PRE-BAR NOTES ON CRIMINAL

PROCEDURE (20186)
BY ATTY. CAESAR S. EUROPA

JURISDICTION
ELEMENTS OF JURISDICTION IN CRIMINAL CASES:

a) Territorial Jurisdiction (Sec. 2, Interim Rules)

- The limits of the geographical boundaries of a place within

which a court has jurisdiction to act judicially and outside of
which its judicial acts are null and void.

- Jurisdiction of a court in criminal cases is determined by (a)

the geographical area over which the court presides and (b)
the fact that the crime was committed or any of its essential
elements took place within said area.

Note: SC can Order a change of venue or place of trial to avoid a miscarriage of

justice. (Par. 4, Section 5, Article VIII of the 87 Const)the 1987 Constitution Commented [u1]: QUERY: replace with 1987
Constitution?
PURPOSE:

People v. Pablo Sola,

G.R. No. 56158-64, March 17, 1981.

The constitution is quite explicit. The Supreme Court could order "a change
of venue or place of trial to avoid a miscarriage of justice." The Constitutional
Convention of 1971 wisely incorporated the ruling in the landmark decision of
People v. Gutierrez, where Justice J.B.L. Reyes as ponente vigorously and
categorically affirmed: "In the particular case before Us, to compel the
prosecution to proceed to trial in a locality where its witnesses will not be at
liberty to reveal what they know is to make a mockery of the judicial process,
and to betray the very purpose for which courts have been established."

“It may be added that there may be cases where the fear, objectively
viewed, may, to some individuals, be less than terrifying, but the question must
always be the effect it has on the witnesses who will testify. The primordial
aim and intent of the Constitution must ever be kept in mind. In case of
doubt, it should be resolved in favor of a change of venue”

Example:

People of the Philippines v. Camilo Pilotin, et al.,

G.R. Nos. L-35377-78, July 31, 1975.

Defendant-appellant Vincent Crisologo sought the transfer of

Criminal Case No. 3949 of the municipal court of Vigan, Ilocos Sur to
the New Bilibid Prison or, alternatively, to Camps Crame, Aguinaldo or
Olivas on the ground that if he were to be confined in the Vigan
municipal jail during the trial, his life would be in jeopardy.

Finding the motion meritorious and applying Sec. 5(4),

Article X of the Constitution, the Supreme Court directed the
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transfer of the record of the case to the City Court of Quezon City
and the holding of the trial at Camp Crame.

b) Jurisdiction over the subject matter:

Determined by the allegations of the criminal

complaint or information in accordance with the law in force
at the time of the institution of the criminal action, not at
the time of the commission of the offense.

Essentially it is determined by the penalty provided by

law for the offense as that offense is charged in the
complaint or information.

c) Jurisdiction over the person of the accused.

Conferred upon the court either by the voluntary surrender of

the accused or by his arrest to answer for the crime charged.

It is not lost once acquired.

May a court act on a motion to quash the Information without the surrender
or arrest of the accused?

What about a petition to be allowed to post bail in non-bailable offenses?

Jose C. Miranda, et al., v. Virgilio M. Tuliao,

G.R. No. 158763, March 31, 2006.

“Our pronouncement in Santiago shows a distinction between

custody of the law and jurisdiction over the person. Custody of the
law is required before the court can act upon the application for bail,
but is not required for the adjudication of other reliefs sought by the
defendant where the mere application therefor constitutes a waiver
of the defense of lack of jurisdiction over the person of the accused.
Custody of the law is accomplished either by arrest or voluntary
surrender, while jurisdiction over the person of the accused is
acquired upon his arrest or voluntary appearance. 10 One can be
under the custody of the law but not yet subject to the jurisdiction of
the court over his person, such as when a person arrested by virtue
of a warrant files a motion before arraignment to quash the warrant.
On the other hand, one can be subject to the jurisdiction of the court
over his person, and yet not be in the custody of the law, such as
when an accused escapes custody after his trial has commenced.
Being in the custody of the law signifies restraint on the person, who
is thereby deprived of his own will and liberty, binding him to become
obedient to the will of the law. Custody of the law is literally custody
over the body of the accused. It includes, but is not limited to,
detention.

