to try the case for acts of lasciviousness,
the crime allegedly committed as per inquest fiscal's
findings, though the complainant did not sign a complaint
for acts of lasciviousness, attempted rape includes acts of
lasciviousness.
While the Fiscal should have prepared another complaint
for acts of lasciviousness, this is not jurisdictional — the
complaint started the criminal action because a private
crime cannot be prosecuted de officio.
d. Where the accused is charged with rape committed thru
force and intimidation, he cannot be convicted of rape
committed under paragraph 2 of Article 335 when the
woman is deprived of reason or is otherwise unconscious.
e. In robbery with rape or rape with homicide, the com-
plaint of offended party is not essential.
Defamation
A published letter stating that a woman employee had "illicit
relationship with another who is the former's paramour"
imputes adulterous relationship between the two.
A prosecution for libel based thereon cannot be made without
the sworn complaint of the offended party.
Since the accused imputed the commission of adultery, a
crime which cannot be prosecuted de officio, the Information
filed by the Fiscal cannot confer jurisdiction upon the Court of
origin.
The error may, however, be corrected without sustaining the
motion to quash and dismiss the case.
Where the statement of the complaint was sworn to before
the investigating fiscal; and the recitals in the sworn
statement contain all those required of a complaint under the
rules, a copy of the verified statement of the offended party
may be filed in court
Thus, where the information was based on the criminal
complaint filed with the fiscal's office which conducted the
corresponding preliminary investigation and the records
conformably with the procedure then in force was transmitted
to the trial court, such circumstance does not deprive the
court of its jurisdiction.
Imputing prostitution, does not indicate an adulterous act and
can be prosecuted de officio.
Where, however, in addition to allegedly calling the
complainant a whore, the private respondent is also charged
in one information with having described the former as a
"paramour of my husband," this is a clear imputation of
adultery.
A paramour is "one who loves or is loved illicitly."
One taking the place without legal rights of a husband or wife.
A mistress, also called a lover, accordingly, that imputation is
covered by Rule 110.
DEATH OF OFFENDED PARTY IN CASES OF LIBEL OR
DEFAMATION
The death of offended party in a criminal case for libel or
defamation does not extinguish criminal liability of accused.
SEC. 6.
Sufficiency of complaint or information
Time of the offense under the former rule was changed to
DATE of the offense.
All Elements of Crime Must be Alleged
It is fundamental that every element of which the offense is
composed must be alleged in the complaint or information.
What facts and circumstances are necessary to be stated
must be determined by reference to the definitions and the
essentials of the specific crimes.
The main purpose of requiring the various elements of a
crime to be set out in an information is to enable the accused
32
to suitably prepare his defense. He is presumed to have no
independent knowledge of the facts that constitute the
ofiense.
Matter of Evidence; Need Not be Averred
However, it is often difficult to say what is a matter of
evidence, as distinguished from facts necessary to be stated
in order to render the information sufficiently certain to
identify the offense.
As a general rule, matters of evidence, as distinguished
fromfacts essential to the description of the offense, need not
be averred.
For instance, it is not necessary to show on the face of an
information for forgery in what manner a person is to be
defrauded, as that is a matter of evidence at the trial.
Reasonable Certainty is Sufficient
Moreover, reasonable certainty in the statement of the crime
suffices.
All that is required is that the charge be set forth with such
particularity as will reasonably indicate the exact offense
which the accused is alleged to have committed and will
enable him intelligently to prepare his defense, and if found
guilty to plead her conviction, in a subsequent prosecution for
the same offense.
Effects of Fatally Defective Information
Conviction or acquittal under a fatally defective information
for want of certain essential allegation is not necessarily void
when no objection appears to have been raised at the trial
and the fatal defect could have been supplied by competent
proof.
It was, however, held in Ilo, et al. v. Court of Appeals, that a
substantial defect in the information cannot be cured by
evidence, for that would jeopardize their right to be informed
of, the true nature of the offense they are charged.
The Supreme Court applied the case of People u. Austria,
holding that an information which does not charge an offense
at all cannot be validated by the presentation of evidence.
Said the Supreme Court: "(t)he petitioner contends that
under the allegation in the information that the accused
without authority of law, did then and there willfully,
unlawfully and feloniously have in his possession and under
his custody and control the firearms and ammunitions enu-
merated therein," the prosecution may prove that the
accused carried the firearms and ammunitions outside of his
residence. The contention is without merit.
As the court had stated in People v. Austria, the presentation
of evidence "cannot have the effect of validating a void
information, or proving an offense which does not legally
exist.
The information was not merely defective but it does not
charge any offense at all.
Technically speaking, that information does not exist in
contemplation of law."
In an information for rape (committed before R.A. No. 7659)
without alleging the age or complainant, the accused was
convicted of statutory rape there being no objection to
evidence or minority.
The information was not void but merely defective which is
curable by evidence admitted without objection.
The Substantial Compliance Rule
It has been held that a complaint is under the Rules one of
the two charging instruments for the offense of which the
accused was tried and convicted here.
While the criminal action was instituted by the complaint of
the offended party, the information signed only by the fiscal
ushered in the formal trial process.
But both are accusations in writing against the accused and
serve the purpose of enabling him to take the necessary legal
steps for his defense.
What is important is that the information states that the
accused is being charged of an offense under R.A. No. 7610
based on the complaint of the offended party, to which the
accused had adequately responded.
Under these conditions, the accused was fully apprised of the
accusation against him.
The purpose and objective of the constitutional mandate are
discharged and satisfied.
The accused may not be said to be taken by surprise by the
failure of the information to state the age of the offended
party, when he had received the initiatory complaint where he
was told how old the offended party was.
Thus, even if the information did not allege that the victim
was a mental retardate which is an essential element of the
crime of statutory rape, or the element of force and
intimidation or the age of the complainant or the information
merely states that petitioner was being charged for the crime
of "violation of R.A. No. 7610" without citing the specific
sections alleged to have been violated the Court treated the
informations as merely defective and that the deficiency was
cured either because the complaint supplied the omission or
by the failure of the accused to assail the insufficiency of the
allegations in the Information and by competent evidence
presented during trial, and the accused cannot successfully
invoke the defense that his right to be informed is violated.
The Court did not consider the omissions sufficient to invali-
date the information, holding that the character of the crime
is not determined by the caption or preamble of the
information nor from the specification of the provision of law
alleged to have been violated, as they may be conclusions of
law, but by the recital of the ultimate facts and circumstances
in the complaint or information.
The sufficiency of an information is not negated by an
33
incomplete or defective designation of the crime in the
caption or other parts of the information but by the narration
of facts and circumstances which adequately depicts a crime
and sufficiently apprise the accused of the nature and cause
of.the accusation against him.
The information may not refer to specific section/s of R.A. No.
7610 alleged to have been violated by the petitioner, but it is
all to evident that the body of the information contains an
averment of the'acts alleged to have been performed by
petitioner which unmistakably refers to acts punishable under
Section 5 of R.A. No. 7610.
As to which section of R.A. No. 7610 is being violated by
petitioner is inconsequential.
What is determinative of the offense is the recital of the
ultimate facts and circumstances in the complaint or informa-
tion.
Sufficiency of Allegations of Conspiracy
In our jurisdiction, * * * conspiracy can be alleged in the
Information as a mode of committing a crime or it may be
alleged as constitutive of the crime itself.
When conspiracy is alleged as a crime in itself, the sufficiency
of the allegations in the Information charging the offense is
governed by Section 6, Rule 110 of the Revised Rules of
Criminal Procedure.
Following the stream of our own jurisprudence, it is enough to
allege conspiracy as a mode in the commission of the crime in
either of the following manner:
(1) by the use of the word "conspire" or its derivatives or
synonyms, such as confederate, connive, collude, etc. or
(2) by allegations of basic facts constituting the conspiracy in
a manner that a person of common understanding would
know what is intended, and with such precision as would
enable the accused to competently enter a plea to a
subsequent indictment based on the same facts
When Charged as a Mode of Committing the Crime
The requirements of the sufficiency of the information are
different when conspiracy is not charged as a crime in itself
but only as a mode of committing the crime as in the case of
Plunder consisting of several predicate crimes.
There is less necessity of reciting its particularities in the
information because conspiracy is not the gravamen of the
offense charged.
The conspiracy is significant only because it changes the
criminal liability of all the accused in the conpsiracy and make
them responsible as co-principals regardless of the degree of
their participation in the crime.
The liability of the conspirators is collective and each
participant will be equally responsible for the acts of the
others.
The information must state that the accused have
confederated to commit the crime or that there has been a
community of design, a unity of purpose or an agreement to
commit the felony among the accused.
Such an allegation, in the absence of the usual usage of the
words "conspired" or the phrase "acting in conspiracy," must
aptly appear in the information in the form of definitive acts
constituting conspiracy.
In fine, the agreement to commit the crime, the unity of
purpose or the community of design among the accused must
be conveyed such as either by the use of the term "conspire"
or its derivatives and synonyms or by allegations of basic
facts constituting the conspiracy.
Conspiracy must be alleged, not just inferred, in the
information on which basis an accused can aptly enter his
plea, a matter that is not to be confused with or likened to
the adequacy of evidence that may be required to prove it.
In establishing conspiracy when properly alleged, the
evidence to support it need not necessarily be shown by
direct proof but may be inferred from shown acts and conduct
of the accused.
An allegation of conspiracy, or one that would impute criminal
liability to an accused for the act of another or others, is
indispensable in order to hold such person, regardless of the
nature and extent of his own participation, equally guilty with
the other or others in the commission of the crime.
Where conspiracy exists and can rightly be appreciated, the
individual acts done to perpetrate the felony becomes of
secondary importance, the act of one being imputable to all
the others.
Verily, an accused must know from the information whether
he faces a criminal responsibility not only for his acts but also
for the acts of his co-accused as well.
In the absence of conspiracy, so averred and proved an
accused can only be made liable for the acts committed by
him alone and this criminal responsibility is individual and not
collective
WHEN CONSPIRACY CHARGED AS A CRIME
When conspiracy is charged as a crime, the act of conspiring
and all the elements of said crime must be set forth in the
complaint or information.
For example, the crime of "conspiracy to commit treason" is
committed when, in time of war, two or more persons come
to an agreement to levy war against the Government or to
adhere to the enemies and to give them aid or comfort, and
decide to commit it.
In embodying the essential elements of the crime charged,
the information must set forth the facts and circumstances
that have a bearing on the culpability and liability of the
accused so that the accused can properly prepare for and
undertake his defense.
34
One such fact or circumstance in a complaint against two or
more accused persons is that of conspiracy.
Quite unlike the omission of an ordinary recital of fact which,
if not excepted from or objected to during trial, may be
corrected or supplied by competent proof
Need to Designate Statute Violated
a. It is a constitutional right of any person who stands
charged in a criminal prosecution to be informed of the
nature and cause of the accusation against him.
Pursuant to the above, Section 6, Rule 110 of the Rules
of Court, expressly requires that for a complaint or
information to be sufficient, it must, inter alia, state the
designation of the offense by the statute, and the acts or
omissions complained of as constituting the offense.
This is essential to avoid surprise on the accused and to
afford him the opportunity to prepare his defense
accordingly.
To comply with these fundamental requirements of the
Constitution and the Rules on Criminal Procedure, it is
imperative for the specific statute violated to be
designated or mentioned in the charge.
b. The failure, however, to designate the offense by statute
or to mention the specific provision penalizing the act or
an erroneous speficication of the law violated does not
vitiate the information if the facts alleged clearly recites
the facts constituting the crime charged.
c. The title of information or designation of offense is not
controlling.
It is the actual facts recited in the information that
determines the nature of the crime.
The real nature of offense is to be determined not by its
designation or title given by the Fiscal but the facts
alleged in the body of the Information.
d. It is the province of the Court alone to say what the
crime is or what it is named.
Even the justice of the peace, during the preliminary
investigation of a case, is without authority to determine
the character of the crime committed. His declaration
upon the point is merely an opinion which in no wise
binds the trial court.
e. Allegations prevail over designation of the offense in the
information for conviction of accused who may therefore
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 the evidence.
SEC. 7.
Name of the accused
The word "discovered" under the former rule was changed to
"ascertained."
Error in the name or identity should be raised
arraignment.
Purpose of Rule
To enable the court to acquire jurisdiction over his person and
to inform him of the facts.
Where the accused has been sued as John Doe in an informa-
tion filed in due form, and after due investigation by the
Fiscal, his identity became known, his true name may be
inserted without further need of preliminary investigation
where one had already been properly conducted pursuant to
the charter of Quezon City and the nature of the crime is not
changed.
Verbal motion to correct spelling is sufficient.
Where the accused Roberto Cultura was indicted in the
information as "Jose" Cultura (his father's name), but it was
clearly proven that he was part of the group that killed the
victim and did not raise the question of his identity at the
arraignment and acquiesced to be tried under that name, he
is deemed to have waived to raise the question of his identity
for the first time on appeal.
SEC. 8.
Designation of the offense
SEC. 9.
Cause of the accusation
Amendment
The former rule did not require qualifying and aggravating
circumstances to be alleged in the complaint or information.
According to jurisprudence, aggravating circumstances proven
by the evidence, although not alleged in the information, may
be taken into account as such aggravating circumstances.
Qualifying circumstances not alleged but proven
considered as aggravating.
This is no longer true.
HISTORY OF AMENDMENT.
Allegations to Warrant Death Penalty
Pursuant to Section 11 of the amendatory statute (The Death
Penalty Law), the death penalty may be imposed in rape
cases under the last paragraph of Article 335 of the Revised
Penal Code, when the rape is committed with any of the
following attendant circumstances:
a. When the victim is under eighteen (18) years of age and
the offender is a parent, ascendant, step-parent,
guardian, relative by consanguinity or affinity within the
third civil degree, or the common-law spouse of the
parent of the victim.
on b. When the victim is under the custody of the police or
military authorities.
c. When the rape is committed in full view of the husband,
parent, any of the children or other relatives within the
third degree of consangguinity.
d. When the victim is a religious or a child below seven (7)
years old.
e. When the offender knows that he is afflicted with
Acquired Immune Deficiency Syndrome (AIDS) disease.
f. When committed by any member of the Armed Forces of
the Philippines or the Philippine National Police or any law
enforcement agency.
g. When by reason on the occasion of the rape, the victim
has suffered permanent physical mutilation.
The concurrence of the minority of the victim and her
relationship of the offender is a special qualifying
circumstance which should both be alleged and proved with
certainty in order to warrant the imposition of the death
penalty.
In these eight (8) cases, complainant never said she was
below 18 years of age when she was allegedly raped by her
father on any of the dates stated in the complaint.
R.A. No. 7659 (Death Penalty Law) Relationships which
includes step-daughter and minority in incestuous rape are in
the nature of qualifying circumstances, must be specifically
alleged and proved to warrant imposition of death penalty.
Omission cannot be cured by evidence.
Hence, penalty should only be reclusion perpetual
The twin circumstances of minority and relationship under
Article 335 of the Revised Penal Code, as amended by R.A.
are No. 7659, are in the nature of qualifying circumstances
because they alter the nature of the crime of rape and
increase the penalty.
As special qualifying circumstances they must be specifically
pleaded or alleged with certainty in the information;
otherwise, the death penalty cannot be imposed.
The allegation that Irma is Nelson's niece is not specific
enough to satisfy the special qualifying circumstance of
relationship.
If the offender is merely a relation — not a parent, ascendant,
stepparent, guardian, or common law spouse of the mother of
the victim — the specific relationship must be alleged in the
information, i.e., that he is "a relative by consanguinity or
affinity [as the case may be] within the third civil degree."
35
The informations in these cases merely allege that Irma is the
"niece" of Nelson.
She could be a niece beyond the third civil degree either of
consanguinity or affinity.
Hence, the informations are fatally defective in this respect.
In People u. Nunez, the Court stressed: Strict application of the rule
requiring the allegation of the qualifying circumstances mentioned in
Section 11 of R.A. No. 7659 was further enunciated in People v.
Dimapilis. While the Information there alleged that the victim was the
stepdaughter of the accused, it was not accepted as a proper
allegation of the qualifying circumstance that the accused was the
"common law spouse of the parent of the victim" and the death
penalty imposed by the trial court was once again reduced to reclusion
perpetua.
Taking into account the growing number of cases where qualified rape
under Section 11 of R.A. No. 7659, although proven during trial, could
still not be properly penalized because of defects in the Information,
We urge the prosecuting fiscals who are charged with the responsibility
of preparing Informations to state with particularity the attendant
circumstances provided for under Section 11 of R.A. No. 7659.
More specifically, in qualified rape, both the fact of minority of the
victim and the actual relationship between the parties, as worded in
R.A. No. 7659, must be alleged in the Information.
Otherwise, We shall continue to fail both the law and the victims whom
the law have sought to protect.
Hence, the formulation of the foregoing rules that mandate not only
the qualifying but also the aggravating circumstances to be specified in
the information
The Rule now requires aggravating circumstances must not only be
proven but it must also be alleged, otherwise, it should not be con-
sidered.
Retroactive Application of Rule
The rule being remedial and favorable to the accused may be
applied retroactively to pending cases.
Purpose of Rule
The factor that characterizes the charge is the actual recital of
facts.
The real nature of the criminal charge is determined not from
the caption or preamble of the information nor from the
specification of the provision of law alleged to have been
violated they being conclusions of law but by the actual recital
of facts in the complaint or information.
The purpose of the rule is to fully apprise the accused of the
true charge against him.
The rule broadens the concept and scope of the right of the
accused to be informed of the nature and cause of the
accusation against him.
The life and liberty of the accused should not be left to the
ability or inability of his counsel to promptly object against
36
the admissibility of what the law or rule requires to be
specifically alleged.
This was explained in U.S. v. Karelsen:
"The object of this written accusations was,
First: To furnish the accused with such a description of the charge
against him as will enable him to make his defense; and
Second, to avail himself of his conviction or acquittal for protection
against a further prosecution for the same cause, and
Third to inform the court of the facts alleged so that it may decide
whether they are sufficient in law to support a conviction if one should
be had in order that this requirement may be satisfied, facts must be
stated, not conclusions of law.
Every crime is made up of certain acts and intent these must be set
forth in the complaint with reasonable particularity of time, place,
names (plaintiff and defendant) and circumstances.
In short, the complaint must contain a specific allegation of
every fact and circumstance necessary to constitute the crime
charged."
It is essential therefore, that the accused be informed of the
facts that are imputed to them as "as he is presumed to have
no independent knowledge of the facts that constitute the
offense."
It imperative that the Information filed with the trial court be
complete — to the end that the accused may suitably prepare
his defense.
Corollary to this, an indictment must fully state the elements
of the specific offense alleged to have been committed as it is
the recital of the essentials of a crime which delineates the
nature and cause of accusation against the accused.
The Court in People u. Mendez, cited the 1935 case of People
v. Oso, that the allegation of the complaint that the accused
had carnal intercourse with the offended woman "against her
will" or "without her consent" is insufficient to warrant a
conviction for rape, although the evidence proves the
commission of the crime and reiterated the importance of
duly informing the accused of the accusation against him as a
constitutional right that cannot be taken lightly, more so, if
the penalty to be imposed is grave, such as the forfeiture of
his life.
The essence of the constitutional right of the accused to be
informed of the nature and cause of the accusation against
him is that "every element of the offense must be alleged in
the complaint or information" so as to "enable the accused to
suitably prepare his defense. He is presumed to have no
independent knowledge of the facts that constitute the
offense."
In setting out the elements of a crime in the information or
complaint, the pertinent provisions of the Rules on Criminal
Procedure, specifically, Section 9 of Rule 110, provides the
following guideline the cited provision is one of the many
provisions in the Rules of Court that serves to implement the
constitutional right of the accused to be informed of the
charges against him.

Relevant to this case is the phrase "a person of common
understanding," which has its origin in this jurisdiction in the
phrase "a person of ordinary intelligence.""
The test is whether the crime is described in intelligible terms
with such particularity as to apprise the accused, with
reasonable certainty, of the offense charged.
The raison d'etre of the rule is to enable the accused to
suitably prepare his defense.
Without allegation of relationship in cases of statutory rape,
proof alone of relationship unless specifically alleged in the
information would not warrant imposition of the death
penalty.
Under existing jurisprudence, in the absence of proof of
aggravating circumstance, the penalty should be reclusion
perpetua and not death.
Where there are two indivisible penalties if there is no
aggravating circumstance the lesser penalty should be
imposed.
The court may appreciate as an aggravating circumstance the
victim's minority, which was pleaded in the informations and
proved by her birth certificate.
In those cases, when either one of the twin special qualifying
circumstances of relationship and minority is omitted or
lacking, that which is pleaded in the information and proved
by the evidence, like the complainant's minority, may be
considered as an aggravating.
Exact Relationship to be Alleged
For rape to be qualified as heinous, warranting the imposition
of the death penalty, the circumstances of the minority of the
victim and her relationship with the offender must be both
alleged in the information for rape.
Although a husband is subject to punishment by death in case
he commits rape against his wife's daughter, where the
information alleged the accused, who is the stepfather of
complainant, succeeded in having carnal knowledge of the
latter who was then below eighteen years of age, but the
evidence shows that the accused is not the complainant's
stepfather because he and complainant's mother were not
really married but only lived in common-law relationship or
where the charge is that the victim is the daughter of the
accused when the evidence shows that she is a mere
stepdaughter or whether the relationship is by affinity or
consanguinity in the third degree the death penalty cannot be
imposed because the relationship alleged in the information is
different from that actually proven
Where the informations alleged:
"[A]nd taking advantage of his superior strength over the person of his
own daughter who is only thirteen years old.. ."
“[T]aking advantage of his superior strength over the person of his
thirteen (13) year old (sic) daughter. . ."
37
the Court spared the life of the accused, despite the mention of the
age of the victim and the word "daughter" in said informations, on the
ground that the quoted informations failed to duly allege the special
qualifying circumstances of the victim's minority and the relationship
between the victim and the accused because as phrased, they unduly
lay stress on the generic aggravating circumstance of "taking
advantage of superior strength."
The Court further explained that:
"Be it in terms of syntax or composition, the wording of the
informations is unable to sufficiently notify the accused, a person of
common understanding or ordinary intelligence, of the gravity or
nature of the crime he had been charged with, especially considering
that the generic aggravating circumstance of taking advantage of
superior strength is not even an element of the attendant
circumstances treated under number 1 of the last paragraph of Article
335.
The afore-quoted clauses in the informations can thus not be read nor
understood as constituting a specific allegation of the special
circumstances of relationship of father and daughter and that the
daughter was less than 18 years of age at the time the crime of rape
was committed."
Specific Allegation of Relationship and Minority
Even if the information alleged that the victim is the natural
daughter of the accused, where there is a difference in their
surname, the mere testimony of the victim that the accused
is his father is not sufficient to establish the qualifying
circumstance of relationship, even if such relationship was not
denied by the accused.
Granting that the relationship within the third civil degree ei-
ther of consanguinity or affinity was duly proved during the
trial, still such proof cannot be appreciated to justify the
imposition of the death penalty because he would thereby be
denied of his constitutional and statutory right to be informed
of the nature and cause of the accusation against him.
Accused cannot be charged with committing the crime of rape
in its simple form and then be tried and convicted of rape in
its qualified form.
Exact Age of Victim must be Alleged
The allegation in the information that complainant is the "mi-
nor daughter" of accused-appellant is insufficient.
As held in People v. Puertollano, the information must state
the exact age of the victim at the time of the commission of
the crime.
To warrant the imposition of the death penalty, the qualifying
circumstance of the rape victim being below seven years of
age should be aptly alleged in the information.
Otherwise, the death penalty imposed by the trial court
should be reduced to reclusion perpetua as provided for in the
second paragraph of Art. 335 of the Revised Penal Code, as
amended.
COMPARE:
It has, however, been held that where the information state
that the offense was committed with the aggravating
circumstances of insult or in disregard of the respect due the
offended party on account of the fact the accused is the
father of the complainant, properly plead the special
circumstance of relationship of father and daughter that
would enable a "person of sufficient understanding" to know
what offense is intended to be charged.
The accused could not have been misled by the wording of
the informations.
A person of ordinary intelligence could not plead with logic
that he had no notice that he is being charged with the
repeated rape of his fifteen-year-old daughter.
Rule on Exemplary Damages
In line with the ruling in People v. Catubig, the qualifying
circumstances of minority and relationship, though not
specified in the complaint, can serve as basis for awarding
exemplary damages.
Although the rape was committed in 1997, before the Revised
Rules on Criminal Procedure took effect, the court held that
the retroactive application of the rules does not absolve
accused from civil liability.
Thus, the use of deadly weapon is a qualifying circumstance
or when the crime is committed by two or more persons, the
penalty is reclusion perpetua to death if the commission of
the crime was attended by an aggravating circumstance.
The use of a deadly weapon was considered as qualifying and
not aggravating for purposes of imposing the death penalty
which was, however, considered as aggravating to award
exemplary damages.
In People v. Caniezo the circumstance of deadly weapon was
not alleged but proven and was considered as generic
aggravating — but did not make any difference in the
imposition of the penalty since under Article 63 where the
penalty involved are two indivisible penalties of reclusion
perpetua and there are no qualifying circumstances, the
single indivisible penalty of reclusion perpetua shall be
imposed regardless of the aggravating circumstance.
Exemplary damages was, however, awarded.
Thus an aggravating circumstance, whether ordinary or quali-
fying, should entitle the offended party to an award of
exemplary damages within the context of Article 2230 of the
New Civil Code, even if the information or criminal complaint
has not alleged said circumstances as required by the rule.
In People v. Cachopero, the award of exemplary damages
was deleted since the aggravating circumstances to justify the
ward were not alleged and proved.
THE MODIFYING CIRCUMSTANCES MUST BE ALLEGED
NOT ONLY IN PREAMBLE BUT IN ACCUSATORY
PORTION
The fact of filiation and minority must be alleged in the
accusatory portion of the information.
38
The real nature of the criminal charge is determined not from
the caption or the preamble of the information, nor from the
specification of the provision of law alleged to have been
violated x x x, but from the actual recital of the facts as
alleged in the body of the information."
Where relationship is not stated in the "cause of the accusa-
tion," or in the narration of the act or omission constituting
the offense, but only in the preamble or opening statement of
the complaint and the complaint upon which the appellant
was arraigned does not state in the accusatory portion the
specifications of the acts constitutive of the offense, that he is
charged as the father of the victim.
Such omission is prejudicial to the right of the accused to be
informed of the nature of the accusations against him.
PLEA OF GUILTY TO ALLEGATIONS IN BODY OF
INFORMATION
Thus, the plea of guilty is not on the offense alleged in the
preamble but for the crime alleged in the accusatory portion
of the information.
Thus accused did not, in fact, plead guilty to a capital offense
designated in the preamble but only to that part of the com-
plaint that charges only simple rape under Art. 335, for which
the penalty is only reclusion perpetua, and not for rape under
R.A. No. 7659, qualified by the circumstance that the offender
is the father of the victim who is a minor, for which the
penalty is death.
He cannot therefore properly invoke Sec. 3, Rule 116, which
requires reception of evidence on a plea to a capital offense.
APPLICATION TO ALL CRIMES NOT INVOLVING
IMPOSITION OF DEATH PENALTY
Before the amendment the retroactive effect of non-allegation
of aggravating circumstance even if proved is inapplicable for
the crime of robbery, the same not involving the imposition of
the death penalty.
For said crime, what remains applicable is the old rule that
generic aggravating circumstances if duly proven in the
course of the trial could be taken into account by the trial
court in determining the proper imposable penalty, even if
such circumstances is not alleged in the information.
The court clarified that with the amendment, the principle is
now applicable in all criminal cases, not only in cases where
the aggravating circumstances would increase the penalty to
death.
The court, therefore gave fair warning to prosecutors that
henceforth, they must prepare well-crafted informations that
allege the circumstances qualifying and aggravating the
crimes charged, otherwise the same will not be considered by
the court in determining the proper penalty.
The failure to allege the fact of filiation and minority in the
information for rape is fatal and consequently bars conviction
of its qualified form which is punishable with death.
Any circumstance that would qualify or aggravate the crime
charged must be specified in the information.
Following the established rule that a penal statute, whether
substantive or procedural, shall be given a retroactive effect if
favorable to the accused, aggravating circumstances not
alleged cannot be appreciated.
only.
This was reiterated in an en bane decision of the Court in
People v. Manlansing, holding that where none of aggravating
circumstances were alleged in the informations with
specificity as a qualifying circumstance elevating the killing to
murder, ascused should only be convicted of homicide.

Thus, where the aggravating circumstance of dwelling and This is no longer true.
abuse of confidence or obvious ungratefulnnes, nocturnity or
nighttime or treachery or abuse of superior strength not
alleged in the information cannot be appreciated. In a per curiam Resolution, the Court in People v. Aquino
declared:

Although the information does not specifically allege treachery

as a qualifying circumstance in the commission of the crime,
the allegation in the information that the victim was four
years old at the time of the killing is sufficient compliance
with section 6, Rule 110 of the Revised Rules of Criminal
Procedure, as amended. Killing a child by an adult constitutes
treachery even if the mode of attack by the assailant is not
proved by the prosecution because a child of tender years
could not be expected to put up a defense and hence at the
mercy of his or her assailant.
THE JUDGMENT MUST MAKE AN EXPRESS FINDING OF
THE QUALIFYING CIRCUMSTANCES
The decision of the trial court must contain an express and
categorical finding that the complainant was below 18 years
old when the crime of rape was committed to justify the
imposition of the death penalty.
“We therefore reiterate that Sections 8 and 9 of Rule 110 merely
require that the Information allege, specify or enumerate the
attendant circumstances mentioned in the law to qualify the offense.
These circumstances need not be preceded by the words
'aggravating/qualifying,' 'qualifying,' or 'qualified by' to be considered
as qualifying circumstances.
It is sufficient that these circumstances be specified in the Information
to apprise the accused of the charges against him to enable him to
prepare fully for his defense, thus precluding surprises during the trial.
When the prosecution specifically alleges in the Information the
circumstances mentioned in the law as qualifying the crime, and
succeeds in proving them beyond reasonable doubt, the Court is
constrained to impose the higher penalty mandated by law.
This includes the death penalty in proper cases."

The fact that accused-appellant has not denied the allegation Unfortunately, this is one of those cases.
in the complaints that Mylene was below 18 years of age
when any of the crimes was committed cannot make up for
The allegation of the twin circumstances of minority and
the failure of the prosecution to discharge its burden.
relationship in the Information, which were proven beyond
reasonable doubt during the trial, compels the Court to
Because of its failure to discharge this burden and the impose the death penalty.
corresponding failure of the trial court to make a categorical
finding as to the minority of the victim, the qualifying
To guide the bench and the bar, this Resolution clarifies and
circumstance of minority and relationship cannot be
resolves the issue of how to allege or specify qualifying or
appreciated in these cases.
aggravating circumstances in the Information.

It is different with regard to the relationship of the offended

The words "aggravating/qualifying," "qualifying," "qualified
party and accused-appellant, because the latter admitted that
by," "aggravating," or "aggravated by" need not be expressly
complainant is his daughter.
stated as long as the particular attendant circumstances are
specified in the Information."
Perforce, the death penalty imposed by the trial court in each
of the eight (8) cases should be reduced to reclusion perpetua
The ruling was reiterated in People v. Paulina and People v.
as provided in the second paragraph of Art. 335 of the
Garin3 holding that the appellant may no longer rely on the
Revised Penal Code, as amended.
rulings Alba and Manalansing because of the ruling in People
v. Aquino and People v. Paulino.
There must not only be proof of minority but also of the rela-
tionship between the accused and the victim. WHEN DEFECT IN INFORMATION CURED: THE
SUBSTANTIAL COMPLIANCE RULE
MODIFYING CIRCUMSTANCES NEED NOT ALLEGE WITH
SPECIFICITY WHETHER IT IS QUALIFYING OR
The information must state that the accused have confed-
AGGRAVATING
erated to commit the crime or that there has been a
community of design, a unity of purpose or an agreement to
It was earlier held that where the information, did not allege commit the felony among the accused.
with specificity as qualifying the killing to murder (it merely
alleged "with intent to kill, treachery and evident
Such an allegation, in the absence of the usual usage of the
premeditation) although established by the evidence, under
words "conspired" or "confederated" or the phrase "acting in
the present Revised Rules of Criminal Procedure, treachery
conspiracy," must aptly appear in the information in the form
has to be considered a generic aggravating circumstance
of definitive acts constituting conspiracy.
39

In fine, the agreement to commit the crime, the unity of
purpose or the community of design among the accused must
be conveyed such as either by the use of the term "conspire"
or its derivatives and synonyms or by allegations of basic
facts constituting the conspiracy.
Conspiracy must be alleged, not just inferred, in the
information on which basis an accused can aptly enter his
plea, a matter that is not to be confused with or likened to
the adequacy of evidence that may be required to prove it.
In establishing conspiracy when properly alleged, the
evidence to support it need not necessarily be shown by
direct proof but may be inferred from shown acts and conduct
of the accused.
Following the stream of our own jurisprudence, it is enough to
allege conspiracy as a mode in the commission of the crime in
either of the following manner:
(1) by the use of the word "conspire" or its derivatives or
synonyms, such as confederate, connive, collude, etc. or
(2) by allegations of basic facts constituting the conspiracy in
a manner that a person of common understanding would
know what is intended, and with such precision as would
enable the accused to competently enter a plea to a
subsequent indictment based on the same facts.
In the absence of conspiracy, so averred and proved an
accused can only be made liable for the acts committed by
him alone and this criminal responsibility is individual and not
collective.
Conspiracy Charged as a Crime
Thus, when conspiracy is charged as a crime, the act of con-
spiring and all the elements of said crime must be set forth in
the complaint or information.
For example, the crime of "conspiracy to commit treason" is
committed when, in time of war, two or more persons come
to an agreement to levy war against the Government or to
adhere to the enemies and to give them aid or comfort, and
decide to commit it. * * *
CONSPIRACY CHARGED AS MODE OF COMMITTING A
CRIME
The requirements of the sufficiency of the information are
different when conspiracy is not charged as a crime in itself
but only as the mode of committing the crime as in the case
of Plunder consisting of several crimes.
There is less necessity of reciting its particularities in the
information because conspiracy is not the gravamen of the
offense charged.
The conspiracy is significant only because it changes the
criminal liability of all the accused in the conspiracy and make
them responsible as co-principals regardless of the degree of
their participation in the crime.
40
The liability of the conspirators is collective and each
participant will be equally responsible for the acts of the
others.
a. Need to Designate Statute Violated.
It is a constitutional right of any person who stands
charged in a criminal prosecution to be informed of the
nature and cause of the accusation against him.
Pursuant to the above, Section 6, Rule 110 of the Rules
of Court, expressly requires that for a complaint or
information to be sufficient, it must, inter alia, state the
designation of the offense by the statute, and the acts or
omissions complained of as constituting the offense.
This is essential to avoid surprise on the accused and to
afford him the opportunity to prepare his defense
accordingly.
To comply with these fundamental requirements of the
Constitution and the Rules on Criminal Procedure, it is
imperative for the specific statute violated to be
designated or mentioned in the charge.
b. The failure, however, to designate the offense by statute
or to mention the specific provision penalizing the act or
an erroneous specification of the law violated does not
vitiate the information if the facts alleged clearly recites
the facts constituting the crime charged.
c. The title of information or designation of offense is not
controlling.
It is the actual facts recited in the information that de-
termines the nature of the crime.
The real nature of offense is to be determined not by its
designation or title given by the Fiscal but the facts
alleged in the body of the Information.
d. It is the province of the Court alone to say what the
crime is or what it is named.
Even the justice of the peace, during the preliminary
investigation of a case, is without authority to determine
the character of the crime committed.
His declaration upon the point is merely an opinion which
in no wise binds the trial court.
e. Allegations prevail over designation of the offense in the
information for conviction of accused who may therefore
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 the evidence.
EFFECTS OF VARIANCE IN MODE OF COMMISSION OF
CRIME
The foregoing doctrines refer to the special qualifying
circumstances that are required to be specifically alleged in
the information.
It would seem to be different when there is a mere
variance in the mode of the commission of the crime.
A. Real Nature of Crime Determined by Facts Alleged in
Complaint or Information and Not by Title
a. What controls is not the designation of the offense
but its description, and in the case of attending
circumstances, not their denomination but their
function.
If the killing was committed with the attendance of
any of the circumstances mentioned in Article 248 of
the Revised Penal Code, then the offense committed
is murder although they are mistakenly called
aggravating in the information.
They are qualifying circumstances nonetheless.
b. Thus, where the information characterized the killing
as having been committed by taking advantage of
superior strength, a circumstance which qualifies a
killing to murder, the information sufficiently
charged the commission of murder.
c. In a prosecution for robbery with rape, the fact that
the information did not mention Art. 335 of the
Revised Penal Code but Arts. 293 and 294 of that
Code will not prevent conviction of an accused under
Art. 335.
The constitutional right of the accused to be
informed of the nature of the accusation against him
is not violated thereby.
As former Chief Justice Moran pointed out: "If the
above requirement is not complied with and no
name has been given to the offense alleged to have
been committed, the defect is merely of form which
does not prejudice the substantial rights of the
defendant.
This is especially so where the facts pleaded are
clearly constitutive of a specific offense.
B.
In such cases, the real nature of the crime charged is
determined not by the title of the complaint, nor by
the specification of the provision of the law alleged
to have been violated, but by the facts recited in the
complaint or information.
This is so because from a legal point of view, and in
a very real sense, it is of no concern to the accused
what is the technical name of the crime of which he
stands charged.
It in no way aids him in his defense on the merits.
The real question is not that he did 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 in the manner therein set forth.
41
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 which those acts
constitute."
This principle was reiterated in People v. Torres,
wherein the Court again held that it is not the
technical name given by the Fiscal appearing in the
title of the Information that determines the char-
acter of the crime but the facts alleged in the body
of the information, where the accused charged with
violation of General Order No. 6 for carrying with
him an unlicensed firearm punishable with life
imprisonment was held guilty under the Revised
Administrative Code punishable by imprisonment of
one to five years.
c. Although the information charged the petitioner with
estafa, the crime committed was theft.
It is settled that what controls is not the designation
of the offense but the description thereof as alleged
in the information
5. B.P. Big. 22 cannot be deemed necessarily included
in the crime of estafa under RPC, Article 315, 2(d).
The offense of fraud denned under the Revised Penal
Code is malum in se, whereas B.P. Big. 22, also
known as Bouncing Checks Law, is a special law
which punishes the issuance of bouncing checks, a
malum prohibitum.
Fraud or estafa under the Revised Penal Code is a
distinct offense from the violation of the Bouncing
Checks Law.
They are different offenses, having different
elements.
Where appellant is accused of violating a particular
provision of the Revised Penal Code on estafa, she
may not be convicted for violation of B.P. Big. 22
without trenching on fundamental fairness.
Essential Elements Inferred from Allegation in
Information
While the general rule is that an inference in the
complaint and conclusions such as "Grave abuse of
confidence" are not allowed the following terms were
interpreted by the Supreme Court is follows:
"Having committed the offense criminally and feloniously, and
with intent to kill" sufficiently avers discernment on the part of
the accused who was a minor.
"Willfully, unlawfully" covers "knowingly" in illegal fishing.
Willful damage to property includes reckless imprudence.
"Deceit and promise of marriage was treated as mere surplusage
in qualified seduction case."

"Intent to gain" is presumed to be alleged in an information
where it is alleged that there was unlawful taking and
appropriation by the offender.
C. Limitation on Rule that an Accused may be Convicted of
a Crime which is More Serious than that Named in the
Title so Long as the Facts Alleged the More Serious
Offense
thereof must specify under which of the two cases, the
defendant stands accused of.
Where the accused is charged with rape committed thru
force and intimidation, he cannot be convicted of rape
committed under paragraph 2 of Article 335 when the
woman is deprived of reason or otherwise unconscious,
except when there is no objection.

It was held that an accused cannot be convicted of rape

(a) An accused could not be convicted under one act
of a mental retardate if this is not alleged in the
when he is charged with a violation of another if the
information.
change from one statute to the other involves:

It was likewise held that the accused cannot be convicted

1) A change of the theory of the trial;
2) Requires of the defendant a different defense;
or
3) Surprises the accused in anyway.
(b) Illegal construction — Where the information for ille-
gal construction does not specifically describe and
locate the building alleged to have been illegally
constructed, it is fatally defective because it is
impossible on its face to identify the house allegedly
constructed without the necessary building permit.
under paragraph 2 or 3 of Article 335 of the Revised
Penal Code, because none of the modes of committing
rape specified therein were alleged in the Information.
To convict him under either of these statutory provisions
is to deprive him of the constitutional right to be in-
formed of the accusation against him.
Thus in convicting appellant, the trial court relied upon a
finding that complainant was unconscious when the
appellant had carnal knowledge other.

It can be quashed.
This contradicts the allegation in the information.

In several cases, the accused whose guilt beyond

Appellant was charged with rape committed by means of
reasonable doubt, although affirmed by the Supreme
force or intimidation.
Court, escaped lethal injection because of the failure of
the prosecution to specifically allege the qualifying
circumstance of relationship or age in heinous crimes. Appellant was charged with rape committed by means
offeree or intimidation.
The Supreme Court therefore urged the prosecuting
fiscals to state with particularity the fact of minority and Otherwise put, his offense fell under Article 266-A(1) of
the actual relationship between the parties as worded in the Revised Penal Code.
R.A. No. 7659.

But in convicting him of rape committed while his victim

It must be spelled out in more concrete terms. was supposedly unconscious, the trial court applied
Article 266-A(l)(b) of said Code.
This is what the amendment seeks to accomplish.
The element of unconsciousness on the victim's part was
not alleged much less specified in the information.
The amendment did not, however, limit the requirement
to qualifying circumstances but also included aggravating
circumstances. It cannot be made the basis of conviction, without
violating appellant's right to due process, in particular to
be informed of the nature of the accusation against him.
Where there is no aggravating circumstance, the penalty
is reclusion perpetual
However, in People u. Atienza, involving the rape of a
13-year old minor charged with rape committed in 1996
The requirement would also prevent a repetition of the
by force and intimidation there was no objection to
errors by the prosecutors in Republic v. Asuncion, Arceo
evidence of subnormal mental incapacity (that is, her
v. Cunanan, People u. Magallanes and Lacson u.
mental capacity was equivalent to an 8 year-old).
Executive Secretary, where the prosecution failed to
specify the qualifying facts that the crimes were
committed in relation to their public office. The court held that the absence of an allegation in the
information of this mode of committing the crime of rape
was deemed waived by the absence of an objection and
The general rule is that an accused cannot be convicted
the presentation of evidence to the contrary.
of a different mode of the commission of the offense
charged in the information.
The Court cited People u. Abiera, holding that the
accused charged with rape through one mode of
Where the law distinguishes between two cases of
commission may still be convicted of the crime if the
violation of its provision, an information for violation
evidence shows another mode of commission, provided
42
 that the accused did not object to such evidence.
Failure to object to evidence of the mode of commission
of crime different from that alleged in the information is
considered a waiver:
a. There is waiver and conviction allowed based on
evidence even if not alleged in the information,
citing separate opinion of then now C.J. Davide in
People v. Moreno, on waiver of constitutional right to
be informed of nature and cause of accusation.
In this case, the accusatory portion failed to
specifically allege that the rape was committed
through force or intimidation, the prosecution was
able to establish by evidence without any objection
that the accused-appellant that tended to prove that
he committed the rape by force and intimidation.
b. Similarly, in People v. Orbita, the Information
against accused-appellant alleged that he had carnal
knowledge of the victim by means offeree, violence
and intimidation, against the latter's will and
consent.
It did not allege her mental state.
During the trial, however, the prosecution proved
that the victim is a mental retardate and the
accused-appellant was convicted under paragraph 2
of Article 335 of the Revised Penal Code.
Although initially deficient, the criminal complaint was
deemed corrected when the prosecution introduced
evidence of the complainant's mental condition and the
defense did not object, thereby waiving the procedural
defect.
Accordingly, appellant can be convicted of the crime
charged through either the second or third circumstance
of committing such crime.
OBSERVATIONS: LIMITATION ON WAIVER
The information in the foregoing cases charges an offense but
allowed waiver because of a variance between the allegation
and proof in the mode of commission of the offense without
any objection.
Where the information charges no offense at all or would
result in convicting the accused for a more serious offense
than the offense charged waiver for failure to object should
not be allowed.
The court itself stated that the rules on the validity or invalid-
ity of a waiver are not something we have crafted overnight
to suit the instant case.
They have been extant since time that is now immaterial to
recall.
In civil cases, we overturn decisions because the waiver of
certain rights was not done in accordance with the requisites.
43
Hence, in Intestate Estate of the Late Vito Borromeo v.
Borromeo, this Court set aside the waiver of hereditary rights
because it was not clearly and convincingly shown that the
heir had the intention to waive his right or advantage
voluntarily.
In criminal cases where life, liberty and property are all at
stake, obviously, the rule on waiver cannot be any less.
In this light, we are at a loss why counsel de oficio for
accused-appellant did not touch upon this point when some-
thing more valuable than any property that a person could
ever inherit in his lifetime is in danger of being taken away
eternally.
It is elementary that the existence of waiver must be
positively demonstrated since a waiver by implication cannot
be presumed.
The standard of waiver requires that it "not only must be
voluntary, but must be knowing, intelligent, and done with
sufficient awareness of the relevant circumstances and likely
consequences."
There must thus be persuasive evidence of an actual intention
to relinquish the right.
Mere silence of the holder of the right should not be easily
construed as surrender thereof; the courts must indulge
every reasonable presumption against the existence and
validity of such waiver.
Necessarily, where there is a reservation as to the nature of
any manifestation or proposed action affecting the right of the
accused to be heard before he is condemned, certainly, the
doubt must be resolved in his favor to be allowed to proffer
evidence in his behalf.
Our criminal rules of procedure strictly provide the step-by-
step formula to be followed by courts in cases punishable by
death.
The reason for this is to ensure that the constitutional
presumption of innocence in favor of the accused is preserved
and the State makes no mistake in taking life and liberty
except that of the guilty.
Hence, any deviation from the regular course of trial should
always take into consideration that such a different or
extraordinary approach has been undertaken voluntarily and
intelligently.
For otherwise, as in the instant case, denial of due process
can be successfully invoked since no valid waived or rights
has been made.
The Court noted with deep regret the failure of the trial court
to inquire from accused-appellant himself whether he wanted
to present evidence; or submit his memorandum elucidating
on the contradictions and insufficiency of the prosecution
evidence, if any; or in default thereof, file a demurrer to
evidence with prior leave of court, if he so believes that the
prosecution evidence is so weak that it need not even be
rebutted.
The inquiry is simply part and parcel of the determination of
the validity of the waiver, i.e., "not only must be voluntary,
but must be knowing, intelligent, and done with sufficient
awareness of the relevant circumstances and likely
consequences." which ought to have been done by the trial
court not only because this was supposed to be an
uncomplicated and routine task on its part, but more
importantly since accused-appellant himself did not
personally, on a person-to-person basis, manifest to the trial
court the waiver of his own right.
As things stand, both this Court and the trial court being
asked hook, line and sinker to take the word of counsel de
oficio whose own concern in that particular phase of the
proceedings a quo may have been compromised by pressures
of his other commitments.
For all we know, the statutory counsel of the indigent accused
at that time of the trial, although not evident in the other
aspects of his representation, only wanted to get rid of dreary
work rather than protect the rights of his client.
Of course, it may be stretching the argument too much to
ascribe fatal incompetence upon herein accused's counsel for
this solitary instance of faux pas.
But, for sure, we must inquire if the waiver was validly done.
In People v. Donato," the Court expounded on what rights
and privileges may be waived, viz.:
"Although the general rule is that any right or privilege
conferred by statute or guaranteed by constitution may be
waived, a waiver in derogation of a statutory right is not
favored, and a waiver will be inoperative and void if it
infringes on the rights of others, or would be against public
policy or morals and the public interest may be waived.
"While it has been stated generally that all personal rights conferred
by statute and guaranteed by constitution may be waived, it has also
been said that constitutional provisions intended to protect property
may be waived, and even some of the constitutional rights created to
secure personal liberty are subjects of waiver."
While it is established that rights may be waived, Article 6 of
bhe Civil Code explicitly provides that such waiver is subject
to the condition that it is not contrary to law, public order,
public policy, morals, or good customs, or prejudicial to a
third person with a right recognized by law.
Thus, in the following cases, waiver was not allowed as it
would violate the constitutional right of the accused to be
informed of the nature and cause of the accusation against
him, and, consequently, a denial of due process.
a. An accused cannot be convicted of rape or acts of
lasciviousness or of violation ofR.A. No. 7610 under an
information which charges the accused of raping his six
year-old daughter or committing acts of lasciviousness
on her, or of committing sexual abuse against her 11-
year old daughter.
Waiver is not allowed where the information charges no
44
offense.
An indictment must fully state the elements of the
specific offense alleged to have been committed.
For an accused cannot be convicted of an offense, even if
duly proven, unless it is alleged or necessarily included in
the complaint or information
b. Waiver is not allowed where the qualifying circumstance
is different from the qualifying circumstance alleged in
the information.
Where the accused alleged to be the father of the victim
who is under 18 years of age is charged with rape under
paragraph 2 of Article 266-A punishable by reclusion
temporal he cannot be convicted of rape under
paragraph 1 of Article 266-A punishable by death, even if
this was duly established.
c. Waiver is not allowed where it would result in a more
serious penalty.
Under sections 8 and 9, Rule 110 failure to allege
aggravating or qualifying circumstances, even if proved
without objection cannot be availed of to qualify or
aggravate the offense charged.
The court ruled that the relationship and minority of the
victim are special qualifying circumstances which cannot
be considered unless specifically alleged in the
information.
The right to be arraigned cannot be waived. — There can be
no trial in absentia without arraignment — which must be in
the presence of the accused.
Variance, however, on date of commission of rape is
irrelevant.
Habitual delinquency
A mere statement of habitual delinquency is a conclusion of
law and a plea of guilty to such an information does not make
the accused a habitual delinquent.
The information should specify the dates:
(1) of the commission of previous crimes;
(2) of the last conviction or release; and
(3) of the other previous conviction or release of the
accused.
ABSENCE OF ALLEGATION OF RECIDIVISM AND
HABITUAL DELINQUENCY
In the Absence of allegations in Information of Recidivism and
Habitual Delinquency — the evidence was properly objected
to as inadmissible.
Similarly, the qualifying circumstance of treachery must be
specifically pleaded or alleged with sufficient clarity as to be
readily understood and not merely deduced.

Negative and Excepting Allegations
When an exception or negative allegation is not an ingredient
of the offense and is a matter of defense it need not be
alleged.
An exception in a penal statute by which certain particulars
are withdrawn from or excepted out of its enacting clause,
defining a crime concerning a class or species, need not be
denied in an information charging a violation of said statute.
And where a denial is unnecessarily alleged in the
information, it need not be proved by the prosecution, for it is
not an essential element of the violation charged, but a
matter of defense which must be proved by the accused if he
relies upon it.
For instance, the Opium Law provides that "save upon the
prescription of a duly licensed and practicing physician,
veterinarian, or dentist, no person shall inhale, snuff, chew,
swallow, inject, or otherwise take or use any such drug in his
body or permit the same to be used upon him by another."
In an information charging a violation of this statute, it is not
necessary to allege that the person charged is not under the
exception contained in the statute, i.e., that he did not use
the prohibited drug upon the prescription of a physician,
veterinarian or dentist, nor is it necessary to prove such
allegation if made unnecessarily, because said exception is a
matter of defense which the accused must prove.
To determine whether the exception is or is not a matter of
defense, the following test has been approved: If the
language of the law defining the otfense is so entirely
separable from the exception that the ingredients constituting
the offense may be accurately and clearly defined without any
reference to said exception, the pleader may then safely omit
such reference, as the exception is a matter of defense which
must be shown by the accused.
If, however, the exception is so incorporated with the
language defining the offense that the ingredients of the
offense cannot be accurately and clearly described if the
exception is omitted, the indictment founded upon the statute
must allege enough to show that the accused is not within the
exception.
And, when the evident intent and purpose of the statute is to
prohibit and penalize generally an act as, for instance, the
smoking of opium, and the statute desires to withdraw from
its operation a limited class of persons, one charged with its
violation is bound to show that he falls within the exception,
whether the excepting proviso is found in the enacting clause
or in a separate provision of the statute.
A negative allegation of recruiting without a license, forms an
essential element of the crime charged. Hence, it was
incumbent upon the prosecution to satisfactorily establish the
date when the complainant was recruited.
(1) "Without necessary license" is an ingredient of violation
of Circular No. 60 of the Central Bank prohibiting the
import and export of Philippine coins and notes.
45
(2) Want of Certificate to practice medicine is an essential
element of the crime of illegal practice of medicine.
(3) In illegal possession of firearm, the information must
allege that accused has no license to possess firearm.
Where the law distinguishes between two cases of violation of its
provision, an information for violation thereof must specify under
which of the two cases the defendants stands accused of.
An accused charged with murder by means of stabbing cannot
be convicted of homicide thru drowning, otherwise, his
constitutional right to be informed of the nature and cause of
the accusation against him would be violated, so also a
person may not be convicted of qualified seduction where the
information charges him with rape by means offeree, violence
and intimidation.
Inference in complaint and conclusions are not allowed.
"Grave abuse of confidence" is a conclusion of law.
Robbery with Homicide
Failure to state in the information that the killing of the victim
was committed "by reason of or on occasion of the robbery,"
does not bar conviction of accused of the special complex
crime of robbery with homicide.
SEC. 10.
Place of commission of the offense
Purpose of Rule: TO SHOW TERRITORIAL JURISDICTION.
Crimes Where Place is Essential
a. Violation of domicile;
b. Penalty on keeper, watchman and visitor of an opium
den;
c. Trespass to dwelling;
d. Violation of election law, e.g., 30 meter-radius carrying
of deadly weapon prohibited.
A general allegation in the complaint that the felony was
committed within the jurisdiction of the court is sufficient.
The remedy is a motion for Bill of Particulars under Rule 116,
Sec. 6.
Venue of Criminal Action for Written Defamation
Venue in criminal cases is an essential element of jurisdiction.
To determine venue in libel cases, the complaint or
information should contain allegations as to whether, at the
time the offense was committed, the offended party was a
public officer or a private individual and where he was
actually residing at the time.
Whenever possible, the place where the written defamation
was printed and first published should likewise be alleged.
That allegation would be a sine qua non if the circumstances
as to where the libel was printed and first published is used as
the basis of the venue of the action.
SEC. 11.
Date of Commission of the Offense
"Time" of the commission of the offense was changed to
"DATE."
Crimes Where Time is Essential
a. Infanticide;'
b. Violation of Sunday Statutes (Election Law); and
c.
Abortion.
The complaint must allege a specific time and place when and
where the offense was committed, but when the time so
alleged is not of the essence of the offense, it need not be
proved as alleged, and the complaint will be sufficient if the
evidence shows that the offense was committed at anytime
within the period of the statute of limitation and before the
commencement of the action.
Where the complaint for rape charges accused with having
committed the crime "on or about the month of June 1978"
and the affidavit shows that it was committed for "sometime
prior to said period and subsequent thereto," attaching
thereto the affidavit of the complainant that she was abused
before the start of classes in June 1978 which may thus be
considered as part of the complaint, the discrepancies
between the accusation and the complaint as to the time of
occurrence of the carnal copulations in rape do not affect the
essential rights of the accused, where the acts occurred
within the period of time alleged in both writings, and the
difference noted in other respects was of a formal, rather
than a substantial, character.
"About" is a very comprehensive term which when used with
regards to time, may cover a considerable extent thereof.
BUT in U.S. v. Smith — it was held that the proof need not
correspond to the allegation, unless the time and place is
material and of the essence of the offense as a necessary
ingredient in its description.
The evidence is admissible and sufficient if it shows:
(1) That the crime was committed at any time within the
period of limitation; and
(2) Before or after the time stated in the complaint or
indictment and before the action is commenced.
Thus, an information charging the commission of the crime of
robbery in December 1902, was filed in March 19, 1903.
It was held that the complaint was sufficient to sustain a
conviction even if the proof showed that it was committed in
January 1903.
It was, however held, in U.S. v. Dickao, that an allegation
from October 1910 to August 1912 is defective:
46
“To allege in an information that the accused committed rape on a
certain girl between October 1910, and August 1912, is too indefinite
to give the accused an opportunity to prepare his defense, and that
indefiniteness is not cured by setting out the date when a child was
born as a result of such crime.
An information for bigamy must state the time and place of
the second wedding.
Variance, however, on date of commission of rape is
irrelevant.
Time is irrelevant in rape" and violations of the Dangerous
Drugs Law cases.
SEC. 12.
Name of the Offended Party
Name of Offended Party
The rules on criminal procedure require the complaint or
information to state the name and surname of the person
against whom or against whose property the offense was
committed or any appellation or nickname by which such
person has been or is known and if there is no better way of
identifying him, he must be described under a fictitious name.
In crimes against property, the object taken or destroyed
should be particularly described to properly identify the crime
(if the name of the offended party is unknown).
In case of offenses against property, the designation of the
name of the offended party is not absolutely indispensable for
as long as the criminal act charged in the complaint or
information can be properly identified.
NAME OF OFFENDED PARTY IN OFFENSES AGAINST
PROPERTY
In Sayson v. People (supra), the petitioner vigorously
maintains that he cannot be justifiably convicted under the
information charging him of attempting to defraud Ernesto
Rufino, Sr. and/or Bank of America because the totality of the
evidence presented by the prosecution shows very clearly
that the accused allegedly attempted to defraud Mover Films,
Inc., a corporate entity entirely separate and distinct from
Ernesto Rufino, Sr.
He firmly asserts that his conviction was in gross violation of
his right to be informed of the nature and cause of the
accusation against him.
Petitioner's claim is unavailing.
The rule in this jurisdiction is that "variance between the
allegations of the information and the evidence offered by the
prosecution in support thereof does not of itself entitle the
accused to an acquittal."
The rules on criminal procedure require the complaint or
information to state the name and surname of the person
against whom or against whose property the offense was
committed or any appellation or nickname by which such
person has been or is known and if there is no better way of
identifying him, he must be described under a fictitious name. Purpose of Rule

In case of offenses against property, the designation of the
name of the offended party is not absolutely indispensable for
as long as the criminal act charged in the complaint or
information can be properly identified.
In U.S. v. Kepner, the Court laid down the rule that when an
offense shall have been described in the complaint with
sufficient certainty as to identify the act, an erroneous
allegation as to the person injured shall be deemed
immaterial as the same is a mere formal defect which did not
tend to prejudice any substantial right of the defendant.
The information is defective when it charges two or more
offenses.
The rule enjoining the charging of two or more offenses in an
information has for its aim to give the defendant the
necessary knowledge of the charge to enable him to prove his
defense.
The State should not heap upon the defendant two or more
charges which might confuse him in his defense.

Effects of Duplicity of Offenses Charged

Accordingly, in the aforementioned case, which had a factual
backdrop similar to the instant case, where the defendant was
charged with estafa for the misappropriation of the proceeds Where the accused is charged in one information with more
of a warrant which he had cashed without authority, the than one offense and makes no objection to the information
erroneous allegation in the complaint to the effect that the on the ground that it charges more than one offense, the
unlawful act was to the prejudice of the owner of the cheque, prosecution may properly submit evidence as to the
when in reality the bank which cashed it was the one which commission of each and all offenses charged and the court
suffered a loss, was held to be immaterial on the ground that may properly enter judgment for each and every offense
the subject matter of the estafa, the warrant, was described proved and impose the proper penalties for each offense.
in the complaint with such particularity as to properly identify
the particular offense charged.
A motion to quash that more than one offense charged should
therefore be filed, otherwise it is deemed waived and the
In the instant suit for estafa which is a crime against property accused may be convicted for as many offenses charged and
under the Revised Penal Code, since the check, which was the proved.
subject matter of the offense, was described with such
particularity as to properly identify the offense charged, it
Under Section 3, Rule 117, the accused may move to quash
becomes immaterial, for purposes of conviction of the
the complaint or information on the ground that more than
accused, that it was established during the trial that the
one offense is charged except in those cases in which existing
offended party was actually Mever Films, Inc., and not
laws prescribe a single punishment for various offenses.
Ernesto Rufino, Sr. nor Bank of America as alleged in the
information.
Upon the other hand, when two or more offenses are charged
Other Cases in a single complaint or information, and the accused fails to
object to it before trial, the court may convict the accused of
as many offenses as are charged and proved, and impose on
a. Even if the names of offended parties are not alleged, if him the penalty for each and every one of them setting out
the offense belongs to the class of harmful ones (illegal separately the findings of fact and law in each case.
practice of medicine), the victims of petitioner should be
considered as offended parties.
CASES WHERE INFORMATION CHARGES MORE THAN
b. An erroneous allegation as to the person injured is of ONE OFFENSE
form which did not tend to prejudice any substantial right
of the accused on the merits.
An information is defective for duplicity where the accused is
c. The name of the offended party is, however, material in
charged in one complaint for assaulting three (3) persons by
slander.
different acts while they were asleep, an information which
The act of insulting X is distinct from a similar act of charges two violations of the Revised Penal Code contained in
insult against Y, even if the insult is preferred by the two separate provisions is duplicituous.
same person, in the same language, and at about the
same time.
An information for malversation of public funds through
d. In robbery, ownership is not necessary.
falsification of public documents and loss and destruction of
e. The damage inflicted in estafa need not fall on the same public documents for purposes of concealing a crime was held
person against whom deceit was directed. as defective.
f. In robbery with violence against or intimidation of
person, the allegation of the owner's name in the
So is an information which charges estafa and falsification to
information is essential.
conceal the defraudation.
g. The omission of value in theft cases is not fatal.
h. People v. Avellana, an information for murder is not
a. Inclusion of Different Acts of Offenses to Complete
defective where another's name not the victim's name is
Narration of Facts
placed in the information. It is merely clerical.