The statement in Pico v. Judge Combong, Jr., cited by the

Court of Appeals should not have been separated from the issue in
that case, which is the application for admission to bail of someone
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not yet in the custody of the law. The entire paragraph of our
pronouncement in Pico reads:

A person applying for admission to bail must be

in the custody of the law or otherwise deprived of his
liberty. A person who has not submitted himself to the
jurisdiction of the court has no right to invoke the
processes of that court. Respondent Judge should have
diligently ascertained the whereabouts of the applicant
and that he indeed had jurisdiction over the body of the
accused before considering the application for bail.

While we stand by our above pronouncement in Pico insofar

as it concerns bail, we clarify that, as a general rule, one who seeks
an affirmative relief is deemed to have submitted to the jurisdiction
of the court. As we held in the aforecited case of Santiago, seeking
an affirmative relief in court, whether in civil or criminal proceedings,
constitutes voluntary appearance.

Pico deals with an application for bail, where there is the

special requirement of the applicant being in the custody of the law.
In Feliciano v. Pasicolan, we held that "[t]he purpose of bail is to
secure one's release and it would be incongruous to grant bail to one
who is free. Thus, 'bail is the security required and given for the
release of a person who is in the custody of law.'" The rationale
behind this special rule on bail is that it discourages and prevents
resort to the former pernicious practice wherein 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.

There is, however, an exception to the rule that filing

pleadings 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
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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. x x x”

Reiterated in Maca-Angcosa A. Alawiya, et al. v. Court of Appeals,

G.R. No. 164170, April 16, 2009 (also in Dante La. Jimenez v.
Hon. Edwin Sorongon, et al., G.R. No. 178607, December 5,
2012)

“[t]here is nothing in the Rules governing a motion to quash

which requires that the accused should be under the custody of the
law prior to the rule 111
filing of a motion to quash on the ground that the officer filing
the information had no authority to do so. Custody of the law is not
required for the adjudication of reliefs other than an application for
bail. However, while the accused are not yet under the custody of the
law, any question on the 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 the accused
invokes the special jurisdiction of the court by impugning such
jurisdiction over his person.”

SUMMARY
Renato M. David vs. Editha A. Agbay, Et Al
G.R. No. 199113, March 18, 2015

“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.”

Note: All the three elements must exist otherwise the court has no jurisdiction to
try and decide a criminal case.

OUTLINE OF THE JURISDICTION OF PHILIPPINE

COURTS IN CRIMINAL CASES
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APPELLATE JURISDICTION
Basic Premises:

1. ALL appeals from the CA go to the Supreme Court.

2. ALL appeals from the Sandiganbayan go to the Supreme Court
3. ALL appeals from the MTC, MTCC, MCTC, go to the RTC
regardless of the ISSUE
Conclusion:

The ONLY PROBLEM in appeals is WHERE DO YOU APPEAL FROM

A DECISION OF THE RTC?

General Rule:

Appeals, by notice of appeal or petition for review, from Decisions of

the Regional Trial Court are appealable to the COURT OF APPEALS.

Exceptions:

1. To the Supreme Court directly

1. All cases in which only an error or question of law is involved. Note:

in cases where the jurisdiction of a court or the constitutionality of a
law is in issue, it must be THE ONLY issue left otherwise the appeal
will be a mixed question of fact and law and must be appealed to the
CA.

PROCEDURE IN CASES WHERE PENALTY IMPOSED IS DEATH OR

RECLUSION PERPETUA (as amended DUE TO PEOPLE v. EFREN G. MATEO
(G.R. No. 147678-87, July 7, 2004) (Note: The Death Penalty was abolished
by R.A. No. 9346 signed into law on June 24, 2006.)