Where the different acts or specifications charging the

SEC. 13.
accused with having committed the offenses charged
Duplicity of the offense therein were included in the information merely to

47
 describe and to narrate the different and specific acts,
the sum total of which constitutes a crime, the validity of
the information cannot be assailed on the ground that it
charges more than one offense, because those different
acts or offenses may serve merely as a basis for the
prosecution of one single crime."
In the case of U.S. v. Cernias, it was held that while it is
true that each of those acts charged against the
conspirators was itself a crime, the prosecutor in setting
them out in the information did no more than to furnish
the defendants with a bill of particulars of the facts which
it intended to prove at the trial, not only as a basis upon
which to found an inference of guilt of the crime of
conspiracy but also as evidence of the extremely
dangerous and wicked nature of that conspiracy.
The charge is not defective for duplicity when one single
crime is set forth in the different modes prescribed by
law for its commission, or the felony is set forth under
different counts specifying the way of its perpetuation, or
the acts resulted from a single criminal impulse.
Neither is there duplicity when the other offense
described is but an ingredient or an essential element of
the real offense charged nor when several acts are
related in describing the offense.
b. Single Offense Committed by Different Means
It is "a well-settled rule in considering indictments that
where an offense may be committed in any of several
different modes, and the offense, in any particular
instance, is alleged to have been committed in two or
more modes specified, it is sufficient to prove that it be
such as to constitute the substantive offense," and the
defendants, may, therefore, be convicted if any one of
the substantive charges into which the complaint may be
separated has been made out.
It is not objectionable, when a single offense may be
committed by the use of different means to charge in the
alternative, the various means by which the crime may
have been committed.
Thus, the defendant was accused of the violation of the
Medical Law.
The information charged both illegal practice of medicine
and illegally advertising oneself as a doctor.
Held: That the information was not bad for duplicity
inasmuch as the acts charged were merely different
means of committing the same offense, notwithstanding
the fact that they are prohibited by separate sections of
the statute.
c. Single act that Violates Different Statutes
A single act or incident might offend against two or more
entirely distinct and unrelated provisions of law thus
justifying the prosecution of the accused for more than
one offense.
48
The only limit to this rule is the Constitutional prohibition
that no person shall be twice put in jeopardy of
punishment for "the same offense." two (or more)
offenses arising from the same act are not "the same."
The Rules prohibit the filing of such Information to avoid
con fusing the accused in preparing his defense.
Here, however, the prosecution charged each petitioner
with four offenses, with each Information charging only
one offense.
d. Falsification
The defendant, a municipal treasurer, received from
different persons for personal cedulas more than the
amount allowed by law falsified the records of his office
so that they showed the receipt of the lawful amount
only, and in his monthly statements to the provincial
treasurer made similar false statements.
Held: That a complaint alleging these facts did not
charge more than one offense.
e. Treason
A person accused of an offense is not charged by the
number of counts or paragraphs, but by the specific
criminal acts regardless of their number contained in one
paragraph or in one count. —
A person accused of an offense is not considered as
having been charged by the number of counts or
paragraphs into which the acts charged may have been
grouped in the information, but by the specific criminal
acts charged, even if two or more of them are contained
in one paragraph or in one count.
While it is convenient that each count or paragraph
should contain only one offense or one specific act of
treason for the sake of clearness, this does not justify the
inference or claim that all of the acts charged under one
count or paragraph should be considered as only one act
of offense, and proof of all the acts included therein is
necessary to prove the charge.
f. Effect of Failure of the Prosecution to Prove All Acts
Charged Where Each Act Constitutes Treason by
Itself
If a person is being charged with four specific acts under
one count, and each constitutes a complete act of
treason by itself independently of the others, the failure
of the prosecution to prove all does not entitle the
accused to be acquitted of the whole count or of all the
charges contained therein when any one or more of the
acts are proved.
g. Robbery in Band
An information which charges the commission of
"robbery in a band or brigandage" and alleges facts
showing the commission of an act of robbery by a band
of robbers, simply sets out the same fact in different
 aspects and is not bad for duplicity.
h. The Anti-Graft Law
Section 3(e) of the Anti-Graft and Corrupt Practices Act
does not suffer from the constitutional defect of
vagueness by the use of the phrases "manifest
partiality," "evident bad faith" and "gross inexcusable
negligence."
They merely describe the different modes by which the
offense penalized in Section 3(e) of the statute may be
committed, and the use of all these phrases in the same
information does not mean that the indictment charges
three distinct offenses.
i. Murder with Double Less Serious Physical Injuries
Where in describing the offense of murder with double
less serious physical injuries, the information states that
appellant "feloniously attack, assault and shoot for
several times the victims," it in effect charged accused
with several distinct and separate crimes, as it is the
allegations or actual recitals in the information rather
than the technical description of the crime that controls.
The defective information not having been timely
objected to, however, said defect of duplicity of charges
cannot be heard belatedly on appeal and accused may be
convicted of as many offenses as are charged therein and
proved beyond reasonable doubt.
There is, however, complex crime of murder with
frustrated murder where a single shot hit both victims.
j. Violation of Child Abuse Law
Each incident of sexual intercourse and lascivious acts
with a child under the circumstances mentioned in
Republic Act No. 7610 is a separate and distinct offense.
THE PRINCIPLE OF DELITO CONTINUADO
Justice Quiason explains the Principle of Delito Continuado
(continuing crimes) in Santiago v. Garchitorena.
In this case, 32 Amended Informations for violation of the
Anti-Graft Law alleged that the offenses were committed on
the same period of time, i.e., on or about October 17, 1988
favoring 32 aliens.
The several acts were considered by the court as constituting
only one crime.
For delito continuado to exist, there should be a plurality of
acts performed during a period of time, unity of penal
provision violated, and unity of criminal intent or purpose,
which means that two or more violations of the same penal
provisions are united in one and the same intent or resolution
leading to the perpetration of the same criminal purpose or
aim.
In appearance, a delito continuado consists of several crimes
49
but in reality there is only one crime in the mind of the
perpetrator.
Examples of Delito Continuado.
a. The single larceny rule —
1) Theft of 13 cows;
2) theft of six roosters;
3) illegal charging of fees by lawyer from revenue
victims;
4) Illegal approval of the application for the legalization
of stay of 32 aliens, constitutes only one crime
b. The concept was not applied —
1) In Estafa committed on different occasions.
2) In Malversation and falsification on different
occasions
3) The 75 estafa cases was committed by conversion
by agent of collection from different customers on
different dates.
4) Robbery and fencing are two separate crimes. Prin-
ciple of Delito Continuado is not applicable.
5) In a Single Information for murder for shooting
three persons — where evidence did not show that a
single shot had slain three different persons, the
appellant was properly held liable for three separate
murders and sentenced to three separate penalties
of reclusion perpetrua.
6) In People v. Ducay — several victims dying from
separate shots constitute separate offenses and if
there is no objection for duplicity, the accused
should be convicted of all offenses charged in one
information.
It is not the act of pressing the trigger like a Thompson
submachine gun that determines the number of felonies
committed, but the number of bullets which actually produced
them.
The firing of several bullets by the accused although resulting
from one continuous burst of gunfire, constitutes several acts.
Each person fell by different shots, is a victim of a separate
crime of murder.
Exceptions to Rule on Duplicity
The rule on duplicity of offenses does not apply where the law
prescribes a single penalty for various offenses such as a
complex crime under Article 48 of the Revised Penal Code or
special complex crime such as Robbery with Homicide or with
Rape or Rape with Homicide, or Rebellion complexed with
murder, robbery and kidnapping.
Rule on Complex Crimes
The precise language of the statute used in alleging the
commission of the crime is not necessary as long as in
charging the commission of a complex offense like that of
Robbery with Homicide, the information alleges each element
of the component offenses with the same precision that would
be necessary if they were made the subject of a separate
prosecution.
 Thus, although the phrase by reason or on occasion of
the robbery as provided for by the Revised Penal Code, was
not literally used in the recital of facts alleging the
commission of the two crimes of robbery with homicide, the
information as filed sufficiently and distinctly alleges the
commission of the two crimes of robbery and homicide and
adequately informs the accused of the crime charged.
Under Article 48 of the Revised Penal Code, when a single act
constitutes two or more grave or less grave felonies, or when
an offense is a necessary means for committing the other, the
penalty for the most serious crime shall be imposed, the
same to be applied in its maximum period.
The throwing of a hand grenade at the President with the
intention of killing him resulting in the death and injuries of
several persons constitutes the complex crime of murder with
attempted murder.
For a criminal complaint or information to charge the commis-
sion of a complex crime, the allegations contained therein do
not necessarily have to charge a complex crime as denned by
law.
It is sufficient that the information contains allegations which
state that one offense was a necessary means to commit the
other.
The information in question in the present case contains
allegations properly charging the commission of the complex
crime of incriminatory machinations through unlawful arrest,
and the court a quo committed error when it ordered its
dismissal.
Where, however component offenses are not alleged in the
information as required by Sections 8 and 9 of Rule 110 they
cannot give rise to a special complex crime, consistent with
the right of the accused to be informed of the nature and
cause of the accusation against them.
A complex crime is committed when two persons are killed as
a result of the same murderous act of the accused.
When each one of the two deceased was killed by different
and separate sets of shots, fired respectively, through two
independent sets of acts of the accused, each one aimed
exclusively at a victim, for each victim killed, there is a
separate and independent crime of murder.
WHEN ONE OFFENSE IS NECESSARY MEANS FOR
COMMITTING THE OTHER
a. Falsification of cedulas to commit malversation.
b. Estafa thru falsification.
When two or more acts combined in the commission of one
crime, the complaint is not necessarily defective because it
contains a description of two acts.
If the acts are so disconnected as to constitute separate and
distinct offenses or crimes, then of course, it would not be
error to charge each of said acts in different complaints but
where the acts are so related as to constitute in fact but one
offense, then a complaint will not be defective if the crime is
50
described by relating two acts in the description of one
offense.
To be a complex crime, the offense must be a necessary
means for committing the other, but if one offense is to
conceal the other, the accused may be convicted for both
offenses as in case of arson to conceal homicide or
falsification to conceal malversation.
OTHER CASES:
1) Killing of four victims on the same occasion of the
robbery is robbery with quadruple homicide — only one
crime.
2) Robbery with homicide and rape only one crime.
Accused who abducted the victim and had sexual
intercourse with her for several days is not guilty of
separate offense but the continuing offense of abduction
with rape.
No Duplicity in Rape With Homicide
There is no duplicity in an information for rape with homicide.
Where seven persons committed rape with homicide in
conspiracy with each other, every one of the seven accused
may separately be charged for rape with homicide.
There is no duplicity in a charge of estafa committed by the
accused for misappropriation of the purchase price of several
lots owned by the Hometrust Corporation which were
fraudulently received by the accused against seven lot buyers
on the pretext that she was authorized to do so and which
she misapplied to her personal use instead of remitting the
money to the owner corporation, and seven other separate
informations of estafa committed against the seven lot
buyers.
The crime of estafa committed against the corporation and
those committed against the lot buyers are definitely separate
felonies.
They were dictated by different criminal intents,
committed under different modes of commission provided by
the law on estafa, perpetrated by different acts,
consummated on different occasions, and caused injury to
different parties.
a. The Principle of Absorption
1) Drugs Cases
In People v. Salamat, the illegal possession of 137
cans of opium and sale of 37 cans of opium was held
as two isolated acts and not one, each of which is
punishable in themselves.
Only in the event where all the amount of the opium
possessed and seized be in its totality the same as
that which was possessed with the sole purpose of
being delivered as the matter or subject of a sale
 previously agreed upon, could it be said that the
possession of the opium was a necessary means to
effect the delivery by reason of the sale, and that
the sale agreed upon was the sole reason for the
possession of the opium seized.
2) When Possession of Drugs Absorbed in Sale
In People v. Lacerna, possession of marijuana was
held as absorbed in the sale thereof, except where
the seller is further apprehended in possession of
another quantity of the prohibited drugs not covered
by or included in the sale and which are probably
intended for some future dealings or use by the
seller.
Where aside from selling one block of marijuana to the
arresting officers, accused-appellants were also caught in
possession of another 12.04 kilograms of marijuana in
twelve individually wrapped blocks, hidden in a bag
under a table in their house.
Their possession thereof gives rise to a disputable
presumption under Section 3(j), Rule 131 of the Rules of
Court, that they were the owners of the same.
b. Forcible Abduction Absorbed in Rape
Where complainant was forcibly taken away for the
purpose of sexually assaulting her, then the rape so
committed may absorb the forcible abduction.
The trial court, thus, correctly held that the rape charged
and proved in Criminal Case No. 44263 already absorbed
the forcible abduction with rape complained of in Criminal
Case No. 44264.
c. Absorption does not include special laws
On petitioners' claim that the charge for violation of
Article 365 of the RPC "absorbs" the charges for violation
of P.D. No. 1067, P.D. No. 984, and R.A. No. 7942,
suffice it to say that a mala in se felony (such as
Reckless Imprudence Resulting in Damage to Property)
cannot absorb mala prohibita crimes (such as those
violating P.D. No. 1067, P.D. No. 984, and R.A. No.
7942).
What makes the former a felony is criminal intent (dolo)
or negligence (culpa); what makes the latter crimes are
the special laws enacting them.
REBELLION CANNOT BE COMPLEXED WITH ANY OTHER
OFFENSE COMMITTED IN THE COURSE THEREOF
The celebrated case of Enrile v. Salazar, reiterated the
Hernandez Rule, which ruled out the complexing of rebellion
witl-any other offense committed in its course under either of
the clauses of Article 48 of the Revised Penal Code either as a
means necessary to its commission or as an unintended effect
of an activity that constitutes rebellion.
The rule was reiterated in Enrile u. Amin, where the Supreme
Court ruled that the crime of Harboring or Concealing a
51
Criminal was absorbed by the crime of rebellion for which
Senator Enrile had already been charged and cannot therefore
be made the subject of a separate criminal action.
The Supreme Court went on to explain:
"The crime of rebellion consists of many acts.
It is described as a vast movement of men and a complex net of
intrigues and plots.
Jurisprudence tells us that acts committed in furtherance of the
rebellion though crimes in themselves are deemed absorbed in the one
single crime of rebellion.
In this case, the act of harboring or concealing Col. Honasan is clearly
a mere component or ingredient of rebellion or an act done in further-
ance of the rebellion.
It cannot therefore be made the basis of a separate charge. The case
of People v. Prieto is instructive."
In the nature of things, the giving of aid and comfort can only
be accomplished by some kind of action.
Its very nature partakes of a deed or physical activity as
opposed to a mental operation.
This deed or physical activity may be, and often is, in itself a
criminal offense under another penal statute or provision.
Even so, when the deed is charged as an element of treason
it becomes identified with the latter crime and cannot be the
subject of a separate punishment, or used in combination
with treason to increase the penalty is Article 48 of the
Revised Penal Code provides.
Just as one can lot be punished for possessing opium drug, in
a prosecution for smoking the identical drug, and a robber
cannot be held guilty of coercion or trespass to a dwelling in a
prosecution for robbery, because 3ossession of opium and
force and trespass are inherent in smoking and in robbery
respectively, so may not a defendant be made liable for
murder as a separate crime or in conjunction with another
offense where, as in this case, it is averred as a constitutive
ingredient of reason.
THE PRINCIPLE OF ABSORPTION IN REBELLION
APPLIES TO SPECIAL LAWS
The prosecution tries to distinguish by contending that
harboring or concealing a fugitive is punishable under a
special law while the rebellion case is based on the Revised
Penal Code; hence, prosecution under one law will not bar a
prosecution under the other.
The Court held that: "This argument is specious in rebellion
cases."
In the light of the Hernandez doctrine, the prosecution's
theory must fail.
The rationale remains the same.
 All crimes, whether punishable under a special law or
general law, which are mere components or ingredients, or
committed in furtherance thereof, become absorbed in the
crime of rebellion and cannot be isolated and charged as
separate crimes in themselves.
This does not detract, however, from the rule that the
ingredients of a crime form part and parcel thereof, and
hence, are absorbed by the same and cannot be punished
either separately therefrom or by the application of Article 48
of the Revised Penal Code.
The Hernandez and other related cases mention common
crimes as absorbed in the crime of rebellion.
These common crimes refer to all acts of violence such as
murder, arson, robbery, kidnapping, etc., as provided in the
Revised Penal Code.
The attendant circumstances in the instant case, however,
constrain us to rule that the theory of absorption in rebellion
cases must not confine itself to common crimes but also to
offenses under special laws which are perpetrated in
furtherance of the political offense.
Petitioner's alleged act of harboring or concealing which was
based on his act of conspiring with Honasan was committed in
connection with or in furtherance of rebellion and must now
be deemed as absorbed by, merged in, and identified with the
crime of rebellion punished in Articles 134 and 135 of the
RPC.
Thus, national, as well as international laws and jurisprudence
overwhelmingly favor the proposition that common crimes,
perpetrated in furtherance of a political offense, are divested
of their character as "common" offenses, and assume the
political complexion of the main crime of which they are mere
ingredients and consequently, cannot be punished separately
from the principal offense, or complexed with the same, to
justify the imposition of a graver penalty.
EFFECT OF FAILURE TO OBJECT TO INDEPENDENT
PROSECUTION FOR ILLEGAL POSSESSION
In People v. Elias Rodriguez, the accused, after having
pleaded guilty and convicted of the crime of rebellion, faced
an independent prosecution for illegal possession of firearm.
The Court ruled:
"An examination of the record, however, discloses that the
crime with which the accused is charged in the present case
which is that of illegal possession of firearm and ammunition
is already absorbed as a necessary element or ingredient in
the crime of rebellion with which the same accused is charged
with other persons in a separate case and wherein he pleaded
guilty and was convicted
Conceding the absence of a complex crime of rebellion with
murders, etc., still, by his plea of guilty, the accused-
appellant has admitted all the overt acts described in the
information; and that if any of such acts constituted an
independent crime within the jurisdiction of the lower court,
then the averment in the information that it was perpetrated
in furtherance of the rebellion, being a mere conclusion,
cannot be a bar to appellant's conviction and punishment for
52
said offense, he having failed, at the arraignment, to object to
the information on the ground of multiplicity of crimes
charged."
Enrile Doctrine Not Applicable in Subversion
In People v. Asuncion, it was held that the crime of illegal
possession of firearms under P.D. No. 1806 is not absorbed in
the charge of subversion under R.A. No. 1700.
Political Motive Must Be Shown
In People u. Louedioro, the court held that divested of its
common complexion, any ordinary act, however, grave,
assumes a different color by being absorbed in the crime of
rebellion, which carries a lighter penalty than the crime of
murder.
In deciding if the crime committed is rebellion, not murder, it
becomes imperative for our courts to ascertain whether or not
the act was done in furtherance of a political end.
The political motive of the act should be conclusively
demonstrated.
In such cases, the burden of demonstrating political motive
falls on the defense, motive being a state of mind which the
accused, better than any individual knows.
It is not enough that overt acts of rebellion are duly proven.
Both purpose and overt acts are essential components of the
crime. With either of these elements wanting, the crime of
rebellion legally does not exist.
In fact, even in cases where the act complained of were
committed simultaneously with or in the course of the
rebellion, if the killing, robbing, etc., were accomplished for
private purposes or profit, without any political motivation, it
has been held that the crime would be separately punishable
as a common crime and would not be absorbed by the crime
of rebellion.
ILLEGAL POSSESSION OF FIREARM AND UNLAWFUL
KILLING WITH THE USE THEREOF
An accused may, moreover, be charged with as many crimes
as defined in our laws even if these arose from one incident.
Thus, where a single act is directed against one person but
said act constitutes a violation of two or more entirely distinct
and separate provisions of the Revised Penal Code or by a
specified law as the RPC, the prosecution of one is not a bar
to the other, but such crimes should be alleged in separate
information.
There is no complex crime of illegal possession of Firearm
used in Homicide but they may be filed separately (qualified
illegal possession of firearm is only one offense).
People v. Deunida, reiterated the same principles, but pointed
out that the use of unlicensed firearm must be alleged,
otherwise, the crime is only murder.
 Abandonment of Doctrine
In case homicide or murder is committed with the use of
unlicensed firearm, such use of unlicensed firearm shall be
merely considered as aggravating.
R.A. No. 8294 amended P.D. No. 1866 abandoned previous
rulings that qualified use of firearms and murder are separate
offenses.
Under the present rule, the unauthorized use of licensed or
unlicensed firearm is simply an aggravating circumstance in
the commission of homicide or murder and no longer a
separate offense, effectively modifying People v. Quijada, and
its progeny.
Thus, it has been held that the principle of absorption does
not apply to illegal possession of firearms in connection with
the crime of subversion but simply describes the mode or
manner by which the violation of Section 1 of P.D. No. 1866
was committed so as to qualify to the penalty of death.
The charge should therefore be amended to simple illegal
possession of firearm, and was accordingly deemed amended
by the Supreme Court.
It should, however, be noted that under existing laws (R.A.
No. 8294) if homicide or murder is committed with the use of
an unlicensed firearm, such use of unlicensed firearm shall be
considered merely as an aggravating circumstance and
cannot be the subject of a separate prosecution.
THE PRESENT LAW ON ILLEGAL POSSESSION OF
FIREARMS
Where murder or homicide results from the use of an
unlicensed firearm, the crime is no longer qualified illegal
possession, but murder or homicide, as the case may be.
In such a case, the use of the unlicensed firearm is not
considered as a separate crime but shall be appreciated as a
mere aggravating circumstance.
In view of the amendments introduced by Republic Act No.
8294 to Presidential Decree No. 1866, separate prosecutions
for homicide and illegal possession are no longer in order.
Instead, illegal possession of firearms is merely to be taken
as an aggravating circumstance in the homicide case.
The crime of illegal possession of firearm, in its simple form,
is committed only where the unlicensed firearm is not used to
commit any of the crimes of murder, homicide, rebellion,
insurrection, sedition or attempted coup d'etat.
Otherwise, the use of unlicensed firearm would be treated
either:
1) As essential ingredient in the crimes of rebellion,
insurrection, sedition or attempted coup d'etat; or
2) As an aggravating circumstance in murder or
homicide.
53
Neither can accused-appellant be charged with simple illegal
possession.
The same may only done where no other crime is committed.
An accused cannot be convicted of homicide or murder with
"the use of the unlicensed firearm as aggravating," inasmuch
as said felonies are not charged in the information but merely
mentioned as the result of the use of the unlicensed firearm.
Accused-appellant was not arraigned for homicide or murder.
Hence, he cannot be convicted of any of these crimes without
violating his right to be informed of the nature and cause of
the accusation against him, not to mention his right to due
process.
Following the doctrine enunciated in People v. Molina and
People v. Lazaro, among others, the possession of firearms
against accused-appellant merely as an aggravating
circumstance.
As the law stands today, there can be no longer be a separate
conviction of the crime of illegal possession of firearms under
P.D. No. 1866 in view of the amendments introduced by
Republic Act No. 8294.
Instead, illegal possession of firearms is simply taken as an
aggravating circumstance in murder or homicide pursuant to
Section 1 of R.A. No. 8294.
THE LAW HAS A RETROACTIVE EFFECT ONLY IF IT IS
FAVORABLE TO THE ACCUSED
R.A. No. 8294 is given retroactive effect in the sense that the
use of unlicensed firearm in the commission of a crime is
considered merely as an aggravating circumstance and not as
a separate crime.
It is only when the new law will be advantageous to the
accused that the Law may be given retroactive effect, such as
when it will spare him from a separate conviction for the
crime of illegal possession of firearm.
Thus, where at the time accused was charged in two separate
informations, one with robbery with homicide with the use of
an unlicensed firearm punishable with reclusion perpetua to
death and another for the use of an unlicensed firearm
punishable by death, the existing law allows the filing of the
separate informations, under existing law, the provisions
considering the use of an unlicensed firearm in the
commission of the crime as aggravating cannot be given a
retroactive effect, lest it would acquire the character of an ex
post facto law.
Should the Court appreciate the use of an unlicensed firearm,
the higher penalty of death shall be imposed.
Hence, the penalty should be reclusion perpetua.
On the separate charge of illegal possession of firearm, this is
not allowed under the new law.

Since this is favorable to the accused, it shall be given
retroactive effect.
Thus, while it is true that under R.A. No. 8294, the use of an
unlicensed firearm aggravates the crimes of homicide or
murder, the provisions of the said law cannot apply to the
case at bar because the crime was committed prior to the
effectivity of the said law on July 6, 1997.
The provisions of R.A. No. 8294 may be applied retroactively
so as to prevent conviction of the separate crime of illegal
possession of firearm because this accrues to the benefit of
the appellant.
It cannot, however, be applied retroactively to aggravate the
crime of homicide or murder.
Illegal Possession As Separate offense
It does not, however, mean that there can no longer be any
prosecution for the crime of illegal possession of firearm.
In general, all pending cases involving illegal possession of
firearm should continue to be prosecuted and tried if no other
crimes expressly indicated in Republic Act No. 8294 are
involved (murder or homicide under Section 1 and rebellion,
insurrection, sedition or attempted coup d' etat under Section
3.
Thus, where the other offense charged in a Criminal Case for
violation of COMELEC Resolution No. 3045 — is not one of
those enumerated under R.A. No. 8294, the respondent judge
was correct in not quashing the information in the Criminal
Case.
It was however, made clear in the en bane decision in Agote
u. Lorenzo, that there can be no separate conviction for illegal
possession of firearm where another crime was commited at
the same time for instance, violation of the COMELEC
resolution on gun ban even if the firearm was not being
actually used or discharged, holding that there can be no
separate offense of illegal possession of firearms and
ammunition if there is another crime committed such as
illegal possession of dangerous drugs.
Reckless Imprudence Cases
Where both damage to property with less serious physical
injuries were caused by one single act of defendant, the
information cannot be split into two — one for physical
injuries and another for damage to property.
If there is damage to property only, the amount fixed therein
should be imposed but if there are also physical injuries,
there should be an additional penalty for the latter.
The information cannot be split into two; one for physical
injuries and another for the damage to property, for both the
injuries and the damages committed were caused by one
single act of physical injuries and damage to property.
The rule was clarified in People u. Cano:
54
"From the viewpoint of trial practices and justice, it is, to say
the least, doubtful whether the prosecution should split the
action against the defendant, by filing against him several
informations, namely, one for damage to property and serious
and less serious physical injuries, thru reckless negligence,
before the Court of First Instance, and another for slight
physical injuries thru reckless negligence before the justice of
the peace or municipal court. One thing is, however, certain.
Such splitting of the action would work unnecessary inconvenience to
the administration of justice in general and to the accused in par-
ticular, for it would require the presentation of substantially the same
evidence before two different courts, the municipal court and the Court
of First Instance.
Worse, still, in the event of conviction in the municipal court and
appeal to the Court of First Instance, said evidence would still have to
be introduced once more in the latter court."
As stated in People v. Buan:
Reason and precedent both coincide in that once convicted or
acquitted of a specific act of reckless imprudence, the accused
may not be prosecuted again for that same act.
For the essence of quasi-offense of criminal negligence is the
execution of an imprudent or negligent act that, if intentionally done,
would be punishable as a felony.
The law penalizes thus the negligent or careless act, not the result
thereof.
The gravity of the consequence is only taken into account to determine
the penalty, it does not qualify the substance of the offense.
And, as the careless act is single, whether the injurious result should
affect one person or several persons, the offense (criminal negligence)
remains one and the same, and cannot be split into different crimes
and prosecution.
It was, however, held in Lontok, Jr. v. Gorgonio, that if one
offense is light, there is no complex crime. Separate
informations must be filed.
Example:
Damage to property in sum of P780.00 and Slight Physical
Injuries thru Reckless Imprudence cannot be made in a single
information — if slight physical injuries prescribes, it must be
dismissed.
Without mentioning Lontok, Jr. v. Gorgonio, the Supreme
Court in Buerano v. Court ofAppeals, reiterated the rule in
People v. Buan
Reiteration of Lontok v. Gorgonio:
The Court in Reodica v. Court ofAppeals,97 held that reckless
imprudence resulting in slight physical injuries and damage to property
is not a complex crime and cannot be the subject of a single
information, they are separate offenses subject to distinct penalties,
reiterating the ruling in Lontok u. Gorgonio.
The two offenses cannot be complexed because each offenses
is not a grave or less grave felony.
The two offenses may, however, be consolidated since under
the expanded jurisdiction of the municipal trial courts damage
to property thru reckless imprudence now falls under its
jurisdiction.
SEC. 14.
Amendment or Substitution
AMENDMENT EXPLAINED: WHEN LEAVE OF COURT
BEFORE PLEA REQUIRED
Under the former rule, amendment whether as to form or
substance is a matter of right before plea.
The rule was, however, amended by requiring "any
amendment before plea, which downgrades the nature of the
offense charged in or excludes any accused from the
complaint or information, can be made only upon motion by
the prosecutor, with notice to the offended party and with
leave of court."
The court shall state its reasons in resolving the motion and
copies of its order shall be furnished all parties, especially the
offended party.
The amendment is designed to remove the absolute control of
the prosecution of a criminal action after the filing of
information even before a plea is entered which seems to be
the case as provided for in the first sentence of the first
paragraph that the complaint or information may be
amended, in substance or form, without leave of court, at any
time before the accused pleads; however, under the amended
rule, any amendment before plea, which lessens the gravity
of the offense charged and/or excludes any of the accused
from the complaint or information, must be filed with leave of
court and the parties, especially the private complainant shall
be duly furnished copies of the order resolving the motion
therefor and explaining the reasons for such disposition.
This is in accord with the ruling in Crespo v. Mogul, It is
intended to prevent the prosecution from abusing the process
of amendment before plea by dropping any of the accused
from the information or reducing the offense charged whether
the accused had been arraigned or not and whether it was
due to a reinvestigation of the fiscal or a review by the
Secretary of Justice, similar to what happened in the case of
Dimatulac u. Vilon.
Once the case had already been brought to Court whatever
disposition the fiscal may feel should be proper in the case
thereafter should be addressed for the consideration of the
Court.
The only qualification is that the action of the Court must not
impair the substantial rights of the accused, or the right of
the people to due process of law.
Thus, the complaint cannot be withdrawn by the Fiscal with-
out the court's consent.
The provincial fiscals are not clothed with power, without the
consent of the court, to dismiss or nolle prosequi criminal
actions actually instituted and pending further proceedings.
The power to dismiss is vested solely in the court, i.e., the
55
presiding judge.
The Supreme Court stressed, however, that the real and
ultimate test of the independence and integrity of the trial
court is not the filing of the motions to suspend proceedings
and defer arraignment at that stage of the proceedings but
the filing of a motion to dismiss or to withdraw the
information on the basis of a resolution of the petition for
review reversing the Joint Resolution of the investigating
prosecutor.
Before that time, the pronouncement in Crespo v. Mogul that
"once a complaint or information is filed in Court any
disposition of the case as its dismissal or the conviction of the
accused or acquittal of the accused rests in the sound
discretion of the court, did not yet become relevant or
applicable."
Court Must Make Independent Assessment
However, once a motion to dismiss or withdraw the informa-
tion is filed the trial judge may grant or deny it, not out of
subservience to the Secretary of Justice, but in faithful
exercise of judicial prerogative.
The trial judge must himself be convinced that there was
indeed no sufficient evidence against the accused, and this
conclusion can be arrived at only after an assessment of the
evidence in the possession of the prosecution.
What is imperatively required is the trial judge's own
assessment of such evidence, it not being sufficient for the
valid and proper exercise of judicial discretion merely to
accept or reject the prosecution's word for its supposed
insufficiency or to simply rely on Crespo u. Mogul.
FINDING OF GRAVE ABUSE OF DISCRETION AND
NOTICE TO PARTIES
In the absence of a finding of grave abuse of discretion, the
court's denial of a motion to withdraw information pursuant to
the Secretary's resolution is void.
For this reason the amendment requires parties, especially
the private complainant to be duly furnished copies of the
order resolving the motion therefor and explaining the
reasons for such disposition.
The amendment under the second par may only be made
especially with notice to the offended party.
What may be Amended
Only a valid information may be amended.
An information filed before the effectivity of the law punishing
the offense may not be amended after the law had come into
effect.
Time to Amend
Amendment of an information may be made at any time
before the accused enters a plea to the charge."

The prosecution is free to amend the information without
leave of court before arraignment.
Provided, the amendment does not downgrade the nature of
the offense charged or excludes any accused from the
complaint or information.
TEST AS WHEN RIGHTS OF ACCUSED PREJUDICED BY
AMENDMENT
The test as to when the rights of an accused are prejudiced
by the amendment of a complaint or information is, when a
defense under the complaint or information as it originally
stood, would no longer be available after the amendment is
made, and when any evidence the accused might have, would
no longer be available after the amendment is made, and
when any evidence the accused might have would be
inapplicable to the complaint or information as amended.
On the other hand, an amendment which merely states with
additional precision something which is already contained in
the original information, and which therefore, adds nothing
essential for conviction for the crime charged is an
amendment as to form that can be made at any time.
An amendment which neither adversely affects the substantial
right of the accused, e.g., does not deprive him of his right to
invoke prescription nor affects and/or alters the nature of the
offense originally charged nor involves a change in the basic
theory of the prosecution so as to require the accused to
undergo any material change or modification in his defense is
an amendment as to a matter of form.
The amendment in a libel case which merely specifies the
specific address in Makati where the libelous articles were first
printed and published is merely formal.
Change of Dates of Commission of Crime
Thus, the change in the date of the commission of the crime
of Grave Coercion from June 24, 1981 to August 28, 1981 is
more formal than substantial and would not prejudice the
rights of the accused, as the said proposed amendment would
not alter the nature of the offense of grave coercion.
The difference in dates is only about two months and five
days, which disparity is amply comprehended within the
allegation of "on or about."
Nor will the amendment or correction cause any surprise on
the accused, who has been furnished the affidavits of the
prosecution witnesses, all of which uniformly state that the
date of the commission was August 28, 1981.
The amendment of the complaint for rape changing the date
of commission of the crime alleged in the original information
from February 13, 1976 to February 5, 1976 as testified to by
the complainant, a difference of only eight (8) days was only
a matter of form and did not prejudice the rights of the
appellant.
Under Section 10 of Rule 110 of the Rules of Court "it is not
necessary to state in the complaint or information the precise
time at which the offense was committed except when time is
56
a material ingredient of the offense, but the act may be
alleged to have been committed at any time as near to the
actual date at which the date of the offense was committed as
the information or complaint will permit."
The phrase "on or about" employed in the information does
not require the prosecution to "prove any precise date which
is not so remote as to surprise and prejudice the defendant.
In case of surprise, the Court may allow an amendment of the
information as to time and an adjournment to the accused, if
necessary to meet the amendment."
In the case of People u. Riuera, the amendment of the
information as to the date of the commission of the offense
from March 2, 1964 to March 2, 1965 which was due to a
clerical error in the last digit of the year, the difference of one
year or twelve months was merely a matter of form and does
not prejudice the rights of the accused, reiterating the ruling
in the case of U.S. v. Ramos, where the Fiscal was permitted
to amend the date of the commission of the offense from
June 16, 1910 to June 1911.
Rule Not Applicable Where Disparity is Great
The petitioner's argument that the time or date of the
commission of the offense is not a material ingredient of the
crime of qualified theft cannot be given much weight in this
case because the disparity of time between the years 1964
and 1969 is so great as to defy approximation in the
commission of one and the same offense.
While it has been held that except when time is a material
ingredient of an offense, the precise time of commission need
not be stated in the information, this court stated that this
does not mean that the prosecution officer may be careless
about fixing the date of the alleged crime, or that he may
omit the date altogether or that he may make the allegation
so indefinite as to amount to the same thing.
The prosecution is given the chance to allege an
approximation of time of the commission of the offense and
the precise date need not be stated but it does not mean that
it can prove any date remote or far removed from the given
approximate date so as to surprise and prejudice the accused.
In Arevalo u. Nepomuceno, the amendment which was
allowed was the allegation in the information that B carried
the revolver and C, the knife, instead ofC carrying the
revolver and B, the knife.
In People v. Joseph Casey, the amendment after arraignment
was to include one of the accused Ricardo Felix alias "Carding
Tuwad" who was then armed with a firearm.
The Supreme Court, after stating the test as to whether a
defendant is prejudiced by the amendment, stated that: "A
look into our jurisprudence on the matter shows that an
amendment to an information introduced after the accused
has pleaded not guilty thereto, which does not expose the
accused to a charge which could call for a higher penalty,
does not affect the essence of the offense or cause surprise or
deprive the accused of an opportunity to meet the new
averment had each been held to be one of form and not of
substance not prejudicial to the accused and, therefore, not
prohibited by Section 13, Rule 110 of the Revised Rules of
Court.
In U.S. v. dela Cruz, the amendment in the information for
brigandage sought to be made was to eliminate the words
"led by one Silverio" and to substitute the words "under the
command of Luciano San Miguel" after the prosecution rested
but before the presentation of the evidence of the defense.
The Supreme Court allowed the said amendment
holding that it did not prejudice in any sense the right of the
accused as "it did not affect the essence of the crime charge,
but merely an accidental detail of the same" and it did not
deprive the accused of an opportunity to produce evidence for
their defense if they had desired, in relation to said
amendment "Consequently, the accused is not thereby denied
any opportunity to present evidence in his defense."
The foregoing cases should, however, be distinguished from
the case of People u. Opemia, where the difference in dates
was from 1947 to 1952.
The difference in date could not be attributed to a clerical
error because the difference is not only in the year but also in
the month and the last two digits of the year, and the
difference "is so great as to defy approximation in the
commission of one and the same offense."
Discharge to be State witness under Witness Protection
Rule
The foregoing rule applies in withdrawing or discharging to be
a state witness before plea some accused under the witness
protection rule without the need of proving the requirement
for the discharge of a state witness despite a pending motion
for their discharge under Section 17, Rule 119 unless they are
retained in the information in which case section 17, Rule 119
is the applicable rule.
PROHIBITED AMENDMENTS; WHAT ARE SUBSTANTIAL
AMENDMENTS
Amendments that are prohibited after the accused has
pleaded are amendments in substance. And the substantial
matters in the complaint or information is the recital of facts
constituting the offense charged and determinative of the
jurisdiction of the court. All other matters are merely of form.
Habitual Delinquency
Additional allegations of habitual delinquency and recidivism
is not a substantial amendment.
They do not have the effect of charging another offense
different or distinct from the charge of qualified theft
contained in the information.
Neither do they tend to correct any defect in the jurisdiction
of the trial court over the subject-matter of the case.
The said new allegations relate only to the range of the
penalty that the court might impose in the event of
conviction.
They do not alter the prosecution's theory of the case nor
57
possibly prejudice the form of defense the accused has or will
assume
Additional Allegations of Conspiracy
In Regala v. CFI, the defendant was charged with murder.
After the plea, the fiscal presented an amended information
wherein two other persons were included as co-accused.
There was the further allegation that the accused and his co-
defendants had conspired and confederated together and
mutually aided one another to commit the offense charged.
The admission of the amendment was upheld by the Supreme
Court holding that the amendment is a mere matter of form.
In People v. Zulueta, an information for Malversation of public
property was amended with the additional assertion that in
permitting the misappropriation, the accused acted in
conspiracy with Commissioner Llanes who was subsequently
booked for malversation of the identical property also in the
same court.
The Supreme Court held that there was a substantial
amendment.
Surely, the preparations have to be radically modified to meet
the new situation.
For undoubtedly, the allegation of conspiracy enables the
prosecution to attribute and ascribe to the accused all the
acts, knowledge, admissions and even omissions of his co-
conspirator Angel Llanes in furtherance of the controversy.
The amendment thereby widens the battlefront to allow the
use by the prosecution of newly discovered weapons, to the
evident discomfiture of the opposite camp.
The Supreme Court distinguished the case from Regala by
explaining that the amendment therein did not modify the
basic theory of the prosecution that the accused had killed the
deceased by a voluntary act and deed.
Here there is an innovation, or the introduction of another
alternative imputation, which, to make matters worse, is
inconsistent with the original allegations.
In People v. Court of Appeals, the accused Sixto Ruiz who was
charged with murder entered a plea of not guilty.
After a reinvestigation, the prosecution moved to amend the
information with the inclusion of two other accused alleging
conspiracy.
The Supreme Court, citing Regala, held that the amendments
would not prejudice the accused whose participation as
principal in the crimes charged did not change.
In People v. Montenegro, the accused was charged with rob-
bery before the CFI of Quezon City and entered a plea of not
guilty.

Before the trial could proceed, the fiscal sought to amend the
complaint:
1) From robbery to robbery in an uninhabited place;
2) Alleging conspiracy among all accused; and
3) Deleting all items, articles and jewelries alleged to
have been stolen in the original information
substituting them with a different set of items.
The Supreme Court citing and quoting People v. Zulueta
(supra), held that the allegation of conspiracy among all the
private respondents-accused which was not previously
included in the original information is a substantial
amendment saddling the respondents with the need of a new
defense in order to meet a different situation in the trial
court.
AMENDMENTS AFTER PLEA CHANGING THE NATURE OF
OFFENSE CHARGE IS PROHIBITED
The Supreme Court held that the proposed amendments in
the amended information are clearly substantial and have the
effect of changing the crime charged from "Robbery"
punishable under Article 209 to "Robbery in an Uninhabited
Place" punishable under Article 302 of the Revised Penal
Code, thereby exposing the private-respondent accused to a
higher penalty as computed to the penalty imposable for the
offense charged in the original information to which the
accused had already entered a plea of "not guilty" during their
arraignment.
Moreover, the change in the items, articles and jewelries
allegedly stolen into entirely different articles from those
originally complained of affects the essence of the imputed
crime, and would deprive the accused of the opportunity to
meet all the allegations in the amended information, in the
preparation of their defenses to the charge filed against them.
It will be observed that private respondents were accused as
accessories after the fact of the minor who had already been
convicted of robbery of the items listed in the original
information.
To charge them now as accessories after the fact for a crime
different from that committed by the principal, would be
manifestly incongruous as to be allowed by the court.
An amendment deleting the word "orally" from a charge of
grave threats to conform to the evidence is merely a formal
amendment since it did not affect the nature of the crime as
originally charged.
The particular manner in which the threat made is not a
qualifying ingredient of the offense.
Addition of Intent to Gain
Where intent to gain could already be inferred from the
allegations of the information, an amendment which merely
states with additional precision something which is already
contained in the complaint for robbery, and which therefore
adds nothing essential to the conviction for the crime charged
is a formal amendment and can be made at any time.
AMENDMENT TO ALLEGE OFFENSE COMMITTED IN
58
RELATION TO OFFICE
It has been held that after the case of homicide committed by
a PNP officer was transferred by the RTC to the
Sandiganbayan after trial, on the ground that the offense was
committed in relation to the public office of the accused and,
therefore, falls under the jurisdiction of the Sandiganbayan,
an amendment to allege that the offense of homicide
committed by a member of the PNP was committed "in
relation to his office" may be made at any time before
arraignment before the Sandiganbayan, and indeed by leave
of court at any time before judgment is rendered by the
Sandiganbayan, considering that such an amendment would
not affect the juridical nature of the offense charged (i.e.,
murder), the qualifying circumstance alleged in the
information, or the defenses that accused may assert before
the Sandiganbayan.
In other words, the amendment may be made before the
Sandiganbayan without surprising the accused or prejudicing
his substantive rights.
NO NEED OF ARRAIGNMENT WHERE AMENDMENT
MERELY FORMAL
Where the amendment was not substantial, no second plea is
necessary.
Amendment to Conform to Evidence Allowed
Amendments to conform to the evidence to be presented dur-
ing the trial is permissible.
MISTAKES TO CONFORM TO EVIDENCE
AMENDMENT BY SUBSTITUTION
If it appears at any time before judgment that a mistake has
been made in charging the proper offense, the court shall
dismiss the original complaint or information upon the filing of
a new one charging the proper offense in accordance with
Rule 119, Section 11, provided, the accused would not be
placed thereby in double jeopardy.
Section 11 of Rule 119 provides that when it becomes
manifest at any time before judgment that a mistake has
been made in charging the proper offense, and the accused
cannot be convicted of the offense charge, or of any other
offense necessarily included therein, the accused shall not be
discharged, if there appears to be good cause to detain him.
In such case, the court shall commit the accused to answer
for the proper offense and dismiss the original case upon the
filing of the proper offense.
The rule, therefore, does not apply where the accused may be
convicted of any other offense necessarily included in the
offense charged.
Where the original complaint for rape charged her father with
the crime of rape allegedly committed on or about the 13th
day of February but during the trial, the complaining witness
testified that she was raped by her father on February 5 of
the same year, there was no need for the court to dismiss the
original complaint and direct the fiscal to file the proper
complaint.
The trial judge could have simply granted the motion for
leave to amend the complaint.
1) Amendment and Substitution Distinguished
2) Scope of Rule
The above section contains two parts: One authorizes the
amendment of an information or complaint (involving the
same offense or an offense which necessarily includes or is
necessarily included in the first information) in substance or
form, without leave of court, at any time before the defendant
pleads, and thereafter, only as to matters of form.
The other provides that, if it appears at any time before
judgment that a mistake has been made in charging the
proper offense, the court may dismiss the original complaint
or information and order the filing of a new one charging the
proper offense (substitution), provided the defendant would
not be placed in double jeopardy.
Explaining Section 14 of Rule 110, the Supreme Court
stressed:
"The first paragraph provides the rule for amendment of the
information or complaint, while the second paragraph refers
to the substitution of the information or complaint.
Under the second paragraph, the court can order the filing of another
information to charge the proper offense, provided, the accused would
not be placed thereby in double jeopardy and that could only be true if
the ofifense proved does not necessarily include or is not necessarily
included in the offense charged in the original information."
It has been the rule that under the first paragraph of Section
14, Rule 110, the amendment of the information may also be
made even if it may result in altering the nature of the charge
so long as it can be done without prejudice to the rights of
the accused.
Hence, in the case of Dimalibot v. Salcedo, the accused
therein were originally charged with homicide and were
released on bail. However, the then provincial fiscal, after a
review of the affidavits of the witnesses for the prosecution,
discovered that the killing complained of was perpetrated with
the qualifying circumstances of treachery, taking advantage
of superior strength, and employing means to weaken the
defense of the victim.
Consequently, an amended information for murder was filed
against the accused who were ordered re-arrested without
the amount of bail being fixed, the new charge being a capital
offense.
The Court ruled therein that the amendment was proper,
pursuant to Section 13, Rule 106 of the 1940 Rules of Court
(now Section 14, Rule 110 of the 1985 Rules on Criminal
Procedure), thus:
"Here, these rules properly apply, since it is undisputed that
the herein accused were not yet arraigned before the com-
petent court when the complaint for homicide was amended
so as to charge the crime of murder.
59
Upon the authority of said rules, the amendment could therefore be
made even as to substance in order that the proper charge may be
made.
The claim that such amendment can only refer to matters of
specification affecting the elements constituting the crime is not
correct, for there is nothing in the rule to show that the nature of the
amendment should only be limited to matters of specification.
The change may also be made even if it may result in altering the
nature of the charge so long as it can be done without prejudice to the
rights of the defendant."
Be that as it -may, it is quite plausible under Section 14 of
Rule 110 that, instead of an amendment, an information for
homicide may also be dismissed before the accused pleads, to
give way to the filing of a new information for murder.
In Galvez v. Court of Appeals — the Supreme Court thru Jus-
tice Regalado extensively discussed amendments by
substitution of a defective information by the correct one.
That is from the filing of the information up to and before
trial, while amendments during trial and before judgment is
governed by Section 11, Rule 119 when a mistake has been
made in charging the proper offense.
Perusal of the 1985 Rules on Criminal Procedure will show
that there are only two provisions concerning the dismissal of
an information other than on motion of the accused, namely,
Section 14 of Rule 110 and Section 11 of Rule 119.
But then, it may be contended that these rules speak of a
dismissal by the court when there is a mistake in charging the
proper offense, but make no mention of a dismissal made
upon application of the prosecution. That is not necessarily
so.
(a) Rule 119; Section 11, Court Initiates Substitution
Rule 119 is the rule specifically governing the trial stage
where evidence is necessarily being presented, hence,
the trial court is now in a better position to conclude that
manifestly the accused cannot be convicted of the
offense charged or of one that it necessarily includes.
It would primarily be the function of the court to motu
proprio order the dismissal of the case and direct the
filing of the appropriate information.
We do not discount the possibility of either the
prosecution or the defense initiating such dismissal and
substitution at that stage, although, from a realistic point
of view, that would be a rare situation.
This provision, therefore, is more directly and principally
directed to the trial court to invest it with the requisite
authority to direct by itself the dismissal and refiling of
the informations therein contemplated.
(b) Rule 110, Section 14, Prosecutor Initiates Substitution
Rule 110, on the other hand, provides the procedural
governance for the prosecution of offenses. Section 14
thereof, provides in its second (now third) paragraph the
procedure and requisites for the substitution of a
defective information by the correct one.
Although, just like Section 11 of Rule 119, the
permissible stage for effecting that substitution is "at any
time before judgment," unlike the latter situation it is
sufficient that "it appears x x x that a mistake has been
made in charging the proper offense, x x x."
The situation under said Section 14 contemplates a
longer time span, inclusive of the period from the filing of
the information up to and before trial.
Since no evidence has been presented at that stage, the
error would appear or be discoverable from a review of
the records of the preliminary investigation.
Of course, that fact may be perceived by the trial judge
himself but, again, realistically it will be the prosecutor
who can initially determine the same.
That is why such error need not be manifest or evident,
nor is it required that such nuances as offenses includible
in the offense charged be taken into account.
It necessarily follows, therefore, that the prosecutor can
and should institute remedial measures for the dismissal
of the original information and the refiling of the correct
one, otherwise he would be recreant to his duties.
In the subsequent case ofTeehankee, Jr. v. Madayag, et
al., however, Section 14 of Rule 110 was clarified to
mean as follows:
"It may accordingly be posited that both amendment and
substitution of the information may be made before or
after the defendant pleads, but they differ in the
following respects:
a. Amendment may involve either formal or substantial
changes, while substitution necessarily involves a
substantial change from the original charge;
b. Amendment before plea has been entered can be
effected without leave of court, but substitution of
information must be with leave of court as the
original information has to be dismissed;
c. Where the amendment is only as to form, there is no
need for another preliminary investigation and the
retaking of the plea of the accused; in substitution of
information, another preliminary investigation is
entailed and the accused has to plead anew to the
new information; and
d. An amended information refers to the same offense
charged in the original information or to an offense
which necessarily includes or is necessarily included
in the original charge, hence, substantial
amendments to the information after the plea has
been taken cannot be made over the objection of
the accused, for if the original information would be
withdrawn, the accused could invoke double
jeopardy.
60
On the other hand, substitution requires or
presupposes that the new information involves a
different offense which does not include or is not
necessarily included in the original charge, hence,
the accused cannot claim double jeopardy.
In determining, therefore, whether there should be an
amendment under the first paragraph of Section 14, Rule
110, or a substitution of information under the second
paragraph thereof, the rule is that where the second
information involves the same offense, or an offense
which necessarily includes or is necessarily included in
the first information, an amendment of the information is
sufficient; otherwise, where the new information charges
an offense which is distinct and different from that
initially charged, a substitution is in order."
The foregoing pronouncements may be deemed to have
been accordingly modified by the amendment to Section
14 in the sense that even before plea, the prosecution
may not amend the information to, downgrade the
offense charged or drop any of the accused from the
information without leave of court.
Dismissal Only After New One is Filed
The second paragraph of Sec. 13 of the old Rule 110 was
amended in 1985 as follows: "The court shall dismiss the
original complaint or information upon the filing of a new one
charging the proper offense in accordance with Rule 110, Sec.
11."
Both rules were clarified so that the dismissal of the original
complaint or information would be done only after a new one
has been filed.
There is no double jeopardy if there is no identity of offenses.
If there is identity of offense, then the accused should be
convicted of the offense charged necessarily included in the
offense proven or of the offense proven necessarily included
in the offense charged.
SUBSTITUTION APPLIES ONLY WHERE NO JUDGMENT
RENDERED
The amendment or the filing of a new case where there had
been a mistake in charging the proper offense after the
dismissal of an existing one, spoken of and therein provided
for apply, only to an original case where no judgment has as
yet been rendered.
Much less does the said section apply to an appealed case.
Subject to Rule on Double Jeopardy
The reason is obvious and that is because the right to amend
or to file a new complaint or information charging the proper
offense after the dismissal of the original complaint or
information is subject to the rule on double jeopardy.
Where the original charge was that of less serious physical
injuries, for which the accused was convicted, the prosecution
cannot on appeal withdraw the case of physical injuries and
file a case of direct assault.
Whether the new charge for direct assault with less serious
physical injuries is by way of amendment or through a new
information is, immaterial since in both instances accused's
former conviction would be a bar to a subsequent prosecution
for the second offense.
This was the dictum laid down in the case of People v.
Bonotan, and which doctrine was reiterated in the case of
Tacas v. Cariaso. Thus:
"The charge of direct assault upon a person in authority with physical
injuries contained in the fiscal's information is not included in the
charge contained in the complaint of the chief of police, which is
merely that of less serious physical injuries unqualified by any
allegation that those injuries were inflicted upon the offended
municipal councilor, admittedly a person in authority, while he was in
the performance of his official duties or on the occasion thereof, a
qualification essential to the offense charged in the information.
The converse is no less obvious, that is, the charge of direct assault
upon a person in authority with physical injuries as set out in the
information necessarily included the offense of less serious physical
injuries charged in the complaint, especially because in both the
information and the complaint, the physical injuries inflicted are
alleged to have required medical assistance of a period of 14 days and
incapacitated the offended party from labor for the same period of
time.
As proof that the offense charged in the information includes the
offense charged in the complaint, conviction of the defendants of this
latter offense may, without question, be had under the information if
the other ingredients of the crime charged in said information are not
proved.
Hence, the defense of double jeopardy was well taken. The order of
dismissal was thus affirmed precisely on the very same constitutional
ground relied upon in this petition."
Limitation to Rule on Substitution
There are thus limitations before a new information in
substitution of the original one may be allowed:
(a) That no judgment has as yet been rendered;
(b) The accused cannot be convicted of the offense
charged or of any other offense necessarily included
therein; and
(c) The accused would not be placed in double jeopardy.
Thus, an amendment of the information to change the
crime charged from Homicide to the more serious offense of
murder after the accused had pleaded not guilty, not allowed.
To dismiss the homicide charged and file another charge for
murder will place the accused in double jeopardy.
To amend the information so as to change the crime charged
from homicide to the more serious offense of murder after the
petitioner had pleaded not guilty to the former is indubitably
proscribed by the first paragraph of the above-quoted
provision.
For certainly, a change from homicide to murder is not a
matter of form; it is one of substance with very serious
61
consequence.
But can the amendment be justified under the second
paragraph?
The answer is, No.
For the provision speaks not of amendment but of dismissal
of the information.
In other words, the provision contemplates the filing of a
substituted not an amended information.
But, it may be asked, cannot the information for homicide
against the petitioner be dismissed since no judgment has yet
been rendered and another information for murder be filed?
The answer, again, is No.
For the petitioner having pleaded not guilty to homicide, to
dismiss the charge against him so as to file another charge
for murder will place him thereby in double jeopardy.
The principle does not apply where the information for homi-
cide alleges "using superior strength" in which case, an
amendment to murder even if the prosecution have already
presented two witnesses maybe allowed as this is a mere
formal amendment.
The body of the information already charges the crime of
murder.
NO DOUBLE JEOPARDY WHERE WITHDRAWAL MADE
BEFORE ARRAIGNMENT
In Galvez v. Court of Appeals (supra), the propriety of the
withdrawal of the original information for homicide before
arraignment, was upheld there having been no grave abuse of
discretion in granting the motion and, more importantly, in
consideration of the fact that the motion to withdraw was filed
and granted before petitioners were arraigned, hence, before
they were placed in jeopardy.
Thus, even if a substitution was made at such stage,
petitioners cannot validly claim double jeopardy, which is
precisely the evil sought to be prevented under the rule on
substitution, for the simple reason that no first jeopardy had
as yet attached.
Consequently, although the offenses charged under the three
new informations necessarily include those charged under the
original informations, the substitution of informations was not
a fatal error.
A contrary ruling, would sacrifice substantial justice for formal
nuances on the altar of procedural technicalities.
Furthermore, petitioners' right to speedy trial was never
violated since the new informations were filed immediately
after the motion to withdraw the original information was
granted.
 Duty of Judge to Render Decision
Where a physical injury case has been filed before a Municipal
Judge, but, after trial, he is of the opinion that a frustrated
murder was committed, he should decide the case on the
merits and not order the filing of an information in the CFI.
It is the duty of the judge to render the decision as the
evidence warrant under the information as filed for serious
physical injuries, and not dismiss the case on his idea or
belief that there was evidence of intent to kill the intended
victim.
Such order is void for having been issued with grave abuse of
discretion amounting to excess of jurisdiction.
a. In Teehankee v. Madayag — An amendment from frus-
trated murder to consummated murder due to
supervening event of death is merely formal.
b. The difference in serial numbers of firearms in case of
illegal possession is fatal.
c. In People u. Jaralba — The Amendment consists of
description of wound from lacerated to stab wound to
conform to the evidence. There was no change of offense
charged. No need to rearraign.
d. An Amendment to allege that co-accused who were
minors acted with discernment is one of form as far as
principal accused is concerned.
e. In People v. Padica, amendment as to correct name is
merely a matter of form. Issue as to identity must be
raised during arraignment in a demurrer on the ground
of lack of jurisdiction over his person, otherwise there is
estoppel or waiver.
SEC. 15.
Place Where Action is to be Instituted. —
Improper Venue
In criminal proceedings, improper venue is lack of jurisdiction.
Venue in criminal cases is an essential element of jurisdiction.
Unlike in a civil case where venue may be waived, this could
not be done in a criminal case because it is an element of
jurisdiction.
In criminal proceedings, the rule is that one cannot be held to
answer for any crime committed by him except in the
jurisdiction where it was committed.
Said rule is based on the legal provision which prescribes the
essential requisites of a good complaint or information, one of
which is the allegation that the crime was committed within
the jurisdiction of the court where the complaint or
information is filed and that said court has authority to try it.
As was said in the case of United States v. Cunanan, the
jurisdiction of the Courts of First Instance of the Philippine
62
Islands, in criminal cases is limited to certain well-defined
territory, so that they cannot take jurisdiction of persons
charged with an offense alleged to have been committed
outside of that limited territory.
Judges of the court of the Court of First Instance of a district
court must exercise their jurisdiction within the territorial
limits of their provinces and no further.
Jurisdiction or venue is determined by the allegations in the
information which are controlling.
When Place of Crime Not Alleged
Where the place of the commission of the offense was not
specifically charged, the place may be shown by the evidence.
Thus, the insufficiency of the complaint charging adultery
without stating the place where the acts of adultery were
committed, or that the accused knew the woman was married
at the time of cohabitation, assigned as error as the
conviction thereon amounted to a conviction without
informing the defendants of the nature and character of the
offense, and besides equivalent to a conviction without due
process of law.
No such question having been raised before final judgment in
the trial court, but every ingredient of the crime having been
established in the evidence, there was no error committed
upon which to base a reversal of conviction.
When the record discloses that the crime as alleged in the
complaint was not committed in the province wherein the trial
was had, and the accused was not arrested in that province
and defendant had not fled therefrom, the Court of First
Instance of that province has no jurisdiction to impose
sentence.
In such cases, if the court has reasonable ground to believe
that the crime has been committed, the accused should be
remanded to the court of proper jurisdiction for trial
Purpose of Rule
A criminal case should be instituted and tried in the munici-
pality or province where the offense was committed or any of
its essential ingredients took place.
This is a fundamental principle, the purpose being not to
compel the defendant to move to, and appear in a different
court from that of the province where the crime was com-
mitted, as it would cause him great inconvenience in looking
for his witnesses and other evidence in another place."
Power to Change Venue
Where the convenience of the accused is opposed by that of
the prosecution, it is but logical that the court should have
the power to decide where the balance of convenience or
inconvenience lies, and to determine the most suitable place
of the trial according to the exigencies of truth and impartial
justice.
Under the 1987 Constitution, the Supreme Court may order a
change of venue or place or trial to avoid a miscarriage of
justice.
"A petition for change of venue of the preliminary
investigation should however, be addressed to the Secretary
of Justice who has control and supervision over the conduct of
a preliminary investigation which is a function of the
Executive Department and not the Judiciary."
PLACES WHERE ACTION MAY BE INSTITUTED GENERAL
RULE
a. In all criminal prosecutions the action shall be instituted
and tried in the Court of the Municipality or territory
wherein the crime was committed or where any one of
the essential ingredient of the offense took place.
Thus, subject to existing laws, the commission of an
offense is, triable only in the courts of the place where
the offense was allegedly committed.
If all the acts material and essential to the crime and
requisite of its consummation occurred in one
municipality or province, the court of that municipality or
province has sole jurisdiction to try the case.
b. In offenses committed on a railroad train, in an aircraft,
or in any other public or private vehicle while in the
course of its trip in the court of any municipality or
territory where such train, aircraft or other vehicle
passed during such trip, including the place of departure
and arrival.
Where defendant was charged with attacking a postal
clerk in a moving train within the limits of Manila, it was
claimed that the Court of First Instance of Manila was
without jurisdiction, but as defendant offered no proof
against such jurisdiction, the lower court was justified in
taking jurisdiction.
c. Where the crime for violation of P.D. No. 532 known as
the Anti-Piracy and Anti-Highway Robbery Law of 1974
was committed aboard a jeepney, the criminal action
may be instituted and tried in the court of any
municipality or territory where the vehicle passed during
the trip including the place of departure and arrival.
d. In offenses committed on board a vessel in the course of
its voyage — in the proper court of the first port of entry
or of any municipality or territory through which the
vessel passed during such voyage subject to the
generally accepted principles of the international law.
Where the crime was actually committed is immaterial
where the crime was committed while the vessel is in
transit.
"In transit" simply means "on the way or passage" while
passing from me place to another in the course of
transportation.
In a prosecution under Act No. 55, regulating the
transportation of animals on vessels, as amended by Act
No. 275, the information need not allege that the court
was sitting at a port where the animals were
63
disembarked.
e. The place where the action is to be instituted is subject
to existing laws "such as offenses which fall under the
exclusive jurisdiction of the Sandiganbayan which may be
instituted and tried only in the Sandiganbayan which is
located at Quezon City.
f. In the earlier case of People v. Mercado, involving theft
of large catties, it was held that where the accused stole
the carabaos in Gapan, Nueva Ecija, and took them to
Pampanga, where he was found, the crime is triable only
in Nueva Ecija and not in Pampanga.
The unlawful taking of a movable thing consummates in
the crime of theft.
The act of carrying away the thing stolen is not an
indispensable requisite of theft.
g. Where the offense charged was fully committed in the
City of Manila where the automobile was allegedly stolen
from its parking place in Port Area the fact that said
automobile was later found in Rizal City is not an
essential ingredient of the crime but a mere circumstance
which could add nothing to the nature of the offense or
to its consummation.
Hence, this circumstance cannot be made determinative
of the jurisdiction of the trial court over the criminal
action.
It was, however, held in a case that where the
asportations of cigarettes commenced when they were
taken out of dark Airbase and continued when the goods
pushed through Valenzuela, Bulacan until they were
seized in Quezon City, the Courts in any of these places
had jurisdiction over the offense.
Transitory and Continuing Offenses
If all the acts material to the crime and requisite of the
consumption thereof occurred in one municipality or territory,
the court therein has the sole jurisdiction to try the case.
There are certain crimes in which some acts material and
essential to the crimes and requisite to their consummation
occur in one municipality or territory and some in another, in
which event, the court of either has jurisdiction to try the
cases, it being understood that the court taking cognizance of
the case excludes the other.
These are the so-called transitory or continuing crimes.
In transitory or continuing offenses, some acts material and
essential to the crime occur in one province and some in
another, in which case, the rule is settled that the court of
either province where any of the essential ingredients of the
crime took place has jurisdiction to try the case.
Offenses are continuing or transitory upon the theory that
there is a new commission, continuance or repetition of the
offense wherever the defendant maybe found.
Such offenses may be tried by the Court of any jurisdiction in
which the defendant may be found.
In such a case, the complaint should alleged that the offense
was committed within the jurisdiction of the court and not at
the place where it was originally committed.
The theory is that a person may be indicted in any jurisdiction
where the offense was in part committed, it being understood
that the first court taking cognizance of the case excludes the
others.
In this jurisdiction, where the strict common law rules touch-
ing the finding of indictments have no controlling influence,
offenses committed partly in one province and partly in
another, that is to say, where some acts material and
essential to the crime and requisite to its consummation occur
in one province and some in another, are triable in either
province, and the appropriate courts in each province have
concurrent jurisdiction of such offenses, distinguished, as to
estafa, accounts collected in one place and to be paid over to
principal in Manila; estafa committed by insurance agent,
premiums collected in Iloilo but payable in Manila; estafa
committed aboard a ship in Philippine Waters.
The theory upon which a person accused of a transitory or
continuing offense may be tried in any jurisdiction within
which he is found is based upon the ground that there is a
new commission of the same offense in the jurisdiction where
he is found.
In such a case, the complaint should allege that the offense
was committed within the jurisdiction of the court and not at
the place where it was originally committed.
(Defendant, as an enlisted seaman in the Bureau of
Navigation, accused of desertion in violation of Sec. 9 of Act
No. 1980.)
TRANSITORY AND CONTINUING OFFENSES
DISTINGUISHED
A transitory offense is one where any of the essential ingredi-
ents took place, such as estafa, malversation and abduction,
while a continuing offense is one which is consummated in
one place, yet by reason of the nature of the offense, the
violation of the law is deemed continuing.
Example of this, are where the deprivation of liberty is
persistent and continuing from one place to another or libel
where the libelous matter is published or circulated from one
place to another.
The term "continuing" must, however, be understood in the
sense similar to that of "transitory" and is only intended as a
factor in determining the proper venue or jurisdiction for that
matter of the criminal action pursuant to Section 15, Rule
110.
This is so because persons charged with a transitory offense
may be tried in any jurisdiction where the offense was in part
committed to the exclusion of the other.
In other words, a person charged with a transitory crime may
be validly tried in any municipality or province where the
64
offense was in part committed.
In transitory or continuing offenses in which some acts
material and essential to the crime and requisite to its
consummation occur in one province and some in another,
the Court of either province has jurisdiction to try the case, it
being understood that the first court taking cognizance of the
case will exclude the others.
However, if all the acts material and essential to the crime
and requisite of its consummation occurred in one municipal-
ity or territory, the court of that municipality or territory has
the sole jurisdiction to try the case.
ESSENTIAL REQUISITES OF CONTINUOUS CRIME;
ADULTERY
The rule is that crimes "committed partly in one province and
partly in another, that is to say, where some acts material
and essential to the crime, and requisites to its
consummation, occur in one province and some in another,
are triable in either province.
This means that to make the offense triable in more than one
province, the acts perpetrated in any one of them must be
impelled by the same criminal purpose or aim.
In People v. Zapata and Bondoc, it was held that adultery is
not a continuing offense.
"The notion or concept of a continuous crime has its origin in
the juridical fiction favorable to the law transgressors and in
many a case, against the interest of society."
For it to exist, there should be plurality of acts performed
separately during a period of time; unity of penal provision
infringed upon or violation; and unity of criminal intent or
purpose, which means that two or more violations of the
same penal provision are united in one and the same intent
leading to the perpetration of the same criminal purpose or
aim.
In adultery, the last unity does not exist because the culprits
perpetrate the crime in every sexual intercourse and they
need not do another or other adulterous act to consummate
it.
IN BIGAMY, PLACE WHERE FIRST MARRIAGE WAS
CELEBRATED IS IMMATERIAL
Bigamy being defined by Article 349 as the contracting "of a
second or subsequent marriage before the former marriage
has been legally dissolved, or before the absent spouse has
been declared presumptively dead by means of a judgment
rendered in the proper proceeding," it is self-evident that the
place where the first marriage was celebrated is immaterial to
the criminal act, intent and responsibility of the accused.
What is essential is that the first marriage be not legally
terminated, actually or by legal presumption, when the
subsequent wedlock takes place; and it is upon the
celebration of that subsequent marriage that bigamy is
committed, not before.
The continued existence of the first marriage is without
definite locus.
To hold with the trial court that the celebration of the first
marriage was an essential ingredient of the bigamy is to
assume that when the petitioner married his first wife, he did
so with intent already to marry his second consort; and there
is nothing on record to warrant such assumption.
Since the second marriage of the accused occurred in Davao
outside the territorial jurisdiction of the respondent court, and
in all criminal prosecutions, the actions must be instituted and
tried in the municipality or province where the offense or any
of its essential ingredients was committed, the Court of First
Instance for the province of Iloilo is devoid of jurisdiction to
take cognizance of the crime charged.
Venue in Estafa
a. A bicycle was purchased by the owner of a tobacco
factory in the municipality ofObando, in the province
ofBulacan, to be used by defendant, an employee, on
condition that it was to be returned to the owner of the
factory at the termination of his employment, in the
municipality of Malabon, province of Rizal.
Defendant sold the bicycle to a third person who lived in
the municipality of Obando.
Defendant having failed to comply with his obligation to
the owner of the bicycle in Malabon, the crime charged
against him was committed in that municipality, and the
justice of the peace in Malabon had jurisdiction to hear
and determine the case.
b. Estafa is a continuing or transitory offense which may be
prosecuted at the place where any of the essential
elements of the crime took place.
One of the essential elements of estafa is damage or
prejudice to the offended party.
Where the respondent has its principal place of business
and office in Manila, the failure of petitioner (accused) to
remit the insurance premiums she collected caused dam-
age and prejudice to private respondent in Manila, the
Regional Trial Court of Manila has jurisdiction.
c. C, entered into a contract at Manila, by virtue of which
he was obligated to render accounts to his principal in
Manila.
Under said contract, C collected certain moneys for his
principal in Cebu and failed to account for same to his
principal in Manila.
HELD: The court of Manila had jurisdiction over the
offense of estafa committed, as the contract of
employment was made in Manila.
d. An agent who is entrusted with collecting payments on
policies for an insurance company and who collects such
a payment in Iloilo and appropriates the same to his own
use there though by his contract, the premium collected
65
were payable at the office of the company in Manila, may
be tried for estafa in the Court of First Instance of Iloilo
or of Manila.
Estafa by Issuing a Bouncing Check
The general principles governing jurisdiction in cases of estafa
punishable under Article 315, paragraph 2(d) of the Revised
Penal Code have been defined in People v. Yabut, to wit:
"Estafa by postdating or issuing a bad check under Art. 315,
par. 2(d) of the Revised Penal Code may be a transitory or
continuing offense.
Its basic elements of deceit and damage, may independently arise in
separate places.
In the event of such occurrence, the institution of the criminal action in
either place is legally allowed. Section 14(a), Rule 110 of the Revised
Rules of Court provides: 'In all criminal prosecutions, the action shall
be instituted and tried in the court of the municipality or province
wherein the offense was committed or any one of the essential
ingredients thereof took place.
The theory is that a person indicted with a transitory offense may be
validly tried in any jurisdiction where the offense was in part com-
mitted.
However, if all the acts material and essential to the crime and
requisite of its consummation occurred in one municipality or province,
such has the sole jurisdiction to try the case."
The Place of Delivery of Check
The place where the bills were written, signed, or dated does
not necessarily fix or determine the place where they were
executed.
What is of decisive importance is the delivery thereof the
consummation as an obligation.
An undelivered bill or note is inoperative.
Until delivery, the contract is revocable. And the issuance as
well as the delivery of the check must be to a person who
takes it as a holder, which means "(t)he payee or indorsee of
a bill or note, who is in possession of it, or the bearer
thereof."
Delivery of the check signifies transfer of possession, whether
actual or constructive from one person to another with intent
to transfer title thereto.
The venue of the offense lies at the place where the check
was executed and delivered to the payee.
Where it was in Malolos, Bulacan where the checks were
uttered and delivered to complainant at which place, her
business and residence were also located, the criminal pros-
ecution of estafa may be lodged therein.
The giving of the checks by the two private respondents in
Caloocan City to a messenger and part time employee cannot
be treated as valid delivery of the checks, because a mere
"messenger" or "part-time employee" is not an agent of
complainant.
The Place Where Obligation Was Constituted
The place where the obligation was constituted is also a valid
basis for criminal jurisdiction to attach in a prosecution for
estafa.
Where, the place of business of the offended party, is in
Malolos, Bulacan, from where the tire and gas purchases were
made by the two private respondents, payment thereof
should be considered effected in Malolos, Bulacan."
(I)f the undertaking is to deliver a determinate thing, the
payment shall be made wherever the thing might be at the
moment the obligation was constituted.
The receipt by the two private respondents at Caloocan City
of the tires and gas supplies from Malolos, Bulacan, signifies
but the consummation of the contract between the parties.
It was the result of an obligation previously contracted at
Malolos, Bulacan.
Since the instant case, it was in Malolos, Bulacan, where the
checks were uttered and delivered to complainant at which
place, her business and residence were also located, the
criminal prosecution of estafa may be lodged therein.
In a case, two checks were issued and signed by the accused
in connection with the beer purchases made by him on
various occasion at Guiguinto, Bulacan and which checks he
handed and delivered to the sales supervisor of SMC, Mr.
Ruben Cornelio, who holds office in that municipality.
The two checks were deposited by SMC at the BPI, San
Fernando, Pampanga, where it maintained its accounts after
receiving these checks from its Guiguinto Sales Office which
bank later on made the corresponding deductions from the
account of SMC in the amounts covered by the dishonored
checks upon receiving information that the checks so issued
by the accused had been dishonored by the drawee bank at
Santa Maria, Bulacan.
A case of estafa and violation of B.P. Big. 22 was filed against
the accused in Pampanga, the accused contested the
jurisdiction of the court.
The Supreme Court held:
"As regards the Estafa case: While the subject check was issued in
Guiguinto, Bulacan, it was not completely drawn thereat, but in San
Fernando, Pampanga, where it was uttered and delivered.
Although the check was received by the SMC Supervisor at Guiguinto,
Bulacan, that was not the delivery in contemplation of law to the
payee, SMC.
Said supervisor was not the person who could take the check as a
holder, that is, as a payee or indorsee thereof, with the intent to
transfer title thereto.
The issuance as well as the delivery of the check must be to a person
who takes it as a holder, which means the payee or indorsee of the bill
or note, who is in possession of it, or the bearer thereof.
66
The element of deceit, therefore, took place in San Fernando,
Pampanga, where the check was legally issued and delivered so that
jurisdiction could properly be laid upon the court in that locality."
As Regards the Bouncing Check
The offense also appears to be continuing.
True, the offense is committed by the very fact of its
performance and the Bouncing Checks Law penalizes not only
the fact of dishonor of a check but also the act of making or
drawing and issuance of a bouncing check.
The case, therefore, could have been filed also in Bulacan.
The determinative factor (in determining venue) is the place
of the issuance of the check.
But it is also true that knowledge on the part of the maker or
drawer of the check of the insufficiency of his funds which is
an essential ingredient of the offense is by itself a continuing
eventuality, whether the accused be within one territory or
another.
Hence, jurisdiction to take cognizance of the offense also lies
in the ETC of Pampanga.
KNOWLEDGE BY DRAWER OF INSUFFICIENCY AND
DISHONOR AS ESSENTIAL ELEMENTS FOR VIOLATION
OF B.P. BIG. 22
The gravamen of the offense is knowingly issuing a worthless
check.
Thus, a fundamental element is knowledge on the part of the
drawer of the insufficiency of funds or credit with the drawee
bank for the payment of such check in full upon presentment.
Another essential element is subsequent dishonor of the
check by the drawee bank for insufficiency of funds or credit
or would have been dishonored for the same reason had not
the drawer, without any valid reason, ordered the bank to
stop payment.
Violation of B.P. Big. 22 is a transitory offense. Knowledge on
the part of the maker or drawer of the check of the
insufficiency of his funds is by itself a continuing eventuality,
whether the accused be within one territory or another.
Consequently, venue or jurisdiction lies either in Malabon
where the checks were delivered or in Kalookan where they
were dishonored.
The court, however, clarified that knowledge by the maker or
drawer of the fact that he has no sufficient funds to cover the
check or of having sufficient funds is simultaneous to the
issuance of the instrument.
Where there is no evidence to show that at the time of issue,
accused was in Manila, there would be no basis in upholding
jurisdiction of the Manila Trial Court over the offense for
violation of B.P. Big. 22.

THE CRIME OF ESTAFA AND VIOLATION OF B.P. BIG. 22
HAVE TO BE TREATED AS SEPARATE OFFENSES HAVING
DIFFERENT ELEMENTS
The mere fact that the court has jurisdiction over an estafa
case does not necessarily mean it has jurisdiction over the
bouncing checks case or violation of B.P. Big. 22 involving the
same check.
The crime of estafa and violation of B.P. Big. 22 have to be
treated as separate offenses having different elements and,
necessarily for a court to acquire jurisdiction each of the
essential ingredients of each crime has to be satisfied.
In the crime of estafa, deceit and damage are essential
elements of the offense and have to be established with
satisfactory proof to warrant conviction.
For violation of the Bouncing Checks Law, on the other hand,
the elements of deceit and damage are neither essential nor
required.
Rather, the elements ofB.P. Big. 22 are:
(a) The making, drawing and issuance of any check to
apply to account or for value;
(b) The maker, drawer or issuer knows at the time of
issuance that he does not have sufficient funds in or
credit with the drawee bank for the payment of such
check in full upon its presentment; and
(c) The check is subsequently dishonored by the drawee
bank for insufficiency of funds or credit or would
have been dishonored for the same reason had not
the drawer, without valid reason, ordered the bank
to stop payment.
Hence, it is incorrect for respondent People to conclude that
inasmuch as the Regional Trial Court of Manila acquired
jurisdiction over the estafa case then it also acquired
jurisdiction over the violations ofB.P. Big. 22.
The crime of estafa and the violation of B.P. Big. 22 have to
be treated as separate offenses and therefore the essential
ingredients of each offense have to be established.
Thus, where the records clearly indicate that business
dealings were conducted in a restaurant in Manila where sums
of money were given to petitioner, the lower court acquired
jurisdiction over the estafa case.
The various charges for violation of B.P. Big. 22, however, are
on a different plain.
There is no scintilla of evidence to show that jurisdiction over
the violation ofB.P. Big. 22 had been acquired.
On the contrary, all that the evidence shows is that
complainant is a resident of Makati; that petitioner is a
resident of Caloocan City; that the principal place of business
of the alleged partnership is located in Malabon; that the
67
drawee bank is likewise located in Malabon and that all the
subject checks were deposited for collection in Makati.
Verily, no proof has been offered that the checks were issued,
delivered, dishonored or knowledge of insufficiency of funds
occurred in Manila, which are esssential elements necessary
for the Manila Court to acquire jurisdiction over the offense
for violation of B.P. Big. 22.
Abduction
Abduction is a persistent and continuing offense.
Hence, it may be tried in the court of municipality or province
wherein the offense was committed or anywhere one of the
essential ingredients thereof took place.
The girl being taken with her consent from Manila to Pasig,
Rizal Province, both the judges of the Court of First Instance
of Manila and of Rizal have jurisdiction and are competent to
take cognizance of the crime of abduction.
It is true that the abduction was commenced in Manila, but it
may well be said that it was consummated in Pasig.
Kidnapping
Where an information charges the offense of kidnapping for
ransom with murder, the victim was kidnapped within Lucena
City and at that very moment, the intention becomes evident
that the accused wanted to detain him for ransom, the Court
thereat has jurisdiction to try the case of murder filed against
the accused, although the killing was committed outside the
city limits.
Where persons are kidnapped and detained in Bulacan, then
taken to Nueva Ecija, defendants may be tried and punished
in Bulacan, where the crime was commenced and
consummated, though continued elsewhere.
Kidnapping with serious illegal detention is a continuing crime
where the deprivation of liberty is persistent and continuing
from one place to another.
Estafa by Railroad Conductor
Where a railroad conductor collects one peso and twenty-two
centavos from a passenger and issues a false ticket for a
shorter journey for which the charge is eighteen centavos, the
estafa is committed where his account was rendered and the
stub of the false ticket was turned in.
Under Article 29 of the General Compilation of Laws upon
Criminal Procedure, jurisdiction is vested in the court, where
accused made use of the document (stub of the ticket)
alleged to be false.
The fact that the Court of First Instance of Manila took juris-
diction of the estafa because the place of its commission was
not clearly shown, is not an obstacle to the court declaring
itself without jurisdiction as soon as the lack of jurisdiction
appeared.

Jurisdiction over criminal cases cannot be conferred by
consent.
Falsification of Private Document
The crime of falsification of a private document is
consummated at the time and place where the document is
falsified, whether the document is or is not thereafter put to
the improper or illegal use for which it was intended.
Crime Within City Limits
In a case, defendant was fould guilty of homicide. Counsel for defense
contended that the Court of First Instance of Manila, in which the case
was heard, had no jurisdiction as the offense was committed outside
the city limits.
Held: As the crime was committed within two and a half miles of the
city limits, the court had the necessary jurisdiction.
The Court of First Instance of Manila has jurisdiction over a
crime of robbery committed upon a steamboat in the Bay of
Manila at a point two and a half miles beyond the city limits.
Perjury
The lower court oflloilo found that the crime charged (perjury)
in the information was completed in Manila, inasmuch as the
affidavit upon which the charge of perjury rested was
subscribed and sworn to before a notary in the city, and
sustained a demurrer, dismissing the case on ground of lack
of jurisdiction.
It is immaterial where the affidavit was subscribed and sworn,
so long as it appears from the information that defendant, by
means of such affidavit, swore to and knowingly submitted
false evidence, material to a point at issue in a judicial
proceeding pending in the Court of First Instance of Iloilo
province.
The gist of the offense charged is not the making of the
affidavit in Manila, but the intention to give false evidence in
Iloilo, by means of such affidavit.
Libel
The rules on venue on libel in Article 360 of the Revised Penal
Code as amended by R.A. No. 1289 and RJL No. 4363 may be
stated thus:
a. Whether the offended party is a public official or a private
person, the criminal action may be filed in the Regional
Trial Court of the province or city where the libelous
article is printed and first published.
b. If the offended party is a private individual, the criminal
action may also be filed in the Regional Trial Court of the
province where he actually resided at the time of the
commission of the offense.
c. If the offended party is a public officer whose office is in
Manila at the time of the commission of the offense, the
action may be filed in the Regional Trial Court of Manila.
68
d. If the offended party is a public officer holding office out-
side of Manila, the action may be filed in the Court of
First Instance of the province or city where he held office
at the time of the commission of the offense.
For the guidance, of both the bench and the bar, the Court
finds it appropriate to reiterate its earlier pronouncement in
the case of Agbayani, to wit:
In order to obviate controversies as to the venue of the crimi-
nal action for written defamation, the complaint or
information should contain allegations as to whether, at the
time the offense was committed, the offended party was a
public officer or a private individual and where he was
actually residing at that time.
Whenever possible, the place where the written defamation was
printed and first published should likewise be alleged.
That allegation would be a sine qua non if the circumstance as to
where the libel was printed and first published is used as the basis of
the venue of the action.
CRIMES ON BOARD FOREIGN MERCHANT SHIPS
WITHIN TERRITORIAL LIMITS
There are two fundamental rules in International Law regard-
ing jurisdiction to punish crimes committed abroad foreign
merchant vessels:
The French rule, according to which such crimes should not
be prosecuted in the court of the country within which they
are committed, unless their commission affects the peace and
security of the territory; and
The English rule, based on the territorial principle, followed by
the United States, according to which such crimes are in
general triable in the courts of the country within whose
territory they are committed.
Of these two rules, the last one obtains in this jurisdiction, as
the Philippines was then a territory of the United States.
In certain cases, the comity of nations is observed.
Whether the courts of the Philippines have jurisdiction over a
crime (such as smoking of opium within our territorial limits)
committed aboard foreign merchant vessels anchored in
jurisdictional waters the court stated in certain cases, the
comity of nations is observed, as in Mali u. Keeper of the
Common Jail, wherein it was said that disorders which disturb
only the peace of the ship or those on board are to be dealt
with exclusively by the sovereignty of the home of the ship,
but those which disturb the public may be suppressed and the
offenders punished by proper authorities of the local
jurisdiction.
It may not be easy at all times to discover to which of the two
jurisdictions a particular act of disorder belongs.
Much will depend upon the attending circumstances of the
particular case, but all must concede that a felonious
homicide is a subject for local jurisdiction; and if the
authorities are proceeding with the case in the regular way
the consul has no right to interfere with it.

The offense of failing to provide suitable means for securing
animals while transporting them on a ship from a foreign port
to a port in the Philippine Islands, is within the jurisdiction of
the courts of the Philippines when the forbidden conditions
existed during the time the ship was within territorial waters,
regardless of the fact that the same conditions existed when
the ship sailed from the foreign port and while it was on the
high seas.
Although the mere possession of a thing of prohibited use in
these islands, aboard a foreign vessel in transit, in any of
their ports, does not, as a general rule, constitute, a crime
triable by the courts of this country, on account of such vessel
being considered as an extension of its own nationality, the
same rule does not apply when the article, the use of which is
prohibited within the Philippine Islands, is landed from the
vessel upon Philippine soil.
In the present case, a can of opium was landed, thus
constituting an open violation of the laws of the land, with
respect to which, as it is a violation of the penal law in force
at the place of the commission of the crime, only the court
established in the said place itself has competent jurisdiction,
in the absence of an agreement under an international treaty.
When the exact place where the crime was committed is
unknown and the strong presumption arises at the trial that it
was committed on board a ship navigating within the waters
included in the territory of this Archipelago, the court
competent to try such a crime is that of the district and
province at one of whose ports the ship or vessel arrives.
CRIMES COMMITTED OUTSIDE OF THE PHILIPPINES
PUNISHABLE UNDER ARTICLE 2 OF THE REVISED
PENAL CODE
ART. 2. Application of its provisions. — Except as provided in the
treaties and laws of preferential application, the provisions of this Code
shall be enforced not only within the Philippine Archipelago, including
its atmosphere, its interior waters and maritime zone, but also outside
of its jurisdiction, against those who:
a. Should commit an offense while on a Philippine ship or
airship;
b. Should forge or counterfeit any coin or currency note of the
Philippine Islands or obligations and securities issued by the
Government of the Philippine Islands;
c. Should be liable for acts connected with the introduction into
these islands of the obligations and securities mentioned in
the preceding number;
d. While being public officers or employees, should commit an
offense in the exercise of their functions; or
e. Should commit any of the crimes against national security
and the law of nations, defined in Title One of Book Two of
this Code.
While under Sec. 15(d) "other crimes committed outside of
the Philippines but punishable therein under article 2 of the
Revised Penal Code shall be cognizable by the proper court in
which the charge is first filed."
Where the crime is committed by a public officer in relation to
his office and is classified as Grade 27 and higher, jurisdiction
is with the Sandiganbayan.
WHEN PROCEEDINGS ARE CONDUCTED WITHIN THE
PREMISES OF THE PENAL INSTITUTION
69
A sister of detention prisoner Mario, accused in a criminal
case for robbery with homicide requested the transfer of the
case from the Regional Trial Court at Calamba, Laguna to the
original court, the Regional Trial Court of Quezon City. Mario
is a life termer and had been ordered committed to the
National Bureau of Prisons in Muntinlupa.
Pursuant to Administrative Circular No. 2, dated December 2,
1976, and Administrative Circular No. 6, dated December 5,
1977, he cannot be brought out of the penitentiary for
appearance or attendance in other criminal cases in any court
without authority from the Supreme Court.
Said circulars also provide that judges in Metro Manila who
shall require the appearance or attendance of such prisoners
as witness or as accused before their respective courts shall
conduct such proceedings within the premises of the penal
institution.
The Court resolved to grant Ms. Llanto's request but the trial
of the case shall be conducted within the premises of the
National Penitentiary.
SEC. 16.
Intervention of the Offended Party in Criminal
Action
Intervention of Offended Party
Explaining the scope of the Rule and the meaning of offended
party, the Court stated that under Section 5, Rule 110 of the
Rules, all criminal actions covered by a complaint or
information shall be prosecuted under the direct supervision
and control of the public prosecutor.
Thus, even if the felonies or delictual acts of the accused
result in damage or injury to another, the civil action for the
recovery of civil liability based on the said criminal acts is
impliedly instituted and the offended party has not waived the
civil action, reserved the right to institute it separately or
instituted the civil action prior to the criminal action, the
prosecution of the action inclusive of the civil action remains
under the control and supervision of the public prosecutor.
The prosecution of offenses is a public function.
Under Section 16, Rule 110 of the Rules of Criminal
Procedure, the offended party may intervene in the criminal
action personally or by counsel, who will act as private
prosecutor for the protection of his interests and in the
interest of the speedy and inexpensive administration of
justice.
A separate action for the purpose would only prove to be
costly, burdensome and time-consuming for both parties and
further delay the final disposition of the case.
The multiplicity of suits must be avoided.
With the implied institution of the civil action in the criminal
action, the two actions are merged into one composite
proceeding, with the criminal action predominating the civil.
The prime purpose of the criminal action is to punish
the offender in order to deter him and others from committing
the same or similar offense, to isolate him from society,
reform and rehabilitate him or, in general, to maintain social
order.
On the other hand, the sole purpose of the civil action is for
the resolution, reparation or indemnification of the private
offended party ror the damage or injury he sustained by
reason of the delictual or felonious act of the accused.
Under Article 104 of the Revised Penal Code, the following are
the civil liabilities of the accused:
ART. 104. What is included in civil liability. — The civil liability
established in Articles 100, 101, 102 and 103 of this Code includes:
1. Restitution;
2. Reparation of the damage caused;
3. Indemnification for consequential damages.
When the offended party, through counsel, has asserted his
right to intervene in the proceedings, it is error to consider his
appearance merely as a matter of tolerance.
From Sections 5 and 16 of Rule 110, it can clearly be inferred
that while criminal actions as a rule are prosecuted under the
direction and control of the fiscal, however, an offended party
may intervene in the proceeding, personally or by attorney,
especially in cases of offenses which cannot be prosecuted
except at the instance of the offended party.
The only exception to this rule is when the offended party
waives his right to civil action or expressly reserves his right
to institute it, in which case, he loses his right to intervene
upon the theory that he is deemed to have lost his interest in
its prosecution.
And, in any event, whenever an offended party intervenes in
the prosecution of a criminal action, his intervention must
always be subject to the direction and control of the
prosecuting official.
Even in cases which do not involve any civil liability, an
offended party may appear not only as a matter of tolerance
on the part of the court.
In this respect, the law makes no distinction between cases
that are public in nature and those that can only be
prosecuted at the instance of the offended party.
The Right to Notice of Offended Party
In either case, the law gives the offended party the right to
intervene, personally or by counsel, and he is deprived of
such right only when he waives the civil action or reserves his
right to institute one.
Where the private prosecution has asserted its right to
intervene in the proceedings, it is error to consider the
appearance of counsel merely as a matter of tolerance.
The offended party is entitled to be notified and heard on
motions filed in the criminal proceedings especially when
there is a conflict in the positions between the public
prosecutor and of the offended party.
70
Offended Parties in Illegal Practice of Medicine
In an information for illegal practice of medicine a private
prosecutor was allowed to intervene.
All the witnesses who testified before the fiscal are offended
parties it appearing that the offense alleged in the information
belongs to the class of harmful ones.
If there are offended parties, petitioner's contention that no
damages are to be recovered in the criminal action must be
untenable.
The public function of prosecuting offenses can be performed
not exclusively by fiscals or other public officers, but by
private attorneys in cases where they are allowed to
intervene as private prosecutors.
After all, in the performance of their professional duties,
lawyers are officers of the court and assume public and
official responsibilities.
OFFENDED PARTIES FOR VIOLATION OF ANTI-GRAFT
LAW AND FALSIFICATION OF PUBLIC DOCUMENTS
The offended party may be the State or any of its
instrumentalities, including local governments or government-
owned or controlled corporations which, under substantive
laws, are entitled to restitution of their properties or funds,
reparation, or indemnification.
For instance, in malversation of public funds or property
under Article 217 of the Revised Penal Code, frauds under
Article 213 of the Revised Penal Code, and violations of the
Forestry Code of the Philippines, P.D. No. 705, as amended,
to mention a few, the government is the offended party
entitled to the civil liabilities of the accused.
For violations of Section 3(e) of Rep. Act No. 3019, any party,
including the government, may be the offended party if such
party sustains undue injury caused by the delictual acts of the
accused.
In such cases, the government is to be represented by the
public prosecutor for the recovery of the civil liability of the
accused.
Under Section 16, Rule 110 of the Revised Rules of Criminal
Procedure, the offended party may also be a private individual
whose person, right, house, liberty or property was actually
or directly injured by the same punishable act or omission of
the accused, or that corporate entity which is damaged or
injured by the delictual acts complained of.
Such party must be one who has a legal right; a substantial
interest in the subject matter of the action as will entitle him
to recourse under the substantive law, to recourse if the evi-
dence is sufficient or that he has the legal right to the
demand and the accused will be protected by the satisfaction
of his civil liabilities.
Such interest must not be a mere expectancy, subordinate or
inconsequential.
The interest of the party must be personal; and not one
based on a desire to vindicate the constitutional right of some
third and unrelated party.
In the felony of falsification of public document, the existence
of any prejudice caused to third person or the intent to cause
damage, at the very least, becomes immaterial.
The controlling consideration is the public character of a
document and the violation of the public faith and the
destruction of truth therein solemnly proclaimed.
The offender does not, in any way, have civil liability to a
third person.
WHEN MAY THE OFFENDED PARTY LOSE HIS RIGHT TO
INTERVENE IN THE PROSECUTION OF THE CASE
An offended party loses right to intervene in the prosecution
of a criminal case, when he has waived the civil action or
expressly reserved his right to institute the civil action arising
from the offense.
The reason of the law in not permitting the offended party to
intervene in the prosecution of the offense if he has waived or
reserved his right to institute the civil action is that by such
action his interest in the criminal case has disappeared.
Its prosecution becomes the sole function of the public
prosecutor.
Reservation of right of civil damages; offended party losses
right to intervene. — Where the offended party in a criminal
case has expressly reserved his right to present an
independent civil action for damages arising from the offense
charged, he loses his right to intervene in the prosecution of
the criminal case.
Filing of Separate Civil Action
Undoubtedly, an offended party loses his right to intervene in
the prosecution of a criminal case, not only when he has
waived his right to institute, but also when he has actually
instituted the civil action arising from the offense.
For by either of such actions his interest in the criminal case
has disappeared.
The Right to File Motion for Revival
It was earlier held in a case for illegal possession of firearms
and violation of the Dangerous Drugs Law that: "It is
axiomatic that the prosecution of a criminal case is the
responsibility of the government prosecutor and must always
be under his control.
This is true even if a private prosecutor is allowed to assist
him and actually handles the examination of the witnesses
and the introduction of other evidence.
The witnesses, even if they are the complaining witnesses,
cannot act for the prosecutor in the handling of the case.
71
Although they may ask for the filing of the case, they have no
personality to move for its dismissal or revival as they are not
even parties thereto nor do they represent the parties to the
action.
Their only function is to testify.
In a criminal prosecution, the plaintiff is represented by the
government prosecutor, or one acting under his authority,
and by no one else."
It follows that a motion for revival of the cases filed by
prosecution witnesses (who never even testified) should have
been summarily dismissed by the trial judge.
The mere fact that the government prosecutor was furnished
a copy of the motion and he did not interpose any objection
was not enough to justify the action of these witnesses.
The prosecutor should have initiated the motion himself if he
thought it proper.
The presumption that he approved of the motion is not
enough, especially since we are dealing here with the liberty
of a person who had a right at least to be notified of the move
to prosecute him again.
The fact that he was not so informed made the irregularity
even more serious."
It was, however, held that the offended party has the right to
file a motion for reconsideration of the order considering the
information against petitioner as withdrawn even without the
conformity of the public prosecutor or to file motion for
reconsideration of a decision of the Supreme Court enjoining
a criminal prosecution.
Legal Personality of Offended Party
While it is the SolGen that may bring or defend actions on be-
half of the Republic of the Philippines or represent the people
or the state in criminal proceedings pending before the
Supreme Court or Court of Appeals, the private offended
party retains the right to bring a special civil action for
certiorari in his own name in criminal proceedings before the
court of law.
It follows that the offended party has legal personality to file
a motion for reconsideration of an order of dismissal.
The case was distinguished from Caes v. Intermediate
Appellate Court, which is a violation of the dangerous drugs
law where there is no immediate and direct offended party.
Moreover, if the court, independently of the appeal of the
accused, has jurisdiction, within fifteen days from the date of
the judgment, to allow the appeal of the offended party, it
also has jurisdiction to pass upon the motion for
reconsideration filed by the private prosecution in connection
with the civil liability of the accused.
RULE 111
 PROSECUTION OF CIVIL ACTION
SECTION 1.
Institution of criminal and civil actions
Changes in the Rule at a Glance
a. The rule changes the 1985 rule as amended in 1988.
Under the 1985 Rule, the action for recovery of civil
liability arising from crime including the civil liability
under Articles 32, 33, 34 and 2176 of the Civil Code of
the Philippines arising from the same act or omission are
deemed impliedly instituted with the criminal action
unless the offended party waives the civil action,
reserves his right to institute it separately, or institutes
the civil action prior to the criminal action.
Under the present rule, only the civil liability arising from
the offense charged is deemed instituted with the
criminal unless the offended party waives the civil action
reserves his right to institute it separately, or institutes
the civil action prior to the criminal action.
b. Under the former rule a waiver of any of three civil
actions extinguishes the others.
The institution of, or the reservation of the right to file,
any of said civil actions separately waives the others.
This is no longer provided for.
The reservation and waiver referred to refers only to the
civil action for the recovery of civil liability arising from
the offense charged.
This does not include recovery of civil liability under
Articles 32, 33, 34 and 2176 of the Civil Code of the
Philippines arising from the same act or omission which
may be prosecuted separately even without a
reservation.
c. The rulings in Shafer v. Judge, RTC of Olongapo City,
allowing a third-party complaint, and the ruling in Javier
v. Intermediate Appellate Court, as well as Cabaero v.
Cantos allowing a counterclaim are no longer in force.
Under the Revised Rules on Criminal Procedure, these
pleadings are no longer allowed.
Any claim which could have been the subject thereof may
be litigated in a separate civil action.
Thus, a court trying a criminal case cannot award
damages in favor of the accused.
The task of the trial court is limited to determining the
guilt of the accused and if proper, to determine his civil
liability.
A criminal case is not the proper proceedings to
determine the private complainant's civil liability.
72
d. The rule also incorporated Circular 57-97 on the filing of
actions for violation of Batas Pambansa Big. 22
mandating the inclusion of the corresponding civil action
for which the filing fee shall be paid based on the amount
of the check involved.
In other cases, no filing fees shall be required for actual
damages.
History of Amendment
No other rule in criminal procedure have been as hotly
debated upon as the rule on prosecutions of civil actions. The
rule have been amended four times.
a. Juridical Basis of the Principle of Implied Institution of the
Civil Action with the Criminal Action
Dual Concept of Civil Liability
Under Article 1157 of the Civil Code of the Philippines,
obligations may arise, inter alia, from acts or omissions
punished by law (ex-delicto) and from quasi-delict.
Civil obligations arising from the criminal offenses shall
be governed by the penal laws, subject to the provisions
of Article 2177, and of the pertinent provisions of Chap-
ter 2, Preliminary Title, on Human Relations, and of Title
XVIII on Human Relations, regulating damages. 4
Article 100 of the Revised Penal Code provides that every
person criminally liable shall also be civilly liable (ex-
delicto) while Article 2176 of the Civil Code provides that
"whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the
damage done.
Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a
quasi-delict and is governed by the provisions of this
Chapter."
The Code expressly provides that responsibility for the
fault or negligence for quasi-delict is entirely separate
and distinct from the civil liability arising from negligence
under the Penal Code, subject only to the limitation that
the plaintiff cannot recover damages twice for the same
act or omission of the defendant.
Briefly stated, the negligent act causing damages may
produce two kinds of civil liability on the part of the
offender, that is, civil liability arising from the crime
under Article 100 of the Revised Penal Code, or create an
action for quasi-delict or culpa extra-contractual under
Articles 1902-1910 of the Civil Code.
The distinct nature of the dual concept of the civil liability
was stressed in Diana v. Batangas Transportation Co.,
citing the earlier case of Barredo v. Garcia, in the
following words:
"These two cases involve two different remedies.
 As the Court aptly said: A quasi-delict or culpa aquiliana is a
separate legal institution under the Civil Code, with a
substantivity all its own, and individuality that is entirely apart
and independent from a delict or crime.
A distinction exists between the civil liability arising from a crime
and the responsibility for quasi-delict or culpa extra-contractual.
The same negligent act causing damages may produce civil
liability arising from a crime under Article 100 of the Revised
Penal Code, or create an action for quasi-delict or culpa-
contractual under Articles 1902-1910 of the Civil Code."
The other differences pointed out between crimes and
culpa aquiliana are:
1) That crimes affect public interest, while quasi-delicts
are only of private concern;
2) That consequently, the Penal Code punishes or
corrects the criminal act, while the Civil Code by
means of indemnification merely repairs the
damage;
3) That delicts are not as broad as quasi-delicts,
because the former are punished only if there is a
penal law clearly covering them, while the latter,
quasi-delicts, include all acts in which any kind of
fault or negligence intervenes.
The plain inference is that the civil liability based on
delict springs out of and is dependent upon facts which, if
true, would constitute a crime.
Such civil liability is a necessary consequence of criminal
responsibility, and is to be declared and enforced in the
criminal proceeding except where the injured party
reserves his right to avail himself of it in a distinct civil
action.
b. Modes of Enforcement
The dual concept of civil liability, ex-delicto and quasi-
delicto, has thus brought about a dual mode of
enforcement.
The same act or omission which gives rise to two
separate and distinct sources of civil liability may be
prosecuted separately and independently of each other,
subject only to the limitation that the satisfaction of
either bars recovery of the other, on the principle that
plaintiff cannot recover twice for the same act or
omission.
Otherwise stated, civil liability, although arising from the
same act or omission, may not only be prosecuted either
in a criminal or civil action, but in a criminal and civil
action.
The procedural enforcement of these distinct civil
liabilities, albeit based on the same act or omission, are
likewise separate and distinct, subject only to the caveat
under Article 2177 of the Civil Code that the offended
party cannot recover damages under both types of civil
liabilities.
73
c. Civil Liability Based on Crime
The civil liability based on a crime, unless reserved, is
generally enforced in the criminal action, and was
governed by the Rules on Criminal Procedure, more
particularly Rule 111 on the prosecution of civil actions,
which provides that when a criminal action is instituted
the civil action for recovery of civil liability arising from
the offense charged is impliedly instituted with the
criminal action, unless the offended party expressly
waives the civil action or reserves his right to institute it
separately.
Civil liability under Article 2176 was then enforced
separately by means of a civil action and is governed by
the Rules on civil actions.
Consequently, when a criminal action is filed, what was
deemed impliedly instituted thereunder was only the civil
liability arising from or based on the crime.
Thus, the accused may be held civilly liable in the
criminal action, if he is found to be criminally liable.
If the accused is acquitted, he cannot be held civilly liable
in the criminal action.
The obvious reason, as stated in People u. Amistad is
that the civil liability recoverable in the criminal action is
one solely dependent upon conviction, because said
liability arises from the offense, since what was deemed
impliedly instituted, unless reserved, was the civil action
for recovery of civil liability arising from the offense
charged, and no other.
This is also the civil liability that is deemed extinguished
with the extinction of the penal even with a
pronouncement that the fact from which the civil action
might proceed does not exist."
d. Early Rulings
In the early stages of criminal procedure, the policy was
to strictly adhere to the distinct and discrete nature of
the criminal from purely civil actions, and the civil liability
that is sought to be enforced thereunder.
What is deemed impliedly instituted and governed by the
rules on criminal procedure, unless reserved, was only
the civil liability arising from the crime, while civil liability
based on other sources of obligation such as quasi-delict
may be enforced only in a purely civil action.
While the criminal action may have a dual purpose,
namely, the punishment of the offender and indemnity to
the offended party, its dominant and primordial objective
is the punishment of the offender.
The civil action is merely incident and consequent to the
conviction of the accused, which may even be waived or
the prosecution thereof reserved in a separate civil
action.
 This is because criminal actions are primarily intended to
vindicate an outrage against the sovereignty of the
State, and to impose the corresponding penalty for the
vindication of the disturbance to the social order caused
by the offender; the action between the private person
and the accused is intended solely to indemnify the
former.
Thus, where the accused is acquitted in the criminal
case, the interest of the State ends, and no civil liability
arising from the crime charged could be imposed upon
him.
What the private offended party should do is to file a
separate civil action.
e. Original Rule, The 1940 Rules of Court
The Rule was originally governed by Rule 107 of the
1940 Rules of Court which then provided that:
"When a criminal action is instituted the civil action for recovery
of civil liability arising from the offense charged is impliedly
instituted with the criminal action, unless the offended party
expressly waives the civil action or reserves his right to institute
it separately. Thus, what was deemed impliedly instituted unless
there is a waiver or reservation is the civil liability arising from
the crime."
f. The Independent Civil Actions
In 1949, the (new) Civil Code of the Philippines
introduced the so-called independent civil actions.
These are Articles 32, 33, and 34.
These articles allow the injured party to file a civil action
for damages in the cases mentioned therein which may
also constitute criminal offenses entirely separate and
g.
distinct from the criminal action.
Such civil action may proceed independently of the
criminal action and shall require only a preponderance of
evidence.
This has raised the question of whether or not a
reservation to file a separate civil action for the cases
mentioned therein is necessary for the exercise of such
right.
The Supreme Court flip-flopped from one extreme to the
other.
One school of thought is of the considered view that the
provisions of the Civil Code are substantive in nature
which may be exercised by the injured party even
without any reservation.
A contrary rule is unconstitutional.
Thus, the criminal action as well as the civil action for the
recovery of the civil liability arising from a crime may
proceed simultaneously and independently of the other,
without any reservation subject only to the limitation
74
that, the injured party cannot recover twice for the same
act or omission as provided for in Article 2177 of the Civil
Code.
The other school of thought is of the view that the
provisions of the new Civil Code or the exercise of the
right granted under the Civil Code is merely procedural
which may be regulated under the Rule-making power of
the Supreme Court.
To simplify the proceedings and avoid conflicting
decisions, all civil actions for the recovery of damages
arising from the same act or omission should only be
litigated in one proceeding.
The injured party must have to elect whether he chooses
to prosecute his claim in the criminal action or in a
separate civil action either by a timely reservation or the
filing of the civil action prior to the institution of the
criminal action.
The gravity and complexity of the question is best
exemplified by the four amendments of the Rule.
The minutes of the proceedings from the Fernan to the
Davide, Jr., committee disclose the heat of the debate
and the numerous sessions not only of the Committee
but also by the Court en bane.
By no means can it be said that the issue had been
finally laid to rest.
If the Revised Rule on Criminal Procedure have been
delayed, it is because of Rule 111. It took the court
several sessions before the present rule was reluctantly
adopted, which ended with a rule similar to the 1940
Rules of Court, prior to the four amendments.
The Amendments
1) First Amendment
In view of the provisions of the new Civil Code on the
so-called independent civil actions, the rule was
amended in 1964 by adding a new section, viz.
The reservation requirement for Other Civil Actions:
SEC. 2. Independent civil action. — In the cases provided for
in Articles 31, 32, 33, 34 and 2177 of the Civil Code of the
Philippines, an independent civil action entirely separate and
distinct from the criminal action, may be brought by the in-
jured party during the pendency of the criminal case,
provided the right is reserved as required in the preceding
section. Such civil action shall proceed independently of the
criminal prosecution, and shall require only a preponderance
of evidence.
SEC. 3. Other civil actions arising from offenses. — In all
cases not included in the preceding section the following
rules shall be observed,
a. Criminal and civil actions arising from the same
offense may be instituted separately, but after the
criminal action has been commenced the civil action
 cannot be instituted until final judgment has been
rendered in the criminal action;
b. After a criminal action has been commenced, no
civil action arising from the same offense can be
prosecuted, and the same shall be suspended,
in whatever stage it may be found, until final
judgment in the criminal proceeding has been
rendered;
c. Extinction of the penal action does not carry
with it extinction of the civil, unless the
extinction proceeds from a declaration in a final
judgment that the fact from which the civil
might arise did not exist.
In other cases, the person entitled to the civil
action may institute it in the jurisdiction and in
the manner provided by law against the person
who may be liable for restitution of the thing
and reparation or indemnity for the damage
suffered.
The Supreme Court, however, declared Section 2 as
inoperative. Thus, in Mendoza v. Arrieta, quoting
from Garcia v. Florida, that:
"* * * the same negligent act causing damages may pro-
duce a civil liability arising from crime or create an action
for quasi-delict or culpa extra-contractual.
The former is a violation of the criminal law, while the latter
is a distinct and independent negligence, having always had
its own foundation and individuality.
Some legal writers are of the view that in accordance with
Article 31, the civil action based upon quasi-delict may
proceed independently of the criminal proceeding for crimi-
nal negligence and regardless of the result of the latter.
Hence; the proviso in Section 2 of Rule 111 with reference
to x x x Articles 32, 33 and 34 of the Civil Code is contrary
to the letter and spirit of the said articles, for these articles
were drafted x x a and are intended to constitute as
exceptions to the general rule stated in what is now Section
1 of Rule 111.
The prouiso, which is procedural, may also be regarded as
an unauthorized amendment of substantive law, Articles
32,33 and 34 of the Civil Code, which do not provide for the
reservation required in the proviso. x x x"
In his concurring opinion in the above case, Mr.
Justice Antonio Barredo further observed that
inasmuch as Articles 2176 and 2177 of the Civil
Code create a civil liability distinct and different from
the civil action arising from the offense of negligence
under the Revised Penal Code, no reservation,
therefore, need be made in the criminal case; that
Section 2 of Rule 111 is inoperative, "it being sub-
stantive in character and is not within the power of
the Supreme Court to promulgate; and even if it
were not substantive but adjective, it cannot stand
because of its inconsistency with Article 2177, an
enactment of the legislature superseding the Rules
of 1940."
2. Second Amendment
75
Accordingly, the 1985 Rules on Criminal Procedure
did away with the need for RESERVATION in cases
provided for in Articles 32, 33 and 34 of the Civil
Code of the Philippines and instead recognized that
"an independent civil action entirely separate and
distinct from the criminal action, may be brought by
the injured party during the pendency of the criminal
case.
Such civil action shall proceed independently of the
criminal prosecution and shall require only a
preponderance of evidence."
Under the 1985 amendment, what is deemed
impliedly instituted with the criminal action unless
there is a reservation or a prior civil action filed is
the civil action for the recovery of the civil liability
arising from the offense charged.
This is the civil action that may be reserved in the
criminal action. The 1985 amendment did not live
very long.
3. Third Amendment
In 1988, Rule 111 was amended for the third time.
It actually restored the 1964 amendment.
The rule further clarified the civil actions that are
deemed impliedly instituted is not confined to civil
actions arising from a crime but also the civil actions
to recover civil liability under Articles 32, 33, 34 and
2176 of the Civil Code arising from the same act or
omission of the accused unless the offended party
waives the civil action, reserves his right to institute
it separately, or institutes the civil action prior to the
criminal action.
Explaining the amendment, Justice Jose Y. Feria,
then a member and later chairman of the Revision of
Rules of Court Committee elucidated:
"The 1988 amendment expands the scope of the civil action
which is deemed impliedly instituted with the criminal action
unless waived, reserved or previously instituted x x x.
Such a civil action includes not only recovery of
indemnity under the Revised Penal Code and
damages under Articles 32, 33, 34 of the Civil Code
of the Philippines, but also damages under Article
2176 of the said code. x x x"
Objections were raised to the inclusions in this Rule
of quasi-delicts under Article 2176 of the Civil Code
of the Philippines.
However, in view of Article 2177 of the said code
which provides that the offended party may not
recover twice for the same act or omission of the
accused, and in line with the policy of avoiding
multiplicity of suits, these objections were overruled.
 In any event, the offended party was not precluded
from filing a civil action to recover damages arising
from quasi-delict before the institution of the
criminal action, or from reserving his right to file
such a separate civil action, just as he is not
precluded from filing a civil action for damages un-
der Articles 32, 33 and 34 before the institution of
the criminal action, or from reserving his right to file
such a separate civil action.
It is only in those cases where the offended party
has not previously filed a civil action or has not
reserved his right to file a separate civil action that
his action is deemed impliedly instituted with the
criminal action.
While it was ruled in Abella u. Marave,u that a
reservation of the right to file an independent civil
action is not necessary, such a reservation is
necessary under the 1988 amendment.
Without such reservation, the civil action is deemed
impliediv instituted with the criminal action, unless
previously waived or instituted.
Such civil actions are not limited to those which arise
"from the offense charged."
In other words, the right of the injured party to sue
separately for the recovery of the civil liability
whether arising from crimes (ex delicto or from
quasi delict under Art. 2176 of the Civil Code must
be reserved otherwise they will be deemed instituted
with the criminal action).
This includes the right to recover damages against
the employer pursuant to Article 2180 in relation to
Article 2176 of the Civil Code.
Elsewise stated, prior reservation is a condition sine
qua non before any of these independent civil ac-
tions including the action for quasi-delict against the
employer can be instituted and thereafter have a
continuous determination apart from or
simultaneous with the criminal action.
4. Fourth Amendment
The Revised Rules on Criminal Procedure is a virtual
return to the 1940 Rules of Court (and the 1985
amendment) which deemed as instituted with the
criminal action only the civil liability arising from the
offense charged.
The civil liability is deemed instituted — not merely
"impliedly" instituted with the institution of the
criminal action.
The amendment modified the recommendation of the
Committee on the Revision of the Rules of Court to
deem as impliedly instituted only the civil liability of
the accused from all sources of obligation arising
from the same act or omission.
76
The purpose of the Committee was to limit the civil
liability to be instituted with the criminal action to
that of the accused and not the employer.
The court, however, went further by limiting the civil
liability that is deemed instituted with the criminal
only to the civil liability arising from the offense
charged.
All decisions to the contrary are no longer con-
trolling. The independent civil actions under Articles
32, 33, 34 and 2176 are no longer deemed or
impliedly instituted with the criminal action or
considered as waived even if there is no reservation.
The reservation applies only to the civil liability
arising from the offense charged.
The employer may no longer be held civilly liable for
quasi delict in the criminal action as ruled in Maniago
(supra) and San Ildefonso lines (supra) and the pro
hac vice decision in Rafael Reyes Trucking
Corporation (supra), and all other similar cases,
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.
The rule has also done away with third party
complaints and counterclaims in criminal actions.
These claims must have to be ventilated in a
separate civil action.
The fourth amendment is similar to the original rule
in Rule 107 of the Rules of Court and the 1985
amendment.
Rule 107 contemplates a case where the offended
party desires to press his right to demand indemnity
from the accused in the criminal case which he may
assert either in the same criminal case or in a
separate action.
Under this rule, a waiver from failure to reserve does
not include a cause of action not arising from civil
liability involved in the criminal case but from culpa
contractual, such as a civil case is based on alleged
culpa contractual incurred by the Philippine Air
Lines, Inc. because of its failure to carry safely the
deceased passenger to his place of destination.
The criminal case involves the civil liability of the
accused, who bear no relation whatsoever with said
entity and are complete strangers to it.
The accused are complete strangers to the
respondent company.
The latter is not in any way involved therein. Plaintiff
is concerned with the civil liability of the latter,
regardless of the civil liability of the accused in the
 criminal case.
The failure, therefore, on the part of the plaintiff to
reserve her right to institute the civil action in the
criminal case cannot in any way be deemed as a
waiver on her part of the right to institute a separate
civil action against the respondent company based
on its contractual liability, or on culpa aquiliana
under Articles 1902 to 1910 to of the Civil Code.
The two actions are separate and distinct and should
not be confused one with the other.
Under Article 31 of the Civil Code: "When the civil
action is based on an obligation not arising from the
act or omission complained of as a felony, such civil
action may proceed independently of the criminal
proceedings and regardless of the result of the lat-
ter."
It may further be noted that Article 31 is not among
the civil actions that are deemed impliedly instituted
with the filing of the criminal.
It may likewise be noted that in Corpus v. Page, the
court ruled that Article 33 did not contemplate
reckless imprudence or criminal legligence cases.
However in Maceda v. Caro, the court observed ;hat
Corpus v. Page is not controlling and held that
Article 33 also covers crimes committed thru
criminal negligence.
And, in Eicano v. Hill, the court ruled that the
concept of quasi-delict includes intentional acts, i.e.,
acts or omissions punishable by law.
The foregoing concepts would allow more than one
civil action to recover civil liability arising from the
same act or ommission.
The only limitation is against double recovery.
This is in effect the present rule.
The Principle of Simultaneous Civil Actions
Thus, civil liability arising from crime and civil liability arising
from Articles 32, 33, 34 and 2176 quasi-delict or contract are
entirely separate and distinct from the criminal action that
may be brought by the injured party and may proceed
simultaneously;
The civil liability is not extinguished where acquittal is based
on reasonable doubt.
Two Separate Civil Liabilities from Same Act or Omission
An act or omission causing damage to another may give rise
to two separate liabilities on the part of the offender, i.e.,
1) civil liability ex delito, under Article 100 of the Revised
Penal Code, and
77
2) independent civil liabilities, such as those
(a) not arising from an act or emission complained of as
a felony, e.g., culpa contractual or obligations
arising from law under Article 32, of the Civil Code,
intentional torts under Articles 32 and 34, and culpa
aquiliana under Article 2176 of the Civil Code; or
(b) where the injured party is granted a right to file an
independent and distinct criminal action.
Either of these two possible liabilities may be enforced
against the offender (separately and simultaneously)
subject, however, to the caveat under Article 2177 of the
Civil Code that the attended party cannot recover
damages twice for the same act or emission or under
both causes.
However, a separate civil action based on subsidiary
liability cannot be instituted during the pendency of the
criminal case.
Civil Actions in Cases of Negligence
In cases of negligence, the offended party has the
choice between an action to enforce civil liability arising from
crime under the Revised Penal Code and an action for quasi-
delict under the Civil Code.
The Principle Allowing Separate Civil Actions noT Allowed for Violations
of BP Big. 22
The principle does not apply to violations of B.P. Big. 22
which provides that "The criminal action for violation of Batas
Pambanss Big. 22 shall be deemed to include the
corresponding civil action.
No reservation to file such civil action separately shall be
allowed."
The Court explained that this rule was enacted to help declog
court dockets which are filled with B.P. Big. 22 cases as
creditors actually use the courts as collectors.
Because ordinarily no filing fee is charged in criminal cases for
actual damages, the payee uses the intimidating effect of a
criminal charge to collect his credit gratis and some times,
upon being paid, the trial court is not even informed thereof
The inclusion of the civil action in the criminal case is
expected to significantly lower the number of cases filed
before the courts for collection based on dishonored checks.
It is also expected to expedite the disposition of these cases.
Instead of instituting two separate cases, one for criminal and
another for civil, only a single suit shall be filed and tried.
It should be stressed that the policy laid down by the Rules is
to discourage the separate filing of the civil action.
The Rules even prohibit the reservation of a separate civil
action, which means that one can no longer file a separate
civil case after the criminal complaint is filed in court.
The only instance when separate proceedings are allowed is
when the civil action is filed ahead of the criminal case.
Even then, the Rules encourage the consolidation o the civil
and criminal cases.
We have previously observed that a separate civil action for
the purpose of recovering the amount of the dishonored
checks would only prove to be costly, burdensome and time-
consuming for both parties and would further delay the final
disposition of the case.
offense committed against a public law.
As we explained in Go v. Dimagiba, civil liability differs from criminal
liability.
What is punished in the latter is not the failure to pay an obligation but
the issuance of checks that subsequently bounced or were dishonored
for insufficiency or lack of funds.
The issuance of worthless checks is prohibited because of its
deleterious effects on public interest and its effects transcend the
private interest of the parties directly involved in the transaction and
touches the interest of the community at large.
In the present civil case, no such transcendental public interest exists.

Right to Intervene in Estafa Cases

This multiplicity of suits must be avoided.

The fact, however, that the Rules do not allow the reservation
Where petitioners' rights may be fully adjudicated in the
of civil actions in B.P. Big. 22 cases canot deprive private
proceedings before the trial court, resort to a separate action
complainant of the right to protect her interests in the
to recover civil liability is clearly unwarranted.
criminal action for estafa.

In view of this special rule governing actions for violation

Nothing in the current or rules on B.P. Big. 22 vests the
ofB.P. Big. 22, Article 31 of the Civil Code cited by the trial
jurisdiction of the corresponding civil case exclusively in the
court will not apply to the case at bar.
Court trying the B.P. Big. cases.

The pendency of the civil action before the court trying the
In promulgating the Rules, the Court did not intend to leave
criminal case bars the filing of another civil action in another
the offended parties without any remedy to protect their
court on the ground of litis pendentia.
interests in estafa cases.

Thus, the complaint for recovery of sum of money based on a

Private complainant's intervention in the prosecution of the
contractual debt filed in the Regional Trial Court was
estafa and B.P. Big. 22 is justified not only for the prosecution
dismissed because of the pendency of a criminal case for
other interests, but also for the speedy and inexpensive
violation of B.P. Big. 22 filed by the for the issuance of
administration of justice as mandated by the Constitution
bouncing checks in payment of the same obligation which
despite the necessary inclusion of the corresponding civil;
deemed as included the civil action recovery of the sum of
action in the proceedings for violation of BP 22 pending before
money sought to be recovered in the civil action.
the MTC.

Action Based on Compromise Agreement held as Different from

Violation of B.P. Big. 22 The only limitation is that a recovery in one bars the other.

An action, however for collection based on violation of a
Memorandum Agreement entered into where parties also
agreed to dismiss the criminal proceedings for violation of
B.P. Big. 22 was held as not violative of the rule against
forum shopping because, there is no identity of parties, rights
or causes of action, sand relief sought. The Court stated:
On the other hand a separate civil action for failure to comply
with the obligations under the Trust Receipts was allowed
although the a criminal case for violation of the Trust receipts
law had already been filed.
According to the Court:

HERE, THE TWO CASES INVOLVED ARE THE INSTANT

CIVIL CASE FOR COLLECTION OF SUM OF MONEY THE RIGHT TO FILE A SEPARATE COMPLAINT FOR A
WHERE PETITIONER IS THE DEFENDANT, AND THE B.P. SUM OF MONEY IS GOVERNED BY THE PROVISIONS OF
BIG. 22 CASES WHERE PETITIONER IS THE ACCUSED. ARTICLE 31 OF THE CIVIL CODE, TO WIT:

"Article 31. When the civil action is based on an obligation not arising
Clearly, there is no identity of parties for in the criminal case, the
from the act or omission complained of as a felony, such civil action
plaintiff is the State with Ligon only as a complaining witness. In the
may proceed independently of the criminal proceedings and regardless
case at bar, Ligon himself is the plaintiff.
of the result of the latter."

There is also a difference in the causes of action.