1. If Death, appeal is AUTOMATIC to the Court of Appeals;

2. If Reclusion Perpetua or life imprisonment, appeal is to the Court of

Appeals but is NOT AUTOMATIC, a Notice of Appeal must be filed.

AMENDED RULES TO GOVERN REVIEW OF DEATH PENALTY

CASES

FROM THE RTC

a) If P=Death= Automatic Appeal to CA

If CA affirms it will render judgment but will not enter judgment and will
transmit the case to the SC; Note: If other accused are imposed lesser
penalties for offenses committed on the same occasion or which arose out of
the same occurrence, all will be transmitted to the SC.

If CA finds penalty should be reclusion perpetua or lesser, it will render

judgment and enter judgment. CA’s decision can be appealed to the SC
via the filing of a notice of appeal with the CA.
 6

b) If P=Reclusion Perpetua or Life Imprisonment= Appeal by Notice

of Appeal

If CA affirms or imposes lesser penalty then it will render judgment

and enter judgment. CA’s decision can be appealed to the SC via the
filing of a notice of appeal with the CA.

FROM THE SANDIGANBAYAN

General Rule: Appeals from SB to SC via Rule 45.

Exception:

a) If Penalty imposed by SB is DEATH appeal to SC is AUTOMATIC

(including appeal of accused imposed lesser penalties for offenses
committed on the same occasion or which arose out of the same occurrence)

b) If Penalty imposed by SB is Reclusion Perpetua or Life Imprisonment,

appeal to SC will be via Notice of Appeal filed with the SB. (including
appeal of accused imposed lesser penalties for offenses committed on the
same occasion or which arose out of the same occurrence)

c) Whenever the Sandiganbayan, in the exercise of its appellate jurisdiction,

finds that the penalty of death, reclusion perpetua or life imprisonment
should be imposed, it shall render judgment accordingly. However, it shall
refrain from entering the judgment and forthwith certify the case and
elevate its entire record to the Supreme Court for review.

2. To the Sandiganbayan:

3. All cases decided by the RTC, whether in its original or

jurisdiction which would have been within the jurisdiction of the
Sandiganbayan if any of the accused had been occupying positions
corresponding to Salary Grade “27” or higher, as prescribed in the
said R.A. No. 6758, or military and PNP officer mentioned in the
Sandiganbayan law.

As applicable to the CA and explained in

People v. Nelson Abon,

G.R. No. 169245, February 15, 2008.

Preliminary Matter: Rules on Appeal

An appeal is a proceeding undertaken to have a decision reconsidered by bringing

it to a higher court authority.1 It is not a right but a mere statutory privilege 2 to be exercised
only in the manner and in accordance with the provisions of law. 3

Recent developments in criminal law and jurisprudence have brought about

changes in the rules on appeal, specifically in cases where the penalty imposed is death,
reclusion perpetua or life imprisonment. To clarify the present rules, we shall discuss
these developments.

Section 3 of Rule 122 of the 2000 Rules on Criminal Procedure states:

1
BLACK’S LAW DICTIONARY (Abridged 7th ed., 2000). Formatted: Font: Not Bold
2
Badillo v. Gabo, G.R. No. 145846, April 3, 2003, 400 SCRA 494, 506; citing Manalili v.
De Leon, G.R. No. 140858, November 27, 2001, 370 SCRA 625, 630.
3
Basuel v. Fact-Finding and Intelligence Bureau, G.R. No. 143664, June 30, 2006, 494
SCRA 118, 123.
 7

SEC. 3. How appeal taken.

—(a) The appeal to the Regional Trial Court, or to the Court of
Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction, shall be
taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from
and by serving a copy thereof upon the adverse party.

(b) The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the
exercise of its appellate jurisdiction shall be by petition for review under Rule 42.

(c) The appeal to the Supreme Court in cases where the penalty imposed by the Regional Trial
Court is reclusion perpetua, or life imprisonment, or where a lesser penalty is imposed but for
death,
offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the
more serious offense for which the penalty of death, reclusion perpetua, or life imprisonment is imposed,
shall be by filing a notice of appeal in accordance with paragraph (a) of this section.

(d) No notice of appeal is necessary in cases where the death penalty is imposed by the Regional Trial
Court. The same shall be automatically reviewed by the Supreme Court as provided in section 10 of this Rule.

(e) Except as provided in the last paragraph of section 13, Rule 124, all other appeals to the Supreme
Court shall be by petition for review on certiorari under Rule 45.

The provision provides that where the penalty imposed by the RTC is reclusion
perpetua or life imprisonment, an appeal is made directly to this Court by filing a notice of
appeal with the court which rendered the judgment or final order appealed from and by
serving a copy thereof upon the adverse party. On the other hand, a case where the
penalty imposed is death will be automatically reviewed by the Court without a need for
filing a notice of appeal.

However, Mateo4 modified these rules by providing an intermediate review of the

cases by the CA where the penalty imposed is reclusion perpetua, life imprisonment, or
death. Pursuant to Mateo’s ruling, the Court issued A.M. No. 00-5-03-SC 2004-10-12,
amending the pertinent rules governing review of death penalty cases, thus:

Rule 122

Sec. 3. How appeal taken. — (a) The appeal to the Regional Trial Court,
or to the Court of Appeals in cases decided by the Regional Trial
Court in the exercise of its original jurisdiction, shall be by notice of
appeal filed with the court which rendered the judgment or final order
appealed from and by serving a copy thereof upon the adverse party.

(b) The appeal to the Court of Appeals in cases decided by the Regional
Trial Court in the exercise of its appellate jurisdiction shall be by petition for
review under Rule 42.

(c) The appeal in cases where the penalty imposed by the Regional
Trial Court is reclusion perpetua, life imprisonment or where a lesser
penalty is imposed for offenses committed on the same occasion or
which arose out of the same occurrence that gave rise to the more,
serious offense for which the penalty of death, reclusion perpetua, or
life imprisonment is imposed, shall be by notice of appeal to the Court
of Appeals in accordance with paragraph (a) of this Rule.

(d) No notice of appeal is necessary in cases where the Regional Trial

Court imposed the death penalty. The Court of Appeals shall automatically
review the judgment as provided in Section 10 of this Rule.

xxx

Formatted: Font: Not Bold, Italic

Formatted: Font: Not Bold
4
Supra note 13.
 8

Sec. 10. Transmission of records in case of death penalty. — In all cases

where the death penalty is imposed by the trial court, the records shall be
forwarded to the Court of Appeals for automatic review and judgment within
twenty days but not earlier than fifteen days from the promulgation of the
judgment or notice of denial of a motion for new trial or reconsideration.
The transcript shall also be forwarded within ten days after the filing thereof
by the stenographic reporter. (Emphasis supplied.)

xxx

Rule 124

Sec. 12. Power to receive evidence. — The Court of Appeals shall have
the power to try cases and conduct hearings, receive evidence and perform
all acts necessary to resolve factual issues raised in cases falling within its
original and appellate jurisdiction, including the power to grant and conduct
new trials or further proceedings. Trials or hearings in the Court of Appeals
must be continuous and must be completed within three months, unless
extended by the Chief Justice. 12(a)

Sec. 13. Certification or appeal of case to the Supreme Court. — (a)

Whenever the Court of Appeals finds that the penalty of death should be
imposed, the court shall render judgment but refrain from making an entry
of judgment and forthwith certify the case and elevate its entire record to
the Supreme Court for review.

(b) Where the judgment also imposes a lesser penalty for offenses
committed on the same occasion or which arose out of the same
occurrence that gave rise to the more severe offense for which the penalty
of death is imposed, and the accused appeals, the appeal shall be included
in the case certified for review to, the Supreme Court.