In the instant case, the cause of action is petitioner's breach of
contract as embodied in the Memorandum of Agreement, while in the
criminal case, it is the violation of B.P. Big. 22.
There is also a difference in reliefs sought because in the civil case,
what is sought is the enforcement of the terms in their Memorandum
of Agreement, while in the criminal case, it is the punishment of the
Where the complaint against petitioners was based on the
failure of the latter to comply with their obligation as spelled
out in the Trust Receipt executed by them.
This breach of obligation is separate and distinct from any
criminal liability for "misuse and/or misappropriation of goods
or proceeds realized from the sale of goods, documents or
instruments released under trust receipts", punishable under

78
Section 13 of the Trust Receipts Law (P.D. No. 115) in
relation to Article 315(1), (b) of the Revised Penal Code.
Being based on an obligation ex contractu and not ex delicto,
the civil action may proceed independently of the criminal
proceedings instituted against petitioners regardless of the
result of the latter.
The Sandiganbayan Rule: Prohibition against Separate Civil Action
Petitioner DPWH the offended party in a criminal case for
estafa thru falsification of public documents and for violation
of Section 3(e) and (g) of R.A. No. 3019 pending in the
Sandiganbayan lodged its own counterclaim to the collection
case filed with the Malabon Trial Court, praying for the return
of its payment made to the Navotas Industrial Corporation
(NIC) arising from the dredging contracts subject of the
criminal action.
However, the Court held that petitioner's counterclaim is
deemed abandoned by virtue of Section 4 of P.D. No. 1606,
as amended.
The last paragraph of Section 4 of P.D. No. 1606, as
amended, provides that:
Any provision of law or Rules of Court to the contrary notwithstanding,
the criminal action and the corresponding civil action for the recovery
of civil liability shall at all times be simultaneously instituted with, and
jointly determined in, the same proceeding by the Sandiganbayan or
the appropriate courts, the filing of the criminal action being deemed
to necessarily carry with it the filing of the civil action, and no right to
reserve the filing of such civil action separately from the criminal
action shall be recognized:
Provided, however. That where the civil action had heretofore been
filed separately but judgment therein has not yet been rendered, and
the criminal case is hereafter filed with the Sandiganbayan or the
appropriate court, said civil action shall be transferred to the
Sandiganbayan or the appropriate court, as the case may be, for
consolidation and joint determination with the criminal action, other-
wise the separate civil action shall be deemed abandoned.
The Court held that Petitioner's counterclaim in the civil case
pending with the Malabon trial court for the return of the
amount DPWH paid NIC is an action to recover civil liability ex
delicto.
However, this action to recover civil liability ex delicto is by
operation of law included in the criminal cases filed with the
Sandiganbayan.
By mandate of R.A. No. 8249, the counterclaim filed earlier in
the separate civil action with the Malabon trial court "shall be
deemed abandoned."
Extent of Damages Awarded in Civil Liability Arising from Crimes
Civil liability arising from crime includes, moral damages,
exemplary damages and loss of earning capacity.
Attorney's fees may be awarded but only when a separate
civil action to recover civil liability has been filed or when
exemplary damages are awarded.
Life expectancy is included in award of damages.
79
The only civil liability that may thus be imposed in a criminal
action is that arising from and consequent to the criminal
liability oi the accused on the principle that every person
criminally liable is also civilly liable.
This includes restitution, reparation of damages caused and
indemnification of consequential damages.
Complementary thereto, are the subsidiary civil liability of
innkeepers, tavern keepers and proprietor of establishments,
employers, teachers, persons and corporations engaged in
any kind of industry, for felonies committed by their servants,
pupils, workmen, apprentices, employees in the discharge of
their duties.
Broader Concept of Civil Liability
In Banal v. Tadeo, Jr., a case of violation of B.P. Big. 22, (A
law making the issuance of a bouncing check criminal) the
lower court rejected the appearance of a private prosecutor
on the ground that B.P. Big. 22 does not provide for any civil
liability or indemnity and, hence it is not a crime against
property but public order.
The Supreme Court, in setting aside the order, gave a
broader concept of the civil liability that may be recovered in
a criminal action. The Supreme Court said:
"GENERALLY, THE BASIS OF CIVIL LIABILITY ARISING
FROM CRIME IS THE FUNDAMENTAL POSTULATE OF
OUR LAW THAT EVERY MAN CRIMINALLY LIABLE IS
ALSO CIVILLY LIABLE."
Underlying this legal principle is the traditional theory that when a
person commits a crime, he offends two entities, namely:
(1) the society in which he lives in or the political entity called
the State whose law he had violated; and
(2) the individual member of that society whose person, right,
honor, chastity or property was actually or directly injured or
damaged by the same punishable act or omission, x x x."
Viewing things pragmatically, we can readily see that what
gives rise to the civil liability is really the obligation and the
moral duty of everyone to repair or make whole the damage
caused to another by reason of his own act or omission, done
intentionally or negligently, whether or not the same be
punishable by law.
In other words, criminal liability will give rise to civil liability
only if the same felonious act or omission results in damage
or injury to another and is the direct and proximate cause
thereof.
Damage or injury to another is evidently the foundation of the
civil action.
Such is not the case in criminal actions for, to be criminally
liable, it is enough that the act or omission complained of is
punishable, regardless of whether or not it also causes
material damage to another.
Article 20 of the New Civil Code provides:

"EVERY PERSON WHO, CONTRARY TO LAW, WILFULLY
OR NEGLIGENTLY CAUSES DAMAGE TO ANOTHER,
SHALL INDEMNIFY THE LATTER FOR THE SAME.
Regardless, therefore, of whether or not a special law so
provides, indemnification of the offended party may be had
on account of the damage, loss or injury directly suffered as a
consequence of the wrongful act of another.
The indemnity which a person is sentenced to pay forms an
integral part of the penalty imposed by law for the
commission of a crime.
Every crime gives rise to a penal or criminal action for the
punishment of the guilty party; and also to civil action for the
restitution of the thing, repair of the damage and
indemnification for the losses.
Civil liability is however, improper in illegal possession of
firearms qualified by murder.
The civil liability arising from the death may be claimed either
in a separate action or impliedly instituted with the criminal
action for murder or homicide."
Effect of Failure to Allege Damages in Complaint or Information
The fact that there is, no claim or allegation of damages in
the complaint of information is of no legal consequence.
Every person criminally liable for a felony is also civilly liable.
It has, therefore, been held that even if the complaint or
information is silent as to the damages or the intention to
prove and claim them, the offender is still liable for them, and
the offended has the right to prove and claim for them in the
criminal case, unless a waiver or the reservation of the civil
action is made.
When Reservation May Be Made
The reservation of the right to institute the separate civil
action arising from the offenses charged shall be made before
the prosecution starts to present its evidence and under
circumstances affording the offended party a reasonable
opportunity to make such reservation.
The purpose of the rule requiring reservation is to prevent the
offended party from recovering damages twice for the same
act or omission.
The proviso requiring that the reservation may be made
before the prosecution starts to present evidence was brought
about by the cases of Tactaquin v. Palileo, Manio v. Gaddi,
where despite the appearance of a private prosecutor, the
offended party was not able to present evidence on the
damages because of the plea of guilty of the accused who
was accordingly sentenced.
The Supreme Court in ,he case of Reyes v. Diy, stressed the
need to give the offended party in opportunity to make a
reservation, and held that the mere appearance of a private
prosecutor in the criminal case against the private
80
respondents did not necessarily constitute such intervention
on the part of the aggrieved party as could only import an
intention on her part to press her claim for damages in said
criminal case and waiver of her right to file a separate civil
action for damages because the accused had pleaded guilty
upon arraignment and was immediately sentenced, there was
no chance for the aggrieved party to present evidence in
support of her claim for damages and to enter i reservation in
the record to file a separate civil action
Reservation Need not be Express but May Be Implied
While a reading of the afore-quoted provisions shows that the
offended party is required to make a reservation of his right
to institute a separate civil action, jurisprudence instructs that
such reservation may not necessarily be express but may be
implied which may be inferred not only from the acts of the
offended party but also from acts other than those of the
latter.
In the Vintola case, the fact that plaintiff actively intervening
in the prosecution of the criminal case through a private
prosecutor, is of no moment.
In ruling that the Estafa case is not a bar to the institution of
a civil action for collection, this Court held that:
"[I]T IS INACCURATE FOR THE VINTOLAS TO CLAIM
THAT THE JUDGMENT IN THE ESTAFA CASE HAD
DECLARED THAT THE FACTS FROM WHICH THE CIVIL
ACTION MIGHT ARISE, DID NOT EXIST, FOR IT WILL BE
RECALLED THAT THE DECISION OF ACQUITTAL
EXPRESSLY DECLARED THAT 'THE REMEDY OF THE
BANK IS CIVIL AND NOT CRIMINAL IN NATURE.'
This amounts to a reservation of the civil action in IBAA's favor for the
Court would not have dwelt on a civil liability that it had intended to
extinguish by the same decision."
In the Bernaldes case, plaintiffs spouses Nicasio Bernaldes,
Sr. and Perpetua Besas together with their minor son, Jovito,
filed a complaint for damages against defendant Bohol Land
Transportation Co. for the death of Jovito's brother Nicasio,
Jr. and for serious physical injuries obtained by Jovito when
the bus in which they were riding, fell off a deep precipice.
Defendant bus company moved to dismiss the complaint on
the ground that in the criminal case earlier filed against its
bus driver, plaintiffs intervened through their counsel but did
not reserve therein their right to file a separate action for
damages. The Court held that the dismissal was improper and
ruled thus:
"TRUE, APPELLANTS, THROUGH PRIVATE
PROSECUTORS, WERE ALLOWED TO INTERVENE —
WHETHER PROPERLY OR IMPROPERLY WE DO NOT
DECIDE HERE — IN THE CRIMINAL ACTION AGAINST
APPELLEE'S DRIVER, BUT IF THAT AMOUNTED
INFERENTIALLY TO SUBMITTING IN SAID CASE THEIR
CLAIM FOR CIVIL INDEMNITY, THE CLAIM COULD HAVE
BEEN ONLY AGAINST THE DRIVER BUT NOT AGAINST
APPELLEE WHO WAS NOT A PARTY THEREIN.
As a matter of fact, however, inspite of appellee's statements to the
contrary in its brief, there is no showing in the record before Us that
appellants made of record their claim for damages against the driver
or his employer; much less does it appear that they had attempted to
prove such damages.
The failure of the court to make any pronouncement in its decision
concerning the civil liability of the driver and I or of his employer must
therefore be due to the fact that the criminal action did not involve at
all any claim for civil indemnity."
Later, in Jarantilla, the Court ruled that the failure of the trial
court to make any pronouncement, favorable or unfavorable,
as to the civil liability of the accused amounts to a reservation
of the right to have the civil liability litigated and determined
in a separate action, for nowhere in the Rules of Court is it
provided that if the court fails to determine the civil liability, it
becomes no longer enforceable.
Nothing in the records at hand shows that private respondent
ever attempted to enforce its right to recover civil liability
during the prosecution of the criminal action against
petitioners.
Thus, even if there was no reservation in the criminal case
and that the civil action was not filed before the filing of the
criminal action but before the prosecution presented evidence
in the criminal action, and the judge handling the criminal
case was informed thereof, then the actual filing of the civil
action is even far better than a compliance with the
requirement of an express reservation that should be made
by the offended party before the prosecution presented its
evidence.
Where a separate civil action to recover the civil liability of
the accused arising from the crime charged has been
reserved, the heirs of the deceased are precluded from
recovering damages in the criminal case against the accused,
for they are not entitled to recover damages twice for the
same criminal act of the accused.
The trial court erred in awarding to the heirs of the deceased
P30,000.00 as civil indemnity for his death despite their
reservation.
Effect of Reservation
It has been held that the prescription of action does not
prescribe for the civil action that have been reserved in the
criminal action.
Note: Under Section 2, Rule 111 during the pendency of the
criminal action, the running of the period of prescription of
the civil action which cannot be instituted separately or whose
proceeding shall be tolled.
Waiver of Civil Liability Arising from Crime
The civil liability arising from a crime may be waived.
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.
A court trying a criminal case cannot award damages in favor
of the accused.
The task of the trial court is limited to determining the guilt of
the accused and if proper, to determine his civil liability.
81
A criminal case is not the proper proceedings to determine
the private complainant's civil liability, if any.
The Court ruled in Cabaero v. Hon. Cantos, that a court trying
a criminal case should limit itself to the criminal and civil
liability of the accused, thus:
[THUS,] THE TRIAL COURT SHOULD CONFINE ITSELF
TO THE CRIMINAL ASPECT AND THE POSSIBLE CIVIL
LIABILITY OF THE ACCUSED ARISING OUT OF THE
CRIME.
The counterclaim (and cross-claim or third-party complaint, if any)
should be set aside or refused cognizance without prejudice to their
filing in separate proceedings at the proper time.
This paragraph addresses the lacuna mentioned in Cabaero
on the "absence of clear-cut rules governing the prosecution
ofimpliedly instituted civil action and the necessary
consequences and implications thereof."
The civil liability of petitioners for swindling respondent
spouses and for maliciously filing a baseless suit must be
litigated in a separate proceeding.
Separate Civil Action By the Accused
Thus, the accused may file a separate civil action based on
quasi-delict arising from the same incident and may proceed
simultaneously and independently of the criminal case against
him as provided under section 1(6) which allows "the accused
in the criminal case, to file any cause of action which could
have been the subject thereof in a separate civil action, since
the accused is prohibited from setting up any counterclaim in
the civil aspect that is deemed instituted in the criminal case.
The accused is therefore forced to litigate separately his
counterclaim against the offended party.
If the accused does not file a separate civil action for quasi-
delict, the prescriptive period may set in since the period
continues to run until the civil action for quasi-delict is filed.
Moreover, the accused, who is presumed innocent, has a right
to invoke Article 2177 of the Civil Code, in the same way that
the offended party can avail of this remedy which is
independent of the criminal action.
To disallow the accused from filing a separate civil action for
quasi-delict, while refusing to recognize his counterclaim in
the criminal case, is to deny him due process of law, access
to the courts, and equal protection of the law.
Notably, the Court did not order the consolidation but allowed
the civil action to proceed separately, otherwise, it would
defeat the prohibition against a counterclaim.
Limitation on Separate Civil Action by an Accused in the
Sandiganbayan
A separate civil action for collection of sum of money filed by
the accused against the offended party while the criminal
case in the Sandiganbayan is pending cannot be consolidated
with the criminal case, for the Sandiganbayan has no
jurisdiction over collection cases, nor can it proceed
independently of the criminal cases filed with the
Sandiganbayan.
The accused's collection case for unpaid services from its
dredging contracts with the offended party obviously does not
fall under Articles 32, 33 or 34 (on Human Relations) of the
Civil Code. Neither does it fall under Article 2176 (on auasi-
delict) of the Civil Code.
Under Section 3 of Rule 111, civil actions falling under Articles
32, 33, 34 or 2176 may proceed independently and
separately from the criminal case.
The only other possibility is for the accused's civil action to
fall under Article 31 of the Civil Code which provides:
ART. 31. WHEN THE CIVIL ACTION IS BASED ON AN
OBLIGATION NOT ARISING FROM THE ACT OR
OMISSION COMPLAINED OF AS A FELONY, SUCH CIVIL
ACTION MAY PROCEED INDEPENDENTLY OF THE
CRIMINAL PROCEEDINGS AND REGARDLESS OF THE
RESULT OF THE LATTER.
An example of a case falling under Article 31 is a civil action
to recover the proceeds of sale of goods covered by a trust
receipt.
Such civil action can proceed independently of the criminal
action for violation of the trust receipt law.
In such a case, the validity of the contract, on which the civil
action is based, is not at issue.
What is at issue is the violation of an obligation arising from a
valid contract -- the trust receipt.
However, when the civil action is based on a purported
contract that is assailed as illegal per se, as when the
execution of the contract is alleged to violate the Anti-Graft
and Corrupt Practices Act, Article 31 does not apply.
In such a situation, the contract if proven illegal cannot create
any valid obligation that can be the basis of a cause of action
in a civil case.
Under Article 1409 of the Civil Code, a contract "whose cause,
object or purpose is contrary to law," or a contract that is
"expressly prohibited or declared void by law," is void from
the very beginning.
No party to such void contract can claim any right under such
contract or enforce any of its provisions.
Under Section 3(g) of the Anti-Graft and Corrupt Practices
Act, entering into a contract that is manifestly and grossly
disadvantageous to the government is "declared to be
unlawful."
If the act of entering into the contract is assailed as a crime in
itself, then the issue of whether the contract is illegal must
first be resolved before any civil action based on the contract
can proceed.
82
Only the Sandiganbayan has the jurisdiction to decide
whether the act of entering into such contract is a crime,
where the salary grade of one of the accused is Grade 27 or
higher, as in Criminal Cases Nos. 16889-16900 filed with the
Sandiganbayan.
Article 31 speaks of a civil action "based on an obligation not
arising from the act x x x complained of as a felony."
This clearly means that the obligation must arise from an act
not constituting a crime.
Where, the act purporting to create the obligation is assailed
as a crime in itself, no civil action based on such contracts
can proceed independently of the criminal action.
This calls then for the application of the second paragraph of
Section 2 of Rule 111 which states that "if the criminal action
is filed after the said civil action has already been instituted,
the latter shall be suspended in whatever stage it may be
found before judgment on the merits."
Consequently, the civil case for collection pending in the
Malabon Trial Court must be suspended until after the
termination of the criminal cases filed with the
Sandiganbayan.
In contrast, where the civil action is based on a contract that
can remain valid even if its violation may constitute a crime,
the civil action can proceed independently.
Thus, in estafa thru violation of the trust receipt law, the
violation of the trust receipt constitutes a crime.
However, the trust receipt itself remains valid, allowing a civil
action based on the trust receipt to proceed independently of
the criminal case.
Retroactive Application of Amendment
It has been held although the incident and the actions arising
therefrom were instituted before the promulgation of the
1985 Rules on Criminal Procedure, its provisions which are
procedural may apply retrospectively.
Subsidiary Liability
To be treated differently is the subsidiary liability of the
employer.
Commencing with Pajarito v. Seneris68 followed by Ozoa v.
Vda. de Madula69 and Catacutan v. Heirs of Kadusale,70 it is
now settled that the subsidiary liability of the employer,
including the amounts thereof, may be determined in the
same criminal proceed ings and is reviewable either by writ of
error or through a petitior for review on certiorari on pure
questions of law.
The appeal shall be governed by appeals in criminal cases,
since this is but a continuation of the civil proceedings, the
period to be counted not from the promulgation of judgment
but from the notice of the order.
The principle was stressed in Yusay v. Adil,71 a case of less
serious physical injuries and damage to property thru reckless
imprudence, with the Supreme Court's statement that: "The
employer is in substance and effect, a party to the criminal
case against his employee, considering the subsidiary liability
imposed upon him by law.'
Basis of Employer's Subsidiary Liability
It bears emphasis, however, that before the employer's
subsidiary liability may be proceeded against, it is imperative
that then should be a criminal action whereby the employee's
criminal negligence or delict and corresponding liability
therefor are proved.
If no criminal action was instituted, the employer's liability
would not be predicated under Article 103 of the Revised
Penal Code.
The judgment in the criminal action announcing the employee
to be civilly liable is conclusive on the employer not only as to
the actuality of the liability but also as to its amount, from
which no appeal by the employer lies from the judgment of
conviction.
The employer must be afforded due process, by holding a
hearing to determine his liability on the basis of the conditions
required by law, namely:
(a) The existence of an employer-employee relation
ship;
(b) That the employer is engaged in some kind of
agency
(c) That the employee is adjudged guilty of the wrongful
act and found to have committed the offense in the
discharge of his duties (not necessarily any offense
he may commit); and
(d) That said employee is insolvent.
Obligations arising from crimes are governed by Article 1161
of the Civil Code, which provides that said obligations are
governed by penal laws, subject to the provision ofArticle
2177 and the pertinent provisions of Chapter 2, Preliminary
Title, on Human Relations, and of Title XVIII of Book IV of the
Civil Code.
Article 100 of the Revised Penal Code provides that every per-
son criminally liable for a felony is also civilly liable.
In default of the persons criminally liable, employers engaged
in any kind of industry shall be civilly liable for felonies
committed by their employees in the discharge of their duties.
Article 33 of the Civil Code provides specifically that in cases
of defamation, a civil action for damages, entirely separate
and distinct from the criminal action, may be brought by the
injured party.
Such civil action proceeds independently of the criminal
prosecution and requires only a preponderance of evidence.
In Joaquin v. Aniceto, the Court held that Article 33
contemplates an action against the employee in his primary
civil liability.
83
It does not apply to an action against the employer to enforce
its subsidiary civil liability, because such liability arises only
after conviction of the employee in the criminal case or when
the employee is adjudged guilty of the wrongful act in a
criminal action and found to have committed the offense in
the discharge of his duties.
Any action brought against the employer based on its
subsidiary liability before the conviction of its employee is
premature.
Filing Fees in Estafa cases
Section 20 of Rule 141 Approved on September 14, 1999
provides that filing fees in estafa cases are also required
where the offended party fails to manifest within fifteen days
following the filing of the information that the civil liability
arising from the crime has been or would be separately
prosecuted.
Filing Fee as a Lien
When the offended party seeks to enforce civil liability against
the accused by way of moral, nominal, temperate or
exemplary damages, the filing fees for such civil action as
provided in these Rules shall constitute a first lien on the
judgment except in an award for actual damages.
In cases wherein the amount of damages, other than actual,
is alleged in the complaint or information, the corresponding
filing fees shall be paid by the offended party upon the filing
thereof in court for trial
Explaining how the foregoing amendment came about, Justice
Narvasa (later Chief Justice) in General v. Claravall, stated:
"THE LAST TWO (2) PARAGRAPHS PRESCRIBE A RULE
DIFFERENT FROM THAT IN MANCHESTER, AND IN THE
1985 RULES ON CRIMINAL PROCEDURE.
Under the 1985 Rules, the filing fees for the civil action impliedly
instituted with the criminal action had to be paid first to the Clerk of
the Court where the criminal action was commenced, without regard to
whether the claim for such damages was set out in the information or
not.
Under the 1988 Rules, however, it is only when 'the amount of
damages, other than actual, is alleged in the complaint or information
that the corresponding filing fees shall be paid by the offended party
upon the filing thereof in court for trial.
In any other case — i.e., when the amount of damages other than the
civil action "to enforce civil liability against the accused by way of
moral, nominal, temperate or exemplary damages shall (merely)
constitute a first lien on the judgment except in an award for actual
damages."
The Court's plain intent — to make the Manchester doctrine,
requiring payment of filing fees at the time of the
commencement of an action applicable to impliedly instituted
civil actions under Section 1, Rule 111 only when "the amount
of damages, other than actual, is alleged in the complaint or
information has thus been made manifest by the language of
the amendatory provisions."
For the guidance of all concerned when a civil action is
deemed instituted with the criminal action in accordance with
Section 1, Rule 111 of the Rules of Court — because the
offended party has NOT waived the civil action, or reserved
the right to institute it separately, or instituted the civil action
prior to the criminal action — the rule is as follows:
a) when "the amount of damages, other than actual, is
alleged in the complaint or information" filed in court,
then "the corresponding filing fees shall be paid by the
offended party upon the filing thereof in court for trial";
b) in any other case, however — i.e., when the amount of
damages is not so alleged in the complaint or information
filed in court, the corresponding filing fees need not be
paid and shall simply "constitute a first lien on the
judgment, except in an award for actual damages."
The ruling in General v. Claravall, especially the last
subparagraph above-quoted, was actually intended to apply
to a situation wherein either: (1) the judgment awards a
claim not specified in the pleading, or (2) the complainant
expressly claims moral, exemplary, temperate and/or nominal
damages but has not specified ANY amount at all, leaving the
quantification thereof entirely to the trial court's discretion
and NOT to a situation where the litigant specifies some
amounts or parameters for the awards being sought, even
though the different types of damages sought be not
separately or individually quantified.
To hold otherwise, would be to permit litigants to continue
availing of one more loophole in the rule on payment of filing
fees, and would not serve to attain the purpose of the revised
Sec. 1 of Rule 111, which is "to discourage the gimmick of
libel complainants of using the fiscal's office to include in the
criminal information their claim for astronomical damages in
multiple millions of pesos without paying any filing fees."
SEC. 2.
When Separate Civil Action is Suspended
Suspension of Civil Action Arising from Crimes
Except for civil actions provided for in Articles 32, 33,
34 and 2176 of the Civil Code, the civil action which has been
reserved cannot be instituted until final judgment has been
rendered in the criminal action.
The action contemplated herein is a civil action arising from a
crime.
If reserved or filed separately and a criminal case is filed, it
has to be suspended to await final judgment in the criminal
action.
It may, however, be consolidated upon application with the
court trying the criminal action.
Article 31 speaks of a civil action "based on an obligation not
arising from the act x x x complained of as a felony."
This clearly means that the obligation must arise from an act
not constituting a crime.
Where, the act purporting to create the obligation is assailed
84
as a crime in itself no civil action based on such contracts can
proceed independently of the criminal action.
This calls then for the application of the second paragraph of
Section 2 of Rule 111 which states that "if the criminal action
is filed after the said civil action has already been instituted,
the latter shall be suspended in whatever stage it may be
found before judgment on the merits."
Consequently, the civil case for collection pending in the
Malabon Trial Court must be suspended until after the
termination of the criminal cases filed with the
Sandiganbayan.
The suspension of the civil case for collection of sum of
money (based on an obligation arising from contracts alleged
to be a crime pending before the Sandiganbayan) will avoid
the possibility of conflicting decisions between the
Sandiganbayan and the Malabon trial court on the validity of
NIC's dredging contracts.
If the Sandiganbayan declares the dredging contracts illegal
and void ab initio, and such declaration becomes final, then
NIC's civil case for collection of sum of money will have no
legal leg to stand on.
However, if the Sandiganbayan finds the dredging contracts
valid, then NIC's collection case before the Malabon trial court
can then proceed to trial.
No suspension if civil action does not arise from Crime
In Gandiongco u. Penaranda, the Supreme Court affirmed
Judge Penaranda's refusal to suspend the civil case for legal
separation and support with damages based on concubinage
despite the filing of a concubinage case with the municipal
court.
His reason is that Section 2 of Rule 111 of the 1985 Rules on
Criminal Procedure refers to civil actions to enforce the civil
liability arising from the offense charged.
An action for legal separation is not to recover civil liability in
the main, but is aimed at the conjugal rights of the spouses
and their relations to each other within the contemplation of
Articles 97 to 108 of the Civil Code.
The principle applies even with the 1988 Amendments where
the Civil action does not also fall under Articles 32, 33, 34 and
2176 of the Civil Code.
In fine, a civil action may not be suspended under Rule 111
where the action is not to enforce civil liability from the crime
charged.
Consolidation of Civil with Criminal Action Even if not Arising from
Crime
May consolidation of civil actions with the criminal action be
allowed where the civil action is not to enforce civil liability
arising from a crime?
In Naguiat v. Intermediate Appellate Court, the petitioner
filed a complaint for specific performance with damages to
compel the respondent to deliver to him certificates of title
covering their lots which he had already paid for under a
contract to sell.
A criminal action was likewise filed against the respondent for
violation of P.D. No. 957 regulating the sale of subdivision,
etc., and providing penalties therefor.
Petitioner moved to consolidate the two (2) cases on the
basis of Rule 111, Section 3(a).
The trial court granted consolidation but the Court of Appeals
reversed the order.
The Supreme Court held that the civil actions that may be
consolidated under Section 3(a), Rule 111 is one for civil
liability arising from the criminal offense or of ex-delicto of
which the civil action in this case is not one, but which is
based on the contract to sell or a civil action arising ex-
contracto, hence, Rule 111 is not applicable.
The Supreme Court, however, justified the consolidation of
the action for specific performance with the criminal action for
violation of P.D. No. 957 under Section 1, Rule 31 of the
Rules of Court as interpreted in Canos v. Peralta,* where the
Court sustained the order of a trial court to consolidate a civil
action (an action for the recovery of wage differential,
overtime and termination pay, plus damages) with a criminal
action (for violation of the Minimum Wage Law), it was held
that:
"A COURT MAY ORDER SEVERAL ACTIONS PENDING
BEFORE IT TO BE TRIED TOGETHER WHERE THEY ARISE
FROM THE SAME ACT, EVENT OR TRANSACTION,
INVOLVE THE SAME OR LIKE ISSUES, AND DEPEND
LARGELY OR SUBSTANTIALLY ON THE SAME EVIDENCE,
PROVIDED, THAT THE COURT HAS JURISDICTION OVER
THE CASES TO BE CONSOLIDATED AND THAT A JOINT
TRIAL WILL NOT GIVE ONE PARTY AN UNDUE
ADVANTAGE OR PREJUDICE THE SUBSTANTIAL RIGHTS
OF ANY OF THE PARTIES, X X X"
The obvious purpose of the above rule is to avoid multiplicity
of suits, to guard against oppression and abuse, to prevent
delays, to clear congested dockets, to simplify the work of the
trial court; in short, the attainment of justice with the least
expense and vexation to the parties litigants. * * *
The consolidation of two (2) cases where petitioner's counsel
may act as counsel for the plaintiff in the civil case and
private prosecutor in the criminal case, will be conducive to
the early termination of the two (2) cases, and will redound to
the benefit and convenience of the parties; as well as to the
speedy administration of justice.
Under this principle, civil actions under Articles 32, 33, 34 and
2176 may be consolidated with the criminal action subject to
jurisdictional constraints.
The rule on jurisdiction in criminal cases which is
determinable by the prescribed penalty regardless of other
imposable accessory or other penalties, included in the civil
liability arising from such offenses or predicated therein
irrespective of kind, nature, value or amount thereof, no
longer applies since the civil action to be consolidated does
not arise from the criminal offense charged.
85
The period of prescription of the civil action which cannot be
instituted separately or whose proceeding has been
suspended shall not run, refer to the civil action arising from
a crime that has not been reserved or when it is filed ahead
of the criminal action.
The civil action that may be reserved is the civil arising from
the crime.
The civil arising from a quasi-delict is not suspended but may
proceed simultaneously.
The subsidiary liability may only be enforced after the final
judgment of conviction.
However, prescription of the cause of action quasi-delicto
does not operate as a bar to in action to enforce the civil
liability arising from the crime especially where the latter
action had been expressly reserved.
The dismissal of the action based on culpa aquiliana is not a
bar to the enforcement of the subsidiary liability of the
employer.
Once there is a conviction for a felony, final in character, the
employer becomes subsidiarily liable if the commission of the
crime was in the discharge of the duties of the employer.
The Court allowed the indemnity in the foregoing case despite
the erroneous procedure of petitioner in seeking a remedy in
filing a petition for certiorari instead of an appeal from the
erroneous order of the trial court dismissing the action on the
ground prescription since it is an action for quasi-delict.
The Court stressed that it is "loathe to deprive petitioners of
the indemnity to which they are entitled by law and a final
judgment of conviction based solely on technicality."
Effects of Judgment of Acquittal
Extinction of the penal action does not carry with it extinction
of the civil.
However, the civil action based on delict may be extinguished
if there is a finding in a final judgment that the act or omis-
sion from which the civil liability may arise did not exist.
Even if there is a finding in a final judgment that the act or
omission from which the civil might arise did not exist, this
would only refer to the civil liability arising from the offense
since this is the only civil liability that is deemed instituted
with the criminal action.
It is a fundamental postulate of our law that "every person
criminally liable for a felony is also civilly liable."
And even if an accused is acquitted of the crime charged,
such will not necessarily extinguish the civil liability, unless
the court declares in a final judgment that the fact from which
the civil might arise did not exist.
In the landmark case of Padilla v. Court of Appeals, the
Supreme Court en bane, thru Justice Hugo Gutierrez
emphasized that the court may award civil liability in the
same proceedings ever if the accused is acquitted.
This was to be followed in People v Jalandoni, Maxima v.
Geroch, Vizconde u. IAC, People v. Ligon, and other cases,
until the doctrine found its way in the third paragraph of
Section 2, Rule 120 of the 1985 Rules on Criminal Procedure,
which provided that "in case of acquittal, unless there is a
clear showing that the act from which the civil liability might
arise did not exist, the judgment shall make a finding on the
civil liability of the accused in favor of the offended party."
Under The Revised Rules on Criminal Procedure: "In case the
judgment is of acquittal, it shall state whether the evidence of
the prosecution absolutely failed to prove the guilt of the
accused or merely failed to prove his guilt beyond reasonable
doubt.
In either case, the judgment shall determine if the act or
omission from which the civil liability might arise did not
exist."
There has been a change in the language of the rule.
Whereas the 1985 rule was more categorical in requiring that
"the judgment shall make a finding on the civil liability of the
accused in favor of the offended party," the present rule
simply states that "the judgment shall determine if the act or
omission from which the civil liability might arise did not
exist."
It seems fairly obvious, however, that despite the acquittal of
the accused, if the act or omission from which the civil liability
might arise do exist, when the acquittal is merely because of
failure to prove the guilt of the accused beyond reasonable
doubt then the court should award the civil liability in favor of
the offended party in the same criminal action.
Duty of Court to Award Civil Liability
Even before the 1985 amendments, the settled jurisprudence
is that it is the duty of the trial judge to award civil liability in
favor of the offended party despite the acquittal of the
accused unless the fact from which the civil might arise does
not exist.
In a case, the trial judge in not having included civil liability in
the decision, stated that it cannot exercise discretion alone in
determining the liability upon the mere allegations, the same
being evidentiary.
Considering, however, the fact that the trial court's attention
was drawn to the existence of a lapsus in the decision, in the
motion for reconsideration filed by the complainant, within
the reglementary period, and taking into account the petition
to supply what had been omitted, the trial judge could have
set the motion for reconsideration for hearing, in order to
receive evidence, as to the value of the properties admittedly
stolen by the accused, or to the return of the goods, if it was
still feasible. In an identical case, where the lower court had
failed to provide for the corresponding civil liability, the
Supreme Court ordered the said case remanded to the court
of origin, for the purpose of determining the civil liability of
the accused.
86
The principle applies even in cases of acquittal, unless there is
a clear showing that the act from which the civil liability might
arise did not exist.
The duty of the court to a award, civil liability inspite of
acquittal is compellable by mandamus.
In Lontoc and Jarantilla, the court held that under the present
jurisprudential matters, where the trial court acquits the
accused on reasonable doubt, it could very well make a
pronouncement on the civil liability of the accused and the
complainant could file a petition for mandamus to compel the
trial court to include such civil liability in the judgment of
acquittal.
Acquittal in a criminal case does not bar continuation of the
civil case connected therewith where:
1) the acquittal is based on reasonable doubt;
2) the decision contains a declaration that the liability
of the accused is not criminal but only civil; or
3) the civil liability is not derived from or based on the
criminal act of which the accused is acquitted.
Thus, the acquittal of the accused from the criminal charge
will not necessarily extinguish the civil liability unless the
Court declares in the judgment that the fact from which the
civil liability might arise did not exist.
Similarly, "extinction of the penal action does not carry with it
the extinction of civil liability unless the extinction proceeds
from a declaration in a final judgment that the fact from
which the civil liability might arise did not exists."
In Caina v. People, however, the extinction of the liability civil
was inferred from a finding that there is no negligence even if
the acquittal is based on failure to prove guilt beyond
reasonable doubt.
Similarly, Sanchez v. Far East Bank and Trust Company, held
that recourse to appeal the civil aspect from a judgment of
acquittal may only be resorted if the nature of he court's
judgment fall under any of the three categories stated above,
as reiterated in Salazar v. People (supra) otherwise, the
extinction of the penal extinguish the civil.
The civil is deemed instituted with the criminal here the
presence of any instances precluding the automatic institution
of the civil action together with the criminal complaint.
Thus, a separate civil action may no longer be prosecuted.
Principles Allowing- Separate Civil Action Despite Acquittal Even
Without Reservation
CIVIL ACTIONS BASED ON CRIME
In Calalang v. Intermediate Appellate Court, where a civil ac-
tion for damages based on the crime of murder was held as
not extinguished by the dismissal of the criminal case by the
Fiscal for failure of the complaint to establish a prima facie
case, the Supreme Court reiterated the case of People u.
Velez, that the dismissal of the information or the criminal
action (upon motion of the fiscal) does not affect the right of
the offended party to institute or continue the civil action
already instituted arising from the offense, because such
dismissal or extinction of the penal action does not carry with
it the extinction of the civil action.
The reason most often given for this holding is that the two
proceedings are not between the same parties.
Different rules as to the competency of witnesses and weight
of evidence necessary to the findings in the two proceedings
also exist.
In a criminal action, the State must prove its case by
evidence which shows the guilt of the defendant beyond
reasonable doubt, while in a civil action it is sufficient for the
plaintiff to sustain his cause by preponderance of evidence
only.
Therefore, the insufficiency of evidence to support a murder
charge does not imply that there is no sufficient evidence to
support the civil case based on the same alleged act.
Under the Civil Code, when a person, claiming to be injured
by a criminal offense, charges another with the same, for
which no independent civil action is granted in this Code or
any special law, but the justice of the peace finds no
reasonable grounds to believe that a crime has been
committed, or the prosecuting attorney refuses or fails to
institute criminal proceedings, the complainant may bring a
civil action for damages against the alleged offender.
Such civil action may be supported by a preponderance of
evidence.
Upon the defendant's motion, the court may require the
plaintiff to file a bond to indemnify the defendant in case the
complaint should be found to be malicious.
If during the pendency of the civil action, an information
should be presented by the prosecuting attorney, the civil
action shall be suspended until the termination of the criminal
proceedings.
Kinds of Acquittal
In a criminal action, our law recognizes two kinds of acquittal,
with different effects on the civil liability of the accused.
First is an acquittal on the ground that the accused is not the
author of the act or omission complained of.
This instance closes the door to civil liability, for a person who
has been found to be not the perpetrator of any act or
omission cannot and can never be held liable for such act or
omission.
There being no delict, civil liability ex delicto is out of the
question, and the civil action, if any, which may be instituted
must be based on grounds other than the delict complained
of.
87
This is the situation contemplated in Rule 111 of the Rules of
Court.
The second instance is an acquittal based on reasonable doubi
on the guilt of the accused.
In this case, even if the guilt of the accused has not been
satisfactorily established, he is not exempt from civil liability
which may be proved by preponderance of evidence only
This is the situation contemplated in Article 29 of the Civil
Code where the civil action for damages is "for the same act
or omission.
Although the two actions have different purposes, the matters
discussed in the civil case are similar to those discussed in the
criminal case.
However, the judgment in the criminal proceeding cannot be
read in evidence in the civil action to establish any fact there
determined, even though both actions involve the same act or
omission.
The reason for this rule is that the parties are not the same
and secondarily, different rules of evidence are applicable.
Hence, notwithstanding herein petitioner's acquittal, the Court
of Appeals in determining whether Article 29 applied, was not
precluded from looking into the question of petitioner's
negligence or reckless imprudence.
Illustrative Case:
IN A PROSECUTION FOR ESTAFA OR SWINDLING
THROUGH FALSIFICATION OF A COMMERCIAL
DOCUMENT, THE CIVIL IS DEEMED INSTITUTED WITH
THE CRIMINAL IN THE ABSENCE OF ANY INSTANCES
PRECLUDING THE AUTOMATIC INSTITUTION OF THE
CIVIL ACTION TOGETHER WITH THE CRIMINAL
COMPLAINT (THE OFFENDED PARTY WAIVES THE CIVIL
ACTION, RESERVES THE RIGHT TO INSTITUTE IT
SEPARATELY OR INSTITUTES THE CIVIL ACTION PRIOR
TO THE CRIMINAL ACTION).
Respondent's right to damages was deemed prosecuted in the criminal
proceeding.
Thus, a separate civil action may no longer be prosecuted where the
accused was acquitted on the ground that the accused has not
committed the crime Imputed to her.
This refers to the Civil liability arising from the crime that was deemed
instituted with the criminal.
COMPARE —
Where petitioner sought to enforce respondent's obligation to make
good the value of the checks in exchange for the cash he delivered to
respondent such civil action may proceed independently of the criminal
proceedings and regardless of the result of the other (under Article 31)
and its filing after the dismissal of the criminal case for estafa and
maybe prosecuted without violating the rule against forum shopping,
since they are based on different causes of action, expressly allowed
by law.
The dismissal of the criminal case is not res judicata even if the civil is
alleged to arise from delict, since the nature of the cause of action is
determined by the facts alleged in the complaint as constituting a
cause of action.
What Civil Action Is Extinguished
The rule of extinction was limited to civil actions based on
culpa criminal and does not include culpa aquiliana or quasi-
delict.
This was the teaching ofElcano v. Hill, where it was expressly
held that the extinction of the civil liability referred to in par.
(c), Sec. 2 of Rule 111 refers exclusively to civil liability
arising from crime; whereas, the civil liability for the same act
considered as a quasi-delict only and not as a crime is not
extinguished even by a declaration in the criminal case that
the criminal act charged has not happened or has not been
committed by the accused. In other words, an acquittal based
on the finding that the facts upon which civil liability did not
exist, bars the filing of an independent civil action if it is
based on the crime.
Application of the rule was illustrated by Justice Relova in
Marcia v. Court of Appeals, as follows: "Otherwise stated, unless
the act from which the civil liability arises is declared to be non-
existent in the final judgment, the extinction of the criminal liability
will not carry with it the extinction of the civil liability.
Thus, if a person is charged with homicide and successfully pleaded
self-defense, his acquittal by reason thereof will extinguish his civil
liability. He has not incurred any criminal liability.
On the other hand, if his acquittal is, for instance, due to the fact that
he was not sufficiently identified to be the assailant, a civil action for
damages may be maintained. His acquittal is not due to non-existence
of the crime from which civil liability might arise, but because he was
not, in the eyes of the court, sufficiently identified as the perpetrator.
Where the court states that the evidence throws no light on the cause
of fire and that it was an unfortunate accident for which the accused
cannot be held responsible, this declaration fits well into the exception
of the rule which exempts the accused from civil liability.
Likewise, in Albornoz v. Albornoz,33 it was the ruling that "where the
judgment in a criminal action contains an express declaration that the
basis of claimant's action did not exist, the latter's action for civil
liability is barred under Section l(d), Rule 107 of the Rules of Court."
In a prosecution for estafa or swindling through falsification of
a commercial document, the civil is deemed instituted with
the criminal where the in the absence of any instances
precluding the automatic institution of the civil action
together with the criminal complaint (the offended party
waives the civil action, reserves the right to institute it
separately or institutes the civil action prior to the criminal
action).
Respondent's right to damages was deemed prosecuted in the
criminal proceeding.
Thus, a separate civil action may no longer be prosecuted
where the accused was acquitted on the ground that the
accused has not committed the crime imputed to her.
Civil Actions Not Based on Crime Not Extinguished
Acquittal in a criminal action bars the civil arising therefrom
where the judgment of acquittal holds that the accused did
88
not commit the criminal acts imputed to him.
As earlier ruled by the Supreme Court, the civil liability that is
deemed extinguished is the civil liability based on crime.
But not the civil liability based on sources of obligation other
than the criminal offense although arising from the same act
or omission.
The second sentence of Section 3(b) before under the 1985
Rules provides that in other cases, the person entitled to the
action may institute it in the jurisdiction and in the manner
provided by law against the person who may be liable for
restitution of the thing and reparation or indemnity for the
damage suffered.
The rule clearly contemplates the filing of a separate civil
action. Article 29 of the Civil Code expressly provides that
when the accused in a criminal prosecution is acquitted on the
ground that his guilt has not been proved beyond reasonable
doubt, a civil action for damages for the same act or omission
may be instituted.
Such action requires only a preponderance of evidence.
The civil liability therefor under Articles 32,33, 34 and 2176 or
those where the source of civil obligation is not based on the
criminal offense is not affected by the result of the criminal
action.
In other words, the extinction of the civil liability referred to
in par. (e) of Section 3, Rule 111 (1964 Rules), refers
exclusively to civil liability founded on Article 100 of the
Revised Penal Code, whereas the civil liability for the same
act considered as a quasi-delict only and not as a crime is not
extinguished even by a declaration in the criminal case that
the criminal act charged has not happened or has not been
committed by the accused.
Briefly stated, culpa aquiliana includes voluntary and
negligent acts which may be punishable by law.
It results, therefore, that the acquittal of Reginal Hill in the
criminal case has not extinguished his liability for quasi-delict,
hence that acquittal is not a bar to the instant action against
him.
Criminal Actions To Recover Civil Liability Arising From Delict and Civil
Actions Based on Quasi-Delict may Proceed Simultaneously
Thus, a civil action arising from the crime charged and a civil
action with the civil code provisions as the source of
obligation may proceed simultaneously and independently of
each other, and a favorable and unfavorable judgment in
either case cannot be considered as a bar to the other.
A private prosecutor may intervene in the criminal action
without waiving the right to file a separate civil action under
Articles 32, 33, 34 and 2176 regardless of the result of the
criminal action.
On the issue of whether or not an action for damages arising
from a vehicular accident may plaintiff recover damages
against the employer of the accused driver both in the
criminal case (delict) and the civil case for damages based on
quasi-delict, but not recover twice for the same act, the court
wrote:
"Consequently, a separate civil action for damages lies against the
offender in a criminal act, whether or not he is criminally prosecuted
and found guilty or acquitted, provided that the offended party is not
allowed, if he is actually charged also criminally, to recover damages
on both sides, and would be entitled in such eventuality only to the
bigger award of the two, assuming the awards made in the two cases
vary."
Extinction of Penal Does not Extinguish Civil Liability
In Mendoza v. Arrieta, it was held that where the acquittal
was not based upon reasonable doubt, a civil action for
damages can no longer be instituted.
It was clarified in Gula v. Dianila, that Mendoza v. Arrieta was
based on culpa criminal for which reason "we held the suit for
damages barred."
Since the cause of action of plaintiff-appellant is based on
culpa aquiliana and not culpa criminal thus precluding the
application of the exception in Sec. 3(c) of Rule 111 and the
fact that it can be inferred from the criminal case that
accused was acquitted on reasonable doubt because of dearth
of evidence and lack of veracity of the two principal
witnesses, the doctrine in Mendoza v. Arrieta, will not find
application.
This provision clearly provides for a separate civil action for
restitution, reparation and indemnity for the damages
suffered by the offended party without reference to the
source of the obligation but was held to refer to Article 29 of
the Civil Code which provides that when the accused in a
criminal prosecution is acquitted on the ground that his guilt
has not been proved beyond reasonable doubt, a civil action
for damages for the same act or omission may be instituted.
A quasi-delict or culpa aquiliana is a separate legal institution
under the Civil Code, with a substantivity all its own, and
individuality that is entirely apart and independent from a
delict or crime.
A distinction exists between the civil liability arising from a
crime and the responsibility for quasi-delict or culpa
contractual.
The same negligence causing damages may produce civil
liability arising from a crime under the Penal Code, or create
an action for quasi-delicto or culpa extra-contractual under
the Civil Code.
Therefore, the acquittal or conviction in the criminal case is
entirely irrelevant in the civil case.
Effect of 1988 Amendment and The Revised Rules on Criminal
Procedure
Given the 1988 amendments, where the accused is acquitted
on the ground that his guilt has not been established beyond
reasonable doubt or that the obligation is purely civil without
the court making a finding on the civil liability of the accused
in favor of the offended party, what would be the effect of
such judgment on the civil aspect of the case. Will the
89
foregoing rulings permitting the prosecution of a separate civil
action still apply?
In Heirs of the Late Teodoro Guaring v. Court of Appeals, the
court wrote that Sec. 2(b), Rule 111 of the Rules of Criminal
Procedure which provides that extinction of the penal action
does not carry with it extinction of the civil, unless the
extinction proceeds from a declaration in a final judgment
that the fact from which the civil might arise did not exist"
and that this rule contemplates a civil action arising from a
crime and not a civil action arising from a quasi delict.
The court underscored the statement in Tayag v. Alcantara,
that the civil liability for the same act considered as a quasi
delict only and not as a crime is not extinguished even by a
declaration in the criminal case that the criminal act charged
has not happened or has not been committed.
Further cited by the court to the same effect is Gula u.
Dianala.
In Bunag v. Court of Appeals, a separate action for Damages
based on forcible abduction with rape was allowed despite
prior dismissal of case by the Fiscal at the preliminary
investigation stage.
Jurisdiction of Court to Pass upon Motion for Reconsideration
of Offended Party in Connection with Civil Liability Despite
Appeal by Accused
If the court, independently of the appeal of the accused, has
jurisdiction, within fifteen days from the date of the
judgment, to allow the appeal of the offended party, it also
has jurisdiction to pass upon the motion for reconsideration
filed by the private prosecution in connection with the civil
liability of the accused.
SEC. 3.
When Civil Action may Proceed Independently
The civil action which should be suspended after the institu-
tion of the criminal action is that arising from delict and not
the civil action based on quasi-delict or culpa aquiliana.
Parenthetically, "physical injuries" under Article 33 is used in
a generic sense.
It includes consummated, frustrated and attempted homicide
and death arising from delict which includes reckless im-
prudence or quasi-delict.
Consolidation of Criminal and Civil Cases
Libel — A criminal case for libel and a separate and independ-
ent civil action to enforce the civil liability arising from the
libel may be consolidated for joint trial, where the two (2)
cases involve common or identical questions of fact and law,
and would even have the same witnesses; and thus avoid
multiplicity of suits, prevent delay, clear congested dockets,
and save unnecessary costs and expenses, and simplify the
work of the trial court.
In fact Mckee v. IAC — stressed the need for consolidation of
criminal and civil actions to prevent conflicting decisions.

The final decision of guilt in criminal action is not relevant to
civil action based on quasi-delict.
There is no legal impediment against such consolidation.
Section 1, Rule 31 of the Rules of Court which seeks to avoid
multiplicity of suits, guard against oppression and abuse,
prevent delays, clear congested dockets to simplify the work
of the trial court, or in short, attain justice with the least
expense to the parties litigant, would have easily sustained a
consolidation, thereby preventing the unseeming, if not
ludicrous, spectacle of two (2) judges appreciating, according
to their respective orientation, perception and perhaps even
prejudice, the same facts differently, and thereafter rendering
conflicting decisions.
A civil case for replevin may proceed independently of the
criminal cases for falsification and grave coercion.
While both cases are based on the same facts, the quantum
of proof required for holding the parties liable therein differ.
SEC. 4.
Effect of Death on Civil Actions
Death of Accused on Appeal
The death of the accused after arraignment and during the
pendency of the criminal action shall extinguish the civil
liability arising from the delict.
In Torrijos v. Court of Appeals,' a case of estafa, where
despite the death of the accused during the pendency of his
appeal, which thereby extinguished his criminal liability, the
appeal was allowed to proceed with respect to the issue of
civil liability of the accused (arising from a contract of
purchase and sale).
(The rule was not observed in People v. Satorre, where the
case for Murder was dismissed in view of the death of the
appellant.)
However, in People u. Salcedo, where the accused in a
murder case died during appeal, the case was dropped with
respect to his criminal liability only.
This was followed by People v. Sendaydiego a case of
malversation thru falsification, where it was held that despite
the death of the accused, the Supreme Court can continue to
exercise appellate jurisdiction over an accused's possible civil
liability for the money claims of the claimants arising from
criminal acts complained of, as if no criminal case has been
instituted against him, thus making applicable, in determining
his civil liability, Article 30 of the Civil Code.
When a separate civil action is brought to demand civil
liability arising from a criminal offense, and no criminal pro-
ceedings are instituted during the pendency of the civil case,
preponderance of evidence shall likewise be sufficient to
prove the act complained of.)
The Supreme Court further stated that Sendaydiego's appeal
90
will be resolved only for the purpose of showing his criminal
liability which is the basis of the civil liability for which his
estate would be liable.
Though the death of an accused-appellant during the
pendency of an appeal extinguished his criminal liability, his
civil liability survives.
Extinction of criminal liability does not necessarily mean that
the civil liability is also extinguished.
In People v. Navoa, and in People v. Sendaydiego, the
Supreme Court ruled that only the criminal liability (including
the fine, which is pecuniary, but not civil) of the accused is
extinguished by his death, but the civil liability remains.
The claim of the government for the civil liability survives but
only if the offense can be proved.
The Supreme Court continues to exercise appellate
jurisdiction over the petitioner's possible civil liability for the
money claims of the government arising from the alleged
criminal acts complained of, in much the same way as when
no criminal action had been filed. No separate civil action
need be instituted.
Thus, as every crime gives rise to a penal or criminal action
for the punishment of the guilty party, and also to a civil
action for the restitution of the thing, repair of the damage
and indemnification for the losses whether the particular act
or omission is done intentionally or negligently or whether or
not punishable by law, subsequent decisions of the Supreme
Court held that while the criminal liability of an appellant is
extinguished by his death, his civil liability subsists.
In such case, the heirs of the deceased appellant are
substituted as parties in the criminal case and his estate shall
answer for his civil liability.
ABANDOMENT OF SENDAYDIEGO; DEATH OF ACCUSED
PENDING APPEAL EXTINGUISH CIVIL LIABILITY BASED
ON CRIME
People v. Bayotas, overruled People v. Sendaydiego, where it
was held that despite the death of the accused during the
pendency of the appeal, the proceedings shall continue for
the purpose of determining his civil liability arising from the
crime.
The Supreme Court en bane held in Bayotas (which is a case
of rape) that:
"1. Death of the accused pending appeal of his conviction
extinguishes his criminal liability as well as the civil
liability based 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 in senso strictiore.
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 enumerates these 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; xx x; and
d. 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 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 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 with 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 the provisions of Article
1155 of the Civil Code, that should thereby avoid any
apprehension on a possible deprivation of right by
prescription.
Thus the Supreme Court applying this set of rules to the case
at bench held that the death of the appellant extinguished his
criminal liability and the civil liability based solely on the act
complained of, i.e., rape. Consequently, the appeal was
dismissed."
Bayotas was reiterated in People v. Rosalijos,ll where during
the pendency of the appeal convicting the accused of murder,
the latter died, the court ordered the dismissal of the criminal
liability of accused and ordered the substitution of his heirs as
to the civil liability.
However, in light of Bayotas, the appeal was dismissed both
as to the criminal and civil aspects thereof.
The ruling in Bayotas and its progeny which require the filing
of a separate civil action arising from the same act or
omission where the accused dies during the pendency of the
action was criticized since these civil actions are deemed
impliedly instituted with the criminal action unless reserved
waived or a separate civil action was filed.
COMMENT ON THE NEW RULE
The original proposal of the Committee was to modify Bayotas. The
proposal was for the Court to continue in the same proceedings vith
the other civil actions that were deemed impliedly instituted vith the
criminal, despite the death of the accused. Since, however, he Revised
Rules on Criminal Procedure limited the civil liability leemed instituted
with the criminal action to the civil liability aris-ng from the offense,
91
there is no more need for the proposal since with the death to the
accused, the civil liability arising from the offense is also extinguished.
The rule was, however, retained by the Court to apply to the separate
civil actions under Section 3 of the same Rule. This would, however,
only apply if these actions are consolidated with the criminal.
Otherwise, since these are purely civil actions, the effects of death
should be governed by the Rules on Civil procedure.16
SEC. 5.
Judgment in Civil Action not a Bar
COMMENT:
WHILE EVERY PERSON CRIMINALLY LIABLE IS ALSO
CIVILLY LIABLE, THE CONVERSE IS NOT TRUE.
EXTINCTION OF THE PENAL DOES NOT CARRY WITH IT
EXTINCTION OF THE CIVIL UNLESS THE EXTINCTION
PROCEEDS FROM A DECLARATION IN A FINAL
JUDGMENT THAT THE FACT FROM WHICH THE CIVIL
MIGHT ARISE DID NOT EXIST.
Similarly, a final judgment rendered in a civil action absolving the
defendant from the civil liability is no bar to a criminal action unless
the civil is a prejudicial question which involves an issue similar or
intimately related to the issue raised in the criminal, the resolution of
which determines whether or not the criminal action may proceed.
SEC. 6.
Suspension by Reason of Prejudicial Question
SEC. 7.
Elements of Prejudicial Question
Section 7 limits a prejudicial question to a "previously
instituted civil action" in order to minimize possible abuses by
the subsequent filing of a civil action as an afterthought for
the purpose of suspending the criminal action.
a. The rule on precedence of the criminal action does not
apply when the civil action is a prejudicial question. 1
b. Prejudicial question is an exception to precedence of
criminal case.
Prejudicial Question, Defined: Elements of a Prejudicial Question
According to jurisprudence, a prejudicial question involves a
similar issue in a civil action which was pending when the
criminal action was instituted or before the amendment, in a
civil action filed after the institution of the criminal action.
It is one 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, and for it to suspend the
criminal action, it must appear not only that said case
involves facts intimately related to those upon which the
criminal prosecution would be based but also that in the
resolution of the issue or issues raised in the civil case, the
guilt or innocence of the accused would necessarily be
determined.
The doctrine of prejudicial question comes into play generally
in a situation where civil and criminal actions are pending and
the issues involved in both cases are similar or so closely-
related that an issue must be pre-emptively resolved in the
civil case before the criminal action can proceed.
Thus, the existence of a prejudicial question in a civil case is
alleged in the criminal case to cause the suspension of the
latter pending final determination of the former.
Where the civil case is not based on a fact distinct and
separate from the estafa, as both actions arose from the
same fact or transaction, the former does not constitute ,a
prejudicial question, for the determination of the criminal
action.
CASES
a. An Action for Nullity of a Deed of Sale Based on the
Ground that It is a Forgery and is Spurious is Prejudicial
to a Criminal Action for Estafa based on the Execution of
said Sale
For a civil case to be considered prejudicial to a criminal
action as to cause the suspension of the criminal action
pending the determination of the civil, it must appear not
only that the civil case involves the same facts upon
which the criminal prosecution is based, but also that the
resolution of the issue raised in said civil action would be
necessarily determinative of the guilt or innocence of the
accused.
Where the defense (as defendant) in the civil case of the
nullity and forgery of the alleged prior deed of sale in
favor of plaintiff in the civil case and complaining witness
in the criminal case is based on the very same facts
which would be necessarily determinative of the guilt or
innocence as accused in the criminal case, the civil case
constitutes a prejudicial question.
If the first alleged sale is void or fictitious, then there
would be no double sale and petitioner would be innocent
of the offense charged.
A conviction in the criminal case (if it were allowed to
proceed ahead) would be a gross injustice and would
have to be set aside if it were finally decided in the civil
action that indeed the alleged prior deed of sale was a
forgery and spurious.
b. The pendency of an intestate proceeding will not
constitute a prejudicial action in a criminal case for Theft
of standing crops filed by a person claiming to have a
valid contract of lease on the property from its legal
owner against a person claiming co-ownership of the land
leased whose claim is pending in an intestate
proceeding."
Even if the Intestate Court should annul the project of
partition and uphold private respondent's ownership of
the lots herein, that would not be determinative of the
criminal responsibility of private respondents for theft of
the standing sugar crop, which petitioner claims he has
planted in good faith by virtue of a valid contract of lease
with the mortgagee.
c. Ejectment: Pendency of an ejectment case does not
constitute a prejudicial question to the charge of the
theft filed by alleged lessee against a person claiming co-
ownership rights with the lessor, for illegal harvest of
92
sugarcane on land leased.
Pendency of action for damages based on illegal
possession of property not a prejudicial question to the
charge of theft filed by the alleged lessee against the
plaintiff in the damage suit.
As the two cases are based on the same facts, and the
entitlement to damages being predicated on the unlawful
taking treated of in the Criminal Action, no necessity
arises for that civil case to be determined ahead of the
Criminal Action.
Stated differently, the issues raised in the civil cases do
not involve the pivotal question of who planted the
sugarcane and, therefore, are not determinative juris et
de jure of guilt or innocence in the Criminal Action.
If as the Guanteros contend, they were the ones who did
the planting, that is a matter of defense that may be
interposed by them in the Criminal Action.
It is not an issue that must be preemptively resolved in
the civil case before proceedings in the Criminal Action
may be undertaken.
d. A civil action for accounting and recovery of sum of
money are not determinative of the innocence or guilt of
petitioner in the prosecution for seventy-five (75) counts
of estafa
The issues in the civil case for accounting and recovery of
sums of money are not determinative of the innocence or
guilt of the petitioner in the prosecution of the seventy-
five (75) counts of estafa.
* * * the only question to be resolved in the criminal cases for
estafa is whether or not the petitioner's acts of receiving and
collecting monies from the customers in payment for goods
purchased, and failing to immediately account for and deliver the
said collections having deposited them in his own personal bank
accounts constitute estafa under Article 315(l-b) of the Revised
Penal Code.
* * * a finding in the civil case for accounting and recovery of a
sum of money is not juris et de jure determinative of the
innocence of the petitioner in the subsequent seventy-five (75)
criminal cases of estafa filed against him.
e. A civil case for Annulment of Deed of Sale not prejudicial
to Criminal Case for Estafa Arising from Issuance of
Rubber Check."
At the time the acts complained of in CR No. 1423-1
were committed, the deed of sale sought to be later
annulled in CV No. 8769 was binding upon the parties
thereto, including the petitioners.
The two (2) essential elements for a prejudicial question
to exist are:
(a) the civil action involves an issue similar or intimately
related to the issue raised in the criminal action; and
(b) the resolution of such issue in the civil action
determines whether or not the criminal action may
proceed.

As correctly observed by the appellate court, the issue in
CR No. 1423-1 is whether or not the petitioners could be
found guilty under Batas Pambansa Big. 22 or under
Article 315, No. 2(d) of the Revised Penal Code.
More specifically, what private respondents complained
of in CR No. 1423-1 is that the Checks issued by
petitioners in their favor were dishonored for lack of
funds upon due presentment to the drawee bank.
Undeniably, at the time of said dishonor, petitioners'
obligation to pay private respondents pursuant to the
deed of sale, continued to subsist.
And because petitioners' checks were dishonored for lack
of funds, petitioners are answerable under the law for the
consequences of their said acts.
And even if CV No. 8769 were to be finally adjudged to
the effect that the said deed of sale should be annulled,
such declaration would be of no material importance in
the determination of the guilt or innocence of petitioners-
accused in CR No. 1423-1.
A Civil Case for the Collection of a Sum of Money Allegedly Embezzled
is not a Prejudicial Question to the Criminal Action arising from the
same Acts of Embezzlement
Thus, as teller authorized to receive payments of electric bills from the
electric cooperative's customers, Godofreda allegedly embezzled to her
own use money collected from different consumers.
When she refused to pay the amount defrauded, the cooperative sued
her for damages. Later, at the instance of the cooperative, several
informations for estafa were filed against her before the municipal
court.
After pleading not guilty to the estafa charges, Godofreda moved to
suspend the proceedings in the criminal case on the ground that the
collection suit is a prejudicial question.
HELD:
a. No prejudicial question exists.
The issue in the civil action is the cooperative's right to recover from
Godofreda the amount allegedly embezzled by the latter.
The issue in the criminal case is whether her failure to account for her
collections as a teller constitutes estafa under Article 315 of the
Revised Penal Code.
A finding in the civil case for or against Godofreda is not juris et dejure
determinative of her innocence or guilt in the estafa cases.
B. MOREOVER ARTICLE 33 OF THE CIVIL CODE
EXPLICITLY STATES THAT IN CASE OF DEFAMATION,
FRAUD AND PHYSICAL INJURIES A CIVIL ACTION FOR
DAMAGES, ENTIRELY SEPARATE AND DISTINCT FROM
THE CRIMINAL ACTION, MAY BE BROUGHT BY THE
INJURED PARTY.
Such civil action shall proceed independently of the criminal
prosecution and shall require only a preponderance of evidence.
c. Article 33 manifests that as between the civil and criminal cases
93
arising from the same fraudulent act, the doctrine of the prejudicial
question cannot be invoked as both cases may proceed independently
of each other, i.e., in the same way that the civil suit can be tried, so
must the criminal prosecution run its course.
When Action for Annulment of Marriage Prejudicial to Bigamy Case
a. A civil action involving the nullity of a second marriage is
of prejudicial character and should be resolved before the
criminal case for bigamy.
Likewise, a civil action involving title to property should
first be decided before a criminal action for damages to
said property.
The reason is that in said cases the procedure in a civil
proceeding and not of the criminal case is more fitted to
decide, as for example, the issue of validity or nullity of
the marriage.
But in all such cases the prejudicial civil question refers
to a dispute of purely civil character but connected in
such manner to the crime on which the criminal case is
based and is determinative of the guilt or innocence of
the accused.
A civil action filed by the husband involving the nullity of
a second marriage is of prejudicial character and should
be resolved before the criminal case for bigamy.
In such a case, the prejudicial civil question refers to a
dispute of purely civil character but connected in such
manner to the crime on which the criminal case is based
and is determinative of the guilt or innocence of the
accused.
The rule does not, however, apply where the complaint
for annulment was filed by the wife. Thus:
"a) The filing, while the bigamy case is pending, of a
civil action by the woman in the second marriage for
its annulment by reason offeree and intimidation
upon her by the man, is not a bar or defense to the
criminal action.
The civil action does not decide that he entered the
marriage against his will and consent, because the
complaint therein does not allege that he was the
victim of force and intimidation in the second
marriage.
It was he who used the force or intimidation and he
may not use his own malfeasance to defeat the
action based on his criminal act."
b. So also is an annulment of marriage filed by the first
wife not prejudicial to bigamy.
c. In Landicho v. Hon. Reloua, the first wife charged
the accused with Bigamy for contracting a second
marriage without first dissolving their marriage.
The second wife, likewise, filed an annulment of her
marriage with the accused on the ground offeree,
 threats, and intimidation allegedly employed by
accused and because of its allegedly bigamous
character.
Accused filed a third party complaint against the first
wife praying that his first marriage be declared null
and void on the ground that his consent to the first
marriage was obtained by means of threats, force,
and intimidation, and moved for the suspension of
the bigamy case pending decision on the validity of
the two marriages.
The Court held that the mere fact that there are
actions to annul the marriage entered into by the
accused in a bigamy case does not mean that
"prejudicial questions" are automatically raised in
civil actions to warrant the suspension of the
criminal case.
In order that the case of annulment of marriage be
considered a prejudicial question to the bigamy case
against the accused, it must be shown that the
accused's consent to such marriage must be the one
that was obtained by means of duress, force and
intimidation to show that his act in the second
marriage must be involuntary and cannot be the
basis for his conviction for the crime of bigamy.
The situation in the second case is markedly
different.
At the time petitioner was indicted for bigamy, the
fact that two marriage ceremonies have been
contracted appeared to be indisputable.
And it was the second spouse, not the accused who
filed the action for nullity on the ground of force,
threats and intimidation, x x x
Assuming that the first marriage was null and void
on the ground alleged by the accused, that fact
would not be material to the outcome of the criminal
case.
Parties to the marriage should not be permitted to
judge for themselves its nullity, for the same must
be submitted to the judgment of the competent
courts and only when the nullity the marriage is so
declared can be held as void, and so long as there is
no such declaration the presumption is that the
marriage exists.
Therefore, he who contracts a second marriage
before the judicial declaration of nullity of the first
marriage assumes the risk of being prosecuted for
bigamy.
d) Donato v. Luna — Leonilo was charged with bigamy
in the Court of First Instance.
The information was based on the complaint of Paz.
Before Leonilo could be arraigned, Paz filed with the
Domestic Relations Court a civil action for decla-
ration of nullity of her marriage with Leonilo,
contracted in 1978.
She alleged that she consented to entering into the
marriage, since she had no previous knowledge that
Leonilo was already married to Rosalinda.
94
Donato interposed the defense that his second
marriage was void since it was solemnized without a
marriage license and that force was employed by
Paz to get Leonilo's consent to the marriage.
Before the second marriage was solemnized, Leonilo
and Paz had lived together as husband and wife,
without the benefit of wedlock for at least five years,
for which reason, the requisite marriage license was
dispensed with pursuant to Article 76 of the New
Civil Code.
Before the criminal case could be tried, Leonilo
moved to suspend the proceedings on the ground
that the annulment case raises a prejudicial
question, which must be determined before the
criminal case can proceed.
The trial court denied the motion to suspend the
proceedings, citing Landicho v. Relova.
The Supreme Court sustained the trial judge.
The issue before the Domestic Relations Court
touching upon the nullity of the second marriage is
not determinative of Leonilo's guilt or innocence in
the crime of bigamy.
Furthermore, it was Paz, Leonilo's second wife, who
filed the complaint for annulment of the Second
marriage on the ground that her consent was
obtained through deceit.
Leonilo cannot apply the rule on prejudicial question
since a case for annulment of marriage can be
considered a prejudicial question to the bigamy case
against the accused only if it is proved that Leonilo's
consent to such marriage was obtained by means of
duress in order to establish that his act in the
subsequent marriage was an involuntary one and as
such, the same cannot be the basis for conviction.
Obviously, Leonilo merely raised the issue of
prejudicial question to evade the prosecution of the
criminal case. Prior to Leonilo's second marriage, he
had been living with Paz as husband and wife for
more than five years without the benefit of
marriage.
Thus, Leonilo's averments that his consent was
obtained by Paz through force and undue influence
in entering a subsequent marriage is belied by the
fact that both he and Paz executed an affidavit
which stated that they had lived together as
husband and wife without benefit of marriage for
five years, one month and one day until their marital
union was formally ratified by the second marriage
and that it was Paz who eventually filed the civil
action for nullity.
An Action for declaration of nullity of marriage on ground of
psychological incapacity is not a prejudicial question
1) to criminal prosecution for concubinage

Under Article 40 of the Family Code: "The absolute nullity
of a previous marriage maybe invoked for purposes of
remarriage on the basis solely of a final judgment
declaring such marriage void.
So that in a case for concubinage, the accused need not
present a final judgment declaring his marriage void for
he can adduce evidence in the criminal case of the nullity
of his marriage other than proof of a final judgment
declaring his marriage void.
The Court, however, hastened to add that even if his
marriage is void from the beginning the subsequent
pronouncement that his marriage is void from the
beginning is not a defense, citing Landicho u. Relova,
cited in Donate v. Luna," holding that "so long as there is
no such declaration (of nullity) the presumption is that
the marriage exists.
Therefore, he who contracts a second marriage before
the judicial declaration of nullity of the first marriage
assumes the risk of being prosecuted for bigamy.
2) to criminal prosecution for bigamy
A declaration of the nullity of the second marriage on the
ground of psychological incapacity is of absolutely no
moment insofar as the State's penal laws are concerned.
As a second or subsequent marriage contracted during
the subsistence of petitioner's valid marriage to
Villareyes, petitioner's second marriage to Ancajas would
be null and void ab initio completely regardless of
petitioner's psychological capacity or incapacity.
Since a marriage contracted during the subsistence of a
valid marriage is automatically void, the nullity of this
second marriage is not per se an argument for the
avoidance of criminal liability for bigamy.
Pertinently, Article 349 of the Revised Penal Code
criminalizes "any person who shall contract a second or
subsequent marriage before the former marriage has
been legally dissolved, or before the absent spouse has
been declared presumptively dead by means of a judg-
ment rendered in the proper proceedings."
A plain reading of the law, therefore, would indicate that
the provision penalizes the mere act of contracting a
second or a subsequent marriage during the subsistence
of a valid marriage.
Thus, as soon as the second marriage was celebrated
during the subsistence of the valid first marriage, the
crime of bigamy had already been consummated.
There is no cogent reason for distinguishing between a
subsequent marriage that is null and void purely because
it is a second or subsequent marriage, and a subsequent
marriage that is null and void on the ground of
psychological incapacity, at least insofar as criminal
liability for bigamy is concerned.
95
The State's penal laws protecting the institution of
marriage are in recognition of the sacrosanct character of
this special contract between spouses, and punish an
individual's deliberate disregard of the permanent
character of the special bond between spouses, which
petitioner has undoubtedly done.
Although the judicial declaration of the nullity of a
marriage on the ground of psychological incapacity
retroacts to the date of the celebration of the marriage
insofar as the vinculum between the spouses is
concerned, it is significant to note that said marriage is
not without legal effects.
Among these effects is that children conceived or born
before the judgment of absolute nullity of the marriage
shall be considered legitimate.
There is therefore a recognition written into the law itself
that such a marriage, although void ab initio, may still
produce legal consequences.
Among these legal consequences is incurring criminal
liability for bigamy.
To hold otherwise would render the State's penal laws on
bigamy completely nugatory, and allow individuals to
deliberately ensure that each marital contract be flawed
in some manner, and to thus escape the consequences of
contracting multiple marriages, while beguiling throngs of
hapless women with the promise of futurity and
commitment.
There is no prejudicial question where one case is administrative and
the other is civil
It has been held that one thing is administrative.
Quite another is the criminal liability.
The determination of the administrative liability for
falsification of public documents is in no way conclusive of his
lack of criminal liability.
The dismissal of the administrative case does not necessarily
bar the filing of a criminal prosecution for the same or similar
acts which were the subject of the administrative complaint.
A pending civil case may, however, be considered to be in the
nature of a prejudicial question to an administrative case.
In proper cases, a pending administrative case may also be
considered in the nature of a prejudicial question to a civil
case.
Thus, an administrative case between parties involving a
parcel of land subject matter of an ejectment case is a
prejudicial question which would operate as a bar to said
ejectment case.
Thus, it has been held that the question of ownership which is
pending in a civil case a prejudicial question justifying
suspension of proceedings in the criminal case for violation of
the Anti-Squatting Law.

OTHER CASES
An action to cancel copyright is not prejudicial to criminal
prosecution for infringement of copyright.
A civil action of replevin is not prejudicial to theft.
Where the issue before the Court of Appeals is the authen-
ticity of a motion to withdraw which at the same time is the
object of a falsification charged pending in CFI, there is a
prejudicial question involved in the civil case which justifies
the suspension of the criminal case.
Pisalban u. Tesoro, a criminal case for falsification of an
affidavit presented in a cadastral case should not be sus-
pended to await termination of civil case.
If at all, it should be the latter that should be suspended.
A civil action instituted to resolve whether the designations of
certain persons as sectoral representatives were in
accordance with law constitutes a prejudicial question vis-a-
vis a criminal case for violation of the anti-graft law premised
on the accused's partiality and evident bad faith in not paying
the former's salaries and per diem as sectoral
representatives.
There is no prejudicial question where the outcome of the civil
case is not in any way determinative of the guilt or innocence
of the respondent in the criminal cases.
RULE 112
PRELIMINARY INVESTIGATION
SECTION 1.
Preliminary Investigation Defined; When Required
Formerly, the right to a preliminary investigation refers only to
offenses cognizable by the Regional Trial Court.
In view, however, of the expanded jurisdiction of the Municipal Trial
Court under R.A. No. 7691, jurisdiction over certain offenses which
before falls under the exclusive jurisdiction of the Regional Trial Court
were vested in the Municipal Trial Court and accordingly, under the
former rule were no longer entitled to preliminary investigation.
The present rule includes among offenses entitled to preliminary
investigation those punishable by at least four (4) years, two (2)
months and one (1) day, even if the same is cognizable by the
Municipal Trial Court.
Purpose of Preliminary Investigation
As provided for in the foregoing section, the preliminary
investigation should determine whether there is a sufficient
ground to engender a well-grounded belief that a crime has
been committed and that the respondent is probably guilty
thereof, and should be held for trial.
And if the evidence so warrants, the investigating prosecutor
is duty bound to file the corresponding information.
The Purposes of a Preliminary Investigation or a previous Inquiry of
Some Kind are —
a. for the investigating prosecutor to determine if a crime
has been committed.
96
b. to protect the accused from the inconvenience, expense
and burden of defending himself in a formal trial unless
the reasonable probability of his guilt shall have been
first ascertained in a fairly summary proceeding by a
competent officer.
c. to secure the innocent against hasty, malicious and
oppressive prosecution, and to protect him from an open
and public accusation of a crime, from the trouble,
expenses and anxiety of a public trial; and
d. to protect the state from having to conduct useless and
expensive trials.
Scope of Preliminary Investigation
Preliminary investigation is merely inquisitorial, and it is often
the only means of discovering the persons who may be
reasonably charged with a crime, to enable the fiscal to
prepare his complaint or information.
It is not a trial of the case on the merits and has no purpose
except that of determining whether a crime has been
committed and whether there is probable cause to believe
that the accused is guilty thereof, and it does not place the
person against whom it is taken in jeopardy.
Nature of Right to Preliminary Investigation
Neither the 1935 nor the 1973 (or 1987) Constitution requires
the holding of a preliminary investigation.
It is a settled doctrine that the right thereto is of statutory
character and may be invoked only when specifically created
by statute.
It is not a fundamental right and is not among the rights
guaranteed to him in the Bill of Rights.
It may be waived expressly or by silence.
As stated in Marcos u. Cruz, "the preliminary investigation in
criminal cases is not a creation of the Constitution; its origin
is statutory and it exists and the right thereto can be invoked
when so established and granted by law.
It is so specifically granted by procedural law.
If not waived the absence thereof may amount to a denial of
due process.
Thus, the right of accused (to a preliminary investigation
when granted) is a "substantial one."
Its denial over his opposition is a "prejudicial error in that it
subjects the accused to the loss of life, liberty or property
without due process of law."
While that right is statutory rather than constitutional in its
fundament, since it has in fact established by statute, it is a
component part of due process in criminal justice.
The right to have a preliminary investigation conducted before
being bound over to trial for a criminal offense and, hence
formally at risk of incarceration or some other penalty, is not
a mere formal or technical right; it is a substantive right.
The accused in a criminal trial is inevitably exposed to
prolonged anxiety, aggravation, humiliation, not to speak of
expense; the right to an opportunity to avoid a process
painful to any one save, perhaps, to hardened criminals, is a
valuable right.

To deny petitioner's claim to a preliminary investigation would
be to deprive him of the full measure of his right to due
process.
While a preliminary investigation is not an occasion for a full
and exhaustive display of the parties evidence, being merely
an inquiry to determine whether or not there is sufficient
ground to engender a founded belief that a crime has been
committed and that the respondent is probably guilty thereof,
the right to such preliminary investigation is still an
indispensable element of our criminal justice system that may
not be treated lightly, let alone ignored.
The right of the accused not to be brought to trial except
when remanded therefor as a result of a preliminary
examination before a committing magistrate, has been held
as a substantial one.
Its denial over the objections of the accused is prejudicial
error in that it subjects the accused to the loss of life, liberty
or property without due process of law.
If it is not waived may amount to a denial of due process.
As stated in a case, the Solicitor General's argument that the
right to a preliminary investigation may be waived and was in
fact waived by the petitioner, impliedly admits that the right
exists.
Since the right belongs to the accused, he alone may waive
its denial.
If he demands it, the State may not withhold it.
The purpose is, however, satisfied if the accused is given all
the opportunity to submit countervailing evidence.
Probable cause merely implies probability of guilt and should
be determined in a summary manner.
Preliminary investigation is not a part of trial and it is only in
a trial where an accused can demand the full exercise of his
rights, such as the right to confront and cross-examine his
accusers to establish his innocence.
Thus, the lack of authentication of the document presented
during the preliminary investigation does not impair the
validity of the investigation.
The only purpose of a preliminary investigation is "to
determine whether a crime has been committed and whether
there is probable cause to believe that the accused is guilty
thereof."
The Court have maintained a consistent policy of non-
interference in the determination by the Ombudsman of the
existence of probable cause, provided there is no grave abuse
in the exercise of its discretion.
While it may be true that the documents were
unauthenticated, this is a matter of defense best passed upon
after a full-blown trial.
As ruled in Webb v. De Lean, "the validity and the merits of a
party's defense or accusation as well as the admissibility of
testimonies and evidences are better ventilated during the
trial stage than in the preliminary investigation level."
Effect of Absence of Preliminary Investigation
As the absence of a preliminary investigation is not a ground
97
to quash the complaint or information, the proceedings upon
such information in the Sandiganbayan should be held in
abeyance and the case should be remanded to the office of
the Ombudsman for him or the Special Prosecutor to conduct
a preliminary investigation.
Thus, the absence of preliminary investigation does not affect
the court's jurisdiction over the case, but merely to the
regularity of the proceedings.
Nor do they impair the validity of the information or otherwise
render it defective; but, if there were no preliminary
investigation and the defendants, before entering their plea,
invite the attention of the court to their absence, the court,
instead of dismissing the information, should conduct such
investigation, or order the fiscal to conduct it.
Moreover, the absence of a preliminary investigation will not
justify petitioner's release because such defect did not nullify
the information and the warrant of arrest against him.
COMPARE:
In Rolito Go v. Court of Appeals, despite the fact that trial on
the merits had began and the prosecution had already
presented four witnesses, the trial was ordered suspended
and the accused allowed to be released on bail pending the
preliminary investigation.
The right to bail was emphasized in Tolentino v. Camano, Jr.
Right May be Waived
The right to a preliminary investigation may be waived by fail-
ure to invoke the right prior to or at least at the time of their
plea.
The rule was restated in People v. Monteverde, where the
Supreme Court stated:
"A PRELIMINARY INVESTIGATION IS MANDATORY AND
A CERTIFICATION THAT SUCH INVESTIGATION WAS
HELD IS REQUIRED, STILL THIS RULE DOES NOT APPLY
IF THE ISSUE IS RAISED ONLY AFTER CONVICTION.
After a plea of not guilty to the information, an accused is deemed to
have foregone the right of preliminary investigation and to have aban-
doned the right to question any irregularity that surrounds it."
In People v. Lambino, Lambino, before commencement of
trial, demanded his right to preliminary investigation. His
motion for preliminary investigation was denied by the trial
court which, in due course of time, convicted Lambino.
On appeal, the Supreme Couri held that the trial court did not
err in denying Lambino's motion for preliminary investigation
because said motion was filed after he had entered a plea of
not guilty and because he took no steps to bring the matter
to a higher court to stop the trial of the case.
The right to a preliminary investigation shall be deemed
waived for failure to invoke it during arraignment in People u.
Valencia People v. Hubilo, People v. De Asis, or by failing to
go to Appellate Court on certiorari to question denial.
The right to a preliminary investigation may not be raised for
the first time on appeal.
Consenting to be arraigned and entering a plea of not guilty
without invoking the right to preliminary investigation is a
waiver.
It should be invoked prior to or at least, at the time of the
plea.
It is also deemed waived by going to trial without previously
claiming that they did not have the benefit of preliminary
investigation.
It may be waived expressly or by silence.
No Waiver When Properly Invoked
A waiver, whether express or implied, must be made in clear
and unequivocal manner.
Mere failure of petitioner and his counsel to appear before the
City Prosecutor cannot be construed as a waiver of his right to
preliminary investigation, where petitioner has been
vigorously invoking his right to a regular preliminary
investigation since the start of the proceedings before the City
Prosecutor.
The right is not waived even if the accused had filed an
application for bail and arraigned over his objections and trial
on the merits already began with four witnesses having
testified where accused had from the beginning demanded
that a preliminary investigation be conducted and forthwith
brought the case on certiorari to the Supreme Court.
Presumption of Regularity
The accused who alleges lack of preliminary investigation
must prove such allegation convincingly.
When it does not appear from the record that a preliminary
investigation was not granted, it must be presumed that the
proceedings in the trial court were in accordance with law.
In the absence of evidence to the contrary, the Court will
presume that the fiscal or officer who conducted the requisite
investigation did so in accordance with law.
Effect of Lack of Certification
Lack of certification by the fiscal that a preliminary investiga-
tion had been conducted does not vitiate the information, as a
preliminary investigation is not an essential part of the
information.
The absence of a certification is waived by the failure to allege
it before the plea.
Cases on Right to a New Preliminary Investigation Where Allegation on
Complaint Is Amended
The need to conduct a new preliminary investigation when the
defendant demands it and the allegations of the complaint
have been amended, has been more than once affirmed by
the Supreme Court:
"(a) xxx, the Court finds that since the information for alleged violation
of the Anti-Graft Law was filed without any previous notice to
petitioners and due preliminary investigation thereof, and despite the
dismissal of the original charge for falsification as being without any
factual or legal basis,' petitioners are entitled to a new preliminary
investigation for the graft charge, with all the rights to which they are
entitled under section 1 of Republic Act No. 5180, approved
September 8, 1967, as invoked by them anew from respondent court,
viz., the submittal of the testimonies in affidavit form of the com-
plainant and his witnesses duly sworn to before the investigating fiscal,
and the right of accused, through counsel, to cross-examine them and
to adduce evidence in their defense.
In line with the settled doctrine as restated in People v. Abejuela,
respondent court shall hold in abeyance all proceedings in the case
98
before it until after the outcome of such new preliminary investigation.
OTHER CASES ON WHETHER OR NOT ANOTHER
PRELIMINARY INVESTIGATION IS NEEDED
a. If after preliminary investigation, a case is filed in the
Court of First Instance which was dismissed, the Fiscal
cannot file another information charging a different
offense based on the same preliminary investigation.
He must conduct another preliminary investigation.
The principle does not apply where the original
information was not dismissed.
b. In Bandiala u. Court of First Instance of Misamis
Occidental, where the preliminary investigation was for
robbery in band (with one of the two accused waiving the
second stage), the Court held that the provincial fiscal
could not file against the accused an information for the
graver crime of robbery with kidnapping, without giving
the accused "ample opportunity at full-blown preliminary
investigation to demonstrate that what the fiscal regards
as 'kidnapping* in the legal sense was merely an incident
of, and is therefore absorbed in the crime of robbery."
The Court noted once again that "(A) preliminary
investigation, it must be borne in mind, is a practical
device created by statute and by mandate of our Rules of
Court, principally for the purpose of preventing hasty,
malicious and ill-advised prosecution," and pointedly
emphasized that "(T)he Rules of Court on the matter of
preliminary investigation, construed in their intregrated
entirety, direct that, in the circumstances here obtaining,
the Fiscal, if he believes that he should raise the category
of the offense, must conduct a preliminary investigation
anew as to the entire charge.
Fundamental principles of fair play dictate this course of
action.
The Fiscal is not allowed by the Rules of Court to wait in
ambush; the role of a Fiscal is not mainly to prosecute,
but essentially to do justice to every man and to assist
the courts in dispensing that justice."
A new preliminary investigation is not, however,
necessary after the amendment of the information,
where there has been no change in the nature of the
crime charged which is rebellion, and moreover,
petitioner, who was already in custody when the
amended information was filed, should have asked, but
did not, for a re-investigation of said case within the
period of five days from the time he learned of the
amended information.
c. Where the amendment to an information is not substan-
tial, there is no need of another preliminary investigation.
In Almeda v. Villaluz, the amendment as to habitual
delinquency was not considered substantial.
d. A new preliminary investigation is not called for where
the court orders the filing of correct information involving
a cognate offense, such as unfair competition to
infringement of trademarks."
e. Where only a formal amendment was involved — such as
frustrated murder to consummated murder where death
of the victim supervened a preliminary investigation is
unnecessary and cannot be demanded by the accused.
f. If the crime originally charged is related to the amended
charge such that an inquiry into one would elicit
substantially the same facts that an inquiry into the other
would reveal, a new preliminary investigation is
unnecessary.
g. In Gaspar v. Sandiganbayan, the Supreme Court pointed
out that there is no rule or law requiring the Tanodbayan
to conduct another preliminary investigation of a case
under review by it.
h. It is a fundamental principle that when on its face the
information is null and void for lack of authority to file the
same, it cannot be cured nor resurrected by an
amendment.
Another preliminary investigation must be undertaken
and thereafter, based on the evidence adduced, a new
information should be filed.
Exception to Right of Preliminary Investigation
Exception — There is no right of preliminary investigation
under Section 7, Rule 112 when a person is lawfully arrested
unless there is waiver of the provisions of Article 125 of the
Revised Penal Code.
There is no waiver of the right to a preliminary investigation
despite trial and presentation of four (4) witnesses over the
objection of the accused.
There is a right to preliminary investigation where warrantless
arrest is not lawful.
Motion for Reinvestigation Addressed to Trial Judge
A motion for reinvestigation should, after the court had
acquired jurisdiction over the case, be addressed to the trial
judge and to him alone. Neither the Secretary of Justice, the
State Prosecutor, nor the Fiscal may interfere with the
Judge's disposition of the case, much less impose upon the
court their opinion regarding the guilt or innocence of the
accused, for the court is the sole judge of that.
The private complainant cannot move for reinvestigation.
But he can appeal to the DOJ or the Ombudsman as the case
maybe.
Caution by Court in Granting Reinvestigation
Courts are, however, called upon to exercise great restraint in
granting any reinvestigation with the consequent delay
involved, since the weighing and evaluation of such evidence
in defense of the accused against the State's evidence is best
left to its judgment and its verdict rather than to that of the
prosecution.
To ferret out the truth, trial is to be preferred to a
reinvestigation.
It cannot be denied that in the search for truth, a trial has
distinct merits over a reinvestigation.
A preliminary investigation or reinvestigation, unlike a trial, is
summary in nature.
The direct examination of witnesses is substituted by the
complainant's sworn statement and that of his witnesses, and
by the counter-affidavit of the respondent and his witnesses.
While the respondent may be present at the investigation, he
99
has no right to cross-examine the witnesses against him.
To ferret out the truth, therefore, a trial is to be preferred to
a reinvestigation.
Rather than delay the trial of private respondents waiting for
the conduct and outcome of a reinvestigation, it is best that
respondent Judge set the case for immediate trial
As a general rule, the practice of holding in abeyance a crimi-
nal case already filed for reinvestigation of a case filed by the
fiscal upon the accused's motion to present evidence or newly
discovered evidence should be discouraged because it
generates the impression that the accused would be able to
fix his case or that it would be easier for him to manipulate
and maneuver its dismissal in the fiscal's office.
SEC. 2.
Officers Authorized to Conduct Preliminary
Investigations
Under the B.P. Big. 129 —
SEC. 37. Preliminary Investigation. — Judges of Metropolitan Trial
Courts, except those in the National Capital Region, of Municipal Trial
Courts, and Municipal Circuit Trial Courts shall have authority to
conduct preliminary investigation of crimes alleged to have been
committed within their respective territorial jurisdictions which are
cognizable by the Regional Trial Courts.
The preliminary investigation shall be conducted in
accordance with the procedure prescribed in Section 1,
paragraphs (a), (b), (c), and (d) of Presidential Decree No.
911;
Provided, however. That he shall forward the records of the
case if after the preliminary investigation the Judge finds a
prima facie he shall forward the records of the case to the
Provincial/City Fiscal for the filing of the corresponding
information with the proper court.
No warrant of arrest shall be issued by the Judge in
connection with any criminal complaint filed with him for
preliminary investigation, unless after an examination in
writing and under oath or affirmation of the complaint and his
witnesses, he finds that a probable cause exists.
Any warrant of arrest issued in accordance herewith may be
served anywhere in the Philippines.
The Supreme Court has expanded the offenses offense where
the penalty prescribed by law is at least four (4) years, two
(2) months and one (1) day without regard to the fine even if
it is cognizable by municipal trial courts.
The provisions ofP.D. No. 911 had been incorporated in
Section 3.
A.M. No. 05-8-26-SC (Effective October 3, 2005) removed the
authority of first level judges to conduct preliminary
investigations.
Upon effectivity of the amendments, first level courts shall no
longer accept new cases for preliminary investigation, which
fall under the exclusive jurisdiction of other levels.
Other Persons Authorized to Conduct Preliminary Investigation
a. The COMELEC is vested with power and authority to con-
duct preliminary investigations of all election offenses
punishable under the Omnibus Election Code and to
prosecute offenses in court.
 The COMELEC may, however, deputize other prosecuting
arms of government to conduct the investigation and
prosecute the offense in Court
b. The 1987 Constitution mandates the COMELEC not only
to investigate but also to prosecute cases of violation of
election laws
This means that the COMELEC is empowered to conduct
preliminary investigation in cases involving, election
offenses for the purpose of helping the Judge determine
probable cause and for filing an information in court. This
power is exclusive with COMELEC, whether it involves a
private individual or public officer or employee, and in the
later instance, irrespective of whether the offense is
committed in relation to his official duties or not.
In other words, it is the offender that matters.
As long as the offense is an election offense, jurisdiction
over the same rests exclusively with the COMELEC in
view of its all-embracing power over the conduct of
elections.
Hence, the Provincial Prosecutor, as such assumes no
role ii the prosecution of election offenses.
If the Fiscal or Prosecutor file; an information charging an
election offense or prosecutes a violation of election law,
it is because he has been deputized by the COMELEC.
He does not do so under the sole authority of his office.
Preliminary Investigation of Sandiganbayan Case! a. Office of the
Ombudsman
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 court as well.
The authority of the Ombudsman to investigate and prosecute
offenses committed by public officers and employees is
founded in Section 15 and Section 11 of R.A. No. 6770.
Section 15 vests the Ombudsman with the power to
investigate and prosecute any act or omission of any public
officer or employee, office or agency, when sue act or
omission appears to be illegal, unjust, improper or inefficient
The power to investigate and to prosecute granted by law to
the Ombudsman is plenary and unqualified.
It pertains to any act or omission of any public officer or
employee when such act or omission appears to be illegal,
unjust, improper or inefficient.
The law does not make a distinction between cases cognizable
by the Sandiganbayan and those cognizable by regular
courts.
It has been held that the clause "any illegal act or omission of
any public official" is broad enough to embrace any crime
committed by a public officer or employee.
The reference made by R.A. No. 6770 to cases cognizable by
the Sandiganbayan, particularly in Section 15(1) giving the
Ombudsman primary jurisdiction over cases cognizable by the
Sandiganbayan, and Section 11(4) granting the Special
Prosecutor the power to conduct preliminary investigation and
prosecute criminal cases within the jurisdiction of the
100
Sandiganbayan, should not be construed as confining the
scope of the investigatory and prosecutory power of the
Ombudsman to such cases.
Section 15 of R.A. No. 6770 gives the Ombudsman primary
jurisdiction over cases cognizable by the Sandiganbayan.
The law defines such primary jurisdiction as authorizing the
Ombudsman "to take over, at any stage, from any
investigatory agency of the government, the investigation of
such cases."
The grant of this authority does not necessarily imply the
exclusion from its jurisdiction of cases involving public officers
and employees cognizable by other courts.
The exercise by the Ombudsman of his primary jurisdiction
over cases cognizable by the Sandiganbayan is not
incompatible with the discharge of his duty to investigate and
prosecute other offenses committed by public officers and
employees.
Indeed, it must be stressed that the powers granted by the
legislature to the Ombudsman are very broad and encompass
all kinds of malfeasance, misfeasance and non-feasance
committed by public officers and employees during their
tenure of office.
Power to Investigate, to file and to prosecute, distinguished
A distinction should be made between the power to
investigate, to file and to prosecute ombudsman cases.
A prosecutor has a shared authority to investigate and
prosecute ombudsman cases not cognizable by the
Sandiganbayan.
With respect to cases cognizable by the Sandiganbayan, the
ombudsman has primary authority to investigate and
exclusive authority to file and prosecute Sandiganbayan cases
Section 5, Rule II of Administrative No. 8 of the Office of the
Ombudsman provides that: "Cases falling under the
jurisdiction of the Office of the Ombudsman which are.
cognizable by municipal trial courts, including those subject to
the Rule on Summary Procedure may only be filed in court by
Information approved by the Ombudsman, or the proper
Deputy Ombudsman in all other cases."
Under Republic Act No. 6770, the power to investigate and
prosecute cases which are cognizable by the Sandiganbayan
is now lodged with the Ombudsman.
This includes Ombudsman cases which are cognizable by
regular courts.
The Office of the Special Prosecutor (The Tanodbayan)
As a new Office of the Ombudsman was established, the then
existing Tanodbayan became the Office of the Special
Prosecutor which continued to function and exercise its
powers provided by law, except those conferred on the Office
of the Ombudsman created under the 1987 Constitution.
Distinction between Office of the Ombudsman and Office of the Special
Prosecutor
a. The jurisdiction of the office of the Ombudsman should
not be equated with the limited authority of the Special
prosecutor under Section 11 of R.A. No. 6770 which was
established after the creation of the Office of the Special
Prosecutor.

The office of the special prosecutor is merely a
component of the Office of the Ombudsman and may
only act under the supervision and control and upon
authority of the Ombudsman.
Its power to conduct preliminary investigation and to
prosecute is limited to criminal cases within the
jurisdiction of the Sandiganbayan.
b. The Office of the Special Prosecutor (the Tanod Bayan),
was made an organic component of the Office of the
Ombudsman, who under the supervision and control and
upon authority of the Ombudsman may conduct
preliminary investigation and prosecute criminal cases
within the jurisdiction of the Sandiganbayan.
Or to prosecute cases outside the Sandi-ganbayan's
jurisdiction in accordance with section ll(4c) of R.A. No.
6770, viz., "to perform such other duties assigned to it
by the Ombudsman."
c. While the Ombudsman's investigatory and prose-cutory
power is plenary and unqualified, the authority of the
Special Prosecutor is limited. While the Ombudsdman
may delegate his investigatory function, including the
power to conduct administrative investigation, to the
Special Prosecutor, the latter has no power to
preventively suspend which is only granted to the
Ombudsman and the Deputy Ombudsman.
If the Ombudsman delegates his authority to conduct
administrative investigation to the Special Prosecutor and
the latter finds that preventive suspension is warranted,
the Special Prosecutor may recommend to the
ombudsman to place the said public officer or employee
under preventive suspension."
c-1 Moreover, unless authorizing by the Ombudsman the
special prosecutor is not authorized to file an information.
All that was delegated to the special prosecutor by Office
Order No. 40-05 was the discretional authority to review
and modify the deputy ombudsman-authorized
information, but even this is subject to the condition that
such modification must be "without departing from, or
varying in any way, the contents of the basic resolution,
order or decision."
The doctrine was made operative to cases filed upon the
finality of the decision.
d. Deloso v. Domingo — upheld the primary and concurrent
jurisdiction of Ombudsman to investigate cases
cognizable by the Sandiganbayan under section 15(i) of
R.A. No. 6770 to all kinds of malfeasance by any officer
or employee during his tenure of office.
Preliminary Investigation By Ombudsman
Section 18 of R.A. No. 6770 allows the Office of the Ombuds-
man to promulgate its rules of procedure for the effective
exercise or performance of its powers, functions, and duties.
The rules of procedure shall include a provision whereby the
Rules of Court are made suppletory.
Accordingly, the Office of the Ombudsman promulgated
Administrative Order No. 07 known as the RULES OF
PROCEDURE OF THE OFFICE OF THE OMBUDSMAN (Appendix
K) and Administrative Order No. 08 CLARIFYING AND
MODIFYING CERTAIN RULES OF PROCEDURE OF THE
101
OMBUDSMAN
The order clarified that: "The preliminary investigation of an
Ombudsman case does not have to be conducted strictly in
accordance with Section 3, Rule 112 of the Rules of Court.
Said rule shall be applied as modified by Rule II of
Administrative Order No. 07 of the Office of the Ombudsman.
Particular attention is directed to the provisions thereof of
which are not exactly in conformity with Section 3, Rule 112
of the Rules of Court, such as, those on the:
(1) Issuance of an order in lieu of subpoena for the filing
of counter-affidavits;
(2) Prohibition against a motion to dismiss, motion for a
bill of particulars, and second motion for
reconsideration or reinvestigation;
(3) Manner of conducting clarificatory questioning; and
the
(4) Form of affidavits and counter-affidavits.
It is to be understood, however, that the preliminary
investigation Ombudsman case in accordance with Rule 112
of the Rules of Court is perfectly valid.
The changes in such procedure effected by Administrative
Order No. 07 are designed merely to expedite the process of
preliminary investigation and to conform with the provisions
of Republic Act No. 6770.
The officer who review a case on appeal should not be the
same person whose decision is under review.
Primary Jurisdiction Refers To Cases in Relation To Public Office of
Accused
The primary jurisdiction, refers to cases in relation to public
office of accused [and punishable for more than six years or a
fine of P6,000.00.]
The Ombudsman's primary power to investigate is dependent
on the cases cognizable by the Sandiganbayan.
Thus, the public prosecutor may conduct preliminary
investigation of Mayor's criminal acts not in relation to his
public office.
For Ombudsman's authority to overrule investigatory prosecu-
tor, see Cruz v. People, and Sec. 4, Rule 112.
Any officer authorized to conduct a preliminary investigation
who is investigating an offense or felony committed by public
officer must determine if the crime was committed by the
respondent in relation to his office.
If it was, the investigating officer shall forthwith inform the
office of the Ombudsman who may either:
(a) Take over the investigation of the case pursuant to
Section 15(1) of R.A. No. 6770; or
(b) Deputize a prosecutor to act as special investigator
or prosecutor to assist in the investigation and
prosecution of the case pursuant to section 31
thereof.
In light of the broad powers conferred by law on the
Ombudsman and the Special Prosecutor, it is completely
inconsequential that the complaint by which a criminal case
was instituted charging a crime cognizable by the
Sandiganbayan — might have been originally filed with the
Iloilo Prosecution Office, or the preliminary investigation
therein conducted.
Power Includes all Criminal Cases Involving Public Officers and
Employees
In its Resolution On March 20, 2001 The Court in George Uy v
Sandiganbayan, which was reiterated in Office of the
Ombudsman v. Breua, categorically stated that: "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."
Elaborating on its n ruling nullifying its earlier decision,
writes:
THE AUTHORITY OF THE OMBUDSMAN TO INVESTIGATE
AND PROSECUTE OFFENSES COMMITTED BY PUBLIC
OFFICERS AND EMPLOYEES IS FOUNDED IN SECTION
15 AND SECTION 11 OF R.A. NO. 6770. SECTION 15
VESTS THE OMBUDSMAN WITH THE POWER TO
INVESTIGATE AND PROSECUTE 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,
THUS:
"Sec. 15. Powers, Functions and Duties. — The Office of the
Ombudsman shall have the following powers, functions and duties:
(1) Investigate and prosecute on its own or on complaint by any
person, 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.
It has primary jurisdiction over cases cognizable by the Sandiganbayan
and, in the exercise of this primary jurisdiction, it may take over, at
any stage, from any investigatory agency of Government, the
investigation of such cases
Section 11 grants the Office of the Special Prosecutor, an organic
component of the Office of the Ombudsman... the power to conduct
preliminary investigation and prosecute criminal cases within the
jurisdiction of the Sandiganbayan. It states:
"Sec. 11. Structural Organization. — xxx xxx xxx xxx
(4) The Office of the Special Prosecutor shall, under the supervision
and control and upon authority of the Ombudsman, have the following
powers:
(a) To conduct preliminary investigation and prosecute criminal cases
within the jurisdiction of the Sandiganbayan;
The power to investigate and to prosecute granted by law to
the Ombudsman is plenary and unqualified.
It pertains to any act or omission of any public officer or
employee when such act or omission appears to be illegal,
unjust, improper or inefficient.
The law does not make a distinction between cases cognizable
by the Sandiganbayan and those cognizable by regular
courts.
It has been held that the clause "any illegal act or omission of
any public official" is broad enough to embrace any crime
committed by a public officer or employee.
The reference made by R.A. No. 6770 to cases cognizable by
the Sandiganbayan, particularly in Section 15(1) giving the
102
Ombudsman primary jurisdiction over cases cognizable by the
Sandiganbayan, and Section 11(4) granting the Special
Prosecutor the power to conduct preliminary investigation and
prosecute criminal cases within the jurisdiction of the
Sandiganbayan, should not be construed as confining the
scope of the investigatory and prosecutory power of the
Ombudsman to such cases.
Section 15 of R.A. No. 6770 gives the Ombudsman primary
jurisdiction over cases cognizable by the Sandiganbayan.
The law defines such primary jurisdiction as authorizing the
Ombudsman "to take over, at any stage, from any
investigatory agency of the government, the investigation of
such cases."
The grant of this authority does not necessarily imply the
exclusion from its jurisdiction of cases involving public officers
and employees cognizable by other courts.
Moreover, the jurisdiction of the Office of the Ombudsman
should not be equated with the limited authority of the
Special Prosecutor under Section 11 of R.A. No. 6770 [whose]
power to conduct preliminary investigation and to prosecute is
limited to criminal cases within the jurisdiction of the
Sandiganbayan.
Certainly, the lawmakers did not intend to confine the
investigatory and prosecutory power of the Ombudsman to
these types of cases.
The Ombudsman is mandated by law to act on all complaints
against officers and employees of the government....
The Presidential Commission on Good Government (PCGG)
Prosecution for Violations of RA. No. 3019 (Anti-Graft Law)
and RA. No. 1379 (Unexplained Wealth)
Under Executive Order No. 14, signed by President Aquino on
May 7, 1986.
The Presidential Commission on Good Government with the
assistance of the Office of the Solicitor General and other
government agencies, were empowered to file and prosecute
all cases investigated by it under Executive Order No. 1,
dated February 28, 1986 and Executive Order No. 2, dated
March 12, 1986, as may be warranted by its findings.
The Presidential Commission on Good Government shall file
all such cases, whether civil or criminal, with the
Sandiganbayan, which shall have exclusive and original juris-
diction thereof.
Upon the other hand, civil suits for restitution, reparation of
damages, or indemnification for consequential damages,
forfeiture proceedings provided for under Republic Act No.
1379, or any other civil actions under the Civil Code or other
existing laws, in connection with Executive Order No. 2, dated
March 12, 1986, may be filed separately from and proceed
independently of any criminal proceedings and may be proved
by preponderance of evidence.
From the foregoing provisions of law, particularly Sections
2(b) and 3(a) of Executive Order No. 1 and Sections 1 and 2
of Executive Order No. 14, the PCGG has the power to
investigate and prosecute such ill-gotten wealth cases of the
former President, his relatives and associates, and graft and
corrupt practices cases that may be assigned by the President
to the PCGG to be filed with the Sandiganbayan.
The authority to investigate extended to the PCGG includes
the authority to conduct a preliminary investigation.
The ruling was further clarified in Cruz, Jr. v. Sandiganbayan:
THE COURT THEN HELD THAT SECTIONS 2(A) AND 3, OF
EXECUTIVE ORDER NO. 1, IN RELATION WITH
SECTIONS 1, 2 AND 3 OF EXECUTIVE ORDER NO. 14,
SHOWS THAT WHAT THE AUTHORITY OF THE
RESPONDENT PCGG TO INVESTIGATE AND PROSECUTE
COVERS ARE:
a. The investigation and prosecution of the civil action for the
recovery of ill-gotten wealth under Republic Act No. 1379, accu-
mulated by former President Marcos, his immediate family,
relatives, subordinates and close associates, whether located in
the Philippines or abroad, including the takeover or sequestration
of all business enterprises and entities owned or controlled by
them, during his administration, directly or through his nominees,
by taking undue advantage of their public office and/or using
their powers, authority and influence, connections or relationship;
and
b. The investigation and prosecution of such offenses committed in
the acquisition of said ill-gotten wealth as contemplated under
Section 2(a) of Executive Order No. 1.
However, other violations of the Anti-Graft and Corrupt Practices
Act not otherwise falling under the foregoing categories, require a
previous authority of the President for the PCGG to investigate
and prosecute the same in accordance with Section 2(b) of
Executive Order No. 1.
Otherwise, jurisdiction over such cases is vested in the
Ombudsman and other duly authorized investigating agencies as
the provincial and city prosecutors, their assistants, the Chief
State Prosecutor and his assistants, and the state prosecutors.
c. The PCGG would not have jurisdiction over an ordinary case
falling under Rep. Act Nos. 3019 and 1379.
The PCGG may, however, investigate and cause the prosecution
of active and retired members of the AFP for violations ofR.A.
Nos. 3019 and 1379 only in relation to E.O. Nos. 1, 2, 14, and
14-a, i.e., insofar as they involve the recovery of ill-gotten wealth
of former President Marcos and his family and his cronies.
d. The appropriate prosecutory agencies that may investigate and
file the petition under R.A. No. 1379 and file the petition for
forfeiture of unexplained wealth against a private citizen are the
provincial prosecutor and the Solicitor General
e. For violation of R.A. No. 3019 and 1379 of those who are still in
office the agency granted the power to investigate and prosecute
them is the office of the Ombudsman.
Under Presidential Decree No 1606, as amended and Batas
Pambansa Big. 195, violation of Rep. Act Nos. 3019 and 1379
shall be tried by the Sandiganbayan.
It is a civil procreedings in rem but criminal in nature
The law underwent several changes. Under R.A. No. 6770 the
Ombudsman was granted the authority to investigate and
initiate the proper action for the recovery of ill-gotten and/or
unexplained wealth amassed after 25 February 1986 and the
prosecution of the parties involved.
After reviewing the legislative history of the Sandiganbayan
and the Office of the Ombudsman, the Court declared that
"UNDER R.A. NO. 8249, THE SANDIGANBAYAN IS
VESTED WITH EXCLUSIVE ORIGINAL JURISDICTION IN
ALL CASES INVOLVING VIOLATIONS OF R.A. NO. 3019,
R.A. NO. 1379, AND CHAPTER II, SEC. 2, TITLE VII,
BOOK II OF THE REVISED PENAL CODE, WHERE ONE OR
MORE OF THE ACCUSED ARE OFFICIALS OCCUPYING
THE FOLLOWING POSITIONS WHETHER IN A
PERMANENT, ACTING OR INTERIM CAPACITY, AT THE
103
TIME OF THE COMMISSION OF THE OFFENSE:
(1) Officials of the executive branch occupying the positions of regional
director and higher, otherwise classified as Grade '27' and higher, of
the Compensation and Position Classification Act of 989 (R.A. No.
6758), specifically including:
(a) Provincial governors, vice-governors, members of the
sangguniang panlalawigan, and provincial treasurers,
assessors, engineers, and other city department heads;
(b) City mayor, vice-mayors, members of the sangguniang
panlungsod, city treasurers, assessors, engineers, and other
city department heads;
(c) Officials of the diplomatic service occupying the position of
consul and higher;
(d) Philippine army and air force colonels, naval captains, and all
officers of higher rank;
(e) Officers of the Philippine National Police while occupying the
position of provincial director and those holding the rank of
senior superintendent or higher;
(f) City and provincial prosecutors and their assistants, and
officials and prosecutors in the Office of the Ombudsman
and special prosecutor;
(g) Presidents, directors or trustees, or managers of
government-owned or controlled corporations, state
universities or educational institutions
The PCGG may, however, also investigate and prosecute graft
and corrupt practices cases that may be assigned by the
President to the PCGG to be filed with the Sandiganbayan.
Non-interference with Ombudsman
The Court recognizing the investigatory and prosecutory pow-
ers granted by the Constitution to the office of the
Ombudsman and for reasons of practicality, declared in an en
bane resolution dated August 30, 1993, issued in Ocampo u.
Ombudsman, that the Court will not interfere nor pass upon
the findings of the Ombudsman to avoid its being hampered
by innumerable petitions assailing the dismissal of
investigatory proceedings conducted by the Office of the
Ombudsman with regard to complaints filed before it, and
that it will not review the exercise of discretion on the part of
the fiscals or prosecuting attorneys each time they decide to
file an information in court or dismiss a complaint by a private
complainant.
The court, however, stressed that while it is the Ombudsman
who has full discretion to determine whether or not a criminal
case should be filed in the Sandiganbayan, once the case has
been filed with said court, it is the Sandiganbayan, and no
longer the Ombudsman, which has full control of the case so
much so that the informations may not be dismissed without
the approval of said court.
No Injunction Against Ombudsman to Delay Investigation
Under Section 14 of Republic Act No. 6770: No writ of injunc-
tion shall be issued by any court to delay an investigation
being conducted by the Ombudsman under this act, unless
there is a prima facie evidence that the subject matter of the
investigation is outside the jurisdiction of the office of the
Ombudsman.
Moreover, no court shall hear any appeal or application for
remedy against the decision or findings of the Ombudsman
except the Supreme Court, on pure question of law.
Remedy
The remedy of aggrieved parties from resolutions of the office
of the Ombudsman finding probable cause in criminal cases or
non-administrative cases, when tainted with grave abuse of
discretion, is to file an original action for certiorari with the
Supreme Court and not with the Court of Appeals.
Jurisdiction over money-laundering cases
The Anti money-laundering law provides for two kinds of
cases which are independent of each other.
The criminal action for anti-money-laundering offense and the
civil forfeiture proceedings which may be filed separately and
proceed independently of the criminal prosecution.
a. The Criminal Action
Republic Act No. 9160 as amended (The Anti-Money
Laundering Act of 2001)
Defines —
Money Laundering Offense. — Money laundering is a
crime whereby the proceeds of an unlawful activity are
transacted, thereby making them appear to have
originated from legitimate sources.
It is committed by the following:
1) Any person knowing that any monetary instrument
or property represents, involves, or relates to the
proceeds of any unlawful activity, transacts or
attempts to transact said monetary instrument or
property.
2) Any person knowing that any monetary instrument
or property involves the proceeds of any unlawful
activity, performs or fails to perform any act as a
result of which he facilitates the offense of money
laundering referred to in paragraph (a) above.
3) Any person knowing that any monetary instrument
or property is required under this Act to be disclosed
and filed with the Anti-Money Laundering Council
(AMLC), fails to do so.
b. Jurisdiction of Money Laundering Cases
The regional trial courts shall have jurisdiction to try all
cases on money laundering.
Those committed by public officers and private persons
d.
who are in conspiracy with such public officers shall be
under the jurisdiction of the Sandiganbayan.
The foregoing section apparently refers to the criminal
offense of anti-money laundering as defined in section 4
of the law.
c. The Civil Forfeiture Proceedings
The law provided that in petitions for civil forfeiture the
Revised Rules of Court shall apply.
In consequence thereof, the Supreme Court issued the
RULE OF PROCEDURE IN CASES OF CIVIL FORFEITURE,
ASSET PRESERVATION, AND FREEZING OF MONETARY
INSTRUMENT, PROPERTY, OR PROCEEDS
REPRESENTING, INVOLVING, OR RELATING TO AN
UNLAWFUL ACTIVITY OR MONEY LAUNDERING OFFENSE
UNDER REPUBLIC ACT NO. 9160, AS AMENDED
104
The Rule expressly provided that —
The Rule shall govern all proceedings for civil forfeiture,
asset preservation and freezing of monetary instrument,
property, or proceeds representing, involving, or relating
to an unlawful activity or a money laundering offense
under Republic Act No. 9160, as amended.
The Revised Rules of Court shall apply suppletorily when
not inconsistent with the provisions of this special Rule.
TITLEII of the Rule provided only for Civil Forfeiture in the
Regional Trial Court. Thus —
SEC. 2. Party to institute proceedings. — The Republic of the
Philippines, through the Anti-Money Laundering Council,
represented by the Office of the Solicitor General, may institute
actions for civil forfeiture and all other remedial proceedings in
favor of the State of any monetary instrument, property, or
proceeds representing, involving, or relating to an unlawful
activity or a money laundering offense.
SEC. 3. Venue of cases cognizable by the regional trial court. — A
petition for civil forfeiture shall be filed in any regional trial court
of the judicial region where the monetary instrument, property,
or proceeds representing, involving, or relating to an unlawful
activity or to a money laundering offense are located;
Provided, however. That where all or any portion of the monetary
instrument, property, or proceeds is located outside the
Philippines, the petition may be filed in the regional trial court in
Manila or of the judicial region where any portion of the monetary
instrument, property, or proceeds is located, at the option of the
petitioner.
The Rule does not provide for civil forfeiture before the
Sandiganbayan.
The law created an Anti-Money Laundering Council
(AMLC). — tasked with implementing the law, was
empowered:
(1) to institute civil forfeiture proceedings and all other
remedial proceedings through the Office of the
Solicitor General;
(2) to cause the filing of complaints with the Department
of Justice or the Ombudsman for the prosecution of
money laundering offenses;
(3) to initiate investigations of covered transactions,
money laundering activities and other violations of
this Act.
Civil and Criminal Forfeiture Distinguished
It is to be noted that under the Anti-Money Laundering
Act, so far as Civil Forfeiture is concerned it is the AMLC
that is authorized to institute civil forfeiture proceedings
and all other remedial proceedings through the Office of
the Solicitor General with the Regional Trial Court.
There is no similar authority to file such cases with the
Sandiganbayan.
It is only in criminal cases that the AMLC is authorized to
cause the filing of complaints with the Department of
Justice or the Ombudsman for the prosecution of money
laundering offenses.
But unlike Civil Forfeiture under R.A. No. 1379 which
specifically authorized its filing by the Ombudsman or
thru the Office of Special Prosecutor in the
Sandiganbayan.