(c) In cases where the Court of Appeals imposes reclusion perpetua,

life imprisonment or a lesser penalty, it shall render and enter
judgment imposing such penalty. The judgment may be appealed to
the Supreme Court by notice of appeal filed with the Court of Appeals.
(Emphasis supplied.)

Also affecting the rules on appeal is the enactment of R.A. No. 9346 or An Act
Prohibiting the Imposition of the Death Penalty in the Philippines, which took effect on
June 29, 2006. Under Section 2 of R.A. No. 9346, the imposition of the death penalty is
prohibited, and in lieu thereof, it imposes the penalty of reclusion perpetua, when the law
violated makes use of the nomenclature of the penalties of the Revised Penal Code (RPC);
or life imprisonment, when the law violated does not make use of the nomenclature of the
penalties of the RPC. Consequently, in the provisions of the Rules of Court on appeals,
death penalty cases are no longer operational.

2. To the Sandiganbayan:

1. All cases decided by the RTC, whether in its original or appellate

which would have been within the jurisdiction of the Sandiganbayan if any of the
accused had been occupying positions corresponding to Salary Grade “27” or
higher, as prescribed in the said R.A. No. 6758, or military and PNP officer
mentioned in the Sandiganbayan law.

This is stated in R.A. No. 8249, amending P.D. No. 1606 thus:
 9

The Sandiganbayan shall exercise exclusive appellate jurisdiction over final

judgments, resolutions or orders or 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 jurisdiction 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 may 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.

Interesting case on the appellate jurisdiction of the Sandiganbayan

In a case where the Information was filed by the Office of the

Ombudsman with the Regional Trial Court, a private lawyer “Atty. Sitoy”
appeared as private prosecutor and, upon motion of the accused, the RTC
disqualified Atty. Sitoy. The Office of the Ombudsman for Visayas and Atty.
Sitoy raised this ruling on certiorari under Rule 65 to the Court of Appeals
and the CA reversed the ruling of the RTC.

Issue:

Was the Court of Appeals correct in assuming jurisdiction over the

petition for certiorari?

Held:

The Sandiganbayan, not the CA, has appellate jurisdiction over the
RTC’s decision not to allow Atty. Sitoy to prosecute the case on behalf of the
Ombudsman.

The Sandiganbayan shall exercise exclusive appellate jurisdiction

over final judgments, resolutions or orders or 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 jurisdiction 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 x x x”

xxx

“In the present case, the CA erred when it took cognizance of the
petition for certiorari filed by Magno. While it is true that the interlocutory
order issued by the RTC is reviewable by certiorari, the same was incorrectly
filed with the CA. Magno should have filed the petition for certiorari with the
Sandiganbayan, which has exclusive appellate jurisdiction over the RTC
since the accused are public officials charged of committing crimes in their
capacity as Investigators of the National Bureau of Investigation.

The CA should have dismissed the petition outright. Since it acted

without authority, we overrule the September 26, 2005 Amended Decision of
the CA and the subsequent denial of Magno’s motions for reconsideration.

Nota Bene:
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The SC nullified the ruling of the CA but did not rule on whether or not Atty.
Sitoy could prosecute the case but gave the petitioners 15 days to seek relief from
the Sandiganbayan.

ORGINAL JURISDICTION

RULE OF THUMB IN DETERMINING WHICH COURT HAS ORIGINAL

JURISDICITON OVER A CRIMINAL CASE:

“Determining the court which has original jurisdiction over a criminal case is
a process of elimination in the following order

1. Sandiganbayan
2. Special Courts:

2. Special Courts:

a. Family Courts
b. Dangerous Drugs Court (NOTE: PerA.M. NO.
16-07-06-SC, July 19, 2016…)
Formatted: No bullets or numbering

b.
c. Intellectual Property Courts

Note: These special courts are all Regional Trial

Courts designated by the Supreme Court to
take cognizance of special cases.

3. Regular Courts in the following order:

a. MTC, MTCC, MCTC

b. RTC

Note: In the process of elimination, the MTC, MTCC,

MCTC comes before the RTC because the RTC
is the catch all court meaning if a case does not
fall within the original jurisdiction of any other
court, then it is the RTC that will have jurisdiction
over it.

SANDIGANBAYAN
1 + 1 = 2 METHOD
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A very good exercise to have familiarity with the jurisdiction of the

Sandiganbayan is to prepare TWO COLUMNS, THUS:

1+ 1 =2
IN THE FIRST COLUMN IN THE SECOND IF BOTH THE CRIME
LIST DOWN ALL THE COLUMN LIST DOWN AND THE PERSON ARE
CRIMES COVERED BY ALL THE PERSONS COVERED BY THE
THE SANDIGANBAYAN COVERED BY THE SANDIGANBAYAN LAW
LAW SANDIGANBAYAN THEN SANDIGANBA-
LAW YAN WILL HAVE
ORIGINAL JURISDIC-
TION OVER THE CASE
IF NOT THEN THE
REGULAR COURTS
WILL HAVE
JURISDICTION

Section 4 of R.A.Republic Act No. 8249

" Sec. 4. Jurisdiction. — The Sandiganbayan shall exercise exclusive

original jurisdiction in all cases involving:

A. Violations of Republic Act No. 3019, as amended, other 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:

"(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 (Republic Act 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 superintended 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 or
foundations.

"(2) Members of Congress and officials thereof classified as Grade '27' and up under
the Compensation and Position Classification Act of 1989;
 12

"(3) Members of the judiciary without prejudice to the provisions of the Constitution;

"(4) Chairmen and members of Constitutional Commission, 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 cases filed pursuant to and in connection with Executive Order
Nos. 1, 2, 14 and 14-A, issued in 1986.“

Does the Sandiganbayan have jurisdiction over a case where the

accused is a City Councilor (member of the Sangguniang Panlungsod) and
the offense is for violation of P.D. No. 1445 or the Auditing Code of the
Philippines whose salary grade is Salary Grade 25?

People v. Sandiganbayan,
G.R. No. 169004, September 15, 2010.

“The above law is clear as to the composition of the original

jurisdiction of the Sandiganbayan. Under Section 4 (a), the following
offenses are specifically enumerated: violations of R.A. No. 3019, as
amended, R.A. No. 1379, and Chapter II, Section 2, Title VII of the Revised
Penal Code. In order for the Sandiganbayan to acquire jurisdiction over
the said offenses, the latter must be committed by, among others, officials of
the executive branch occupying positions of regional director and higher,
otherwise classified as Grade 27 and higher, of the Compensation and
Position Classification Act of 1989. However, the law is not devoid of
exceptions. Those that are classified as Grade 26 and below may still fall
within the jurisdiction of the Sandiganbayan provided that they hold the
positions thus enumerated by the same law. Particularly and exclusively
enumerated are provincial governors, vice-govenors, members of the
sangguniang panlalawigan, and provincial treasurers, assessors, engineers,
and other provincial department heads; city mayors, vice-mayors, members
of the sangguniang panlungsod, city treasurers, assessors, engineers, and
other city department heads; officials of the diplomatic service occupying
the position as consul and higher; Philippine army and air force colonels,
naval captains, and all officers of higher rank; PNP chief superintendent
and PNP officers of higher rank; City and provincial prosecutors and their
assistants, and officials and prosecutors in the Office of the Ombudsman and
special prosecutor; and presidents, directors or trustees, or managers of
government-owned or controlled corporations, state universities or
educational institutions or foundations. In connection therewith, Section 4
(b) of the same law provides that other offenses or felonies committed by
public officials and employees mentioned in subsection (a) in relation to
their office also fall under the jurisdiction of the Sandiganbayan.5[15] Commented [u2]:

AUTHOR:
Clearly, as decided in the earlier case and by simple
application of the pertinent provisions of the law, respondent Please specify footnote
Commented [CE3R2]: People v. Sandiganbayan and
Amante, G.R. No. 167304, August 25, 2009
 13

Plaza, a member of the Sangguniang Panlungsod during the

alleged commission of an offense in relation to his office,
necessarily falls within the original jurisdiction of the
Sandiganbayan.”