No similar authority have been granted the Ombudsman
with respect to civil forfeiture under the Anti-money
Laundering Law.
SEC. 3.
Procedure
COMMENT:
1. Amendment in paragraph (a) requires that the complaint
should be accompanied by affidavits of the complainant and his
witnesses as well as other supporting papers relied upon by him
(the complainant) to establish probable cause.
A significant amendment is the 2nd paragraph of par. (b)
regarding respondent's right to examine all other evidence
submitted by the complainant of which he may not have been
furnished and to obtain copies thereof at his expense.
If such records are voluminous the complainant may be required
to specify and identify those which he intends to present against
the respondent to support the charge against the latter and these
shall be made available for examination, copying or
photographing by respondent at his expense.
The amendment was brought about because of the case of
Commissioner of Internal Revenue v. Court ofAppeals, where
among the issues raised is the failure of the complainant to
produce the documents in support of the complaint.
For obvious reasons, objects as evidence need not be furnished
either party but shall be made accessible for examination,
copying or photocopying by the complainant or respondent at the
expense of the requesting party.
2. The amendment in paragraph (c) prohibits the filing of a motion
to dismiss. This is a significant amendment.
It abrogates the ruling in Commissioner of Internal Revenue v.
Court of Appeals, where the court castigated the investigator for
proceeding without first acting on respondents' motion to dismiss.
Since a motion to dismiss is now a prohibited pleading, the
investigator may properly ignore such a motion.
The amendments require the respondent to submit counter-
affidavits and other supporting documents relied upon by him for
his defense.
3. The amendment in sub-par, (d) requires the prosecutor to resolve
the complaint based on the evidence presented by the com-
plainant if the respondent cannot be subpoenaed or, if
subpoenaed, does not submit counter-affidavit[s] within the ten
(10-day period.
4. In sub-par, (e), the clarificatory hearing shall only be limited to
facts and issues which the investigating officer believes need to
be clarified.
The clarificatory hearing shall be held within ten (10) days from
submission of the counter-affidavit and other documents, or from
expiration of the period for their submission. It shall be ter-
minated within five (5) days.
5. The investigation shall then be deemed concluded and the
investigating officer shall, within ten (10) days, determine
whether or not there is sufficient ground to hold the respondent
for trial upon the evidence adduced.
Preliminary Investigation — Concept
a. A preliminary investigation is merely inquisitorial, but it is
considered as a judicial proceeding wherein the
prosecutor or investigating officer, by the nature of his
functions acts as a quasi-judicial officer.
The conduct of a preliminary investigation is the initial
step towards the criminal prosecution of a person.
105
After such preliminary investigation, if the investigating
officer finds that there is sufficient ground to engender a
well-founded belief that a crime has been committed and
that the respondent is probably guilty thereof and should
be held for trial, then the corresponding complaint or
information shall be filed in the competent court.
It is the filing of said complaint or information that
initiates the criminal prosecution of the accused when he
is brought to court for trial.
b. Importance of Preliminary Investigation
The Supreme Court stressed the importance of a
preliminary investigation or how the same should be
conducted in order for it to conform with the essential
requisites of due process and reiterated its ruling in the
cases of Salonga v. Pano, et al., and Geronimo v. Ramos,
that:
"The purpose of a preliminary investigation is to secure
the innocent against hasty, malicious and oppressive
prosecution, and to protect him from an open and public
accusation of crime, from the trouble, expense and
anxiety of a public trial, and to protect the state from
useless and expensive trials.
The right to a preliminary investigation is a statutory
grant, and to withhold it would be to transgress
constitutional due process."
However, in order to satisfy the due process clause, it is
not enough that the preliminary investigation is
conducted in the sense of making sure that a
transgressor shall not escape with impunity.
A preliminary investigation serves not only the purposes
of the State.
More important, it is a part of the guarantee of freedom
and fair play which are birthrights of all who live in our
country.
It is, therefore, imperative upon the fiscal or the judge as
the case may be, to relieve the accused from the pain of
going through a trial once it is ascertained that the
evidence is insufficient to sustain a prima facie case or
that no probable cause exists to form a sufficient belief
as to the guilt of the accused.
Although there is no general formula or fixed rule for the
determination of probable cause since the same must be
decided in the light of the conditions obtaining in given
situations and its existence depends to a large degree
upon the finding or opinion of the prosecutor (judge)
conducting the examination, such a finding should not
disregard the facts before the prosecutor (judge) nor run
counter to the clear dictates of reasons.
Such a preliminary investigation must be undertaken in
accordance with the procedure provided in Section 3,
Rule 112 of The Revised Rules on Criminal Procedure.
This procedure is to be observed in order to assure that a
person undergoing such preliminary investigation will be
afforded due process.
c. The Proceedings are Considered as Judicial in Nature
Thus, the conduct of a preliminary investigation, which is
defined as "an inquiry or proceeding for the purpose of
determining whether there is sufficient ground to
 engender a well-founded belief that a crime has been
committed and that the respondent is probably guilty
thereof, and should be held for trial," is, like court
proceedings, subject to the requirements of both
substantive and procedural due process.
This is because a preliminary investigation is considered
a judicial proceeding wherein the prosecutor or inves-
tigating officer, by the nature of his functions, acts as a
quasi-judicial officer, but only to the extent that, like
quasi-judicial bodies, the prosecutor is an officer of the
executive department exercising powers akin to those of
a court.
d. DOJ is not a quasi-judicial agency; Preliminary
Investigation is not a quasi-judicial proceeding
reviewable under Rule 43
The Court, however, clarified that: A preliminary
investigation is not a quasi-judicial proceeding, and the
DOJ is not a quasi-judicial agency exercising a quasi-
judicial function when it reviews the findings of a public
prosecutor regarding the presence of probable cause.
The Court pointedto its ruling in Bautista u. Court of
Appeals, holding that a preliminary investigation is not a
quasi-judicial proceeding, thus:
[t]he prosecutor in a preliminary investigation does not determine
the guilt or innocence of the accused. He does not exercise
adjudication nor rule-making functions.
Preliminary investigation is merely inquisitorial, and is often the
only means of discovering the persons who may be reasonably
charged with a crime and to enable the fiscal to prepare his
complaint or information.
It is not a trial of the case on the merits and has no purpose
except that of determining whether a crime has been committed
and whether there is probable cause to believe that the accused
is guilty thereof.
While the fiscal makes that determination, he cannot be said to
be acting as a quasi-court, for it is the courts, ultimately, that
pass judgment on the accused, not the fiscal.
Though some cases describe the public prosecutor's
power to conduct a preliminary investigation as quasi-
judicial in nature, this is true only to the extent that, like
quasi-judicial bodies, the prosecutor is an officer of the
executive department exercising powers akin to those of
a court, and the similarity ends at this point.
A quasi-judicial body is as an organ of government other
than a court and other than a legislature which affects
the rights of private parties through either adjudication or
rule-making.
A quasi-judicial agency performs adjudicatory functions
such that its awards, determine the rights of parties, and
their decisions have the same effect as judgments of a
court.
Such is not the case when a public prosecutor conducts a
preliminary investigation to determine probable cause to
file an information against a person charged with a
criminal offense, or when the Secretary of Justice is
reviewing the former's order or resolutions.
Since the DOJ is not a quasi-judicial body and it is not
one of those agencies whose decisions, orders or
resolutions are appealable to the Court of Appeals under
Rule 43, the resolution of the Secretary of Justice finding
probable cause to indict petitioners for estafa is, not
106
appealable to the Court of Appeals via a petition for
review under Rule 43.
However, the Resolution of the DOJ Secretary is
appelable administratively to the Office of the President
where the offense charged is punishable by Reclusion
perpetua."
The availability of the remedy of a petition for review
under Rule 43 of the Rules of Court to appeal the
Decision and Resolution of the Office of the President
effectively foreclose the right to resort to a special civil
action for certiorari.
RESPONDENT CANNOT BE COMPELLED TO SUBMIT COUNTER-
AFFIDAVIT BEFORE COMPLAINANT HAS SUBMITTED ITS AFFIDAVITS;
CRIMINAL INVESTIGATION AND PRELIMINARY INVESTIGATION
DISTINGUISHED
The respondent undergoing a preliminary investigation may
not be compelled to submit a counter-affidavit before the
submission of complainant's affidavit.
The general power of investigation of the PCGG as consisting
of two stages; the first stage, called the criminal
investigation, is a fact-finding inquiry conducted by law
enforcement agents, whereby they gather evidence and
interview witnesses and afterwards assess the evidence so
that, if they find sufficient basis, they can file a complaint for
the purpose of preliminary investigation.
The second stage, called the preliminary investigation stage,
is conducted for the purpose of ascertaining if there is
sufficient evidence to bring a person to trial.
Having found petitioner prima facie guilty of violation of Rep.
Act No. 3019 for which reason it issued a freeze order against
him and filed a civil complaint for recovery of alleged ill-
gotten wealth, the PCGG could not thereafter act as an
impartial judge in conducting a preliminary investigation of
criminal complaints based on the same facts found by it to
constitute prima facie evidence against petitioner.
In our criminal justice system, the law enforcer who
conducted the criminal investigation, gathered the evidence
and thereafter filed the complaint for the purpose of
preliminary investigation cannot be allowed to conduct the
preliminary investigation of his own complaint. It is to say the
least arbitrary and unjust.
One cannot be a prosecutor and judge at the same time.
Having gathered the evidence and filed the complaint as a law
enforcer, he cannot be expected to handle with impartiality
the preliminary investigation of his own complaint, this time
as a public prosecutor.
Since a preliminary investigation is designed to screen cases
for trial, only evidence may be considered.
While reports and even raw information may justify the
initiation of an investigation, the stage of preliminary
investigation can be held only after sufficient evidence has
been gathered and evaluated warranting the eventual
prosecution of the case in court.
Meaning of Probable Cause for Purpose of Filing Information
Probable cause is a reasonable ground of presumption that a
matter is, or may be, well-founded does not mean actual and
positive cause nor does it import actual certainty.
It is merely based on opinion and reasonable belief.
Thus, a finding of probable cause does not require an inquiry
into whether there is sufficient evidence to procure a
conviction.
It is enough that it is believed that the act or omission
complained of constitutes an offense charged.
Precisely, there is a trial for the reception of evidence of the
prosecution in support of the charge.
Probable cause is the existence of such facts and
circumstances as would excite the belief in a reasonable
mind, acting on the facts within the knowledge of the
prosecutor, that the person charged was guilty of the crime
for which he was prosecuted.
As a protection against false prosecution and arrest, the
knowledge of facts, actual or apparent must, however, be
strong enough to justify a reasonable man in the belief that
he has lawful grounds for arresting the accused
It is such a state of facts in the mind of the prosecutor as
would lead a person of ordinary caution and prudence to
believe an honest or strong suspicion that a thing is so.
The term does not mean "actual or positive cause"; nor does
it import absolute certainty.
It is merely based on opinion and reasonable belief.
Determination of Probable Cause
As summed up in Webb u. de Leon, a finding of probable
cause needs only to rest on evidence showing that more likely
than not
a crime has been committed and was committed by the
suspects.
Probable cause need not be based on clear and convincing
evidence of guilt, neither on evidence establishing guilt
beyond reasonable doubt and definitely, not on evidence
establishing absolute certainty of guilt.
As well put in Brinegar v. United States, while probable cause
demands more than "bare suspicion," it requires "less than
evidence which would justify x x x a conviction."
A finding of probable cause merely binds over the suspect to
stand trial.
It is not a pronouncement of guilt.
Thus, probable cause should be determined in a summary but
scrupulous manner to prevent material damage to a potential
accused's constitutional right to liberty and the guarantees of
freedom and fair play.
The preliminary investigation is not the occasion for the full
and exhaustive display of the parties evidence.
It is for the presentation of such evidence as may engender a
well grounded belief that an offense has been committed and
that the accused is probably guilty thereof.
It is a means of discovering the persons who may be
reasonably charged with a crime.
The validity and merits of a party's defense or accusation, as
well as admissibility of the testimonies and evidence, are
better ventilated during trial proper than at the preliminary
107
investigation level.
No Need to Set Investigation for Clarificatory Questioning
Considering the low quantum and quality of evidence needed
to support a finding of probable cause, the court held that the
DOJ Panel did not gravely abuse its discretion in refusing to
call the NBI witnesses for clarificatory questions.
The decision to call witnesses for clarificatory questions is
addressed to the sound discretion of the investigator and the
investigator alone.
If the evidence on hand already yields a probable cause, the
investigator need not hold a clarificatory hearing.
Probable cause merely implies probability of guilt and should
be determined in a summary manner.
Preliminary investigation is not a part of trial and it is only in
a trial where an accused can demand the full exercise of his
rights, such as the right to confront and cross-examine his
accusers to establish his innocence.
It is not the proper forum for an exhaustive production of
evidence.
Stages of Preliminary Investigation: Former and Present Rule
The Court, pointed out in Sangguniang Bayan ofBatac v.
Judge Efren Albano, that the two stages under the old rule,
namely:
(1) the preliminary examination stage, during which the
investigating judge determines whether there is
reasonable ground to believe that an offense has been
committed, and the accused is guilty thereof, so that a
warrant of arrest may be issued and the accused hold for
trial; and
(2) the preliminary investigation proper, where the complaint
or information is read to the accused after his arrest and
he is informed of the substance of the evidence adduced
against him, after he is allowed to present his evidence in
his favor if he so desires, was changed by Presidential
Decree No. 911, upon which the present rule is based
which removed the preliminary examination stage and
integrated it into the preliminary investigation proper.
Now, the proceedings consist only of one stage.
JUDGES OF REGIONAL TRIAL COURTS (FORMERLY COURTS OF FIRST
INSTANCE) NO LONGER HAVE AUTHORITY TO CONDUCT PRELIMINARY
INVESTIGATIONS
That authority, at one time, reposed in them under Sections
13, 14 and 16, Rule 112 of the Rules of Court of 1964 was
removed from them by the 1985 Rules on Criminal Procedure,
effective on January 1, 1985, which deleted all provisions
granting that power to said judges.
The Supreme Court had occasion to point this out in Salta v.
Court of Appeals, and to stress as well certain other basic
propositions, namely:
(1) that the conduct of a preliminary investigation is "not
a judicial function x x x (but) part of the
prosecution's job, a function of the executive,"
(2) that wherever "there are enough fiscals or
prosecutors to conduct preliminary investigations,
courts are counseled to leave this job which is
 essentially executive to them," and the fact "that a
certain power is granted does not necessarily mean
that it should be indiscriminately exercised."
The 1988 Amendments to the 1985 Rules on Criminal Proce-
dure, declared effective on October 1, 1988, did not restore
that authority to Judges of Regional Trial Courts; said
amendments did not in fact deal at all with the officers or
courts having authority to conduct preliminary investigations.
Judges' Power (Duty) to Conduct Preliminary Examination
This is not to say, however, that somewhere along the line,
RTC Judges also lost the power to make a preliminary
examination for the purpose of determining whether probable
cause exists to justify the issuance of a warrant of arrest (or
search warrant).
Such a power — indeed, it is as much a duty as it is a power
— has been and remains vested in every judge by the
provision in the Bill of Rights in the 1935, the 1973 and the
present 1987 Constitutions securing the people against
unreasonable searches and seizures, thereby placing it
beyond the competence of mere Court rule or statute to
revoke.
The distinction must, therefore, be made clear.
While an RTC Judge may no longer conduct preliminary
investigations to ascertain whether there is sufficient ground
for the filing of a criminal complaint or information, he retains
the authority when such a pleading is filed with his Court, to
determine whether there is probable cause justifying the
issuance of a warrant of arrest.
It might be added that this distinction accords, rather than
conflicts, with the rationale of Salta because both law and
rule, in restricting to judges the authority to order arrest,
recognize that function to be judicial in nature.
No Right of Cross-Examination
It is a fundamental principle that the accused in a preliminary
investigation has no right to cross-examine the witnesses
which the complainant may present.
Section 3, Rule 112 of the Rules of Court expressly provides
that the respondent shall only have the right to submit a
counter-affidavit, to examine all other evidence submitted by
the complainant and, where the fiscal sets a hearing to
propound clarificatory questions to the parties or their
witnesses, to be afforded an opportunity to be present but
without the right to examine or cross-examine.
The parties may propound questions thru the investigating
officer.
Absence of Counsel
Where the accused is not represented by a counsel during the
preliminary investigation, such irregularity which amounts to
an absence of preliminary investigation should be raised
before the trial court.
When so raised, the trial court is called upon not to dismiss
the information but hold the case in abeyance and conduct its
own investigation or require the fiscal to hold a
reinvestigation.
This is the proper procedure since the absence of such
investigation did not impair the validity of the information or
otherwise render it defective.
108
Much less did it affect the jurisdiction of the trial court.
The right to a preliminary investigation, being waivable does
not argue against the validity of the proceedings.
The most that should be done is to remand the case in order
that such investigation could be conducted.
No Right to Counsel During Preliminary Investigation
It has been held that there is nothing in the rules which
renders a preliminary investigation invalid because defendant
was without counsel.
See, however, People v. Abano, where the confession
obtained during preliminary investigation without the
assistance of counsel was held as inadmissible.
The Right of Accused to Discovery Procedures
In Webb u. de Leon, the court held that an accused is entitled
during preliminary investigation to discovery procedure.
While recognizing the absence of any provision in the Rules
on Criminal Procedure for discovery proceedings during
preliminary investigation, the Court held that such failure
does not, however, negate its use by a person under
investigation when indispensable to protect his constitutional
right to life, liberty and property.
Preliminary investigation is not too early a stage to guard
against significant erosion of the constitutional right to due
process of a potential accused; x x x and upheld the legal
basis of the right of petitioners to demand from their
prosecutor, the NBI, the original copy of the sworn statement
and the FBI report considering their exculpatory character,
and hence, unquestionable materiality to the issue of their
probable guilt.
Under the present rule, the respondent shall have the right to
examine the evidence submitted by the complainant which he
may not have been furnished and to copy them at his
expense.
If the evidence is voluminous, the complainant may be
required to specify those which he intends to present against
the respondent, and these shall be made available for
examination or copying by the respondent at his expense.
Preliminary Designation of Offense Not Conclusive
The preliminary designation of the offense in a directive to file
counter affidavits is not conclusive as to the true nature of
the offense charged.
The Right to be Present Not Absolute
The New Rules on Criminal Procedure does not require as a
condition sine qua non to the validity of the proceedings in
the preliminary investigation; the presence of the accused for
as long as efforts to reach him were made, and an
opportunity to controvert the evidence of the complainant is
accorded him.
The obvious purpose of the rule is to block attempts of
unscrupulous respondents to thwart the prosecution of
offenses by hiding themselves or by employing dilatory
tactics.
Thus, preliminary investigation can be conducted ex-parte if
the respondent cannot be subpoenaed or does not appear
after due notice.
The fiscal need not call the witnesses for clarificatory ques-
tioning if the evidence on hand already yields probable cause.
The Right to Notice
The, respondent is, however, entitled to be notified of the
proceedings and to be present thereat.
The fact that he was not so notified is a denial of fundamental
fairness which taints the preliminary investigation.
In a petition for forfeiture under R.A. No. 1379 respondent
must be furnished a copy of the resolution directing the filing
of a petition for forfeiture and to file a motion for reconsidera-
tion.
The notice must be sent at the right address.
Preliminary Investigation Must Be Completed
Where the rules of the Ombudsman (R.A. No. 6770, Sec. 7,
Rule II, Administrative Order No. 7), allows a party to file a
motion for reconsideration, but the respondents were not
furnished a copy of the resolution and an opportunity to file a
motion for reconsideration before the filing of the information
against them in court, the Supreme Court held that, they
were deprived of their right to a full preliminary investigation
preparatory to the filing of the information against them,
which warranted the remand of the case to the Office of the
Ombudsman to complete the preliminary investigation.
The failure, however, to furnish the respondent with a copy of
an adverse resolution pursuant to Section 6, Rule II of the
Rules of Procedure of the Office of the Ombudsman, does not
affect the validity of information thereafter filed.
Under Section 7(b) of the same Rule no motion from
reconsideration or reinvestigation shall be entertained after
the information shall have been filed in court, except upon
order of the court wherein the case was filed.
Thus, when required by law the right to a preliminary
investigation is a substantial right and its denial amounts to a
denial of due process.
Its absence, however, is not a ground for a motion to quash.
General Court Martial
Under Military law, the conduct of investigations is primarily
governed by Articles 71 of the Articles of War, which
provides: Charges and specifications must be signed by a
person subject to military law, and under oath either that he
has personal knowledge of, or has investigated the matters
set forth therein and that the same are true in tact, to the
best of his knowledge and belief.
No charge will be referred to a general court martial for trial
until after a thorough and impartial investigation thereof shall
have been made.
This investigation will include inquiries as to the truth of the
matter set forth in said charges, form of charges, and what
disposition of the case should be made in the interest of
justice and discipline.
At such investigation, full opportunity shall be given to the
accused to cross-examine witnesses against him if they are
available and to present anything he may desire in his own
behalf, either in defense or mitigation, and the investigating
109
officer shall examine available witnesses requested by the
accused.
If the charges are forwarded after such investigation, they
shall be accompanied by a statement of the substance of the
testimony taken on both sides.
Before directing the trial of any charge by general court-mar-
tial the appointing authority will refer it to his staff judge
advocate for consideration and advise.
SEC. 4.
Resolution of Investigating Prosecutor and its Review
COMMENTS:
1. Under the amendment, whether the recommendation of the
investigating officer is to file or dismiss the case, he shall, within
five (5) days from his resolution, forward the records of the case
to the provincial or city prosecutor or chief state prosecutor or,
for offenses cognizable by the sandiganbayan in the exercise of
its original jurisdiction, to the ombudsman or his deputy the latter
shall take appropriate action thereon within ten (10) days from
receipt and shall immediately inform the parties of said action.
2. For offenses cognizable by the Sandiganbayan in the exercise of
its original jurisdiction, the records should be remanded to the
Ombudsman, since it is the latter that has primary jurisdiction to
investigate, file and prosecute said cases.'
3. The rule recognize the right of a party to appeal to the Secretary
of Justice and requires that the parties be notified of the
recommendation of the action to be taken thereon.
Under Sec. 11 of Rule 116, among the grounds for suspension of
the arraignment is when:
"(c) A petition for review of the prosecutor's resolution is pending
at either the department of justice or the office of the
president: Provided, That the period of suspension shall not
exceed sixty (60) days counted from the filing of the petition
with the reviewing office."
Role of the Prosecutor
Prosecutors should not allow, and should avoid giving the
impression that their noble office is being used or prostituted,
wittingly or unwittingly, for the political ends or other
purposes alien to, or subversive of, the basic and
fundamental objective of serving the interest of justice even-
handedly, without fear or favor to any and all litigants alike,
whether rich or poor, weak or strong, powerless or mighty.
Only by strict adherence to the established procedure may
the public's perception of the impartiality of the prosecutor be
enhanced.
Officer Conducting Preliminary Investigation Must be Impartial
An indispensable requisite of due process is that the person
who presides and decides over a proceeding, including a
preliminary investigation, must possess the cold neutrality of
an impartial judge.
Although such a preliminary investigation is not a trial and is
not intended to usurp the function of the trial court, it is not a
casual affair.
The officer conducting the same investigates or inquires into
the facts concerning the commission of the crime with the end
in view of determining whether or not an information may be
prepared against the accused.
Indeed, a preliminary investigation is in effect a realistic
judicial appraisal of the merits of the case. Sufficient proof of
the guilt of the accused must be adduced so that when the
case is tried, the trial court may not be bound as a matter of
law to order an acquittal.
A preliminary investigation has then been called a judicial
inquiry.
It is a judicial proceeding.
An act becomes judicial when there is opportunity to be heard
and for the production and weighing of evidence, and a
decision is rendered thereon.
The authority of a prosecutor or investigating officer duly
empowered to preside or conduct a preliminary investigation
is no less than that of a municipal judge or even a regional
trial court judge.
While the investigating officer, strictly speaking, is not a
"judge," by the nature of his functions, he is and must be
considered to be a quasi-judicial officer.
It should be realized that when a man is hailed to court on a
criminal charge, it brings in its wake problems not only for the
accused but for his family as well.
Therefore, it behooves a prosecutor to weigh the evidence
carefully and to deliberate thereon to determine the existence
of prima facie case before filing the information in Court.
Anything less would be a dereliction of duty.
The officer who review a case on appeal should not be the
same person whose decision is under review.
Discretion of Prosecutor
The investigating fiscal has discretion to determine the speci-
ficity and adequacy of averments of the offense charged.
He may dismiss the complaint forthwith if he finds it to be
insufficient in form or substance or if he otherwise finds no
ground to continue with the inquiry, or proceed with the
investigation if the complaint is, in his new, in due and proper
form.
It is not his duty to require a more particular statement of the
allegations of the complaint merely upon the respondents'
motion and specially where, after an analysis of the complaint
and its supporting statements, he finds it sufficiently definite
to apprise the respondents of the offenses with which they
are charged.
The institution of a criminal action depends upon the sound
discretion of the fiscal. He has the quasi-judicial discretion to
determine whether or not a criminal case should be filed in
court.
Indeed, under Section 4, Rule 112 of the 2000 Rules of Crimi-
nal Procedure, the Information shall be prepared by the
Investigating Prosecutor against the respondent only if he or
she finds probable cause to hold such respondent for trial.
The Investigating Prosecutor acts without or in excess of his
authority under the Rule if the Information is filed against the
respondent despite absence of evidence showing probable
cause therefor.
Duty of Investigation Fiscal; Effect of Absence of Certification
If a preliminary investigation was actually conducted, the
absence of certification by the investigating fiscal that it was
110
conducted is not fatal.
Absence of certification as to holding of Preliminary Investiga-
tion does not affect validity of information.
The certification "that a preliminary investigation has been
conducted in this case; that there is a reasonable ground to
engender a well-founded belief that a crime has been
committed and that the accused are probably guilty thereof is
sufficient.
The failure to state therein that the accused was informed of
the complaint and was given an opportunity to submit
controverting evidence is fatal and untenable.
Designation of Offense by Fiscal Not Binding Upon Court
The designation of the offense by the Fiscal is not binding
upon the Court.
Remedies if There is No Preliminary Investigation
Absence of preliminary investigation does not impair the
validity of information.
It is not a ground for a motion to quash.
Absence of Preliminary Investigation is not a ground for
motion to quash.
Dismissal for lack of Preliminary Investigation is not allowed,
The remedy is to hold in abeyance proceedings and order the
Fiscal to hold preliminary Investigation
The same principles were stressed in Torralba v.
Sandiganbayan.
Proper Forum to Raise Absence of Preliminary Investigation
The proper forum before which absence of preliminary
investigation should be ventilated is the Regional Trial Court
and not the Supreme Court. Absence of a preliminary
investigation does not go to the jurisdiction of the court but
merely to the regularity of the proceedings that could be
waived.
Habeas Corpus Not a Remedy
If there was no preliminary investigation, the remedy is not a
petition for habeas corpus but a motion before the trial court
to quash the warrant of arrest, and/or the Information on
grounds provided by the Rules, or to ask for an
investigation/reinvestigation of the case.
Habeas corpus would not lie after the Warrant of Commitment
was issued by the Court on the basis of the Information filed
against the accused. So it is explicitly provided for by Section
14, Rule 102 of the Rules of Court x x x.
Ilagan was a reiteration of the Supreme Court's ruling in
People v. Casiano.
The same rule was reiterated in Doromal v. Sandigabayan.
If there was no preliminary investigation, the accused must —
(a) refuse to enter a plea upon arraignment and object
to further proceedings upon such ground;
(b) insist on preliminary investigation;
(c) file certiorari if refused;
 (d) raise lack of preliminary investigation as error on
appeal;
(e) file prohibition.
When Habeas Corpus allowed
Habeas Corpus was allowed as a remedy for irregular prelimi-
nary investigation conducted by a municipal judge in a
murder case, who without legal authority for being
disqualified as a relative within the 3rd degree and without
proper preliminary examination ordered the issuance of a
warrant of arrest as a consequence of which accused was
illegally detained.
The judge then remanded the case to the provincial
prosecutor who was then held as without authority to lift the
warrant of arrest.
The judge was considered, as in construe five custody of the
accused, by virtue of an illegal warrant of arrest.
Appeals to the Secretary of Justice
The power of supervision and control by the Minister of
Justice over the fiscals cannot be denied.
As stated in Noblejas v. Sales, "Section 79 of the Revised
Administrative Code defines the extent o a department
secretary's power.
The power of control therein contemplated means (the power
of the department head) to alter, modify or nullify or set
aside what a subordinate officer had done in the performance
of his duties and to substitute the judgment of the former for
that of the latter.
The power of control implies the right of the President (and,
naturally, of his alter ego) to interfere in the exercise of such
discretion as may be vested by law in the officers of the
national government, as well as to act in lieu of such officers."
For, while it is the duty of the fiscal to prosecute persons
who, according to evidence received from the complainant,
are shown to be guilty of a crime, the Minister of Justice is
likewise bound by his oath of office to protect innocent
persons from groundless, false or serious prosecution.
He would be committing a serious dereliction of duty if he
orders or sanctions the filing of an information based upon a
complaint where he is not convinced that the evidence would
warrant the filing of the action in court.
As he has the power of supervision and control over
prosecuting officers, the Minister of Justice has the ultimate
power to decide which as between conflicting theories of the
complainant and the respondents should be believed.
Thus, the DOJ Order allows the filing of an Information in
court after the consummation of the preliminary investigation
even if the accused can still exercise the right to seek review
of the prosecutor's recommendation with the Secretary of
Justice.
Power of Secretary to Review
The power of the Secretary of Justice to review resolutions of
his subordinates even after the information has already been
filed in court is well settled.
In Marcelo v. Court of Appeals, reiterated in Roberts v. Court
of Appeals, the Court clarified that nothing in Crespo v.
Mogul, forecloses the power or authority of the Secretary of
111
Justice to review resolutions of his subordinates in criminal
cases despite an information already having been filed in
court.
Nature of Justice Secretary's Power of Control over prosecutors
The nature of the Justice Secretary's power of control over
prosecutors was explained in Ledesma u. Court of Appeals, in
this wise:
"DECISIONS OR RESOLUTIONS OF PROSECUTORS ARE
SUBJECT TC APPEAL TO THE SECRETARY OF JUSTICE
WHO, UNDER THE REVISED ADMINISTRATIVE CODE
EXERCISES THE POWER OF DIRECT CONTROL AND
SUPERVISION OVER SAID PROSECUTORS; AND WHO
MAY THUS AFFIRM; NULLIFY, REVERSE OR MODIFY
THEIR RULINGS.
SECTION 39, CHAPTER 8, BOOK IV IN RELATION TO
SECTION[S] 5; 8, AND 9, CHAPTER 2, TITLE III OF THE
CODE GIVES THE SECRETARY OF JUSTICE
SUPERVISION AND CONTROL OVER THE OFFICE OF THE
CHIEF PROSECUTOR AND THE PROVINCIAL AND CITY
PROSECUTION OFFICES.
The scope of his power of supervision and control is delineated in
Section 38, paragraph 1, Chapter 7, Book IV of the Code:
'(1) Supervision and Control. — Supervision and control shall include
authority to act directly whenever s specific function is entrusted by
law or regulation to a subordinate; direct the performance of duty;
restrain the commission of acts; review, approve, reverse or modify
acts and decisions of subordinate officials or units; x x x.'
Supplementing the aforequoted provisions are Section £
ofR.A. No. 3783 and Section 37 of Act 4007, which read:
'Section 3. x x x
The Chief State Prosecutor, the Assistant Chief Stat( Prosecutors, the
Senior State Prosecutors, and the Statt Prosecutors shall x x x perform
such other duties as may be assigned to them by the Secretary of
Justice in the in terest of public service.'
SECTION 37. THE PROVISIONS OF THE EXISTING LAW
TO TH( CONTRARY NOTWITHSTANDING, WHENEVER A
SPECIFIC POWER AUTHORITY, DUTY, FUNCTION, OR
ACTIVITY IS ENTRUSTED TO A CHIEF OF BUREAU,
OFFICE, DIVISION OR SERVICE, THE SAME SHALL B(
UNDERSTOOD AS ALSO CONFERRED UPON THE PROPER
DEPARTMENT HEAD WHO SHALL HAVE AUTHORITY TO
ACT DIRECTLY IN PURSUANCE THEREOF, OR TO
REVIEW, MODIFY, OR REVOKE ANY DECISION OR
ACTION OF SAID CHIEF OF BUREAU, OFFICE, DIVISION
OR SERVICE."
'SUPERVISION' AND 'CONTROL' OF A DEPARTMENT
HEAD OVER HIS SUBORDINATES HAVE BEEN DENNED
IN ADMINISTRATIVE LAW AS FOLLOWS:
'IN ADMINISTRATIVE LAW, SUPERVISION MEANS
OVERSEEING OR THE POWER OR AUTHORITY OF AN
OFFICER TO SEE THAT SUBORDINATE OFFICERS
PERFORM THEIR DUTIES.
If the latter fail or neglect to fulfill them, the former may take such
action or step as prescribed by law to make them perform such duties.
Control, on the other hand, means the power of an officer to alter or
modify or nullify or set aside what a subordinate officer had done in
the performance of his duties and to substitute the judgment of the
former for that of the latter.'
Review as an act of supervision and control by the justice
secretary over the fiscals and prosecutors finds basis in the
doctrine of exhaustion of administrative remedies which holds
that mistakes, abuses or negligence committed in the initial
steps of an administrative activity or by an administrative
agency should be corrected by higher administrative
authorities, and not directly by courts.
As a rule, only after administrative remedies are exhausted
may judicial recourse be allowed."
Hence, after the Resolution of the provincial fiscal have
already been affirmed the resolution of the Prosecutor which
in effect is a finding of the Secretary of Justice himself as to
the existence of probable cause to hold the accused for trial,
the Fiscal should not conduct another reinvestigation and the
court should not entertain the same.
The Secretary of Justice who has the power of supervision
and control over prosecuting officers, is the ultimate authority
who decides which of the conflicting theories of the
complainants and the respondents should be believed.
The provincial or city prosecutor has neither the personality
nor the legal authority to review or overrule the decision of
the Secretary.
A motion for reinviestigation on the ground of newly
discovered evidence must be filed before the Secretary of
Justice rules on an appeal from a resolution in a preliminary
investigation.
The Court still reiterated in the 2005 case of Serag, the 1994
case of Marcelo for the Court to suspend the proceedings until
after the Secretary of Justice had resolved the motion with
finality and cited Section 7 of DOJ Circular No. 70 which
provides:
SECTION 7. Action on the petition. — The Secretary of Justice may
dismiss the petition outright if he finds the same to be patently without
merit or manifestly intended for delay, or when the issues raised
therein are too unsubstantial to require consideration.
If an information has been filed in court pursuant to the appealed
resolution, the petition shall not be given due course if the accused
had already been arraigned. Any arraignment made after the filing of
the petition shall not bar the Secretary of Justice from exercising his
power of review.
More importantly, the ruling in Solar Entertainment, Inc. v.
Haw, that the thirty-day period to suspend the arraignment
(as provided for in Section 2 of Circular No. 38-98) is not
absolute was reiterated in the 2006 case of Lumanlaw v.
Peralta, Jr.
Secretary of Justice to Refrain Only as Far as Practicable from Review
of Cases Already Filed in Court
In Dee v. Court of Appeals, the Supreme Court reiterated its
pronouncement in Crespo v. Mogul, that the Secretary of
Justice as far as practicable, should refrain from entertaining
a petition for review of appeal from the action of the fiscal,
when the complaint or information has already been filed in
court.
The matter should be left entirely for the determination of the
Court.
The Court, however, clarified en bane in Roberts v. Court of
Appeals, that there is nothing in Crespo v. Mogul which bars
the DOJ from taking cognizance of an appeal, by way of a
petition for review, by an accused in a criminal case from an
unfavorable ruling of the investigating prosecutor.
It merely advised the DOJ to, "as far as practicable, refrain
112
from entertaining a petition for review or appeal from the
action of the fiscal, when the complaint or information has
already been filed in Court."
The Secretary of Justice is only enjoined to refrain, as far as
practicable, from entertaining a petition for review or appeal
from the action of the prosecutor once a complaint or
information is filed in court.
In any case, the grant of a motion to dismiss, which the
prosecution may file after the Secretary of Justice reverses an
appealed resolution, is subject to the discretion of the court.
In Roberts, the Court went further by saying that Crespo
could not have foreclosed said power or authority of the
Secretary of Justice "without doing violence to, or repealing,
the last paragraph of Section 4, Rule 112 of the Rules of
Court."
While the section speaks of resolutions dismissing a criminal
complaint, petitioners were not barred from appealing from
the resolution holding that only homicide was committed,
considering that their complaint was for murder.
By holding that only homicide was committed, the Provincial
Prosecutor's Office ofPampanga effectively "dismissed" the
complaint for murder. Accordingly, petitioners could file an
appeal under said Section 1.
To rule otherwise would be to forever bar redress of a valid
grievance, especially where the investigating prosecutor,
demonstrated what unquestionably appeared to be
unmitigated bias in favor of the accused.
Section 1 is not to be literally applied in the sense that
appeals by the offended parties are allowed only in case of
dismissal of the complaint, otherwise the last paragraph of
Section 4, Rule 112, Rules of Court would be meaningless.
Need to Defer Arraignment if DOJ had Already Given Due Course to
Appeal
Where the DOJ had already given due course to the petition-
er's petition for review, it was premature for respondent
judge to deny the motions to suspend proceedings and to
defer arraignment on the ground that "since the case is
already pending for trial, to follow whatever opinion the
Secretary of Justice may have on the matter would
undermine the independence and integrity of this court."
Thus the complainant cannot be stripped of the Secretary's
authority to act on and resolve the motion of the private
complainant on the Prosecutor's insistence that the accused
be arraigned on June 6, 2002.
Indeed, under Section 7 of DOJ Circular No. 70, the Secretary
of Justice may resolve the said motion despite the arraign-
ment of the petitioners.
Once a petition for review is filed with the DOJ it behooved
the RTC to suspend the proceedings until after the Secretary
of Justice had resolved the motion with finality, including the
consideration of the motion of the Provincial Fiscal for the
admission of the Second Amended Information for homicide,
the dismissal of Criminal Case No. 926 and the arraignment of
the Petitioner for homicide. The court reiterated its earlier
ruling in Marcelo v. Court of Appeals (supra).
COMPARE
Under Section ll(c) of Rule 116 the period of suspension shall not
exceed sixty (60) days counted from the filing of the petition with the
reviewing office. (This is a new Rule under the 2000 Rules on the
Revised Rules of Criminal Procedure.)
The period of suspension shall not exceed sixty (60) days counted
from the filing of the petition with the reviewing office after the
expiration of said period, the trial court is bound to arraign the
accused or to deny the motion to defer arraignment.
Despite the foregoing provision and ruling, the Court in the 2005 case
ofSerag (supra) reiterated the 1994 ruling in the case ofMarcelo
(supra) for the Court to suspend the proceedings until after the
Secretary of Justice had resolved the motion with finality and cited
Section 7 ofDOJ Circular No. 70 which provides:
SECTION 7. Action on the petition. — The Secretary of Justice may dismiss the
petition outright if he finds the same to be patently without merit or manifestly
intended for delay, or when the issues raised therein are too unsubstantial to
require consideration.
If an information has been filed in court pursuant to the appealed
resolution, the petition shall not be given due course if the accused
had already been arraigned.
Any arraignment made after the filing of the petition shall not bar the
Secretary of Justice from exercising his power of review.
This may be interpreted to mean that while the Court may not suspend
the arraignment beyond the 60 day limitation, it may still suspend the
trial pending final resolution by the DOJ.
Under the Speedy Trial Rule any period of delay resulting from other
proceedings concerning the accused including but not limited to those
enumerated in Section 3 of Rule 119 in computing the time within
which trial must commence shall be excluded —
f) Any period of delay resulting from a continuance granted by any court motu
proprio, or on motion of either the accused or his counsel, or the prosecution, if
the court granted the continuance on the basis of his 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.* 9
The Supreme Court stressed that the real and ultimate test of the
independence and integrity of the court is not the filing of the motion
to suspend at that stage of the proceedings but the filing of a motion
to dismiss or to withdraw the information on the basis of a resolution
of the petition for review reversing the Joint Resolution of the
investigating prosecutor.
Before that time, the pronouncement in Crespo v. Mogul, that "once a
complaint or information is filed in court any disposition of the case as
its dismissal or the conviction of accused or acquittal of the accused
rests in the sound discretion of the court," did not yet become relevant
or applicable.
However, once a motion to dismiss or withdraw the information is filed
the trial judge may grant or deny it, not out of subservience to the
Secretary of Justice, but in faithful excercise of judicial nrerogative on
the duty of the trial judge to make an independent assessment and
finding of the evidence, it not being sufficient for the valid and proper
excercise of judicial discretion merely to accept the prosecution's word
for its supposed insufficiency.
In the absence of such a finding, the order of the court denying or
granting the motion is void.
The procedure of appeals to the Secretary of Justice were consolidated
and modified by Department of Justice Circular No. 70 dated July 3,
2000 entitled 2000 NFS RULE ON APPEAL (Appendix F) and
Department Circular No. 70-A dated July 10, 2000 DELEGATION OF
AUTHORITY TO REGIONAL STATE PROSECUTORS TO RESOLVE
APPEALS IN CERTAIN CASES.
Determination of Probable Cause, Either Executive or Judicial
Prerogative
In criminal prosecutions, the determination of probable cause
may either be an executive or judicial prerogative. In People
v. Inting, the Court aptly stated:
"JUDGES AND PROSECUTORS ALIKE SHOULD
DISTINGUISH THE PRELIMINARY INQUIRY WHICH
DETERMINES PROBABLE CAUSE FOR THE ISSUANCE OF
113
A WARRANT OF ARREST FROM A PRELIMINARY
INVESTIGATION PROPER WHICH ASCERTAINS
WHETHER THE OFFENDER SHOULD BE HELD FOR TRIAL
OR RELEASED.
Even if the two inquiries are conducted in the course of one and the
same proceeding, there should be no confusion about the objectives.
The determination of probable cause for the warrant of arrest is made
by the Judge.
The preliminary investigation proper — whether or not there is rea-
sonable ground to believe that the accused is guilty of the offense
charged and, therefore, whether or not he should be subjected to the
expense, rigors and embarrassment of trial — is the function of the
Prosecutor.
Preliminary investigation should be distinguished as to whether it is an
investigation for the determination of a sufficient ground for the filing
of the information or it is an investigation for the determination of a
probable cause for the issuance of a warrant of arrest.
The first kind of preliminary investigation is executive in nature.
It is part of the prosecution's job.
The second kind of preliminary investigation which is more properly
called preliminary examination is judicial in nature and is lodged with
the judge."
Determination of Probable Cause Not a Supreme Court Function:
Exceptions
The Court thus pointed out that ordinarily, the determination
of probable cause is not lodged with this Court.
Its duty in an appropriate case is confined to the issue of
whether the executive or judicial determination, as the case
may be, of probable cause was done without or in excess of
jurisdiction with grave abuse of discretion amounting to want
of jurisdiction.
This is consistent with the general rule that criminal
prosecutions may not be restrained or stayed by injunction,
preliminary or final.
There are, however, exceptions to the rule, among which
were enumerated in Brocka v. Enrile, as follows:
a. To afford adequate protection to the constitutional rights
of the accused;
b. When necessary for the orderly administration of justice
or to avoid oppression or multiplicity or actions;
c. When there is a prejudicial question;
d. When the acts of the officer are without or in excess of
authority;
e. Where the prosecution is under an invalid law, ordinance
or regulation;
f. When double jeopardy is clearly apparent;
g. Where the court has no jurisdiction over the offense;
h. Where it is a case of persecution rather than prosecution;
i. Where the charges are manifestly false and motivated by
the lust for vengeance;
j. When there is clearly no prima facie case against the
accused and a motion to quash on that ground has been
denied; and

k. Preliminary injunction has been issued by the Supreme
Court to prevent the threatened unlawful arrest of
petitioners.
In these exceptional cases, the Court may ultimately resolve
the existence or non-existence of probable cause by
examining the records of the preliminary investigation, and
may also restrain a preliminary investigation.
The Court in the "349" Pepsi-Cola cases recognized the
several thousands of complainants in Criminal Case No. Q-93-
43198 (in which the order of arrest was appealed to the DOJ),
and several thousands more in different parts of the country
who are similarly situated as the former for being holders of
"349" Pepsi crowns, any affirmative holding of probable cause
in the said case nay cause or provoke, the filing of several
thousand cases in various courts throughout the country.
Inevitably, the petitioners would be exposed to the
harassments of warrants of arrest issued by such courts and
to huge expenditures for premium on the bail bonds and for
travels from one court to another throughout the length and
breath of the archipelago for their arraignments and trials in
such cases.
Worse, the filing of these staggering number of cases would
necessarily affect the trial calendar of our overburdened
judges and take much of their attention, time and energy,
which they could devote to other equally, if not more,
important cases.
Such a frightful scenario would seriously affect the orderly
administration of justice, or cause oppression or multiplicity of
actions — a situation already long conceded to be an
exception to the general rule that criminal prosecutions may
not be restrained or stayed by injunction.
The Court, however, refused to reevaluate the evidence to
determine if indeed there is probable cause for the issuance
of warrants of arrest in Criminal Case No. 93-43298, as it did,
in Allado and Webb for, as reasoned out by the Court, the
respondent Judge did not, in fact, find that probable cause
exists, and if he did he did not hrve the basis therefor as
mandated by Soliven, Inting, Lim, Allado, and even Webb.
Moreover, the records of the preliminary investigation are not
with the court but with the DOJ.
The Supreme Court held that the trial court and the DOJ must
be required to perform their duty.
The Court, therefore directed the DOJ to resolve on the
merits, petitioner's petition for review of the Joint Resolution
of the Investigating prosecutors and thereafter file the
appropriate motion or pleading before respondent Judge
which he shall then resolve in the light of Crespo v. Mogul.
In the meantime, respondent Judge was directed to cease
and desist from further proceeding with the criminal case and
to defer the issuance of warrants of arrest against the
petitioners.
Under section ll(c), Rule 116, Upon motion of the proper
party, the arraignment shall be suspended when a petition for
review of the resolution of the prosecutor is pending at either
the Department of Justice or the office of the President;
Provided, That the period of suspension shall not exceed sixty
(60) days counted from the filing of the petition with the
reviewing office.
Determination of Probable Cause in Preliminary Investigation
114
Exclusively Pertains to Prosecutor
In a separate opinion. Chief Justice Narvasa expressed
concurrence with the disposition of the case, that the
determination of whether or not probable cause exists to
warrant the prosecution in court of the petitioners should be
consigned and entrusted to the Department of Justice as
reviewer of the findings of the public prosecutor. Further
elucidating on his reasons, the Chief Justice stated:
"IN THIS SPECIAL CIVIL ACTION, THIS COURT IS
BEING ASKED TO ASSUME THE FUNCTION OF A PUBLIC
PROSECUTOR.
IT IS BEING ASKED TO DETERMINE WHETHER
PROBABLE CAUSE EXISTS AS REGARDS PETITIONERS.
More concretely, the Court is being asked to examine and assess such
evidence as has thus far been submitted by the" parties and, on the
basis thereof, make a conclusion as to whether or not it suffices 'to
engender a well-founded belief that a crime has been committed and
that the respondent is probably guilty thereof and should be held for
trial.'"
It is a function that this Court should not be called upon to
perform.
It is a function that properly pertains to the public prosecutor,
one that, as far as crimes cognizable by a Regional Trial Court
are concerned, and notwithstanding that it involves an
adjudicative process of a sort exclusively pertains, by law, to
said executive officer, the public prosecutor.
It is moreover a function that in the established scheme of
things, is supposed to be performed at the very genesis of
indeed, prefatorily to, the formal commencement of a criminal
action.
The proceedings before a public prosecutor, it may well be
stressed, are essentially preliminary, prefatory, and cannot
lead to a final, definite and authoritative adjudgment of the
guilt or innocence of the persons charged with a felony or
crime.
Whether or not that function has been correctly discharged by
the public prosecutor — i.e., whether or not he has made a
correct ascertainment of the existence of probable cause in a
case — is a matter that the trial court itself does not and may
not be compelled to pass upon.
There is no provision of law authorizing an aggrieved party to
petition for such a determination.
It is not for instance permitted for an accused, upon the filing
of an information against him by the public prosecutor, to
pre-empt trial by filing a motion with the Trial Court praying
for the quashal or dismissal of the indictment on the ground
that the evidence upon which the same is based is
inadequate.
Nor is it permitted, on the antipodal theory that the evidence
is in truth adequate, for the complaining party to present a
petition before the Court praying that the public prosecutor be
compelled to file the corresponding information against the
accused.
(N.B.: Where, however, the public prosecutor finds that
probable cause exists as regards several suspects but
unaccountably files the information only against some, but
not all of them, mandamus will lie to compel him to include in
the indictment those he has excluded.)
Besides, the function that this Court is asked to perform is
that of a trier of facts which it does not generally do, and if at
all, only exceptionally, as in an appeal in a criminal action
where the penalty of life imprisonment, reclusion perpetua, or
death has been imposed by a lower court (after due trial, of
course), or upon a convincing showing of palpable error as
regards a particular factual conclusion in the judgment of
such lower court.
What, in sum, is being attempted in this Court is to reverse
the established and permanent order of things — for the
Court to act before trial and judgment by a lower tribunal; to
require it to perform the role of trier of facts — which, to
repeat, it does not generally do, the issues properly
cognizable by it being normally limited exclusively to
questions of law to make it do something that even the trial
court may not do at this stage of the proceedings — itself to
determine the existence of probable cause; to usurp a duty
that exclusively pertains to an exclusive official (supra, at
note 3) to conduct a preliminary investigation or review the
findings and conclusions of the public prosecutor who
conducted one.
The matter is not within the review jurisdiction of the Court as
this is clearly specified in the Constitution, a jurisdiction which
even the Congress may not increase "without * * * (the
Court's) advice and concurrence."
From the pragmatic aspect, it is also an undesirable thing, for
the result could well increase the already considerable work
load of the Court.
Furthermore, any judgment of this Court in this action would
be inconclusive, as above intimated. It would not necessarily
end the case.
It would not, for instance, prevent the complaining witnesses
from presenting additional evidence in an effort to have the
information ultimately filed in the proper court against the
accused, or the respondents from asking for a reinvestigation
and presenting additional or other evidence warranting the
dropping of the case.
The Court would thus have wielded judicial power without a
definite settlement of rights and liabilities.
There are set rules, and procedural mechanisms in place for
the determination of probable cause at the level of the public
prosecutor, the Department of Justice and, to a certain
extent, the Regional Trial Court.
No recourse to this Court should normally be allowed to
challenge their determinations and dispositions.
I therefore vote to refer to the Department of Justice for
resolution, the petition for the review of the Joint Resolution
issued by Investigating Prosecutor Ramon Gerona.
Finding of Probable Cause by Prosecutor To hold Accused For Trial
Distinguished From Finding of Probable Cause of Judge To Issue
Warrant
The foregoing disquisition of the Chief Justice should,
however, be taken in the light of the distinction of whether
the preliminary investigation is an investigation for the
determination of a sufficient ground for the filing of the
information or it is an investigation for the determination of a
probable cause for the issuance of a warrant of arrest.
The first kind of preliminary investigation is executive in
nature.
It is part of the prosecution's job.
115
The second kind of preliminary investigation which is more
properly called preliminary examination is judicial in nature
and is lodged with the judge, but it is only after the first kind
have been exhausted, that the second kind comes in and the
Crespo rule applies.
Before that time, the pronouncement in Crespo that "any
disposition of the case as its dismissal or the conviction or
acquittal of the accused rests in the discretion of the court "is
not yet relevant and applicable.
When the second kind comes in, the court must, then
exercise independent judgment, personally evaluate the
documents and evidence adduced before the Fiscal, and
determine for itself the existence of probable cause for the
issuance of warrants of arrest.
If there is a motion to dismiss or withdraw the information,
the court must exercise its judicial prerogative, make an
independent assessment of the evidence and make its own
findings it not being sufficient for the valid and proper exer-
cise of judicial discretion merely to accept the prosecution's
word for its supposed insufficiency.
Finding by Judge of Probable Cause Not Subject to Judicial Review
Moreover, a finding probable cause by the judge for purposes
of issuing a warrant of arrest after an evaluation of the
documents and other supporting evidence, should no longer,
in the meantime, be subject to judicial review, except in the
regular course of appeal, for to paraphrase the Chief Justice
in his separate opinion, that would be asking the court to
examine and assess such evidence as has thus far been
submitted by the parties, before the trial, and, on the basis
thereof make a conclusion as whether or not, it suffices to
establish the guilt of the accused.
There are set of rules, and procedural mechanisms in place
for the determination of probable cause at the level of the
public prosecutor, the Department of Justice and, to a certain
extent, the Regional Trial Court. No recourse to the higher
court should normally be allowed to challenge their
determinations and dispositions.
Findings of Probable Cause as Prosecutors Entitled to Highest Respect
The prosecutor's finding of probable cause is entitled to high-
est respect.
This is a function that the court should not be called upon to
perform.
As a general rule, if the information is valid on its face and
there is no showing of manifest error, grave abuse of discre-
tion or prejudice on the part of public prosecutor courts
should not dismiss it for want of evidence.
Remedy Where Minister of Justice Refuses Filing of Case
The remedy of complainant in a case where the Minister of
Justice would not allow the filing of a criminal complaint
against an accused because it is his opinion that the evidence
is not sufficient to sustain an information for the complaint
with which the respondents are charged of, is to file a civil
action as indicated in Article 35 of the Civil Code, which
provides:
"ART. 35. WHEN A PERSON, CLAIMING TO BE INJURED
BY A CRIMINAL OFFENSE, CHARGES ANOTHER WITH
THE SAME, FOR WHICH NO INDEPENDENT CIVIL
ACTION IS GRANTED IN THIS CODE OR ANY SPECIAL
LAW, BUT THE JUSTICE OF THE PEACE FINDS NO
REASONABLE GROUNDS TO BELIEVE THAT A CRIME
HAS BEEN COMMITTED, OR THE PROSECUTING
ATTORNEY REFUSES OR FAILS TO INSTITUTE
CRIMINAL PROCEEDINGS, THE COMPLAINANT MAY
BRING A CIVIL ACTION FOR DAMAGES AGAINST THE
ALLEGED OFFENDER.
SUCH CIVIL ACTION MAY BE SUPPORTED BY A
PREPONDERANCE OF EVIDENCE. UPON THE
DEFENDANT'S MOTION, THE COURT MAY REQUIRE THE
PLAINTIFF TO FILE A BOND TO INDEMNIFY THE DE-
FENDANT IN CASE THE COMPLAINT SHOULD BE FOUND
TO BE MALICIOUS."
If during the pendency of the civil action, an information
should be presented by the prosecuting attorney, the civil
action shall be suspended until the termination of the criminal
proceedings.
Availability of Appeal From DOJ
The Resolution of the DOJ Secretary is appealable administra-
tively to the Office of the President where the offense charged
is punishable by Reclusion perpetua.
(From the Office of the President — the aggrieved party may
file an appeal with the Court of Appeals pursuant to Rule 43
[Supra])
Unavailability of Mandamus or Certiorari To Compel Filing of Cases
In Lim u. Court of Appeals, the Court reiterated the rule of
long standing that the matter of deciding who to prosecute is
a prerogative of the prosecuting fiscal as a quasi-judicial
officer, who assumes full discretion and control of the case
and this faculty may not be interfered with, for a prosecution
may not be compelled by mandamus to file a criminal
information where he is convinced that he does not have the
necessary evidence against an individual, x x x."
While the prosecuting officer is required by law to charge all
bhose who, in his opinion, appear to be guilty, he
nevertheless cannot be compelled to include in the
information a person against whom he believes no sufficient
evidence of guilt exists.
The appreciation of the evidence involves the use of discretion
on the part of the arosecutor.
The decision of the prosecutor may be reversed or modified
by the Secretary of Justice or in special cases by the
President of the Philippines.
But even the Supreme Court cannot order the prosecution of
a person against whom the prosecutor does not find sufficient
evidence to support at least a prima facie case.
The courts try and absolve or convict the accused but as a
rule have no part in the initial decision to prosecute him.
The possible exception is where there is an unmistakable
showing of a grave abuse of discretion that will justify judicial
intrusion into the precincts of the executive.
But in such a case, the proper remedy to call for such
exception is a petition for mandamus, not certiorari or
prohibition.
Moreover, before resorting to this relief, the party seeking the
inclusion of another person as a co-accused in the same case
must first avail itself of other adequate remedies such as the
116
filing of a motion for such reconsideration of decision.
The rule is thus settled that the court's duty in an appropriate
case is confined to determining whether the executive or
judicial determination, as the case may be, of probable cause
was done without or in excess of jurisdiction or with grave
abuse of discretion.
Thus, although it is entirely possible that the investigating
fiscal may erroneously exercise the discretion lodged in him
by law, this does not render his act amenable to correction
and annulment by the extraordinary remedy of correction and
annulment by the extraordinary remedy of certiorari, absent
any showing of grave abuse of discretion amounting to excess
of jurisdiction.
The remedy of mandamus does not lie to compel public
respondents to file an Information against private
respondents.
There being no showing of grave abuse of discretion on the
part of public respondents which would warrant the
overturning of their decision to dismiss the complaint against
the private respondents, corollarily, there is also no ground to
issue a writ of mandamusl
Where the preliminary investigation falls under the first kind,
the decision whether or not to dismiss the complaint against
private respondents is necessarily dependent on the sound
discretion of the prosecuting fiscal, and ultimately that of the
Secretary or Undersecretary (acting for the Secretary) of
Justice (which ordinarily is not compellable by mandamus.
Exception When Mandamus Available
However, if government prosecutors make arbitrary choices
of those they would prosecute under a particular law,
excluding from the indictment certain individuals against
whom there is the same evidence as those impleaded, the
fault is not in the law but in the prosecutors themselves
whose duty it is to file the corresponding information or
complaint against all persons who appear to be liable for the
offense involved, a duty that should be performed responsi-
bly, without discrimination, arbitrariness or oppression.
If that duty is not performed evenhandedly, the persons
aggrieved are not without remedy.
They may avail of the remedy of mandamus to compel
compliance with that duty by the prosecutors concerned.
NOTE: It was held in Yap u. IAC, that certiorari does not lie to
annul the Municipal judge's order finding probable cause that
the accused committed the crime charged and consequently
ordering their arrest.
Remedies are:
(1) posting bail;
(2) ask provincial fiscal for reinvestigation;
(3) petition for review;
(4) motion to quash information;
(5) if denied appeal, the judgment after trial. 104
Exception When Certiorari as a Remedy Allowed
However, certiorari was allowed as a remedy to annul
dismissal of the petition for review by the Secretary of Justice
for lack of jurisdiction since the dispute involves an intra-
corporate one which (then) falls under the jurisdiction of the
Securities and Exchange Commission.
Certiorari was allowed also to annul the Order of the ETC
Judge for the issuance of warrant of arrest on the ground that
there was no probable cause.
Summing up, the Court in Ching v. The Secretary of Justice
held:
In Mendoza-Arce v. Office of the Ombudsman (Visayas), this Court
held that the acts of a quasi-judicial officer may be assailed by the
aggrieved party via a petition for certiorari and enjoined:
(a) when necessary to afford adequate protection to the
constitutional rights of the accused;
(b) when necessary for the orderly administration of justice;
(c) when the acts of the officer are without or in excess of authority;
(d) where the charges are manifestly false and motivated by the lust
for vengeance; and
(e) when there is clearly no prima facie case against the accused.
The Court also declared that, if the officer conducting a preliminary
investigation (in that case, the Office of the Ombudsman) acts without
or in excess of his authority and resolves to file an Information despite
the absence of probable cause, such act may be nullified by a writ of
certiorari.
If the Secretary of Justice reverses the Resolution of the Investigating
Prosecutor who found no probable cause to hold the respondent for
trial, and orders such prosecutor to file the Information despite the
absence of probable cause, the Secretary of Justice acts contrary to
law, without authority and/or in excess of authority.
Such resolution may likewise be nullified in a petition for certiorari
under Rule 65 of the Revised Rules of Civil Procedure.
In the same manner, just as the Court may resolve to overrule the
finding of probable cause as in Allado v. Diokno, the Court may also
overrule the decision of the judge reversing a finding of probable
cause, also on the ground of grave abuse of discretion.
However, while probable cause should be determined in a
summary manner, there is a need to examine the evidence
with care to prevent material damage to a potential accused's
constitutional right to liberty and the guarantees of freedom
and fair play and to protect the State from the burden of
unnecessary expenses in prosecuting alleged offenses and
holding trials arising from false, fraudulent or groundless
charges.
Effect of Delay in Conducting Preliminary Investigation
The long delay in the termination of preliminary investigation
by the Tanodbayan is violative of the constitutional right of
the accused to due process.
Substantial adherence to the requirements of the law
governing the conduct of preliminary investigation, including
substantial compliance with the time limitation prescribed by
the law for the resolution of the case by the prosecutor, is
part of the procedural due process constitutionally guaranteed
by the fundamental law.
Not only under the broad umbrella of the due process clause,
but under the constitutional guarantee of "speedy disposition"
of cases as embodied in Section 16 of the Bill of Rights (both
in the 1973 and the 1987 Constitution), the inordinate delay
is violative of the accused's constitutional rights.
A delay of close to three (3) years cannot be deemed
reasonable or justifiable in the light of the circumstances
obtaining in the case.
The suggestion that the long delay in terminating the prelimi-
nary investigation should not be deemed fatal, for even the
complete absence of a preliminary investigation does not
warrant dismissal of the information, is without merit.
117
The absence of a preliminary investigation can only be
corrected by giving the accused such investigation.
But an undue delay in the conduct of preliminary investigation
cannot be corrected, for until now, man has not yet invented
a device for setting back the time.
The principle is not, however, applicable where the delay in
the termination of the preliminary investigation cannot be
imputed solely to the prosecution but because of incidents
which are attributable to the accused and his counsel.
SEC. 5.
When Warrant of Arrest may Issue
COMMENT:
a. The provisions of the former Section 5 relating to the preliminary
investigation by a judge were deleted. Section 6 was modified
(bb) by deleting reference to preliminary investigation by the MTC
are changing the same to prosecutor accordingly transposed to
Section 5.
b. The first paragraph on the issuance of warrant of arrest by the
Regional Trial Court is in conformity with the rulings of the
Supreme Court.
The former Rule simply provides that a warrant of arrest may be
issued by the Regional Trial Court upon the filing of the
information. This was because before the 1987 constitution, a
warrant of arrest may be issued by the Regional Trial Court on
the basis merely of the certification of the investigating fiscal that
there is probable cause.
Under the 1973 not only the Judge but also by any responsible
officer, which includes a fiscal, may determine Constitution
probable cause.
This is no longer true. Under the 1987 Constitution it is only the
judge who is authorized to determine personally the existence of
probable cause.
Hence, jurisprudence evolved, that for purposes of determining
probable cause for the issuance of a warrant of arrest, the judge
must personally evaluate the prosecutor's report, the evidence
adduced during the preliminary investigation.
These jurisprudence are now capsulized in the present rule.
Under this rule, the judge must determine the existence of prob-
able cause within ten (10) days from the filing of the information.
This is intended to prevent prolonged detention of a person who
is arrested without a warrant, only to turn out that the arrest was
not lawful.
If the accused had already been arrested, the judge must within
the same period often (10) days determine the existence of
probable cause and issue an order of commitment.
The judge may, on the other hand, disregard the prosecutor's
report and require the submission of additional evidence to deter-
mine the existence of probable cause. If the judge still finds no
probable cause, he shall dismiss the case.
c. In cases falling under the original jurisdiction of the municipal
trial court, which require a preliminary investigation, the
preliminary investigation shall be conducted by the prosecutor
1) If such preliminary investigation is conducted by a
prosecutor, the procedure in the preceding section (5a) on
the issuance of a warrant arrest shall be applied upon the
filing ol the information.
Under this situation, probable cause may be determined by
the Judge on the basis of the evidence adduced before the
prosecutor, which conducted the preliminary investigation.
2) Subsection (c) is new provision. When warrant of arrest not
 necessary. —A warrant of arrest shall not issue if the
accused is already under detention pursuant to a warrant
issued by the municipal trial court in accordance with
paragraph (b) of this section, or if the complaint or
information was filed pursuant to section 6 of this Rule or is
for an offense penalized by fine only.
The court shall then proceed in the exercise of its original
jurisdiction.
Under this subsection, a warrant of arrest need not be
issued if the accused is already under detention pursuant to
a warrant issued by the Municipal Trial Court in accordance
with section (5b) of this rule or if the complaint or
information was filed pursuant to section 6 hereof, the court
shall then proceed in the exercise of its original jurisdiction.
Warrant of Arrest, Defined
A warrant of arrest is a legal process issued by competent
authority, directing the arrest of a person or persons upon
grounds stated therein.
It is usually directed to regular officers of the law, but
occasionally, it is issued to a private person named in it.
John Doe Warrants
Warrant of arrests issued against "John Doe" whom the
witnesses to the complaint could not identify are in the nature
of a general warrant, one of a class of writs long proscribed
as unconstitutional and once anathematized as "totally
subversive of the liberty of the subject."
Such warrants are void because they violate the constitutional
injunction that warrants of arrest should particularly describe
the person or persons to be seized.
Judge May No Longer Rely on FiscaLs Certification
The earlier rulings of the Supreme Court which allows the
Judge in the exercise of its discretion, whether or not to
determine the existence of probable cause and issue a
warrant of arrest on the basis of the Fiscal's Certification
which were capsulized in Circular No. 12, dated November 30,
1987 have in effect been abandoned by the Supreme Court in
the light of the 1987 Constitution which provides that no
search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge
after examination under oath or affirmation of the
complainant and the witnesses he may produce, and
particularly describing the place to be searched and the
persons or things to be seized.
a. The withdrawal started with the case of Soliven v.
Makasiar6 decided after the effectivity of the 1987
Constitution where the Supreme Court then held that the
addition of the word "personally" after the word
"determined" underscores the exclusive and personal
responsibility of the issuing judge to satisfy himself of the
existence of probable cause.
In satisfying himself of the existence of probable cause
for the issuance of a warrant of arrest, the judge is not
required to personally examine the complainant and his
witnesses.
Following established doctrine and procedure, he shall:
(1) personally evaluate the report and the supporting
documents submitted by the fiscal regarding the
existence of probable cause and, in the basis thereof,
issue a warrant of arrest; or
118
(2) if on the basis thereof he finds no probable cause, he
may disregard the fiscal's report and require the
submission of supporting affidavits of witnesses ;o
aid him in arriving at a conclusion as to the existence
of probable cause.
Sound policy dictates this procedure, otherwise judges
would he unduly laden with the preliminary examination
and investigation of criminal complaints instead of
concentrating on hearing and deciding cases filed before
their courts.
b. The doctrine was reiterated in Enrile v. Salazar, holding
that it is not the unavoidable duty of the judge to make a
personal examination, it being sufficient that he follows
established procedure by personally evaluating the report
and the supporting documents submitted by the
prosecutor.
* * * the Judge does not have to personally examine the
complainant and his witnesses.
The Prosecutor can perform the same functions as a
commissioner for the taking of the evidence.
However, there should be a report and necessary
documents supporting the Fiscal's bare certification.
All of these should be before the Judge.
The extent of the Judge's personal examination of the
report and its annexes depends on the circumstances of
each case.
We cannot determine beforehand how cursory or
exhaustive the Judge's examination should be.
The Judge has to exercise sound discretion for, after all,
the personal determination is vested in the Judge by the
Constitution.
It can be as briefer as detailed as the circumstances of
each case require.
To be sure, the Judge must go beyond the Prosecutor's
certification and investigation report whenever necessary.
He should call for the complainant and witnesses
themselves to answer the court's probing questions when
the circumstances of the case so require.
It is the exclusive and personal responsibility of the
issuing judge to satisfy himself of the existence of
probable cause for the issuance of a warrant of arrest,
the judge is not required to personally examine the
complainant and his witnesses.
Following established doctrine and procedure, he shall:
(1) personally evaluate the report and the supporting
documents submitted by the fiscal regarding the
existence of probable cause and, on the basis
thereof, issue a warrant of arrest; or
(2) if on the basis thereof he finds no probable cause,
he may disregard the fiscal's report and require the
submission of supporting affidavits of witnesses to
aid him in arriving at a conclusion as to the
existence of probable cause.
In Cruz v. People (supra), petitioner would have
respondent court order the production of the records of
the preliminary investigation in its determination of the
existence of probable cause for the issuance of the
warrant of arrest.
The Supreme Court held: "First and foremost, as
hereinabove stated, in a preliminary examination for the
issuance of a warrant of arrest, the court is not tasked to
review in detail the evidence submitted during the
preliminary investigation.
It is sufficient that the judge personally evaluates the
report and supporting documents submitted by the
prosecution in determining probable cause."
In Webb u. De Leon, the Supreme Court again reiterated
the doctrine in the seminal case of Soliven v. Makasiar
(supra), in the issuance of warrants of arrest by the RTC.
Petitioners in the Webb case challenged the validity of
the warrants of arrest issued in said case on the following
grounds:
(1) the issuance of the warrants of arrest was made in a
matter of few hours;
(2) the failure of the judge to issue orders of arrest;
(3) the records submitted to the trial court were
incomplete and insufficient from which to base a
finding of probable cause; xxx. — petitioners
postulate that it was impossible to conduct a
searching examination of witnesses and evaluation of
the documents on the part of the judge.
After pointing out the differences in the issuance of a
search warrant and a warrant of arrest and its ruling in
Soliven v. Makasiar (supra), the Supreme Court stressed
that before issuing warrants of arrest, judges merely
determine personally the probability, and not the
certainty of guilt of an accused.
In doing so, judges do not conduct a de novo hearing to
determine the existence of probable cause.
They just personally review the initial determination of
the prosecutor finding a probable cause to see if it is
supported by substantial evidence.
The sufficiency of the review process cannot be measured
by merely counting minutes and hours.
The fact that it took the judges a few hours to review and
affirm the probable cause determination of the DOJ panel
does not mean they made no personal evaluation of the
evidence attached to the records of the case.
Explaining its ruling in Allado u. Diokno, which reversed
the trial court's finding of probable cause and ordered the
outright dismissal of the case, the Court stated that the
Allado ruling is predicated on the utter failure of the
evidence to show the existence of probable cause.
Not even the corpus delicti of the crime was established
by the evidence of the prosecution in that case.
Given the clear insufficiency of the evidence on record,
the court there stressed the necessity for the trial judge
to make a further personal examination of the
complainant and his witnesses to reach a correct
assessment of the existence or non existence of probable
cause before issuing warrants of arrest against the
accused.
The case at bar rests on a different factual setting.
119
The various types of evidence extant in the records of the
case provide substantial basis for a finding of probable
cause against the petitioners.
The Court concluded:
"Clearly then, the Constitution, the Rules of Court, and our case
law repudiate the submission of petitioners that respondent
judges should have conducted searching examination of
witnesses before issuing warrants of arrest against them.
They also reject petitioners contention that a judge must first
issue an order of arrest before issuing a warrant of arrest.
There is no law or rule requiring the issuance of an Order of
Arrest prior to a warrant of arrest."
Outright Dismissal
The absence of probable cause for the immediate issuance of
a warrant of arrest is not a ground for the quashal of the
information but is a ground for the dismissal of the case
under Section 5[6], Rule 112 which is without prejudice.
The trial court is mandated to immediately dismiss the case
upon finding that no probable cause exists to issue a warrant
of arrest and after having evaluated the resolution of the
fiscal and supporting information.
The Need for Personal Evaluation of Documents Not Merely Resolution
The absence or presence of probable cause is to be
determined from the material avernments of the information
the appendages thereof as enumerated in Rule 112, Section 8
of the Rules.
The Courts attention was again focused on the issuance of
warrants of arrest in the en bane decision in Roberts u. Court
of Appeals, where the court emphasized the need for the
court prior to the issuance of the warrant of arrest to evaluate
"the affidavits, the transcript of stenographic notes (if any),
and all other supporting documents behind the Prosecutor's
certification which are material in assisting the Judge to make
his determination of probable cause."
The teachings then of Soliven, Inting, Lim, Allado, and Webb,
reject the proposition that the investigating prosecutor's
certification in an information or his resolution which is made
the basis for the filing of the information, or both, would
suffice in the judicial determination of probable cause in the
judicial determination of probable cause for the issuance of a
warrant of arrest.
The court went on to explain that in Webb, this Court
assumed that since the respondent Judges had before them
not only the 26 page resolution of the investigating panel, but
also the affidavits of the prosecution witnesses and even the
counter-affidavits of the respondents, they (judges) made a
personal evaluation of the evidence attached to the records of
the case.
On the Need to Make Separate Finding of Probable
It was held that where, the information was not accompanied
by any document, and there is nothing in the records or
evidence supporting the prosecutor's finding of probable
cause except the Joint Resolution as bases thereof and does
not have the records or evidence supporting the prosecutor's
finding of probable cause, the Court declared the Order for
the issuance of the warrant of arrest as invalid.
The court found it strange that there is no specific finding of
probable cause but a mere directive to issue the warrants of
arrest.
The Court rejected the argument that the directive
presupposes a finding of probable cause.
"Compliance with a constitutional requirement for the
protection of individual liberty cannot be left to presupposi-
tion, conjecture or even convincing logic."
The Court in Roberts rejected the court of appeals' finding
that the Joint Resolution is sufficient in itself to have been
relied upon by the respondent judge in convincing himself
that probable cause indeed exists for the purpose of issuing
the corresponding warrants of arrest.
Thus: "To bolster its finding, the Court of Appeals held that
the mere silence of the records or the absence of any express
declaration in the questioned order of May 17, 1993 as to
where the respondent Judge based his finding of probable
cause does not give rise to any adverse inference on his part.
The fact remains that the Joint Resolution was at respondent
Judge's disposal at the time he issued the Order for the
issuance of the warrants of arrest.
After all, respondent Judge enjoys in his favor the
presumption of regularity in the performance of his official
duties.
And this presumption prevails until it is overcomed by clear
and convincing evidence to the contrary.
Every reasonable intendment will be made in support of the
presumption, and in case of doubt as to an officer's act being
lawful or unlawful, it should be construed to be lawful."
The Court expressed its inability to agree with this disquisi-
tion, for it merely assumes at least two things: (1) that
respondent Judge Asuncion had read and relied on the Joint
Resolution; and (2) he was convinced that probable cause
exists for the issuance of warrants of arrest against the
petitioners.
Nothing in the records provides reasonable basis for these
assumptions.
In his assailed order, the respondent Judge made no mention
of the Joint Resolution, which was attached to the records of
Criminal Case No. Q-93-43198 on 22 April 1993. Neither did
he state, he found probable cause for the issuance of
warrants of arrest.
And, for an undivinable reason, he directed the issuance of
warrants of arrest only after June 21, 1993. If he did read the
Joint Resolution and, in so reading, found probable cause,
there was absolutely no reason at all to delay for more than
one month the issuance of warrants of arrest.
The most probable explanation for such delay could be that
the respondent Judge had actually wanted to wait for a little
while for the DOJ to resolve the petition for review.
All told, it would seem from the foregoing discourse of the
court that there is need to issue an order finding probable
cause prior to the issuance of a warrant of arrest.
Dissent on Need to Issue Separate Order
The foregoing statements would appear to negate the
pronouncement in Webb that there is no need for the court to
first issue an order of arrest before issuing a warrant of
arrest, and the presumption of regularity resorted to in
120
justifying the issuance of a warrant of arrest from the mere
availability of the records before the court in Enrile v. Salazar
(supra), even in the absence of a separate finding of probable
cause.
In his dissent with the concurrence of Justice Mendoza, Jus-
tice Reynato Puno found as sufficent basis to justify a finding
of probable cause the 17-page Joint Resolution of the
Investigating Prosecutor, and pointed out that Soliven and
other related cases did not establish the absolute rule that
unless a judge has the complete records of the preliminary
investigation before him, he cannot lawfully determine
probable cause and issue a warrant of arrest.
Soliven only held that it is the personal responsibility of the
judge to determine probable cause on the basis of the report
and supporting documents submitted by the fiscal; that he
must independently evaluate the report and supporting
documents if he finds no probable cause on the basis thereof,
he can require submission of additional supporting affidavits
of witnesses.
There is nothing in Soliven that requires prosecutors to
physically submit to the judge the complete records of the
preliminary investigation especially if they are voluminous.
Nor is there anything in Soliven that holds the omission to
physically submit the complete records of the case would
constitutionally infirm a finding of probable cause by a judge
even if it was made on the basis of an exhaustive prosecutor's
report or resolution.
Indeed, in Webb v. de Leon, we sustained the finding of
probable cause made by the trial judge even if the complete
records of the preliminary investigation were not elevated to
the said judge.
Justice Puno further maintains that there was no need for
respondent Judge to make a finding of probable cause.
"When Judge Asuncion issued the warrants of arrest against
petitioners, I assume as did the respondent Court of Appeals,
that he had studied the Information and 17-page Resolution
of the prosecutors and that he agreed with the prosecutor's
findings of probable cause.
It is unnecesary for him to issue an Order just to reiterate the
findings of the prosecutors, xxx'
Apparently to reconcile these conflicting views, the Court en
bane in Ho v. People, laid down the following principles:
SUMMARY OF PRINCIPLES
The court en banc summed up the following principles:
First, The determination of probable cause by the prosecutor is for a
purpose different from that which is to be made by the judge, Whether
there is reasonable ground to believe that the accused is guilty of the
offense charged and should be held for trial is what the prosecutor
passes upon.
The judge, on the other hand, determines whether a warrant of arrest
should be issued against the accused, i.e., whether there is a necessity
for placing him under immediate custody in order not to frustrate the
ends of justice.
Thus, even il both should base their findings on one and the same
proceeding 01 evidence, there should be no confusion as to their
distinct objectives,
Second, since their objectives are different, the judge cannot rely
solely on the report of the prosecutor in finding probable cause to
justify the issuance of a warrant of arrest.
Obviously and understandably, the contents of the prosecutor's report
will support his own conclusion that there is reason to charge the
accused of an offense and hold him for trial.
However, the judge must decide independently.
Hence, he must have supporting evidence, other than the prosecutor's
bare report, upon which to legally sustain his own findings on the
existence (or nonexistence) of probable cause to issue an arrest order.
This responsibility of determining personally and independently the
existence of nonexistence of probable cause is lodges in him by no less
than the most basic law of the land. Parenthetically, the prosecutor
could ease the burden of the judge and speed up the litigation process
by forwarding to the latter not only the information and his bare
resolution finding probable cause, but also sc much of the records and
the evidence on hand as to enable His honoi to make his personal and
separate judicial finding on whether tc issue a warrant of arrest.
Lastly, it is not required that the complete or entire records oi the case
during the preliminary investigation be submitted to and examined by
the judge.
We do not intend to unduly burden trial courts by obliging them to
examine the complete records of every case all the time simply for the
purpose of ordering the arrest of an accused.
What is required, rather that the judge must have sufficient supporting
documents (such as the complaint, affidavits, counter-affidavits, sworn
statements of witnesses or transcripts of stenographic notes, if any)
upon which to make his independent judgment or, at the very least,
upon which to verify the findings of the prosecutor as to the existence
of probable cause.
The point is: he cannot rely solely and entirely on the prosecutor's
recommendation.
Although the prosecutor enjoys the legal presumption of regularity in
the performance of his official duties and functions, which in turn gives
his report the presumption of accuracy, the Constitution, we repeat,
commands the judge to personally determine probable cause in the
issuance of warrants of arrest.
This Court has consistently held that a judge fails in his bounden duty
if he relies merely on the certification or the report of the investigating
officer.
Thus, a warrant of arrest is void where the court did not personally
determine the existence of probable cause but based the same merely
on: (1) the resolution of the Panel of Investigators of the Ombudsman
recommending the filing of the information, and (2) memorandum of
the office of the Special Prosecutor denying the existence of a
prejudicial question.
The court, however clarified that: "It is not required that the issuing
judge categorically state in his resolution that he personally
determined the existence of probable cause.
It is enough that it may easily be gleaned from the resolution directing
the issuance of the warrant that he performed his duty in accordance
with the constitutional mandate on the matter.
Findings of Probable Cause as Prosecutors Entitled to Highest Respect
The prosecutor's finding of probable cause is entitled to high-
est respect.
This is a function that the court should not be called upon to
perform.
As a general rule, if the information is valid on its face and
there is no showing of manifest error, grave abuse of discre-
tion or prejudice on the part of public prosecutor, courts
should not dismiss it for want of evidence.
While recognizing that the determination by the Prosecutor of
probable cause to hold the accused for trial is an executive
function as distinguished from the determination by the judge
in the issuance of a warrant of arrest is a judicial function,
which must be determined separately, the Court, nonetheless
121
ruled that the findings of the prosecutor is entitled to the
highest respect.
Thus, "Verily, a judge cannot be compelled to issue a warrant
of arrest if he or she deems that there is no probable cause
for doing so.
Corollary to this principle, the judge should not override the
public prosecutor's determination of probable cause to hold
an accused for trial, on the ground that the evidence
presented to substantiate the issuance of an arrest warrant
was insufficient, as in the present case.
Indeed, it would be unfair to expect, the prosecution to
present all the evidence needed to secure the conviction of
the accused upon the filing of the information against the
latter.
The reason is found in the nature and the objective of a
preliminary investigation.
Here, the public prosecutors do not decide whether there is
evidence beyond reasonable doubt of the guilt of the person
charged; they merely determine "whether there is sufficient
ground to engender a well-founded belief that a crime x x x
has been committed and that the respondent is probably
guilty thereof, and should be held for trial."
Evidentiary matters must be presented and heard during the
trial.
Therefore, if the information is valid on its face, and there is
no showing of manifest error, grave abuse of discretion and
prejudice on the part of the public prosecutor, the trial court
should respect such determination.
The court stressed that its rulings in Allado v. Diokno and
Salonga v. Pano, which set aside the trial court's finding's on
the existence of probable cause, are exceptions to the general
rule and may be invoked only if similar circumstances are
clearly shown to exist.
Ruling Does Not Deviate from Need of Personal Evaluation
The foregoing principles refer to the findings of the prosecutor
for the purpose of filing the case in court which should be
distinguished from the determination by the judge of probable
cause foi the issuance of a warrant of arrest.
Thus, although the prosecutor enjoys the legal presumption of
regularity in the performance of his official duties, which in
turn gives his report the presumption of accuracy, nothing
less than the fundamental law of the land commands the
judge to personally determine probable cause in the issuance
of warrants of arrest.
A judge fails in this constitutionally mandated duty if he relies
merely on the certification or report of the investigating
officer.
In merely stating that he had no reason to doubt the validity
of the certification made by the investigating prosecutor, the
judge has abdicated his duty under the constitution to
determine on his own the issue of probable cause before
issuing a warrant of arrest.
Consequently, the warrant of arrest should be declared null
and void.
In Cojuangco v. Sandiganbayan, the court declared the war-
rant of arrest issued in said case void because the respondent
court did not personally determine the existence of probable
cause but based the same merely on:
(1) the resolution of the Panel of Investigators of the
Ombudsman recommending the filing of the
information and
(2) memorandum of the Office of the Special Prosecutor
denying the existence of a prejudicial questions.
The Judge may order the production of the records and
determine on the basis thereof the existence of probable
cause or return the record and direct the Fiscal to conduct
further investigation.
Effect of Refusal by Prosecution to Adduce Additional Evidence
The Court held that the trial court may disregard the Fiscal's
report and require submission of supporting affidavits of
witnesses.
The failure or refusal of the petitioner to present further
evidence, although a good ground for the respondent Judge
not to issue a warrant of arrest, is not a legal cause for
dismissal.
The judge was directed to proceed with the case, it being
understood that, if within ten (10) days after notice by the
judge, the petitioner fails or refuses to present other
evidence, the dismissal will stand for lack of prosecution.
However, va.Alla.do v. Diokno, it was held that the Judge
may dismiss the case outright for lack of probable cause.
Determination of Probable Cause for Issuance of Warrant of Arrest
No Need of Conducting Hearing For Judicial determination of
Probabe Cause to Issue Warrant
Under the present rule the Rule does not require case to be
set for hearing to determine probable cause for the issuance
of a warrant for the arrest of the accused.
If the judge finds probable cause on the basis thereof, he
shall issue a warrant of arrest or, if the accused has already
been arrested, a commitment order otherwise.
He may either dismiss the case outright or to aid him in
determining the existence of probable cause; require
additional evidence within then (10) days from notice should
the Judge still find no probable cause, he shall dismiss the
case.
The Court in Government of the United States of America v.
Hon. Guillermo G. Purganan, held that:
To determine probable cause for the issuance of arrest
warrants, the Constitution itself requires only the examination
— under oath or affirmation — of complainants and the
witnesses they may produce.
There is no requirement to notify and hear the accused before
the issuance of warrants of arrest.
In Ho v. People and in all the cases cited therein, never was a
judge required to go to the extent of conducting a hearing
just for the purpose of personally determining probable cause
for the issuance of a warrant of arrest.
All we required was that the "judge must have sufficient
supporting documents upon which to make his independent
judgment, or at the very least, upon which to verify the find-
ings of the prosecutor as to the existence of probable cause."
122
In Webb v. De Leon, the Court categorically stated that a
judge was not supposed to conduct a hearing before issuing a
warrant of arrest:
"Again, we stress that before issuing warrants of arrest,
judges merely determine personally the probability, not the
certainty of guilt of an accused.
In doing so, judges do not conduct a de novo hearing to
determine the existence of probable cause.
They just personally review the initial determination of the
prosecutor finding a probable cause to see if it is supported
by substantial evidence."
At most, in cases of clear insufficiency of evidence on record,
judges merely further examine complainants and their
witnesses.
Validating the act of respondent judge and instituting the
practice of hearing the accused and his witnesses at this early
stage would be discordant with the rationale for the entire
system.
If the accused were allowed to be heard and necessarily to
present evidence during the prima facie determination for the
issuance of a warrant of arrest, what would stop him from
presenting his entire plethora of defenses at this stage — if he
so desires — in his effort to negate a prima facie finding?
Such a procedure could convert the determination of a prima
facie case into a full-blown trial of the entire proceedings and
possibly make trial of the main case superfluous.
This scenario is also anathema to the summary nature of
extraditions.
The Accused is not, however, Prohibited from Filing a Motion to
Dismiss on the Ground of Lack of Probable Cause
It has been held that the absence of probable cause for the
immediate issuance of a warrant of arrest is not a ground for
the quashal of the information but is a ground for the
dismissal of the case under Section 6 (now Sec. 5), Rule 112
which is without prejudice.
The trial court is mandated to immediately dismiss the case
upon finding that no probable cause exists to issue a warrant
of arrest and after having evaluated the resolution of the
fiscal and supporting information.
If the Court may motu propio dismiss the case for lack of
probable cause then it could do so when a motion to dismiss
on such ground is filed as was done va.Allado u. Diokno.
In cases governed by the Rule on Summary Procedure, the
court may likewise dismiss the case outright, for patently
being without basis or merit and order the release of the
accused if in custody.
SEC. 6.
When accused lawfully arrested without warrant
COMMENT:
THE FORMER RULE EMBRACED ONLY LAWFUL ARRESTS
FOR CRIMES COGNIZABLE BY THE REGIONAL TRIAL
COURT.
In view, however, of the expanded cases, which require preliminary
investigation even of cases that are not cognizable by the Regional
Trial Court as now defined in section 1 hereof, the present section was
accordingly amended.
Under the amendment, a complaint or information may only be filed
after an inquest conducted in accordance with existing rules;
Provided, however, 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.
The former rule allows a direct filing in court in cases of lawful arrest
without a warrant except in Metropolitan Manila and chartered cities,
without an inquest.
However, before the filing of such complaint or information, the person
arrested may ask for a preliminary investigation by a proper officer in
accordance with this Rule, but he must sign a waiver of the provisions
of Article 125 of the Revised Penal Code, as amended.
Under the former rule, the waiver may be made with the assistance of
a lawyer and in case of non-availability of a lawyer, a responsible
person of his choice.
Under the amended rule, the waiver may be made only IN THE
PRESENCE OF HIS COUNSEL pursuant to Section 2 ofRA. No. 7438.2
The former rule provides that if a lawyer is unavailable, a responsible
person of his own choice would be sufficient.
This was, however deleted in view of the provisions of section 2 of R.A.
No. 7438 limiting the assistance to that of a lawyer, which in this case
appears to be restrictive.
If the case has been filed in court without a preliminary investigation
the accused may, within five (5) days from the time he learns of its
filing, ask for a preliminary investigation with the same right to adduce
evidence in his DEFENSE AS provided in this Rule.
The request for preliminary investigation should be made before plea,
otherwise the right to ask for a preliminary investigation shall be
deemed waived.
NOTES
The rule was originally taken from section 15 of Rule 112,
"where the accused is detained without a warrant for his
arrest" which in turn was taken from Republic Act No. 409, as
amended by Republic Act No. 1201, which reads:
"In all cases brought to the Office of the City Fiscal involving crimes
cognizable by the Court of First Instance, where the accused is not
already in the legal custody of the police, no complaint or information
shall be filed without first giving the accused a chance to be heard in a
preliminary investigation, where such accused can be subpoenaed and
appears before the investigating fiscal, with the right to cross-examine
the complainant and his witnesses: Provided, That when the accused is
detained, he may ask for a preliminary investigation, but he must sign
a waiver of the provisions of Article One Hundred Twenty-five of the
Revised Penal Code, as amended: And provided, further, That if the
case has already been filed in court, he may ask for a reinvestigation
thereof later on with the same right to cross-examine the witnesses
against him: Provided, finally, That notwithstanding such waiver, the
said investigation must be terminated within seven days from its
inception."
The rule as now modified refers to all persons lawfully
arrested without a warrant for an offense which requires a
preliminary investigation.
There are two (2) situations contemplated under this rule:
First, is when the person is lawfully arrested without a war-
rant for an offense which requires a preliminary investigation,
and no complaint or information has yet been filed, in which
case, he may ask for a preliminary investigation by signing a
waiver of the provisions of Article 125 of the Revised Penal
Code. To prevent pro longed detention pending preliminary
investigation, the accused may apply for bail even if no
123
information have been filed.
In any event the preliminary investigation must be terminated
within fifteen (15) days from its inception.
Second, when a person is lawfully arrested without a warrant
for an offense which requires a preliminary investigation and
the complaint or information was filed by the offended party,
peace officer or fiscal without a preliminary investigation in
which case the accused may within five (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 the Rule.
The Inquest
Inquest is an informal and summary investigation conducted
by a public prosecutor in criminal case involving persons
arrested and detained without the benefit of a warrant of
arrest issued by the court for the purpose of determining
whether or not said persons should remain under custody and
correspondingly be charged in court.
To safeguard the rights of the accused who was arrested
without a warrant, Department Circular No. 61, dated
September 21, 1993, requires the arresting officer to bring
the arrestee before the inquest fiscal who shall determine
whether or not said person should remain in custody and
correspondingly be charged in court or that he be released
either for lack of evidence or further investigation.
The custodial investigation report shall be reduced to writing
by the investigating officer, provided that before such report
is signed, or thumbmarked if the person arrested or detained
does not know how to read and write, it shall be read and
adequately explained to him by his counsel or by the assisting
counsel provided by the investigating officer in the language
or dialect known to such arrested or detained person,
otherwise, such investigation report shall be null and void and
of no effect whatsoever.
The rule is not applicable if the person is not lawfully arrested
without a warrant
It was thus held in Go v. Court of Appeals, Larranaga v. Court
of Appeals:
"WHEN THE POLICE FILED A COMPLAINT FOR
FRUSTRATED HOMICIDE WITH THE PROSECUTOR, THE
LATTER SHOULD HAVE IMMEDIATELY SCHEDULED A
PRELIMINARY INVESTIGATION TO DETERMINE
WHETHER THERE WAS PROBABLE CAUSE FOR
CHARGING PETITIONER IN COURT FOR THE KILLING
OFELDON MAGUAN.
Instead, the Prosecutor proceeded under the erroneous supposition
that Section 7 of Rule 112 was applicable and required petitioner to
waive the provisions of Article 125 of the Revised Penal Code as a
condition for carrying out a preliminary investigation.
This was substantive error, for petitioner was entitled to a preliminary
investigation and that right should have been accorded him without
any conditions.
Moreover, since petitioner had not been arrested, with or without a
warrant, he was also entitled to be released forthwith subject only to
his appearing at the preliminary investigation."
However, since an information had already been filed and the
absence of a preliminary investigation does not impair the
validity of the information or affect the jurisdiction of the
court, the Supreme Court instead of ordering the dismissal of
the case directed the fiscal to conduct a preliminary
investigation and allowed the accused in the meantime to
post bail."
Period to File Motion For Preliminary InvestigatioN
The period for filing a motion for preliminary investigation
after an information has been filed against an accused who
was arrested without a warrant has been characterized as
mandatory by the court.
In People v. Figueroa, the Supreme Court applied a
substantially similar rule held that as the accused in that case
did no exercise his right within the five-day period, his motion
for reinvestigation was denied.
The case should be distinguished from Rolito Go v. Court o,
Appeals (supra).
In said case, Go not only asked for preliminary investigation
on the very day the information was filed, but he is also
clearly entitled to a preliminary investigation.
Section 7, Rule 112 is clearly not applicable because Go was
not lawfully arrested, the right to demand preliminary
investigation was subject to the condition that he should
claim it seasonably. He did not do so.
Accordingly, he effectively waived his right to a preliminary
investigation
The Right To Bail Pending Preliminary Investigation
It may be noted that under Section 7 (now Sec. 6) of Rule
112, i person lawfully arrested may post bail before the filing
of the information or even after its filing without waiving his
right to preliminary investigation, provided that he asks for a
preliminary investigation by the proper officer within the
period fixed in the said rule."
Waiver of Illegal Arrest
The accused may be estopped to question the illegality of the
arrest by entering a plea of not guilty without moving to
quash th information on such ground.
Thus, any irregularity attendant to an arrest was cured when
accused voluntarily submitted himself to the jurisdiction of
the Court by entering a plea of not guilty "and [by]
participating in the trial."
Where the Warrant of Arrest is void for want of probable
cause, the appropriate remedy is certiorari and prohibition
with prayer for the issuance of a TRO rather than actively
participate in the proceeding.
SEC. 7.
Records
SEC. 8.
Cases not requiring a preliminary investigation nor
covered by the Rule on Summary Procedure
Warrant of Arrest in Cases which Do Not Require Preliminary
Investigation
In cases which falls under the original jurisdiction of the
municipal trial court, which does not require a preliminary
investigation nor does it fall under the Rules on Summary
Procedure, the case may either be filed in court by a
prosecutor or directly filed in court by the offended party.
124
The amended rule in the issuance of warrants of arrest by the
Municipal Trial Courts for actions filed in the exercise of its
original Jurisdiction provides for two distinct situations.
The case may be filed directly in the municipal trial court or
by the prosecutor in Metro Manila or other chartered cities.
If the complaint is filed with the PROSECUTOR for offenses
which do not require a preliminary investigation the
procedure outlined in Section 3(a) of this Rule shall be
observed.
Under Section 3(a), the complaint shall state the known
address of the respondent and be accompanied by affidavits
of the complainant and his witnesses as well as other
supporting documents RELIED UPON BY HIM TO ESTABLISH
PROBABLE CAUSE, in such manner of copies as there are
respondent, plus two (2) copies for the official file.
The said affidavits shall be sworn to before any PROSECUTOR,
state prosecutor or government official authorized to
administer oath, or, in their absence or unavailability, a
notary public, who must certify that he personally examined
the affiants and that he is satisfied that they voluntarily
executed and understood their affidavits.
The prosecutor shall take appropriate action based on the
affidavits and other supporting documents submitted by the
complainant WITHIN TEN (10) DAYS FROM ITS FILING.
In other words, he may either dismiss the case or file it in
court without any further investigation since this refers to
cases that are not entitled to preliminary investigation.
The Prosecutor has no authority to issue a warrant of arrest.
It is only the court that may do so.
A case cognizable by the Municipal Trial Court may, however,
be filed in court directly by the complainant or by the
prosecutor, without preliminary investigation.
Options of the Judge
The Judge has three (3) options in the issuance of a warrant
of arrest:
A. Where filed directly with the municipal trial court. — if
the complaint or information is filed directly with the
municipal trial court.
The procedure in section 3(a) of this rule shall be
observed.
If the judge finds no sufficient ground to hold the
respondent for trial, he shall dismiss the complaint or
information.
Otherwise, he shall issue a warrant of arrest or a
commitment order if the accused had already been
arrested, after personally examining in writing and under
oath the complainant and his witnesses in the form of
searching questions and answers, or
B. He may personally evaluate the affidavits and supporting
evidence attached to the complaint or information if on
the basis thereof he finds no probable cause, he may
require the submission of additional evidence to aid him
in determining the existence of probable cause.
C. However, instead of issuing a warrant of arrest, the court
may issue summons if it is satisfied that there is no
 necessity for placing the accused under immediate
custody.
No warrant of arrest shall issue for offenses which fall
under the original jurisdiction of the court if such warrant
had already been issued during the preliminary
investigation by the same court pursuant to section 6(b)
[now sec. 5] of this rule the court shall instead proceed
to hear the case in the exercise of its original jurisdiction.
No warrant of arrest may be also be issued for cases
covered by the Revised Rule on Summary Procedure.
The No Necessity Rule
The "necessity" rule restores the 1985 amendment which was
deleted in 1988.
The statement that the judge determines whether there is
need for placing the accused under custody in order not to
frustrate the ends of justice only applies to warrants of arrest
issued by the Municipal Judge during a preliminary
investigation.
Discretion to Dispense with Searching Questions
The foregoing provisions have provided an alternative mode
of determining probable cause in cases filed for trial by
allowing the municipal judge to personally evaluate the
affidavits and supporting evidence of the complainant or if on
the basis thereof he finds no probable cause he may require
the submission of additional evidence to aid him in arriving at
a conclusion as to the existence of probable cause.
This is in line with the pragmatic interpretation by the
Supreme Court that under the Constitution the judge does not
have to conduct a personal examination of the witnesses but
that for purposes of determining probable cause for the
issuance of a warrant of arrest, the Judge must personally
evaluate the prosecutor's report, the evidence adduced during
the preliminary investigation.
These jurisprudence are now capsulized in the present rule,
where the judge needs only to evaluate the report of the
Prosecutor and the supporting documents.
Sound policy dictates this procedure, otherwise judges would
be unduly laden with the preliminary examination and
investigation of criminal complaints instead of concentrating
on hearing and deciding cases filed before their courts.
Meaning of Personal Examination
Where the respondent judge personally examined the
witnesses for the prosecution adopting as his own personal
examination the questions asked by the investigating officer
as appearing in the written statements, which he read over
again to the witnesses together with the answers given
therein, asking the witnesses whether said answers were
theirs, and whether the same answers were true, to which the
witnesses answered in the affirmative, the court considered
this as sufficient. Republic Act No. 3838 does not prohibit the
municipal judge from adopting the questions asked by a
previous investigator.
Meaning of Examination under Oath
The finding of the trial court that the complaint was
"supported by statements of the witnesses under oath" and
the record also shows the sworn statements of the witnesses
to have been subscribed and sworn to before respondent
Judge, satisfies the second requirement.
125
Meaning of Searching Questions and Answers
The term "searching questions and answers" means only, tak-
ing into consideration the purpose of the preliminary
examination which is to determine "whether there is a
reasonable ground to believe that an offense has been
committed and the accused is probably guilty thereof so that
a warrant of arrest may be issued and the accused held for
trial," such questions as have tendency to show the
commission of a crime and the perpetrator thereof.
What would be searching questions would depend on what is
sought to be inquired into, such as: the nature of the offense,
the date, time and place of its commission, the possible
motives for its commission; the subject, his age, education,
status, financial and social circumstances, his attitude toward
the investigation, social attitudes, opportunities to commit the
offense; the victim, his age, status, family responsibilities,
financial and social circumstances, characteristics, etc. the
points that are the subject of inquiry may differ from case to
case.
The questions, therefore, must to a great degree depend
upon the judge making the investigation.
At any rate, the court a quo found that respondent Judge was
"satisfied that the questions and answers contained in the
sworn statements taken by T-Sgt. Patosa partake of the
nature of his searching questions and answers as required by
law," so the respondent Judge adopted them."
Preliminary Examination May be Ex-parte
Preliminary examination is not an essential part of due proc-
ess of law. Preliminary examination may be conducted by the
municipal judge, prior to the issuance of the warrant of
arrest, either in the presence, or in the absence, of the
accused.
There is no need of warrant or bail in cases covered by the
Rule on Summary Procedure.
RULE 113
ARREST
SECTION 1.
Definition of arrest
SEC. 2.
Arrest; how made
What Constitutes Arrest
The act relied upon as constituting an arrest must have been
performed with the intent to effect an arrest and must have
been so understood by the party arrested.
Also, the person making the arrest must be acting under
some real or pretended legal authority for taking the person
into custody.
It is not necessary, however, that there be an application of
actual force, or manual touching of the body, or physical
restraint which may be visible to the eye, or a formal decla-
ration of arrest.
It is sufficient if the person arrested understands that he is in
the power of the one arresting and submits in consequence.
However, in all cases in which there is no manual touching or
seizure or any resistance, the intentions of the parties to the
transaction are very important; there must have been an
intent an the part of one of them to arrest the other, and an
intent on the part of the other to submit, under the belief and
impression that submission was necessary.
There can be no arrest when the person sought to be arrested
is not conscious of any restraint of his liberty.
But the mere submission of a person whether pretended or
actual, will not constitute an arrest, if he is not at the time
actually within the power of the officer.
If an officer having authority to make an arrest lays his hand
upon the person of the prisoner, however lightly, with the
intention of taking him into custody, there is an arrest, even
though he has not succeeded in stopping or holding him even
for an instant.
An arrest signifies restraint on person, depriving one of his
own will and liberty, binding him to become obedient to the
will of the
law.
No Unnecessary or Unreasonable Force shall be Used in Making Arrest
Although an officer in making a lawful arrest is justified in
using such force as is reasonably necessary to secure and
detain the offender, overcome his resistance, prevent his
escape, recapture him if he escapes, and protect himself from
bodily harm, yet he is never justified in using unnecessary
force or in treating him with wanton violence, or in resorting
to dangerous means when the arrest could be effected
otherwise.
The doctrine is restated in the Rules of Court thus: "No
violence or unnecessary or unreasonable force shall be used
in making an arrest, and the person arrested shall not be
subject to any greater restraint than is necessary for his
detention."
And a peace officer cannot claim exemption from criminal
liability if he uses unnecessary force or violence in making an
arrest.
Arrest of Notorious Criminal
The court noted in one case: "It is suggested that a notorious
criminal 'must be taken by storm' without regard to his right
to life which he has by such notoriety already forfeited.
This Court may approve of this standard of official conduct
where the criminal offers resistance or does something which
places his captors in danger of imminent attack.
Otherwise, this court cannot see how, as in the present case,
the mere fact of notoriety can make the life of a criminal a
mere trifle in the hands of the officers of the law.
Notoriety rightly supplies a basis for redoubled official
alertness and vigilance; it never can justify precipitate action
at the cost of human life.
Where, as here, the precipitate action of the appellants has
cost an innocent life and there exist no circumstances
whatsoever to warrant action of such character in the mind of
a reasonably prudent man, condemnation — not condonation
should be the rule; otherwise, this Court would offer a
premium to crime in the shelter of official actuation.
Thus, it may be true that Anseimo Balagtas was a notorious
criminal, a life-termer, a fugitive from justice and a menace
126
to the peace of the community but these facts alone
constitute no justification for killing him when, in effecting his
arrest, he offers no resistance, or in fact no resistance can be
offered, as when he is asleep.
This, in effect, is the principle laid down, although upon
different facts."
Force Necessary to Overcome Actual Resistance to Arrest
In People v. Delima, a prisoner escaped from jail. He was found armed
with a pointed piece of bamboo in the shape of a lance. Accused
policeman asked him to surrender but prisoner answered with a stroke
of his lance. The policeman fired his revolver but did not hit the
criminal who ran away. He pursued, firing and killing the prisoner.
Held: The killing was done in the performance of a duty.
The deceased was under the obligation to surrender, and had no right,
after evading service of his sentence, to commit assault and disobe-
dience with a weapon in the hand, which compelled the policeman to
resort to extreme means, which, although it proved to be fatal, was
justified by circumstances.
In another case, the deceased was creating a disturbance
when the defendant, a policeman, attempted to arrest him
and take him to the presidensia.
The deceased resisted the arrest by striking the accused with
a calicut whereupon the latter shot him with his revolver
causing the former's death.
The Court held: "Although a police officer may employ force
to overcome active resistance to an arrest, it is not
reasonably necessary to kill his assailant" to repel an attack
with a calicut, and only an incomplete defense is made out.
A police officer is not justified in using unnecessary force in
effecting arrest or in treating with wanton violence the
arrested person or in resorting to dangerous means when the
arrest could be affected otherwise.
Police Officer Must Stand His Ground
In U.S. v. Mojica— One of the Constabulary soldiers, the deceased,
was placed under arrest. He resisted and finally succeeded in freeing
himself. He then struck a policeman with the fist, drew a mess kit knife
and brandishing it attacked the accused, another policeman. The
accused retreated a step or two, drew his revolver and fired killing the
soldier.
Held: A police officer, in the performance of his duty, must stand his
ground and cannot, like a private individual, take refuge in flight, his
duty requires him to overcome his opponent. The force requires him to
overcome his opponent.
The force which he may exert therefore differ somewhat from that
which may ordinarily be offered in self-defense.
Bearing this in mind, we do not think that the appellant in using his
revolver against the deceased can be said to have employed
unnecessary force.
The deceased attacked him with a deadly weapon; he might perhaps,
have saved himself by running away, but this his duty forbade.
Was he to allow himself to be stabbed before using his arms?
It may, perhaps, be argued that the appellant might have used his
club, but a policeman's club is not a very effective weapon as against a
drawn knife and a police officer is not required to afford a person
attacking him the opportunity for a fair and equal struggle.
SEC. 3.
Duty of Arresting Officer
COMMENT:

As a matter of law, when a person indicted for an offense is
arrested, he is deemed placed under custody of the law.
He is placed in actual restraint to liberty in jail so that he may
be bound to answer for the commission of the offense.
He must be detained in jail during the pendency of the case
against him, unless he is authorized by the court to be
released on bail or on recognizance.
The prisoner whether under preventive detention or serving
fail sentence cannot practice their profession nor engage in
any business or occupation or hold office, elective or
appointee, while in detention.
This is a necessary consequence of arrest and detention.
SEC. 4.
Execution of Warrant
The rule does not require a return of the warrant of arrest but
only a report to the judge who issued the warrant and, in
case of the officer's failure to execute the same, shall state
the reasons therefor.
A warrant of arrest does not become stale or functus oficio
unlike a search warrant which is valid only for ten days.
A warrant of arrest remains valid until arrest is effected or the
warrant lifted.
SEC. 5.
Arrest without warrant; when Lawful
Amendments to the Rule, Explained
a. Former Rule (1964)
Sec. 6, Rule 113
b. When an offense has in fact been committed, and he has
reasonable ground to believe that the person to be
arrested has committed it; and
1985 AMENDMENT
b) When an offense has in fact just been committed, and he
has personal knowledge of facts indicating that the
person to be arrested has committed it; and
Reason For 1985 Amendment
In 1985, the rule, which was transposed to section 5 of Rule
113, introduced a significant change.
Subsection (b) of section 5, Rule 113 inserted the word "just"
before been committed, and the phrase "he has reasonable
ground to believe" was changed to "he has personal
knowledge of facts" to minimize arrests based on mere
suspicion or hearsay.
Controversy arose in the interpretation of what are those fact
which must be within the personal knowledge of the person
effecting the arrest?
Otherwise stated, what are the facts indicating that the
person to be arrested has committed the crime.
The restrictive interpretation is that the facts constituting the
crime must be personally known by the person effecting the
arrest, hence, there are cases which excluded even an
eyewitness identification allegedly because of lack of personal
127
knowledge by the arresting officer.
The Revised Rules on Criminal Procedure
As revised, the present rule reads:
"(B) WHEN AN OFFENSE HAS JUST BEEN COMMITTED
AND HE HAS PROBABLE CAUSE TO BELIEVE BASED ON
PERSONAL KNOWLEDGE OF FACTS OR CIRCUMSTANCES
THAT THE PERSON TO BE ARRESTED HAS COMMITTED
IT."
The present rule removed the requirement that an offense
must have in fact been committed and clarified that probable
cause to believe based on personal knowledge of facts refer
to "facts and circumstances" that the person to be arrested
has committed it.
Such knowledge would be sufficient to justify a warrantless
arrest for an offense that has just been committed.
The amendment is in accord with Supreme Court decisions
that the indubitable existence of a crime is not necessary to
justify a warrantless arrest and that 'personal knowledge of
facts,' in arrests without warrant must be based upon
probable cause, which means an actual belief or reasonable
grounds of suspicion.
The grounds of suspicion are reasonable when, in the absence
of actual belief of the arresting officers, the suspicion that the
person to be arrested is probably guilty of committing the
offense, is based on actual facts, i.e., supported by
circumstances sufficiently strong in themselves to create the
probable cause of guilt of the person to be arrested.
A reasonable suspicion therefore must be founded on
probable cause, coupled "with good faith on the part of the
peace officers making the arrest.
The only difference is that in flagrante arrests, under subpar.
(a), the facts constituting probable cause occur in the
presence of the arresting person, while in hot pursuit,
knowledge of the facts occurred after the commission of the
crime.
Although probable cause eludes exact and concrete definition,
it generally signifies a reasonable ground of suspicion
supported by circumstances sufficiently strong in themselves
to warrant a cautious man to believe that the person is guilty
of the offense with which he is charged.
It, likewise, refers to the existence of such facts and
circumstances which could lead a reasonably discreet and
prudent man to believe that an offense has been committed
and that the item(s), article(s) or object(s) sought in
connection with said offense or subject to seizure and
destruction by law is in the place to be searched.
Personal Knowledge of Facts Constituting Probable Cause
In its resolution denying the Motion for Reconsideration in the
Umil v. Ramos cases, the majority opinion explained the
meaning of Personal Knowledge of Facts (under section 5[b]),
as follows:
"It has been ruled that 'personal knowledge of facts,' in arrests without
warrant must be based upon probable cause, which means an actual
belief or reasonable grounds of suspicion.
The grounds of suspicion are reasonable when, in the absence
of actual belief of the arresting officers, the suspicion that the
person to be arrested is probably guilty of committing the
offense, is based on actual facts, i.e., supported by
circumstances sufficiently strong in themselves to create the
probable cause of guilt of the person to be arrested.
A reasonable suspicion therefore must be founded on
probable cause, coupled "with good faith on the part of the
peace officers making the arrest."
The foregoing standards were again adopted in warrantless
"hot pursuit" arrest in the 1999 case of People v. Doria.
As observed by an eminent author there does not exist (and
never will exist) a "bright line" marking the exact boundaries
of probable cause, so that a warrant should be upheld when
the initial judgment of the magistrate could considerably have
gone either way.
General Principles; Warrantless Arrest Not Allowed
a. As a general rule, no peace officer or person has the
power or authority to arrest anyone without a warrant
except in those cases expressly authorized by law.
The law expressly allowing arrests without a warrant is
found in Section 5, Rule 113 of the Rules of Court.
A warrantless arrest under circumstances contemplated
under Sec. 5(a) has been denominated as one "in
flagrante delicto" while that under Section 5(b) has been
described as a "hot pursuit arrest."
b. A peace officer has no power or authority to arrest a per-
son without a warrant upon complaint of the offended
party or any other person, except in those cases
expressly authorized by law.
What he or the complainant may do in such case is to file
a complaint with the city fiscal in cities, or directly with
the justice of the peace courts (now municipal courts) in
municipalities and other political subdivisions.
If the city fiscal has no authority, and he has not, to
order the arrest of a person charged with having
committed a public offense even if he finds, after due
investigation, that there is a probability that a crime has
been committed and the accused is guilty thereof, a
fortiori a police officer has no authority to arrest and
detain a person charged with an offense upon complaint
of the offended party or other persons even though after
investigation, he becomes convinced that the accused is
guilty of the offense charged.
c. Section 2463 of Revised Administrative Code recognized
as basis for warrantless arrest was repealed by R.A. No.
409 otherwise known as the Charter of Manila.
Exception
The rules recognize and allow arrests without warrant and a
search and seizure without warrant incident to a lawful arrest
whether the arrest is with or without a warrant.
As stated in People v. Kaqui Malasugui, the Constitutional
precepts do not prohibit arrests, searches and seizures
without judicial warrant, but only those that are
unreasonable.
To hold that no criminal can in any case be arrested and
searched for the evidence and tokens of his crime without a
warrant, would be to leave society, to a large extent, at the
mercy of the shrewdest, the most expert, and the most
depraved of criminals, facilitating their escape in many
128
instances.
It is the duty of a policeman to arrest those who disturb an
assemblage by words and blows constituting a breach of the
peace and the defendant who requested the arrest and the
officer who made it did not incur criminal responsibility.
Municipal councilors and lieutenants or "barrios" are charged
with duty of maintaining order, and preserving and protecting
life and property in the "barrios" specially placed under their
direction in conformity with Sec. 37 of Act No. 82, and are
therefore clothed with authority to make arrests without
warrants, not inferior to those powers usually conferred upon
peace officers, more especially those of peace officers known
as "constables" in American and English law.
Thus, the Lieutenant of a "barrio" was held to be within lawful
performance of his duties when he attempted to arrest a
person caught in flagrante delicto conducting a clandestine
cockpit.
Any officer charged with the preservation of the public peace
may arrest without a warrant any person who is committing,
or has committed, a breach of peace in his presence.
Source of Rule on Warrantless Arrest
a. A warrantless arrest in this jurisdiction as an exception to
the constitutional prohibition against unreasonable search
and seizure was originally governed by Rules 27, 28, 29
and 30 of the Provisional Law for the Application of the
Penal Code, which authorized among others the arrest of
persons when there is reasonable ground to believe him
guilty of some offense, provided:
First. That the authority or agent had reasonable cause to
believe that an unlawful act, amounting to crime had
been committed.
Second. That the authority or agent had sufficient reason
to believe that the person arrested participated in the
commission of such unlawful act or crime.
The Supreme Court in the 1909 case U.S. v. Fortaleza
(supra), likewise pointed to section 37 of Act No. 183
(Charter of Manila) which designated customs officials,
including police officers or peace officers who may pursue
and arrest without warrant, any person found in
suspicious places or under suspicious circumstances
reasonably tending to show that such person has
committed, or is about to commit any crime or breach of
the peace; or may arrest, or cause to be arrested without
warrant, any offender, when the offense is committed in
the presence of a peace officer or within his view.
b. The extent of a peace officers' arrest powers in the
Philippines without warrant and the limitations therein
was upheld by the Supreme Court in the 1917 case of
U.S. v. Santos and as stated in the Legislature in the
Charter of the City of Manila and (2) the Administrative
Code and (3) Sec. 2258, edition of 1917 which enjoins
Municipal policemen to "exercise vigilance in the
prevention of public offenses.
The decision, likewise cited the common law rule on the
arrest of suspicious night walkers.
c. In the 1939 case of People v. Ancheta— the Supreme
Court pointed to section 848 of the Administrative Code
and Article 124 of the Revised Penal Code as allowing
members of the Constabulary or policemen to make
arrests without warrant, not only when a crime is being
 committed or is about to be committed in their presence,
but also when they reasonably believe or have grounds
to suspect that a crime has been committed and that it
has been committed precisely by the person arrested.
d. Under Commonwealth Act No. 181 (Sec. 3), an arrest
without warrant may be made by agents of the
Department of Justice (i.e., the Chief of the Division of
Investigation and his subordinates) for a crime which has
been committed in their presence, or within their view, or
in cases where the person making the arrests has
reasonable grounds to strongly believe that the person so
arrested is guilty of such crime and where there is
likelihood of the person escaping before a legal warrant
can be obtained for his arrest, but the person arrested
shall be immediately taken before the competent Court of
Justice.
Under this law members of the investigation staff of the
Bureau of Investigation shall be peace officers and as
such have the power to make arrests, searches and
seizure in accordance with existing laws and rules.
Earlier Rulings (Before 1940): Arrest Based on Suspicion, Were Held
Valid
The bases of the rulings are Rules 27 and 28, Provisional
Rules for Application of Penal Code, Revised Administrative
Code and Section 37 Charter of Manila which allows
warrantless arrest based on reasonable ground of belief.
The following cases are illustrative:
a. U.S. u. Burgueta— warrantless arrest of accused while
quarreling in public with Municipal Councilor.
b. U.S. v. Fortaleza — upholding warrantless arrest of
operator by barrio lieutenant of a clandestine, cockpit
operation.
c. U.S. u. Samonte - Meaning of committed in one's pres-
ence — Seeing or Hearing at a Distance. An offense is
committed in the presence or within the view of an
officer, within the meaning of the rule authorizing an
arrest without a warrant, when the officer sees the
offense, although at a distance, or hears the disturbances
created thereby and proceeds at once to the scene
thereof.
In this case, as the priest engaged in a quarrel was down
and was being maltreated, he shouted "police! police!"
and the police heard this and attempted to arrest
appellant, he resisted arrest and struck the police.
Appellant was held guilty of assault upon an agent of a
person in authority.
d. U.S. u. Batallones — A peace officer can justify an arrest
without warrant if there is reasonable ground of suspicion
tending to show that a person committed or is about to
commit any crime 01 breach of the peace, and if he acts
in good faith. Under such conditions, even if the
suspected person is later found to be innocent, the peace
officer is not liable for coercion or arbitrary detention.
e. U.S. v. Sanchez — The legality of the detention does not
depend upon the fact of the crime, but upon the nature
of the deed, where such characterization may reasonably
be inferred by the officer or functionary to whom the law
at that moment leaves the decision for the urgent
purpose of suspending the liberty of the citizen.
One of the duties of the police is to arrest lawbreakers in
129
order to place them at the disposal of the judicial or
executive authorities upon whom devolves the duty to
investigate the act constituting the violation or to
prosecute and secure the punishment thereof.
One of the means conducing to these ends being the
identification of the person of the alleged criminal or
lawbreaker, the duty that directly devolves upon the
police to make the arrests or detentions for the purposes
of such investigation cannot be questioned, (supra)
Hearing the screeching of tires followed by a thud and
seeing the sideswiped victim is a crime committed in
one's presence to justify a warrantless arrest.
f. In a case of arbitrary detention, the Supreme Court held
that there is No need of fact of commission of offense to
justify the detention. — Probable cause for an arrest
without warrant is allowed where there is reasonable
ground of suspicion supported by circumstances
sufficiently strong in themselves as to warrant a
reasonable man in believing the accused to be guilty. No
crime was committed here.
The persons merely entered an uninhabited camarin but
their arrest was justified to prevent the commission of a
crime.
Common Law rule applied. Justice Malcolm stated that:
"One should, however, not expect too much of an ordinary
policeman. He is not presumed to exercise the subtle reasoning of
a judicial officer.
Often he has no opportunity to make proper investigation but
must act in haste on his own belief to prevent the escape of the
criminal. To err is human. Even the most conscientious officer
must at times be misled.
If, therefore, under trying circumstances and in a zealous effort
to obey the orders of his superior officer and to enforce the law, a
peace officer makes a mere mistake in good faith, he should be
exculpated.
Otherwise, the courts will put a premium on crime and will
terrorize peace officers through a fear of themselves violating the
law."
g. In People v. Kagui Malasugu — a warrantless arrest for a
crime committed not in arresting officer's presence but
made on the same day was justified.
h. In other words, such arrest or detention does not
necessarily presume that really a crime had been
committed.
It is sufficient that there was ample ground to believe
honestly and reasonably that the cause of the
surrounding phenomena at the time was a crime that has
just been or was about to be committed and that the
person detained was responsible for it.
People v. Ancheta, reiterated the ruling laid down in U.S.
v. Santosand adopted that of a decision of the Supreme
Court of Spain of November 5, 1892.
Indubitable Existence of Crime Not Required
Thus, under the pre-1940 rulings, a lawful warrantless arrest
does not require the indubitable existence of a crime.
It is sufficient if the officer effecting the arrest has reasonably
sufficient grounds to believe the existence of an act having
the characteristic of a crime and that the person sought to be
detained has participated therein, a warrantless arrest was
made on the basis of information given by one of the accused
naming his companions who, on the basis thereof, was
arrested without a warrant.
The arrest was considered as lawful.
Restrictions on Warrantless Arrest
In Sayo, et al. v. Chief of Police, the court, however, held
that:
"THE LAW RESTRICTS THE CASES WHEN A PEACE
OFFICER MAY ARREST WITHOUT A WARRANT; THE SO-
CALLED COMMON LAW RULE RELATING TO OTHER
CASES OF ARREST WITHOUT WARRANT HAS NO
APPLICATION IN THIS JURISDICTION, AND EXCEPT AS
AUTHORIZED BY SUCH STATUTE, AN ARREST WITHOUT
WARRANT IS ILLEGAL.
STATUTORY CONSTRUCTIONS EXTENDING THE RIGHT
TO MAKE ARRESTS WITHOUT A WARRANT BEYOND THE
CASES PROVIDED BY LAW IS DEROGATORY OF THE
RIGHT OF THE PEOPLE'S LIBERTY"
Present Rule on Warrantless Arrest
The law expressly allowing arrests without a warrant is found
in Section 5, Rule 113 of the Rules of Court.
A warrantless arrest under circumstances contemplated under
Sec. 5(a) has been denominated as one "in flagrante delicto"
while that under Sec. 5(b) has been described as a "hot
pursuit arrest."
The foregoing rule specifies the instances when warrantless
arrests may be made by a peace officer or a private person.
The old Rule was modified as follows: (a) the phrase "about
to commit an offense" was changed to "is attempting to
commit an offense," because the old phraseology implied that
no offense had as yet been committed, (b) the word "just"
was inserted before "been committed," and the phrase "he
has reasonable ground to believe" was changed to "he has
personal knowledge of facts" to minimize arrests based on
mere suspicion or hearsay.44
The 1940 Rules of Court (effective July 1, 1940), provided for
warrantless arrest in section 6 of Rule 109 thereof. These
were taken from the Provisional Law for the application of the
Penal Code and sections 21 and 22 of the American Law
Institute45 with one significant change. The warrantless arrest
under subsection (b) requires as a condition thereof that an
"offense has in fact" been committed.
In 1985 rule, which was transposed to section 5 of Rule 113,
introduced another significant change. Subsection (b) of
section 5, Rule 113 inserted the word "just" before been
committed, and the phrase "he has reasonable ground to
believe" was changed to "he has personal knowledge of facts"
to minimize arrests based on mere suspicion or hearsay.46
Application of Present Rule
Despite the 1985 amendments on warrantless arrest, the
court appears to have returned to pre-amendment doctrines
in the application of the rule.
In Flagrante Arrests (For crimes committed in presence of arresting
person)
Sec. 5(a), Rule 113, Sec. 12, Rule 126 arrest for crimes In
130
Presence of arresting officer. — WHEN IN HIS PRESENCE, THE
PERSON TO BE ARRESTED HAS COMMITTED, IS ACTUALLY
COMMITTING, IS OR ATTEMPTING TO COMMIT A CRIME.
Essential Requisites
Reliable information alone, absent any overt act indicative of
a felonious enterprise in the presence of and within the view
of the arresting officers, are not sufficient to constitute
probable cause that would justify an in flagrante delicto
arrest.
To constitute probable cause, two requisites must concur:
(a) the person to be arrested must execute an overt act
indicating that he has just committed, is actually
committing, or is attempting to commit a crime; and
(b) such overt act is done in the presence or within the
view of the arresting officer
There is an attempt when the offender commences the
commission of a felony directly by overt acts, and does not
perform all the acts of execution which should produce the
felony by reason of some cause or accident other than his
own spontaneous desistance.
Overt or external act has been defined as some physical
activity or deed, indicating the intention to commit a
particular crime, more than a mere planning or preparation,
which if carried out to its complete termination following its
natural course, without being frustrated by external obstacles
nor by the voluntary desistance of the perpetrator, will
logically and necessarily ripen into a concrete offense.
A warrantless arrest is not justified by the mere fact that a
crime is being committed in one's presence.
The arresting officer must have personal knowledge of such
commission.
The knowledge must precede the arrest.
The arrest cannot be justified by discovery thereafter that the
person was committing a crime.
Knowledge Must Be At Time of, Not After, Arrest
An offense is committed in the presence or within the view of
an officer, within the meaning of the rule authorizing an
arrest without a warrant, when the officer sees the offense,
although at a distance, or hears the disturbance caused
thereby and proceeds at once to the scene thereof, or the
offense is continuing; or has not been consummated at the
time when the arrest is made.
Knowledge of the commission of the crime in one's presence
must precede the arrest.
The law requires that there be first a lawful arrest before a
search can be made — the process cannot be reversed.
In other words, the acts must be known to the officer at the
time of their commission through his sensory perceptions.
Thus, there could have been no in flagrante delicto arrest
preceding the search, in light of the lack of an overt physical
act on the part of accused-appellant that he had committed a
crime, was committing a crime or was going to commit a
crime.
As applied to in flagrante delicto arrests, it has been held that
"reliable information" alone, absent any overt act indicative of
a felonious enterprise in the presence and within the view of
the arresting officers, is not sufficient to constitute probable
cause that would justify an in flagrante delicto arrest.
Hence, in People u. Aminudin, we ruled that "the accused-
appellant was not, at the moment of his arrest, committing a
crime nor was it shown that he was about to do so or that he
had just done so.
What he was doing was descending the gangplank of the M/V
Wilcon 9 and there was no outward indication that called for
his arrest.
To all appearances, he was like any of the other passengers
innocently disembarking from the vessel.
It was only when the informer pointed to him as the carrier of
the marijuana that he suddenly became suspect and so sub-
ject to apprehension."
The reliance of the prosecution in People v. Tangliben, to jus-
tify the police's actions is misplaced.
In the said case, based on the information supplied by
informers, police officers conducted a surveillance at the
Victory Liner Terminal compound in San Fernando, Pampanga
against persons who may commit misdemeanors and also on
those who may be engaged in the traffic of dangerous drugs.
At 9:30 in the evening, the policemen noticed a person
carrying a red travelling bag who was acting suspiciously.
They confronted him and requested him to open his bag but
he refused. He acceded later on when the policemen identified
themselves. Inside the bag were marijuana leaves wrapped in
a plastic wrapper. The police officers only knew of the
activities of Tangliben on the night ol his arrest.
In the instant case, the apprehending policemen already hac
prior knowledge from the very same informant of accused-
appellant's activities.
The police operatives cannot feign ignorance of the alleged
ille gal activities of accused-appellant. Considering that the
identity address and activities of the suspected culprit was
already ascertained two years previous to the actual arrest,
there was indeed no reason why the police officers could not
have obtained a judicial warrant before arresting accused-
appellant and searching his person Whatever information
their civilian asset relayed to them hours before accused-
appellant's arrest was not a product of an "on-the-spot tip
which may excuse them from obtaining a warrant of arrest
Accordingly, the arresting team's contention that their arrest
of accused-appellant was a product of an "on-the-spot" tip is
untenable
In Randolph David v. Gloria Macapagal-Arroyo, the Court
stressed:
The Constitution provides that "the right of the people to be secured in
their persons, houses, papers and effects against unreasonable search
and seizure of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized."
The plain import of the language of the Constitution is that searches,
seizures and arrests are normally unreasonable unless authorized by a
validly issued search warrant or warrant of arrest.
Thus, the fundamental protection given by this provision is that
131
between person and police must stand the protective authority of a
magistrate clothed with power to issue or refuse to issue search
warrants or warrants of arrest.
In the Brief Account submitted by petitioner David, certain
facts ire established: first, he was arrested without warrant;
second, the PNP operatives arrested him on the basis ofPP
1017; third, he was brought at Camp Karingal, Quezon City
where he was fingerprinted, Dhotographed and booked like a
criminal suspect; fourth, he was created brusquely by
policemen who "held his head and tried to push him inside an
unmarked car; fifth, he was charged with Violation of Satas
Pambansa Bilang Big. 880 and Inciting to Sedition; sixth, he
was detained for seven (7) hours; and seventh, he was
eventually released for insufficiency of evidence.
Neither of the two (2) exceptions mentioned above justifies
petitioner David's warrantless arrest.
During the inquest for the charges of inciting to sedition and
violation of B.P. Big. 880, all that the arresting officers could
invoke was their observation that some rallyists were wearing
t-shirts with the invective "Oust Gloria Now" and their
erroneous assumption that petitioner David was the leader of
the rally.
Consequently, the Inquest Prosecutor ordered his immediate
release on the ground of insufficiency of evidence.
He noted that petitioner David was not wearing the subject t-
shirt and even if he was wearing it, such fact is insufficient to
charge him with inciting to sedition.
Further, he also stated that there is insufficient evidence for
the charge of violation of B.P. Big. 880 as it was not even
known whether petitioner David was the leader of the rally.
ILLUSTRATIVE CASES:
Meaning of Personal Knowledge Based on Sensory Perceptions
People v. Claudio —
Pat. Obina a member of the NARCOTICS UNIT, was on board the
Victory Liner, seated on the second seat at the back. While he was
thus seated, suspect Anita Claudio boarded the same bus and took the
seat in front of him after putting a bag which she was carrying at the
back of the seat of Obina. The bag placed by suspect behind his seat
was a woven buri bag made of plastic containing her bag behind Pat.
Obina's seat aroused his suspicion and made him felt (sick) nervous.
With the feeling that there was something unusual, he had the urge to
search the woven plastic bag. But it was only at San Fernando,
Pampanga when he was able to go to the bag. He inserted one of his
fingers in a plastic bag located at the bottom of the woven bag and
smelt marijuana. The plastic woven bag appearing to contain camote
tops on the top has a big bundle of plastic marijuana at the bottom. He
could recognize the smell of marijuana because he was assigned at
that time at the ANTI-NARCOTICS UNIT. He did not, however, do
anything after he discovered that there was marijuana inside the
plastic bag of the accused until they reached Olongapo City and the
accused alighted from the bus in front of the Caltex Gasoline Station in
Sta. Rita. Right after the accused alighted from the bus, policeman
Obina intercepted her and showed her his ID identifying himself as a
policeman and told her he will search her bag because of the suspicion
that she was carrying marijuana inside said bag. In reply, accused told
him, "Please go with me, let us settle this at home."
HELD: Appellant Claudio was caught transporting prohibited drugs.
Pat. Daniel Obina did not need a warrant to arrest Claudio as the latter
was caught inflagrante delicto. The warrantless search being an
incident to a lawful arrest is in itself lawful.
PEOPLE V. BURGOS
Strict Interpretation
Personal Knowledge Interpreted. The need to strictly adhere to the
rule was stressed by Justice Hugo Gutierrez, Jr., in no uncertain terms
in People v. Burgos — In this case Cesar Masamlok surrendered to the
PC on May 12, 1982 stating that, he was forcibly recruited by Ruben
Burgos a member of the NPA, threatening him with the use of firearm
against his life, if he refused.
A joint team of members of the PC-INP was dispatched the following
day to arrest Ruben Burgos and they were able to locate and arrest
him while he was plowing his field. Interrogation was made in the
house of the accused. He first denied possession of the firearm but
later, upon further questioning, the team with the wife of the accused,
the latter pointed to a place below their house where a gun was buried
in the ground.
After the recovery of the firearm, the accused likewise pointed to the
subversive documents which the PC found kept in a stock pile ofcogon,
at a distance of three meters apart from his house.
Accused when confronted with the firearm readily admitted the same
as issued to him by the team leader of a sparrow unit. The lower court
justified the arrest, search and seizure without warrant under Section
6-A, Rule 113 of the Rules of Court.
The Supreme Court held the arrest as unlawful.
“Under Section 6(a) of Rule 113, the officer arresting a person who
has just committed, is committing, or is about to commit an offense
must have personal knowledge of that fact.
The offense must also be committed in his presence or within his
view."
There is no such personal knowledge in this case.
Whatever knowledge was possessed by the arresting officers, it came
in its entirety from the information furnished by Cesar Masamlok.
The location of the firearm was given by the appellant's wife.
At the time he was arrested, he was not committing a crime but was
plowing his field.
If an arrest without warrant is unlawful at the moment it is made,
generally, nothing that is discovered afterwards cannot make it lawful
ARREST UNLAWFUL WHERE WAS NO URGENCY AND THERE IS
OPPORTUNITY TO OBTAIN WARRANT
In People v. Aminnudin, the PC officers had earlier received a tip from
one of their informers that the accused was on board a vessel bound
for Iloilo City and was carrying marijuana. He was identified by name.
Acting on this tip, they waited for him in the evening of June 25, 1984,
and approached him as he descended from the gangplank after the
informer had pointed to him. They detained him and inspected the bag
he was carrying. It was found to contain three kilos of what were later
analyzed as marijuana leaves by an NBI forensic examiner, who
testified that she conducted microscopic, chemical and
chromatographic tests on them. On the basis of this finding, the
corresponding charge was then filed against Aminnudin.
HELD: Contrary to the averments of the government, the accused-
appellant was not caught in flagrante nor was a crime about to be
committed or had just been committed to justify the warrantless arrest
allowed under Rule 113 of the Rules of Court.
The present case presented no urgency. From the conflicting
declarations of the PC witnesses, it is clear that they had at least two
days within which they could have obtained a warrant to arrest and
search Aminnudin who was coming to Iloilo on the M/V Wilcon 9. His
name was known.
The vehicle was identified. The date of its arrival was certain.
And from the information they had received, they could have
persuaded a judge that there was probable cause, indeed, to justify
the issuance of a warrant. Yet they did nothing.
No effort was made to comply with the law.
The Bill of Rights was ignored altogether because the PC Lieutenant
who was the head of the arresting team, had determined on his own
authority that a "search warrant was not necessary."
132
The accused-appellant was not, at the moment of his arrest,
committing a crime nor was it shown that he was about to do so or
that he had just done so.
What he was doing was descending the gangplank of the M/V Wilcon 9
and there was no outward indication that called for his arrest. To all
appearances, he was like any of the other passengers innocently
disembarking from the vessel.
It was only when the informer pointed to him as the carrier of the
marijuana that he suddenly became suspect and so subject to
apprehension.
It was the furtive finger that triggered his arrest.
The identification by the informer was the probable cause as
determined by the officers (and not a judge) that authorized them to
pounce upon Aminnudin and immediately arrest him. Even expediency
could not be invoked to dispense with the obtention of the warrant.
Hence, the warrantless search was also illegal and the evidence
obtained thereby was inadmissible.
Aminnudin was reiterated in People v. Encinada, under
substantially identical factual setting. To the trial court's
justification that there was no time to obtain a search warrant
because the information was received at 4:00 o'clock in the
afternoon, and that the ship was to dock at 7:00 a.m., the
court pointed to Administrative Order No. 12 which allows
applications for search warrants even after office hours.
COMPARE: Where there was No Opportunity to Obtain
Warrant
In People v. Saycon — A warrantless arrest, search and seizure based
on information from a NARCOM agent that a suspected Shabu courier
was arriving at Dumaguete City on board a vessel and who was
pointed to by another agent was justified although the suspect was not
perceptively committing a crime but (like Aminnudin) merely alighted
from the vessel. The search and seizure was justified under the
principle justifying the search of moving vehicles as there was no time
to obtain a warrant.
The case was distinguished from Aminnudin where there was time to
obtain a search warrant.
The record shows that the NARCOM officers were uncertain as to the
precise date and time appellant would arrive from Manila; all they
knew is that he would be taking a boat from Manila to Dumaguete on
the morning of 8 July 1992.
More specific details were received earlier in the morning that the
appellant would be arriving the same morning. Clearly, the agents had
to act quickly but there was not enough time to obtain a warrant of
arrest or search warrant.
Mere suspicion Insufficient
WHERE THE ACCUSED CARRYING A BURI BAG WAS
ACTING SUSPICIOUSLY AND WAS FOUND IN
POSSESSION OF A FIREARM AND EXPLOSIVE, THE
SOLICITOR GENERAL ARGUED THAT WHEN THE TWO
POLICEMEN APPROACHED THE PETITIONER, HE WAS
ACTUALLY COMMITTING OR HAD JUST, COMMITTED
THE OFFENSE OF ILLEGAL POSSESSION OF FIREARMS
AND AMMUNITION IN THE PRESENCE OF POLICE
OFFICERS AND CONSEQUENTLY THE SEARCH AND
SEIZURE OF THE CONTRABAND WAS INCIDENTAL TO
THE LAWFUL ARREST IN ACCORDANCE WITH SECTION
12, RULE 126 OF THE RULES ON CRIMINAL
PROCEDURE.
The Supreme Court held:
"At the time the peace officers in this case identified themselves and
apprehended the petitioner as he attempted to flee they did not know
that he had committed, or was actually committing the offense of
illegal possession of firearms and ammunitions.
They just suspected that he was hiding something in the buri bag.
They did not know what its contents were. The said circumstances did
not justify an arrest without a warrant.
Thus, to justify the arrest without warrant, under Section 6 (a), it is
not enough that a crime is actually being committed in his presence.
The person or peace officer making the arrest must be personally
aware of the commission of such crime."
People v. Mengote
The police received a telephone call that there were three suspicious
looking persons at the corner of Juan Luna and North Bay Boulevard at
Tondo. The police responded and saw two men "looking from side to
side," one of whom was holding his abdomen. The police approached
them and identified themselves as policemen whereupon the two tried
to ran away. The other lawmen surrounded them and searched them
and one of them was found with an unlicensed firearm and live
ammunition. Was the search and seizure legal?
Held: It is illegal. At the time of the arrest, the appellant was merely
looking from side to side and holding his abdomen. This is not a crime.
The police did not know then what offense if at all had been committed
and neither were they aware of the participation therein of the
appellant, x x x
As for the illegal possession of firearm, the police discovered this only
after he had been searched and investigated.
The Supreme Court cited the cases of Burgos, Alih Castro and
Aminnudin holding that it would be a sad day, indeed, if any person
could be summarily arrested and searched just because he is holding
his abdomen, even if it be possibly because of a stomachache or if a
peace officer could clamp handcuffs on any person with a shifty look
on suspicion that he may have committed a criminal act or is actually
committing or attempting to commit it.
People v. Rodriguez
The arrest, search and seizure was held illegal in view of the admission
by the police that he did not actually see the appellants transacting but
only saw them acting suspiciously. The court held that the cardinal rule
is that no person may be subjected by the police to a search of his
house, body or personal belonging except by virtue of a search
warrant or on the occasion of a lawful arrest.
If a person is searched without a warrant, or under circumstances
other than those justifying an arrest without warrant in accordance
with law, merely on suspicion that he is engaged in some felonious
enterprise, and in order to discover if he has indeed committed a
crime, it is not only the arrest which is illegal but also, the search on
the occasion thereof as being the fruit of the poisonous tree.
In that event, any evidence taken, even if confirmatory of the initial
suspicion, is inadmissible "for any purpose in any proceeding.
COMPARE:
Arrest Based on Suspicion; Where there is Urgency
Where around 9:30 in the evening the police on a surveillance mission
noticed a person carrying a red travelling bag who was acting
suspiciously and they confronted himand requested him to open the
red travelling bag but the person refused. Found inside the bag were
marijuana leaves wrapped in a plastic wrapper and weighing one kilo,
more or less.
Accused was held to havev been caught in flagrante, since he was
carrying marijuana at the time of his arrest. This case therefore falls
squarely within the exception.
The warrantless search was incident to a lawful arrest and is
consequently valid.
In contrast, to the Aminnundin case, Tangliben presented urgency.
Although the trial court's decision did not mention it, the transcript of
133
stenographic notes reveals that there was an informer who pointed to
the accused-appellant as carrying marijuana.
Faced with such on-the-spot information, the police officers had to act
quickly.
There was not enough time to secure a search warrant. We cannot
therefore apply the ruling in Aminnudin to the case at bar.
To require search warrants during on-the-spot apprehensions of drug
pushers, illegal possessors of firearms, jueteng collectors, smugglers
of contraband goods, robbers, etc. would make it extremely difficult, if
not impossible to contain the crimes with which these persons are
associated.
Upon being informed by their civilian informer that there would ie a
transaction involving the buying and selling of marijuana which would
take place on that same day, Patrolmen immediately proceeded to the
vicinity where the alleged transaction would take place.
While positioned at a street corner, they saw appellant and Warner
Marquez ay the side of the street about forty to fifty meters away from
them the police officers).
They saw Marquez giving something to appellant who, thereafter,
handed a wrapped object to Marquez who then inserted the object
inside the front of his pants infront of his abdomen while appellant, on
his part, placed the thing given to him inside his pocket.
The court a quo correctly ruled: The facts and circumstances attendant
precisely fall under Sec. 5(a), Rule 113 of the Rules on Criminal
Procedure.
The subsequent arrest of Marquez and accused were made under the
principle of hot pursuit.
The recovery of the marijuana from Marquez and the P190.00 from
accused by the said police officers were not violative of their
constitutional rights since Marquez and the accused voluntarily
surrendered them to the police officers.
But even for the sake of argument that the recovery of the marijuana
and peso bills were against the consent of Marquez and accused, still,
the search on their persons were incidental to their valid warrantless
arrest."
Compare
Mere time to obtain a warrant not sufficient to invalidate a
warrantless arrest. To be considered likewise is whether or
not a warrant may be issued under the circumstances.
In Lo Ho Wing (supra), it was firmly established from the factual
findings of the trial court that the authorities had reasonable ground to
believe that appellant would attempt to bring in contraband and
transport it within the country.
The belief was based on intelligence reports gathered from surveillance
activities on the suspected syndicate, of which appellant was touted to
be a member.
Aside from this, they were also certain as to the expected date and
time of arrival of the accused from China.
But such knowledge was clearly insufficient to enable them to fulfill the
requirements for the issuance of a search warrant.
Still and all, the important thing is that there was probable cause to
conduct the warrantless search, which must still be present in such a
case.
In People v. Montilla, the opportunity to obtain a warrant was not
considered as sufficient to invalidate the legality of the warrantless
arrest.
For, under the circumstances, the information relayed was too sketchy
and not detailed enough for the obtention of the corresponding arrest
or search warrant.
The informant did not know to whom the drugs would be delivered and
at which particular part of the barangay there could be such delivery
or the precise time of the suspect's arrival, or of his means of
transportation, the container or contrivance wherein the drugs were
concealed and whether the same were arriving with, or being brought
by someone separately from the courier.
The court ruled that in determining the opportunity for obtaining
warrants, not only the intervening time is controlling but all the
coincident and ambient circumstances should be considered especially
in rural areas.
Shift In Jurisprudence: Warrantless Arrest Under Section 5(a) Based
On Reasonable Ground of Suspicion
a. Probable Cause Based on Surveillance; No Crime
Committed
In Harvey v. CID Commissioner Santiago, the arrest of
petitioners was based on probable cause determined
after close surveillance for three (3) months during which
period their activities were monitored.
The Supreme Court justified the arrest and the seizure of
the photo negatives, photographs and posters without
warrant due to the existence of probable cause.
b. Reasonable Ground to Believe Rule Applied
The Supreme Court explained that petitioners were not
caught in the act, does not make their arrest illegal.
Petitioners were found with young boys in their
respective rooms, the one with John Sherman being
naked.
Under those circumstances, the CID agents had
reasonable grounds to believe that petitioners had
committed "pedophilia" defined as psycho-sexual
perversion involving children."
"Pedophilia for unusual sexual activity in which children
are the preferred sexual objects"
Solicitor General's Return of the Writ, on p. 101.
While not a crime under the Revised Penal Code, it is a
behavior offensive to public morals and violative of the
declared policy of the State to promote and protect the
physical, moral, spiritual, social well-being of our youth.
c. People v. Allan Rodriguez
Reasonable ground based on tip of informer — delivery of
suspicious stuff to tricycle driver justified warrantless
arrest.
The police officers were tipped off by an informer about
the illegal trade of the accused.
The exact location where this trading in drugs was taking
place was given to them.
They witnessed the person hand deliver a suspicious stuff
to the tricycle driver who in turn gave something to the
person.
The suspicious stuff taken from the accused were
confirmed to be marijuana after tests were conducted on
them.
The attending circumstances taking place before their
eyes led the police officers to reasonably conclude that
an offense was actually being committed.
134
d. Personal Knowledge Under Section 5(a) Was Not Likewise
Strictly Observed in the Following Cases:
In these cases, the fact that the search yielded
possession of illegal articles was included as a
justification for a warrantless
Arrest under Section 5(a) although the arresting officer
at the time of arrest has no personal knowledge of a
crime being committed in their presence as prescribed in
U.S. v. Samonte (supra); Sayo v. Chief of Police (supra);
People v. Burgos (supra); and People v. Posadas
Meaning of Personal Knowledge of Facts Constituting Probable Cause
Sufficient
In its resolution denying the Motion for Reconsideration in the
Umil v. Ramos cases, the majority opinion explained the
meaning of Personal Knowledge of Facts, as follows:
It has been ruled that 'Personal Knowledge of Facts,' in
arrests without warrant must be based upon probable cause,
which means an actual belief or reasonable grounds of
suspicion.
The grounds of suspicion are reasonable when, in the absence
of actual belief of the arresting officers, the suspicion that the
person to be arrested is probably guilty of committing the
offense, is based on actual facts, i.e., supported by
circumstances sufficiently strong in themselves to create the
probable cause of guilt of the person to be arrested.
A reasonable suspicion therefore must be founded on
probable cause, "coupled with good faith on the part of the
peace officers making the arrest."
The Continuing Crime Principle to Justify Warrantless Arrest
The Umil u. Ramos, and seven other petitions for habeas cor-
pus were all based on the ground that the arrests of the
petitioners were made without warrant and that no
preliminary investigation was first conducted so that the
information filed against them are void.
The Supreme Court in a per curiam decision, however, found
that the persons in whose behalf these petitions for habeas
corpus have been filed, were freshly committed and that the
accused were actually committing an offense, when
apprehended, so that their arrests without a warrant were
clearly justified.
The court then proceeded to give a brief narration of the facts
and events surrounding each of the eight petitioners.
1) In Umil v. Ramos, one of the petitioners, Rolando Dural who was
then confined in the hospital for a gunshot wound was positively
identified as a member of the sparrow unit who went on top of
the hood of the CAPCOM Mobile patrol car.
The Supreme Court found that he was not arrested while in the
act of shooting the two soldiers. He was charged with the crime
of Double Murder with Assault upon Agents of Persons in
Authority.
Nor was he arrested just after the commission of the offense for
his arrest came a day after the shooting incident. He was
arrested in the hospital. Seemingly, his arrest without warrant is
unjustified.
The Court, however, justified the arrest of Rolando Dural for
being a member of the New People's Army (NPA) an outlawed
subversive organization.
"Subversion being a continuous offense, the arrest of Rolando
Dural without warrant is justified as it can be said that he was
 committing an offense when arrested.
The crimes of rebellion, subversion, conspiracy or proposal to
commit such crimes, and crimes or offenses committed in
furtherance thereof or in connection therewith constitute direct
assaults against the State are in the nature of continuing crimes."
The Court then went on to quote Garcia-Padilla v. Enrile,91 where
the Supreme Court held:
"From the facts as above narrated, the claim of the petitioners
that they were initially arrested illegally is, therefore, without
basis in law and in fact.
The crimes of insurrection or rebellion, subversion, conspiracy or
proposal to commit such crimes, and other crimes and offenses
committed in the furtherance on the occasion thereof, or incident
thereto, or in connection therewith under Presidential
Proclamation No. 2045, are all in the nature of continuing
offenses which set them apart from the common offenses, aside
from their essentially involving a massive conspiracy of
nationwide magnitude.
Clearly then, the arrest of the herein detainees was well within
the bounds of the law and existing jurisdiction in our jurisdiction."
2) In G.R. Nos. 84581-82, the arrest of Amelia Roque and Wilfredo
Buenaobra who admitted membership in the NPA and officers
and/or members of the NUFC-CPP were likewise justified for the
same reasons stated in UMIL.
The arrest without warrant of Roque was additionally justified as
she was, at the time of apprehension, in possession of
ammunition without license to possess.
3) In Anonuevo v. Ramos, the arrest of Domingo Anonuevo and
Ramon Casiple without a warrant was also found to be justified.
Both are admittedly members of the standing committee of the
NUFC and, when apprehended in the house of Renato
Constantino, they had a bag containing subversive materials, and
both carried firearms and ammunition for which they had no
license to possess or carry.
The record of these two (2) cases shows that at about 7:30
o'clock in the evening of August 13, 1988, Domingo T. Anonuevo
and Ramon Casiple arrived at the house of Renato Constantino at
Marikina Heights, Marikina, which was still under surveillance by
military agents. The military agents noticed bulging objects on
their waist-lines.
When frisked, the agents found them to be loaded guns.
Anonuevo and Casiple were asked to show their permit or license
to possess or carry firearms and ammunition, but they could not
produce any. Hence, they were brought to PC Headquarters for
investigation. Found in their possession were the following
articles:
(c) Voluminous subversive documents
(d) Firearms and ammunitions.
Anonuevo and Casiple claim that they were unlawfully arrested
because there was no previous warrant of arrest. The Supreme
Court held the claim as without merit.
"The record shows that Domingo Anonuevo and Ramon Casiple
were carrying unlicensed firearms and ammunition in their
persons when they were apprehended."
4) In Ocaya u. Aguirre, the arrest without warrant, of Vicky Ocaya
was justified under the Rules, since she had with her unlicensed
ammunition when she was arrested.
The record of this case shows that on 12 May 1988, agents of the
PC Intelligence and investigation of the Rizal PC-INP Command,
armed with a search warrant issued by Judge Eutropio Migrino of
the Regional Trial Court ofPasig, Metro Manila, conducted a
search of a house located at Block 19, Phase II, Marikina Green
Heights, Marikina, Metro Manila, believed to be occupied by
Benito Tiamson, head of the CPP-NPA.
In the course of the search, Vicky Ocaya arrived in a car driven
135
by Danny Rivera.
Subversive documents and several rounds of ammunition for a
.45 cal. pistol were found in the car of Vicky Ocaya.
As a result, Vicky Ocaya and Danny Rivera were brought to the
PC Headquarters for investigation. When Vicky Ocaya could not
produce any permit or authorization to possess the ammunition,
an information charging her with violation of P.D. No. 1866 was
filed with the Regional Trial Court of Pasig, Metro Manila.
The case is docketed therein as Criminal Case No. 737. Danny
Rivera, on the other hand, was released from custody.
In answer to her claims that she'.,was illegally arrested, the
Supreme Court held that Vicky Ocaya was arrested in flagrante
delicto so that her arrest without a warrant is justified.
5) In Espiritu v. Lim, the respondents claim that the petitioner was
lawfully arrested without a judicial warrant of arrest (on
November 23) since petitioner when arrested had in fact just
committed an offense in the afternoon of 22 November 1988,
during a press conference of the National Press Club.
Deogracias Espiritu through tri-media was urging all drivers and
operators to go on nationwide strike on November 23, 1988, to
force the government to give in to their demands to lower the
prices of spare parts, commodities, water and the immediate
release from detention of the president of the PISTON
(Pinagkaisahang Samahan ng Tsuper at Operators Nationwide).
Further heard was Deogracias Espiritu taking the place of PISTON
president Medardo Roda and also announced the formation of the
Alliance Drivers Association to go on nationwide strike on
November 23, 1988.
Policemen waited for petitioner outside the National Press Club in
order to investigate him, but he gave the lawmen the slip.
He was next seen at about 5:00 o'clock that afternoon at a
gathering of drivers and symphathizers at the corner of
Magsaysay Blvd. and Valencia Street, Sta. Mesa, Manila where he
was heard to say:
"Bukas tuloy ang welga natin, sumagot no. ang Cebu at Bicol na
kasali sila, at hindi tayo titigil hanggang hindi binibigay ng
gobyerno ni Cory ang gusto noting pagbaba ng halaga ng spare
parts, bilihin at ang pagpapalaya sa ating pinuno na si Ka Roda
hanggang sa magkagulo na."
The police finally caught up with the petitioner on 23 November
1988. He was invited for questioning and brought to Police
headquarters after which an Information for violation of Art. 142
of the Revised Penal Code was filed against him before the
Regional Trial Court of Manila.
The Supreme Court held that the arrest of petitioner without a
warrant is in accordance with the provisions of Rule 113, Sec.
5(b).
6) In Nazareno v. Station Commander, the record of this case shows
that at about 8:30 o'clock in the morning of 14 December 1988,
one Romulo Bunye II was killed by a group of men near the
corner of T. Molina and Mendiola Streets in Alabang, Muntinlupa,
Metro Manila. One of the suspects in the killing was Ramil Regala
who was arrested by the Police on 28 December 1988. Upon
questioning, Regala pointed to Narciso Nazareno as one of his
companions in the killing of the said Romulo Bunye II.
In view thereof, the police officers, without warrant, picked up
Narciso Nazareno and brought him to the police headquarters for
questioning. The Supreme Court held:
"Evidently, the arrest of Nazareno was effected by the police
without warrant pursuant to Sec. 5(b), Rule 113, Rules of Court
after he was positively implicated by his co-accused Ramil Regala
in the killing of Romulo Bunye II; and after investigation by the
police authorities. As held in People v. Ancheta:
"The obligation of an agent of authority to make an arrest by
reason of a crime, does not presuppose as a necessary requisite
for the fulfillment thereof, the indubitable existence of a crime.
 For the detention to be perfectly legal, it is sufficient that the
person in authority making the arrest has reasonably sufficient
grounds to believe the existence of an act having the
characteristics of a crime and that the same grounds exist to
believe that the person sought to be detained participated
therein."
THE PRINCIPLE OF KNOWLEDGE OF PROBABLE CAUSE
TO JUSTIFY WARRANTLESS ARREST
In People v. Malmstedt —
The receipt of information by NARCOM that a Caucasian coming from
Sagada had prohibited drugs in his possession, plus the suspicious
failure of the accused to produce his passport, taken together as a
whole, led the NARCOM officers to reasonably believe that the accused
was trying to hide something illegal from the authorities.
From these circumstances arose a probable cause which justified the
warrantless search that was made on the personal effects of the
accused.
In other words, the acts of the NARCOM officers in requiring the
accused to open his pouch bag and in opening one of the wrapped
objects found inside said bag (which was discovered to contain
hashish) as well as the two (2) travelling bags containing two (2)
teddy bears with hashish stuffed inside them were prompted by
accused's own attempt to hide his identity by refusing to present his
passport, and by the information received by the NARCOM that a
Caucasian coming from Sagada had prohibited drugs in his possession.
To deprive the NARCOM agents of the ability and facility to act
accordingly, including to search even without warrant, in the light of
such circumstances, would be to sanction impotence and
ineffectiveness in law enforcement, to the detriment of society.
Accused was searched and arrested while transporting prohibited
drugs (hashish).
A crime was actually being committed by the accused and he was
caught in flagrante delicto.
Thus, the search made upon his personal effects falls squarely under
paragraph (1) of the foregoing provisions of law, which allow a
warrantless search incident to a lawful arrest."
While it is true that the NARCOM officers were not armed with a search
warrant when the search was made over the personal effects of
accused, however, under the circumstances of the case, there was
sufficient probable cause for said officers to believe that accused was
then and there committing a crime.
Sufficiency of Knowledge of Probable Cause Reiterated En Bane
Probable cause as a ground to justify a warrantless arrest in
flagrante was reiterated in the en bane decision in People u.
Montilla.
In this case, an informer informed the police the day before
that a drug courier whom he could recognize would be arriv-
ing in Cavite from Baguio City.
As soon as the appellant had alighted from the passenger
jeepney the informer at once indicated to the officers that
their suspect was at hand pointing to him from the waiting
shed, the informer told them that the marijuana was likely
hidden inside the travelling bag and carton box which
appellant was carrying at the time.
The court held that the officers thus realized that he was their
man even if he was simply carrying a seemingly innocent pair
of luggage for personal effects.
The Court therein wrote: "the apprehending officer must have
been spurred by probable cause in effecting an arrest which
could be classified as one in cadence with the instances of
permissible arrests set out in Section 5(a)."
136
According to the court, the conventional view is that probable
cause, while a relative term the determination of which must
be resolved according to the facts of each case, is understood
as having reference to facts and circumstances which could
lead a reasonable, discreet, and prudent man to believe and
conclude as to the commission of an offense, and that the
objects sought in connection with the offense are in the place
sought to be searched.
The court pointed out that under Rule 112 of the Rules of
Court, the quantum of evidence in preliminary investigation is
such evidence as suffices to "engender a well-founded belief
as to the fact of the commission of the crime and the
respondent's probable guilt thereof.
It has the same meaning as the related phraseology used in
other parts of the same Rule, that is, that the investigating
fiscal "finds cause to hold the respondent for trial," or where
"a probable cause exist."
It should, therefore, be in that sense, wherein the right to
effect a warrantless arrest should be considered as legally
authorized.
COMPARE:
WHEN WARRANTLESS ARREST BASED ON
INFORMATION INVALID
In People v. Aruta, the police was tipped off by his informant
that a certain "Aling Rosa" will be arriving from Baguio City
the following day with a large volume of Marijuana.
The police proceeded to the place at 4:00 p.m. of the
following day and deployed themselves near the PNB. A
Victory Liner Bus arrived.
Two females and a male got off, and the pointed to "Aling
Rosa" carrying a traveling bag. The police approached her and
inquired about the contents of the traveling bag which she
handed to the police, who, upon inspection found dried leaves
of marijuana packed inside a plastic bag.
In determining whether the warrantless search and seizure
was valid.
The Court noted that there was ample opportunity to obtain a
warrant of arrest. The identity of the accused was
ascertained.
The accused was not acting suspiciously, and distinguished
the case:
a. from People v. Tangliben (supra), where policemen were
confronted with an on the spot tip. Moreover, the
policemen knew that the Victory Liner compound is being
used by drug traffickers as their business address.
More significantly, Tangliben was acting suspiciously.
His actuations and surrounding circumstances led the
policemen to reasonably suspect that Tangliben is
committing a crime.
In instant case, there is no single indication that Aruta
was acting suspiciously.
b. from People v. Malmstedt. In Malmstedt, where there
was no reasonable time for the police authorities to
obtain a search warrant, and his actuations also aroused
suspicion of the officers conducting the operation.

In Aruto, there was time to obtain a search warrant, her
identity was priorly ascertained, and she was not acting
suspiciously.
Malmstedt was searched abroad a moving vehicle, a
legally accepted exception to the warrant requirement,
Aruta on the other hand, was searched while she was
about to cross the street.
c. from People v. Bagista, where probable cause was drawn
from the fact that the accused fitted the description given
by the NARCOM informant and that it involves a search of
a moving vehicle plus the fact the police officers erected
a checkpoint in view of the confidential information from
the regular informant that a woman having the same
appearance as that of the accused would be bringing
marijuana from up to north.
d. from Manalili v. Court of Appeals, where the court held
that the policemen had sufficient reason to accost
accused to determine if he was actually "high" on drugs
due to suspicious actuations, he was observed to have
reddish eyes and to be walking in swaying manner — he
appeared to be trying to avoid the policemen — coupled
with the fact that based on the information, this area was
a haven for drug addicts.
The Court noted that in all the above-cited cases, there was
information received which became the bases for conducting
the warrantless search.
Furthermore, additional factors and circumstances were
present which, when taken together with the information con-
stituted probable causes which justified the warrantless
searches and seizures in each case.
No reference was made to Montilla.
In applicable earlier decisions, the Supreme Court held that
there was probable cause in the following instances:
(a) where the distinctive odor of marijuana emanated from
the plastic bag carried by the accused;
(b) where an informer positively identified the accused who
was observed to have been acting suspiciously;
(c) where the accused fled when accosted by policemen;
(d) where the accused who were riding a jeepney were
stopped and searched by policeman who had earlier
received confidential reports that the said accused would
transport a large quantity of marijuana; and
(e) where the moving vehicle was stopped and searched on
the basis of intelligence information and clandestine
reports by a deep penetration agent or spy — one who
participated in the drug smuggling activities of the
syndicate to which the accused belonged — the said
accused where bringing prohibited drugs into the country
Other Cases where there was no Probable Cause
There is, no probable cause where the arresting team was
only armed with knowledge of the suspect's "attire" which the
witness could not even remember.
The team did not have a physical description of the suspect
nor his name.
They were not even given a specific place within which to
137
target their search of the suspect, only a vicinity of the
Muslim Area in Quiapo, near the Muslim Mosque.
Yet the arresting team directly zeroed in on the accused and
his companions who were only eating halo-halo at a small
restaurant, surely not a crime in itself.
While SP04 Clemente claims that accused had a "bulging
waistline," this alone, in the light of the availing
circumstances, is insufficient to constitute probable cause for
the arrest of the accused.
In another case, the police officers were informed that
accused were repacking drugs.
Accompanied by an informer, they peeped first through the
window before they saw the activities of the suspects inside
the room and entered the house and arrested the suspects.
The court held that the arrest, search and seizure were illegal.
They should have first conducted a surveillance considering
that the activities and identities of the suspects were already
known and if there was probable cause, they should have
applied for a search warrant.
The court reiterated the 7 situations of a warrantless search
and held that the arrest, search and seizure do not fall on any
of them.
In another case, the court noted that the ETC never took the
pains of pointing to such facts, (constituting probable cause)
but predicated mainly its decision on the finding that "accused
was caught red-handed carrying the bag-full of [s]habu when
apprehended."
In short, there is no probable cause.
At least in People v. Tangliben, the Court agreed with the
lower court's finding that compelling reasons (e.g., accused
was acting suspiciously, on the spot identification by an
informant that accused was transporting prohibitive drug, and
the urgency of the situation) constitute of probable cause
impelled.
In another case, the Solicitor General proposes that the
following details are suggestive of probable cause —
persistent reports of rampant smuggling of firearm and other
contraband articles, CHUA's watercraft differing in appearance
from the usual fishing boats that commonly cruise over the
Bacnotan seas, CHUA's illegal entry into the Philippines (he
lacked the necessary travel documents or visa), CHUA's
suspicious behavior, i.e., he attempted to flee when he saw
the police authorities, and the apparent ease by which CHUA
can return to and navigate his speedboat with immediate
dispatch towards the high seas, beyond the reach of
Philippine laws.
The Court, however, found that these do not constitute
"probable cause."
Tell-tale Clues of Probable Cause Reiterated
None of the telltale clues, e.g., bag or package emanating the
pungent odor of marijuana or other prohibited drugs
confidential report and/or positive identification by informers
of courier(s) of prohibited drug and/or the time and place
where they will transport/ deliver the same, suspicious
demeanor or behavior and suspicious bulge in the waist
accepted by this Court as sufficient to justify a warrantless
arrest exists in this case.
There was no classified information that a foreigner would
disembark at Tammocalao beach bearing prohibited drug on
the date in question.
CHUA was not identified as a drug courier by a police informer
or agent.
The fact that the vessel that ferried him to shore bore no
resemblance to the fishing boats of the area did not
automatically mark him as in the process of perpetrating an
offense.
And despite claims by CID and BADUA that CHUA attempted
to flee, ALMOITE testified that the latter was merely walking
and oblivious to any attempt at conversation when the
officers approached him.
In People v. Luaa, a buy-bust operation was conducted
against the accused. After he had gone inside his house and
returned with the three tea bags of marijuana and received
the marked money, the designated poseur-buyer gave the
signal to his fellow police officers who closed in and arrested
the accused.
In the course of the arrest, a police officer noticed something
bulging at accused's waistline, which turned out to be an
unlicensed .38 caliber "paltik" with two live bullets.
Accused was charged with illegal possession of firearm.
The search was held to be a valid incident of a lawful arrest.
BUY-BUST OPERATIONS CONSIDERED AS IN
FLAGRANTE ARRESTS
Buy-Bust Operations — Search and Seizure Pursuant to Buy-
Bust Operation
What is a buy-bust operation?
A buy-bust operation is far variant from an ordinary arrest; it
is a form of entrapment which has been repeatedly accepted
to be valid means of arresting violators of the Dangerous
Drugs Law.
In a buy-bust operation, the violator is caught in flagrante
delicto and the police officers conducting the operation are
not only authorized but duty-bound to apprehend the violator
and to search him for anything that may have been part of or
used in the commission of the crime.
In flagrante arrests are usually made in drug cases during a
buy-bust operation.
A buy-bust operation is a form of entrapment employed by
peace officers to catch a malefactor in flagrante delicto.
It is the employment by peace officers to catch a malefactor
in flagrante delicto.
It is the employment of such ways and means for the purpose
of entrapping or capturing a lawbreaker.
The term, in connection with violation of the Dangerous Drugs
Act, is a form of entrapment employed by peace officers to
trap and catch malefactor in flagrante delicto.
But, while buy-bust operation is a recognized means of
entrapment for the apprehension of drug pusher, it does not
always commend itself as the most reliable way to go after
violators of the Dangerous Drugs Act as it is susceptible to
mistake as well as to harassment, extortion and abuse.
138
The Court therefore stressed that the "objective" test in
buy-bust operations demands that the details of the
purported transaction must be clearly and adequately shown.
This must start from the initial contact between the poseur-
buyer and the pusher, the offer to purchase, the promise or
payment of the consideration until the consummation of the
sale by the delivery of the illegal drug subject of the sale.
The manner by which the initial contact was made, whether
or not through an initial contact was made, whether or not
through an informant, the offer to purchase the drug, the
payment of the "buy-bust" money, and the delivery of the
illegal drug, whether to the informant alone or the police
officer, must be the subject of strict scrutiny by courts to
insure that the law-abiding citizens are not unlawfully induced
to commit an offense.
Criminals must be caught but not at all cost.
At the same time, however, examining the conduct of the
police should not disable courts into ignoring the accused's
predisposition to commit the crime.
If there is overwhelming evidence of habitual delinquency,
recidivism or plain criminal proclivity, then this must also be
considered. Courts should look at all factors to determine the
predisposition of an accused to commit an offense in so far as
they are relevant to determine the validity of the defense of
inducement.
Principle of Continuity-in Buy-Bust Operations
The buy-bust operation and the search and seizure pursuant
to the buy-bust operation must be continuous:
Buy-Bust Operation and Search Rejected for Not Being
Continuous.
Thus, in People v. Enrile, an arrest based on information of a
person who was entrapped to selling marijuana that the
source of the Marijuana was Enrile and led the police to
Enrile's house and after calling for the latter pointed to him as
the source of the marijuana was held as invalid.
In People v. Bautista, an arrest and search based on informa-
tion of the poseur-buyer to the police who were outside the
house waiting that he was able to buy the shabu from the
appellant inside the house who immediately went inside and
arrested the appellant was held as valid.
In People v. Buenaventura, an arrest based on information of
the seller after he was apprehended in a buy-bust operation
that the source of the marijuana was the accused who was
then arrested in a follow-up operation was held as invalid
citing the case of People u. Enrile.
In People v. Merabueno, the Supreme Court found:
DURING THE INVESTIGATION OF BASILIO, THE POLICE
LEARNED THAT THE SUPPLIER OF THE MARIJUANA
WAS CRUZ. A POLICE TEAM WAS DISPATCHED TO
ANTIPOLO, RIZAL, WHERE CRUZ LIVED. THE FIRST
MISSION RETURNED WITHOUT FINDING CRUZ.
The team returned to Antipolo at 7:00 P.M. of the same day. According
to the police, they met Cruz on their way to his house while Cruz
claimed that the police just barged into his house.
But assuming that the version of the police is the correct one, there
was no reasonable basis to place Cruz under arrest without a warrant
and then search him, also without a warrant.

Certainly, the arrest was not made in the course of a "hot pursuit" of
Cruz, because he was not in Marikina during the "buy-bust" operation.
In such a case, the police should have first secured a warrant of arrest
and a search warrant before they arrested and bodily searched Cruz.
This case should be distinguished from People u. Cuachan,
involving a continuing buy bust operation where after the
sale, the shabu was handed to a policeman a block away who
after determining it was shabu which took only a few minutes
immediately proceeded to the house of the appellant and
arrested him.
In the case, the police conducted a buy-bust operation.
As planned, Pat. Uggadan and the informant proceeded to the
residence of their quarry while Pfc. Reyes and the other
members of the team posted themselves in strategic places.
After a few minutes, Pat. Uggadan together with the
informant, reported to Pfc. Reyes that he had succeeded in
buying shabu from the appellant at the same time presenting
the merchandise to Pfc. Reyes.
After determining it was shabu, Pfc. Reyes and his men
immediately proceeded to the residence of the appellant and
found in one of the rooms several men seated around a table,
engaged in pot session and several paraphernalia.
Pat. Uggadan pointed to the appellant to PFC Reyes as the
person who earlier sold Shabu to him.
Thereupon, Pfc. Reyes frisked accused-appellant and found in
his person the two 100.00 peso bills he gave to Pat. Uggadan
as buy-bust money and a quantity of shabu contained in a
plastic bag.
The court justified the warrantless arrest under Section 5,
Rule 113 of the Rules of Court on warrantless arrest and the
obligation of the police to apprehend even without a warrant
of arrest. Pat. Uggadan witnessed the illegal act of selling
shabu on the occasion of the buy-bust operation in front of
the room of the accused.
He did not make the arrest right then and there because
there were only himself and the informant as against the
different male and female voices he heard from both rooms of
appellant's house.
Considering that the operation took place inside the house of
appellant, understandably Pat. Uggadan and his informant
had to get out of the house and inform their backup that the
sale had been consummated.
Furthermore, weighty consideration is the fact that, as
previously stated, Pat. Uggadan immediately gave the shabu
to Pfc. Reyes who was only a block away and after the latter
had determined that it was shabu, which only took a few
minutes, they all immediately proceeded to the house of
appellant and arrested him.
It was a continuing buy-bust operation which, as the phrase
connotes, commenced with buying shabu and culminated in
his arrest. Since his arrest was lawful, it follows that the
incidental search was also valid.
In another case, the arresting officers were informed by the
NARCOM Chief that a transaction had been agreed upon in
Las Pinas, Metro Manila for the delivery of Shabu to take
place in Room No. 77 of the Hyatt Terraces at Baguio City.
Undercover agents waited for the appellant inside the room,
139
but the latter did not show up in the afternoon, but the
following morning. Appellant with an undercover agent
arrived at Room No. 77.
The latter signaled that appellant had Shabu with him. While
the sale of the Shabu which was agreed upon with a Chinese
business man in Las Pinas, Metro Manila, did not take place in
the presence of the agents, the delivery or attempted delivery
of the subject matter took place in their presence.
The Court held the warrantless arrest of appellant inside Rooir
77 was merely the culmination of an entrapment operation
and that the taking of shabu from appellant was either done
immediately before, or was an incident to a lawful arrest.
The Hot Pursuit Arrest
Elements:
a. Offense have been committed;
b. Offense has just been committed;
c. Probable cause based on personal knowledge of facts
or circumstances that persons to be arrested
committed it.
a. First Element: Meaning of Offense Committed
The present rule abandons the pronouncement in People
v. Burgos, that in arrests without a warrant under
Section 6(b), it is not enough that there is reasonable
ground to believe that the person to be arrested has
committed a crime.
A crime must in fact or actually have been committed
first.
The rule now is the indubitable existence of a crime is not
necessary to justify a warrantless arrest.
In People v. Ramos, an informant apprised the police of
the presence of a drug pusher at the corner of 3rd Street
and Rizal Avenue, Olongapo City.
Acting on such information and in their presence, their
superior, Captain Castillo, gave the informant marked
money to buy marijuana.
The informant, now turned poseur-buyer, returned with
two sticks of marijuana. Captain Castillo again gave said
informant marked money to purchase marijuana.
The informant poseur-buyer thereafter returned with
another two sticks of marijuana.
The police officers then proceeded to the corner of 3rd
Street and Rizal Avenue and effected the arrest of
appellant.
The Supreme Court with Justice Gutierrez as ponente,
held, from the above facts, that it may be concluded that
the arresting police officers had personal knowledge of
facts implicating the appellant with the sale of marijuana
to the informant-poseur-buyer.
The arrest was held legal and the consequent search
which yielded 20 sticks of marijuana was lawful for being
incident to a valid arrest.
The fact that the prosecution failed to prove the sale of
marijuana beyond reasonable doubt does not undermine
the legality of the appellant's arrest.
 It is not necessary that the crime should have been
established as a fact in order to regard the detention as
legal.
The legality of detention does not depend upon the actual
commission of the crime, but upon the nature of the deed
when such characterization may reasonably be inferred
by the officer or functionary to whom the law at the
moment leaves the decision for the urgent purpose of
suspending the liberty of the citizen.
People v. Euaristo, cited the doctrine in People v. Sucro
(supra), when crime is deemed committed in one's
presence — e.g., hears the disturbances created thereby
and proceeds at the scene thereof.
To justify a warrantless arrest not on Sec. 5(a) but Sec.
5(b), the Supreme Court held that the usual observation
of a bulge on the waist of Carillo, along with the earlier
report of gunfire, as well as the peace officer's
professional instincts, are more than sufficient to pass
the tests of the rules.
Consequently, under the facts, the firearms taken from
Carillo can be said to have been incidental to a lawful and
valid arrest under Sec. 5(b), Rule 113.
b. Second Element: Meaning of just been committed
"Just been committed" connotes immediacy in point of
time, per dissent of Justice Teehankee cited by C.J.,
Fernan in his concurring dissenting in Umil v. Ramos. It
means a very short time ago.
The arrest must be made almost immediately as soon af-
ter these acts, not at anytime after the suspicion of the
arresting officer begins, no matter how long ago the
offense was committed.
The time interval between the actual commission of the
crime and the arrival of the arresting officer must be brief
indeed.
The recency contemplated here, in relation to the making
of the warrantless arrest, is the time when the crime was
in fact committed, and not the time when the person
making the arrest learned or was informed of such
commission.
1) Espiritu v. Lim — The arrest of the accused one day
after commission of the crime of Inciting to Sedition
was held to be valid.
2) People v. Nazareno — Arrest made 14 days after
commission of the crime is valid.
3) People v. Sucro
The fact that Macabante, when intercepted by the police,
was caught throwing the marijuana sticks and when
confronted, readily admitted that he bought the
same from the accused-appellant clearly indicates
that accused had just sold the marijuana sticks to
Macabante, and therefore, had just committed an
illegal act of which the police officers had personal
knowledge, being members of the team which
monitored Sucre's nefarious activity.
4) Rolito Go v. Court of Appeals — Arrest six days after
commission of the crime based on information from
alleged eyewitness held unlawful.
140
A warrantless arrest three (3) days after commission
of the crime or 19 hours thereafter were held to be
unlawful.
c. Third Element: Personal Knowledge of Facts
Following are the doctrines under the 1985 Rule on the
meaning of Personal Knowledge of Facts Based on
Information Rejected
1) People v. Burgos, personal knowledge based on, in-
formation by suspect rejected.
2) Alih v. Castro, (Need for personal knowledge)
3) People v. Aminnudin — Warrantless arrest based on
tip of informer who pointed to the suspect was
rejected.
4) People u. Sucro, citing People v. Bati — Police of-
ficers have personal knowledge of the actual
commission of the crime when it had earlier
conducted surveillance activities of the accused.
5) In People u. Alvarez — Arrest based on surveillance
by informant who was once a policeman was held to
be valid.
6) People v. Briones — Warrantless arrest made by a
police officer based on disclosure by eyewitness who
disclosed the identity of the perpetrator was
rejected.
7) People v. Cendana — Arrest based on information
from unknown sources given a day after the
commission of the crime was rejected.
8) People v. Tonog — Arrest based on knowledge of
facts gathered from investigation was held valid.
In this case there was an oral confession.
9) Nazareno v. Station Commander of Muntinlupa —
Arrest based on information of a suspect 14 days
aftel commission of crime held as valid. This is of
doubtful validity.
10) Rolito Go u. Court of Appeals (supra, February 1992)
Justice Feliciano as ponente — Arrest 6 days after
shooting based on information of alleged
eyewitnesses was held unlawful
Petitioner's arrest took place six (6) days after the
shooting of Maguan. The arresting officers obviously
were not present, within the meaning of Section
5(a), at the time petitioner had allegedly who
Maguan.
Neither could the arrest effected six (6) days after
the shooting be reasonably regarded as effected
when [the shooting had] ii fact just been committed
within the meaning of Section 5(b).
Moreover, none of the arresting officers had any
personal knowledge of facts indicating that petitioner
was the gunman who had shot Maguan
The information upon which the police acted had
been derived from statements made by alleged
eyewitness to the shooting — one stated that
petitioner was the gunman; another was able to take
 down the alleged gunman's car plate number which
turned out to be registered in petitioner's wife name.
That information did not, however, constitute
personal knowledge.
Personal Knowledge of Facts Based on Information Allowed
1) In People v. Madriaga, personal knowledge based on
information of the co-accused pointing to accused as to
source of marijuana, was held as valid.
2) In People v. Gerente, the policemen arrested Gerente
only some three (3) hours after Gerente and his
companions had killed Blace.
They saw Blace dead in the hospital and when they
inspected the scene of the crime, they found the
instruments of death; a piece of wood and a concrete
hollow which the killers had used to bludgeon him to
death.
The eyewitness, Edna Edwina Reyes, reported the
happening to the policemen and pinpointed her neighbor,
Gerente as one of the killers.
Under those circumstances, since the policemen had
personal knowledge of the violent death of Blace and of
facts indicating that Gerente and two others had killed
him, they could lawfully arrest Gerente without a
warrant.
If they had postponed his arrest until they could obtain a
warrant, he would have fled the law as his two
companions did.
3) In People u. Bautista, held as valid an arrest made by the
station commander, who was outside the house, based
on information of the poseur-buyer after the purchase
was made. Said case cited in U.S. v. Santos, which
justified a warrantless arrest on reasonable ground of
suspicion supported by circumstances strong in
themselves as to warrant a reasonable man in believing
the accused to be guilty.
4) In People u. Saycon, warrantless arrest of debarking
passenger from vessel based on information was held
valid.
COMPARE: People v. Enrile— Information by co-accused
that Enrile gave him the marijuana is invalid.
In People v. Encinada, the court held that: "Raw
intelligence information is not a sufficient ground for a
warrantless arrest."
However, in People v. Montilla (supra), the court
observed that "although information gathered and passed
on by law enforcers are vague and piece-meal, and not
as neatly and completely packaged as one would expect
from a professional spymaster, such tip-offs are
sometimes sucessful as it proved to be in the
apprehension of appellant."
5) In Sanchez v. Demetriou. The Warrantless arrest based
on the sworn statement of Centeno by an officer who had
no personal knowledge is unlawful but the defect was
cured by the filing of charges and issuance of warrant of
arrest.
In People v. AcoZ, a group held up a passenger jeepney
Policemen immediately responded to the report of the
141
crime. One of the victims saw four persons walking
towards Fort Bonifacio, one of whom was wearing his
jacket.
He pointed them to the policemen. When the group saw
the policemen coming, they ran in different directions.
Three were caught and arrested. Each was found in
possession of an unlicensed revolver and charged with
illegal possession of firearms.
The accused claimed that the warrantless seizure of
firearms was illegal. The Court rejected their plea and
held that the search was a valid incident of a lawful
arrest.
The subsequent search of accused-appellant's person and
the seizure from him of the firearm was likewise lawful.
Personal Knowledge of Facts Based on Reasonable Grounds of
Suspicion Rule is now the Rule
In its resolution denying the Motion for Reconsideration in the
Umil v. Ramos cases, the majority opinion explained the
meaning of personal knowledge of facts, as follows:
"It has been ruled that 'personal knowledge of facts,' in arrests without
warrant must be based upon probable cause, which means an actual
belief or reasonable grounds of suspicion. (Subjective)
The grounds of suspicion are reasonable when, in the absence of
actual belief of the arresting officers, the suspicion that the person to
be arrested is probably guilty of committing the offense, is based on
actual facts, i.e., supported by circumstances sufficiently strong in
themselves to create the probable cause of guilt of the person to be
arrested. (Objective)
A reasonable suspicion therefore must be founded on probable cause,
coupled with good faith on the part of the peace officers making the
arrest."
In ascertaining whether the arrest without warrant is
conducted in accordance with the conditions set forth in
section 5, Rule 113, this Court determines not whether the
persons arrested are indeed guilty of committing the crime for
which they were arrested but whether they are probably
guilty thereof.
Not evidence of guilt but "probable cause" is the reason that
can validly compel the peace officers in the performance of
their duties and in the interest of public order, to conduct an
arrest without warrant.
The Courts should not expect of law-enforcers more than
what the law requires of them.
Under the conditions set forth in Section 5, Rule 113,
particularly paragraph (b) thereof, even if the arrested
persons are later found to be innocent and acquitted, the
arresting officers are not liable.
But if they do not strictly comply with the said conditions, the
arresting officers can be held liable for the crime of arbitrary
detention, for damages under Article 32 of the Civil Code
and/or for other administrative sanctions.
The same principle was stated in People u. Aruta.
Probable cause in these cases, must only be based on
reasonable ground of suspicion or belief that a crime has been
committed or is about to be committed.
The foregoing standards were also adopted in warrantless
"hot pursuit" arrest.
Thus, in the 1999 case of People u. Doria, the Court en bane
speaking thru Jusice Reynato Puno wrote, "Personal
knowledge" of facts arrests without warrant under Section
5(b) of Rule 113 must be based upon "probable cause" which
means an "actual belief or reasonable grounds of suspicion"
and reiterated the rule in Umil v. Ramos.
In this case, accused-appellant Gaddao was arrested solely on
the basis of the alleged identification made by her co-
accused.
P03 Manlangit, however, declared in his direct examination
that appellant Doria named his co-accused in response to his
(P03 Manlangit's) query as to where the marked money was,
Appellant Doria did not point to appellant Gaddao as his
associate in the drug business, but as the person with whom
he left the marked bills.
This identification does not necessarily lead to the conclusion
that appellant Gaddao conspired with her co-accused in
pushing drugs. Appellant Doria may have left the money in
her house. With or without her knowledge, with or without
conspiracy.
Save for accused-appellant Doria's word, the Narcom agents
had no reasonable grounds to believe that she was engaged
in drug pushing.
If there is no showing that the person who effected the
warrantless arrest had, in his own right, knowledge of facts
implicating the person arrested to the perpetration of a
criminal offense, the arrest is legally objectionable.
Said the U.S. Supreme Court:
"THE ARREST MUST STAND UPON A FIRMER GROUND
THAN MERE SUSPICION THOUGH THE ARRESTING
OFFICER NEED NOT HAVE IN HAND EVIDENCE WHICH
WOULD SUFFICE TO CONVICT.
The quantum of information which constitutes probable cause or
evidence which would warrant a man of reasonable caution in the
belief that a felony has been committed must be measured by the
facts of the particular case.
A significantly lower quantum of proof is required to establish probable
cause than guilt."
Probable cause may, however, not be established simply by
showing that the officer who made the challenged arrest or
search subjectively believed that he had grounds for his
action. Good faith alone is not sufficient.
The probable cause test is an objective one.
The mere subjective conclusion of a police concerning the
existence of probable cause is not binding in the court which
must independently scrutinize the objective facts to
determine the existence of probable cause.
In doing so, however, the expertise of the officer are to be
taken into account.
This is as it should be for there would be little merit in
securing able trained men to guard the public peace if their
actions were to be measured by what might be probable
cause to untrained civilians.
In assessing the conduct of the police officer, it is imperative
that the facts be judged against an objective standard.
The test is:
142
Would the facts available to the officer at the moment of the
seizure or search warrant a man of reasonable caution in the
belief that the action taken was appreciated.
Personal Knowledge of the Death of Victim and Facts Indicating that
Accused Was the Assailant
In People v. Tonog, the police found the lifeless body of a
person with several stab wounds. An informer pointed to the
accused as the person who had killed the victim. That
afternoon, police officers arrested the accused. On their way
to the police station, a policeman noticed bloodstains on the
accused's pants which, when examined, was found to be the
same blood type "0" found on the fatal knife.
The Court upheld the warrantless arrest and ruled that the
blood-stained pants, having been seized as an incident of a
lawful arrest, was admissible in evidence.
In People v. Gerente, the police arrested the accused three
hours after the victim had been killed. They went to the scene
of the crime where they found a piece of wood and a concrete
hollow block used by the killers in bludgeoning the victim to
death. A neighbor of the accused who witnessed the killing,
pointed to him as one of the assailants. The warrantless
arrest was held valid under Rule 113, Sec. 5(b).
In People v. Jay son, there was a shooting. The policemen
summoned to the scene of the crime and found the victim.
Accused-appellant was pointed to them as the assailant only
moments after the shooting. In fact accused-appellant had
not gone very far (only ten meters away from the "lhaw-
Ihaw"), although he was then fleeing. The arresting officers
thus acted on the basis of personal knowledge of the death of
the victim and of facts indicating that accused-appellant was
the assailant. The court upheld the warrantless arrests as
valid.
In another case, the police officers were informed that
accused were repacking drugs. Accompanied by an informer.
They peeped first through the window before they saw the
activities of the suspects inside the room and entered the
house and arrested the suspects.
The court held that the arrest, search and seizure were illegal.
They should have first conducted a surveillance considering
that the activities and identities of the suspects were already
known and if there was probable cause, they should have
applied for a search warrant.
The court reiterated the seven (7) situations of a warrantless
search and held that the arrest, search and seizure do not fall
on any of them.
ONLY COURTS COULD DECIDE THE QUESTION OF
PROBABLE CAUSE SINCE THE STUDENTS WERE NOT
BEING ARRESTED IN FLA-GRANTE DELICTO
In Posadas v. The Hon. Ombudsman, the NBI agents tried to
effect an arrest four days after commission of the crime and
had no personal knowledge of any fact which might indicate
that the two students were probably guilty of the crime and
what they had were the supposed positive identification of
two alleged eyewitnesses, the court held this is insufficient to
justify the arrest without a warrant by the NBI.
The Court distinguished the case from that of People v.
Tonog, relied upon by the prosecution to justify the arrest.
In Tonog, the accused voluntarily went upon invitation of the
police officer who later noticed the presence of blood stains
on the pants of the accused.
Upon reaching the police station, the accused was asked to
take off his pants for examination at the crime laboratory.
The question in that case involved the admissibility of the
maong pants taken from the accused.
It is clear that Tonog does not apply to this case.
First, the accused in that case voluntarily went with the police
upon the latter's invitation.
Second, the arresting officer found blood stains an the pants
of the accused, on the basis of which he concluded that the
accused probably committed the crime for which reason the
latter was taken into custody.
Third, the arrest was made on the same day the crime was
committed.
In the words of Rule 113, Sec. 5(b), the crime had "just been
committed" and the arresting officer had "personal knowledge
of the facts indicating that the person to be arrested had
committed it."
The court reiterated the rule in People v. Doria (supra), that:
'"Personal knowledge' of facts in arrests without a warrant under
Section 5(b) of Rule 113 must be based upon 'probable cause' which
means an actual belief or reasonable grounds of suspicion.
The grounds of suspension are reasonable when, the absence of actual
belief of the arresting officers, the suspicion that the person to be
arrested is probably guilty of committing the offense is based on actual
facts, i.e., supported by circumstances sufficiently strong in
themselves to create the probable cause of guilt of the person to be
arrested.
A reasonable suspicion therefore must be founded on probable cause,
coupled with good faith on the part of the peace officers making the
arrest."
To allow the arrest which the NBI intended to make without
warrant would in effect allow them to supplant the courts.
The determination of the existence of probable cause that the
persons to be arrested committed the crime was for the judge
to make.
The law authorities a police officer or even an ordinary citizen
to arrest criminal offenders only if the latter are committing
or have just committed a crime.
Otherwise, we cannot leave to the police officers the
determination of whom to apprehend if we are to protect our
civil liberties.
This is evident from a consideration of the requirements
before a judge can order the arrest of suspects. Art. Ill, Sec.
2 of the Constitution.
Rule in Drug Cases
The Supreme Court in People v. Saycon pointed out that:
"It is important to note that unlike in the case of crimes like, e.g.,
homicide, murder, physical injuries, robbery or rape which by their
nature involve physical, optically perceptible, overt acts, the defense
of possessing or delivering or transporting some prohibited or
regulated drug is customarily carried out without any external signs or
indication visible to police officers and the rest of the outside world.
Drug "pushers" or couriers do not customarily go about their
143
enterprise or trade with some external visible sign advertising the fact
that they are carrying or distributing or transporting prohibited drugs.
Thus, the application of the rules in Section 5(a) and (b), Rule 133 of
the Rules of Court needs to take that circumstances into account.
The Court has had to resolve the question of valid or invalid
warrantless arrest or warrantless search or seizure in such cases by
determining the presence or absence of a reasonable or probable
cause, before that such a felony (possessing or transporting or
delivering prohibited drugs) was then in progress.
In Barros, the Court listed the kinds of causes which have been
characterized as probable or reasonable cause supporting the legality
and validity of a warrantless search and a warrantless arrest in cases
of this type:
"THIS COURT HAS IN THE PAST FOUND PROBABLE
CAUSE TO CONDUCT WITHOUT A JUDICIAL WARRANT
AN EXTENSIVE SEARCH OF MOVING VEHICLES IN
SITUATIONS WHERE
(1) there had emanated from a package the distinctive smell of
marijuana;
(2) agents of the Narcotics Command ("Narcom") of the
Philippine National Police ("PNP") had received a confidential
report from informers that a sizeable volume of marijuana
would be transported along the route where the search was
conducted;204
(3) Narcom agents were informed or "tipped off" by an
undercover "deep penetration" agent that prohibited drugs
would be brought into the country on a particular airline
flight on a given date;
(4) Narcom agents had received information that a Caucasian
coming from Sagada, Mountain Province, had in his
possession prohibited drugs and when the Narcom agents
confronted the accused Caucasian, because of a conspicuous
bulge in his waistline, he failed to present his passport and
other identification papers when requested to do so; and
(5) Narcom agents had received confidential information that a
woman having the same physical appearance as that of the
accused would be transporting marijuana."
Caution:
The government's drive against illegal drugs needs the
support of every citizen.
But it should not undermine the fundamental rights of every
citizen as enshrined in the Constitution.
The constitutional guarantee against warrantless arrests and
unreasonable searches and seizures cannot be so carelessly
disregarded as overzealous police officers are sometimes
wont to do.
Fealty to the constitution and the rights it guarantees should
be paramount in their minds, otherwise their good intentions
will remain as such simply because they have blundered.
The criminal goes free, if he must, but it is the law that sets
him free.
Nothing can destroy a government more quickly than its
failure to observe its own laws, or worse, its disregard of the
charter of its own existence.
Rule on Escapees
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.
An officer may arrest without a warrant, a prisoner who has
escaped from custody after trial and commitment, and it has
been held that even a private person may without a warrant,
arrest a convicted felon who has escaped and is at large.
An officer may arrest without a warrant, a prisoner who has
escaped from custody after trial and commitment.
Even a private person may, without a warrant, arrest a
convicted felon who has escaped and is at large, since he
might also, before conviction, have arrested the felon.
Evasion of service of sentence; Arrest, without a warrant,
principle applied. — Rule 113 of the Revised Rules of Court
may be invoked in support of this conclusion; for, under
Section 6(c) thereof one of the instances when a person may
be validly arrested without warrant is where he has escaped
from confinement.
Undoubtedly, this right of arrest without a warrant is founded
on the principle that at the time of the arrest, the escapee is
in the continuous act of committing a crime — evading the
service of his sentence.
SEC. 6.
Time of Making Arrest
SEC. 7.
Method of Arrest by Officer by Virtue of Warrant
SEC. 8.
Method of Arrest by Officer Without Warrant
Duty of Arresting Officer
At the time a person is arrested, it shall be the duty of the
arresting officer to inform him of the reason for the arrest and
he must be shown the warrant of arrest, if any.
He shall be informed of his constitutional rights to remain
silent and to counsel, and that any statement he might make
could be used against him.
The person arrested shall have the right to communicate with
his lawyer, a relative, or anyone he chooses by the most
expedient means — by telephone if possible — or by letter or
messenger.
It shall be the responsibility of the arresting officer to see to it
that this is accomplished.
No custodial investigation shall be conducted unless it be in
the presence of counsel engaged by the person arrested, or
by any person on his behalf, or appointed by the court upon
petition either of the detainee himself or by anyone on his
behalf.
The right to counsel may be waived but the waiver shall not
be valid unless made with the assistance of counsel.
Any statement obtained in violation of the procedure herein
laid down, whether exculpatory or inculpatory, in whole or in
part, shall be inadmissible in evidence.
Procedure, Guidelines and Duties of Arresting or Investigating Officer
Considering the heavy penalty of death and in order to ensure
that the evidence against an accused were obtained through
lawful means, the Court as guardian of the rights of the
people, and in the light of the new legal developments, laid
down an updated procedure, guidelines and duties which the
arresting, detaining, inviting or investigating officer or his
companions must do and observe at the time of making
144
arrest and again at and during the custodial interrogation in
accordance with the Constitution, jurisprudence and Republic
Act No. 7438:
a. The person arrested, detained, invited or under custodial
investigation must be informed in a language known to
and understood by him of the reason for the arrest and
must be shown the warrant of arrest, if any.
Every other warnings, information or communication
must be in a language known to and understood by said
person;
b. He must be warned that he has a right to remain silent
and that any statement he makes may be used as
evidence against him;
c. He must be informed that he has the right to be assisted
at all times and have the presence of an independent and
competent lawyer, preferably of his own choice;
d. He must be informed that if he has no lawyer or cannot
afford the services of a lawyer, one will be provided for
him, and that a lawyer may also be engaged by any
person in his behalf or may be appointed by the court
upon petition of the person arrested or one acting in his
behalf;
e. That whether or not the person arrested has lawyer he
must be informed that no custodial investigation any
form shall be conducted except in the presence of his
counsel or after a valid waiver has been made;
f. The person arrested must be informed that at any time,
he has the right to communicate or confer by the most
expedient means — telephone, radio, letter or messenger
— with his lawyer (either retained or appointed), any
member of his immediate family, or any medical doctor,
priest or minister chosen by him or any one from his
immediate family or by counsel or be visited or by
conferences with duly accredited national or international
non-governmental organization. It shall be the
responsibility of the officer to ensure that this is
accomplished;
g. He must be informed that he has the right to waive any
of said rights provided it is made voluntarily, knowingly
and intelligently and ensure that he understood the
same;
h. In addition, if the person arrested waives his right to a
lawyer, he must be informed that it must be done in
writing AND in the presence of counsel, otherwise, he
must be warned that the waiver is void even if he insist
on his waiver and chooses to speak;
i. That the person must be informed that he may indicate in
any manner at any stage of the process that he does not
wish to be questioned with warning that once he makes
such indication, the police may not interrogate him if the
same had not yet commenced or the interrogation must
ceased (sic) if it has already begun;
j. The person arrested must be informed that his initial
waiver of his right to remain silent, the right to counsel
or any of his rights does not bar him from invoking it at
any time during the process regardless of whether he
may have answered some questions or volunteered some
statement; and
k. He must also be informed that any statement or evidence
as the case may be obtained in violation of any of the
 foregoing whether inculpatory or exculpatory, in whole or
in part shall be inadmissible in evidence.
SEC. 9.
Method of Arrest by Private Person
SEC. 10.
Officer may Summon Assistance
SEC. 11.
Right of Officer to Break into Building or Enclosure
SEC. 12.
Right to Break Out from Building or Enclosure
SEC. 13.
Arrest After Escape or Rescue
SEC. 14.
Right of Attorney or Relative to Visit Person arrested
Under Republic Act No. 7438:
"SECTION 2(B) — ANY PUBLIC OFFICER OR EMPLOYEE,
OR ANYONE ACTING UNDER HIS ORDER OR IN HIS
PLACE, WHO ARRESTS, DETAINS OR INVESTIGATES
ANY PERSON FOR THE COMMISSION OF AN OFFENSE
SHALL INFORM THE LATTER, IN A LANGUAGE KNOWN
TO AND UNDERSTOOD BY HIM, OF HIS RIGHTS TO
REMAIN SILENT AND TO HAVE COMPETENT AND
INDEPENDENT COUNSEL, PREFERABLY OF HIS OWN
CHOICE, WHO SHALL AT ALL TIMES BE ALLOWED TO
CONFER PRIVATELY WITH THE PERSON ARRESTED,
DETAINED OR UNDER CUSTODIAL INVESTIGATION.
If such person cannot afford the services of his own counsel, he must
be provided with a competent and independent counsel by the
investigating officer.
(a) Any person arrested or detained or under custodial investigation
shall be allowed visits by or conferences with any member of his
immediate family, or any medical doctor or priest or religious minister
chosen by him or by any member of his immediate family or by his
counsel, or by any national non-governmental organization duly
accredited by the Commission on Human Rights or by any international
non-governmental organization duly accredited by the Office of the
President.
The person's "immediate family" shall include his or her spouse, fiance
or fiancee, parent or child, brother or sister, grandparent or
grandchild, uncle or aunt, nephew or niece, and guardian or ward.
AS USED IN THIS ACT, "CUSTODIAL INVESTIGATION"
SHALL INCLUDE THE PRACTICE OF ISSUING AN
"INVITATION" TO A PERSON WHO IS INVESTIGATED
IN CONNECTION WITH AN OFFENSE HE IS SUSPECTED
TO HAVE COMMITTED, WITHOUT PREJUDICE TO THE
LIABILITY OF THE "INVITING" OFFICER FOR ANY
VIOLATION OF LAW.
SEC. 4 — A) ANY ARRESTING PUBLIC OFFICER OR
EMPLOYEE, OR ANY INVESTIGATING OFFICER, WHO
FAILS TO INFORM ANY PERSON ARRESTED, DETAINED
OR UNDER CUSTODIAL INVESTIGATION OF HIS RIGHT
TO REMAIN SILENT AND TO HAVE COMPETENT AND
INDEPENDENT COUNSEL PREFERABLY OF HIS OWN
CHOICE, SHALL SUFFER A FINE OF SIX THOUSAND
PESOS (P6,000.00) OR A PENALTY OF IMPRISONMENT
OF NOT LESS THAN EIGHT (8) YEARS BUT NOT MORE
THAN TEN (10) YEARS, OR BOTH.
The penalty of perpetual absolute disqualification shall also be imposed
upon the investigating officer who has been previously convicted of a
similar offense.
145
THE SAME PENALTIES SHALL BE IMPOSED UPON A
PUBLIC OFFICER OR EMPLOYEE, OR ANYONE ACTING
UPON ORDERS OF SUCH INVESTIGATING OFFICER OR
IN HIS PLACE, WHO FAILS TO PROVIDE A COMPETENT
AND INDEPENDENT COUNSEL TO A PERSON ARRESTED,
DETAINED OR UNDER CUSTODIAL INVESTIGATION FOR
THE COMMISSION OF AN OFFENSE IF THE LATTER
CANNOT AFFORD THE SERVICES OF HIS OWN
COUNSEL.
B) ANY PERSON WHO OBSTRUCTS, PREVENTS OR
PROHIBITS ANY LAWYER, ANY MEMBER OF THE
IMMEDIATE FAMILY OF A PERSON ARRESTED, DE-
TAINED OR UNDER CUSTODIAL INVESTIGATION, OR
ANY MEDICAL DOCTOR OR PRIEST OR RELIGIOUS
MINISTER CHOSEN BY HIM OR BY ANY MEMBER OF HIS
IMMEDIATE FAMILY OR BY HIS COUNSEL, FROM
VISITING AND CONFERRING PRIVATELY WITH HIM, OR
FROM EXAMINING AND TREATING HIM, OR FROM
MINISTERING TO HIS SPIRITUAL NEEDS, AT ANY HOUR
OF THE DAY OR, IN URGENT CASES, OF THE NIGHT
SHALL SUFFER THE PENALTY OF IMPRISONMENT OF
NOT LESS THAN FOUR (4) YEARS NOR MORE THAN SIX
(6) YEARS, AND A FINE OF FOUR THOUSAND PESOS
(P4,000.00).
UNDER SEC. 2(D), REPUBLIC ACT NO. 7348 ANY
EXTRAJUDICIAL CONFESION MADE BY A PERSON,
ARRESTED, DETAINED OR UNDER CUSTODIAL
INVESTIGATION" (WHICH SHALL INCLUDE AN
"INVITATION FOR INVESTIGATION" SHALL BE IN
WRITING AND SIGNED BY SUCH PERSON IN THE
PRESENCE OF HIS COUNSEL OR IN THE LATTER'S
ABSENCE, UPON A VALID WAIVER, AND IN THE
PRESENCE OF ANY OF THE PARENTS, ELDER BROTHERS
AND SISTERS, HIS SPOUSE, THE MUNICIPAL MAYOR,
THE MUNICIPAL JUDGE, DISTRICT SCHOOL
SUPERVISOR, OR PRIEST OR MINISTER OF THE GOSPEL
AS CHOSEN BY HIM; OTHERWISE, SUCH
EXTRAJUDICIAL CONFESSION SHALL BE INADMISSIBLE
AS EVIDENCE IN ANY PROCEEDING.
In other words, if there is a valid waiver, and the lawyer's
presence is waived, the confession must still be signed in the
presence of any persons enumerated above.
1. Application of Actual Force, Manual Touching of the
Body, Physical Restraint or a Formal Declaration of
Arrest is Not Required
It is enough that there be an intent on the part of one of
the parties to arrest the other and intent on the part of
the other to submit, under the belief and impression that
submission is necessary. 1
a. A letter-invitation is equivalent to arrest.
Where the invitation comes from a powerful group
composed predominantly of ranking military officers
and the designated interrogation site as a military
camp, this is obviously a command or an order of
arrest.
b. Under R.A. No. 7438, the requisites of a custodial
interrogation are applicable even to a person not
formally arrested but merely invited for questioning,
2. Illegality of Arrest Does Not Render the Proceed-
ings Void where No timely Objection to the
Irregularity is Made
a. See also People v. Macam3 for waiver of illegality of
 arrest.

A motion to quash should be filed.

The illegality of the arrest or the procedure in

acquiring jurisdiction of the person of an accused
must be raised before plea.

[I]t is too late for appellant to raise the question of

his arrest without a warrant.

When accused-appellant was arrested and a case

was filed against him, he pleaded not guilty upon
arraignment, participated in the trial and presented
his evidence.

Appellant is thus estopped from questioning the

legality of his arrest.

It is well-settled that any objection involving a

warrant of arrest or procedure in the acquisition by
the court of jurisdiction over the person of an
accused must be made before he enters his plea,
otherwise the objection is deemed waived.

Besides, this issue is being raised for the first time

by appellant.

He did not move for the quashal of the information

before the trial court on this ground.

Consequently, any irregularity attendant to his

arrest, if any, was cured when he voluntarily sub-
mitted himself to the jurisdiction of the trial court by
entering a plea of not guilty and by participating in
the trial.

Moreover, the illegal arrest of an accused is not

sufficient cause for setting aside a valid judgment
rendered upon a sufficient complaint after the trial
free from error.

b. Thus, the unlawfulness of an arrest does not affect

the jurisdiction of the Court.

In other words, the illegal arrest of an accused is not

sufficient cause for setting aside a valid judgment
rendered upon a sufficient complaint after trial free
from error.

146