“In relation to their office”

The tricky part of the jurisdiction of the Sandiganbayan is determining

whether or not common crimes and felonies committed by public officials and
employees were done “in relation to their office”

Guidelines as laid down in People v. Demosthenes Magallanes, October 11,

1995.

An offense may be considered as committed in relation to the office if

a. it cannot exist without the office; or

b. if the office is a constituent element of the crime as defined in the

statute, such as, for instance, the crimes defined and punished in
Chapter Two to Six, Title Seven, of the Revised Penal Code;

c. the offense must be intimately connected with the office of the

offender; and

d. the fact that the offense was committed in relation to the office must
be alleged in the information.

As explained in Sanchez v. Demetriou, 227 SCRA 627,

Cited in People v. Sandiganbayan, G.R. No. 169004, September 15, 2010.

In Sanchez v. Demetriou [227 SCRA 627 (1993)],

the Court elaborated on the scope and reach of the term
“offense committed in relation to [an accused’s] office” by
referring to the principle laid down in Montilla v. Hilario
[90 Phil 49 (1951)], and to an exception to that principle
which was recognized in People v. Montejo [108 Phil 613
(1960)]. The principle set out in Montilla v. Hilario is that
an offense may be considered as committed in relation to
the accused’s office if “the offense cannot exist without
the office” such that “the office [is] a constituent element
of the crime x x x.” In People v. Montejo, the Court,
through Chief Justice Concepcion, said that “although
public office is not an element of the crime of murder in
[the] abstract,” the facts in a particular case may show
that

x x x the offense therein charged is intimately

connected with [the accused’s] respective offices and was
perpetrated while they were in the performance, though
improper or irregular, of their official functions. Indeed,
 14

[the accused] had no personal motive to commit the crime

and they would not have committed it had they not held
their aforesaid offices. x x x”

Some Cases:

Rogelio M. Esteban v. Sandiganbayan,

G.R. Nos. 146646-49, March 11, 2005.

The SB has jurisdiction over cases for violation of the Anti-Sexual

Harassment Law of 1995 against an MTC Judge where the body of the amended
Information reads:

“That on or about the 5th day of August 1997 in Cabanatuan City, Nueva
Ecija, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, JUDGE ROGELIO M. ESTEBAN, a public officer, being then the
Presiding Judge of Branch 1 of the Municipal Trial Court in Cabanatuan City, who
after having been rejected by the private complainant, Ana May V. Simbajon, of
his sexual demands or solicitations to be his girlfriend and to enter his room daily
for a kiss as a condition for the signing of complainant’s permanent
appointment as a bookbinder in his Court, thus in relation to his office or
position as such, with lewd design and malicious desire, did then and there willfully,
unlawfully and feloniously grab private complainant, kiss her all over her face and
touch her right breast against her will and consent, to her damage and detriment.

Because “he could not have committed the crimes charged were it not for
the fact that as the Presiding Judge of the MTCC, Branch I, Cabanatuan City, he
has the authority to recommend the appointment of Ana May as bookbinder. In
other words, the crimes allegedly committed are intimately connected with his
office”

Azarcon v. SB, 268 SCRA 747, February 26, 1997.

The SB does not have jurisdiction over a private individual charged with
malversation of public funds simply because he was designated by the BIR as a
custodian of distrained property. He did not become a public officer thereby.

People v. Magallanes 249 SCRA 298, October 11, 1995.

The allegation “taking advantage of his position” by itself is insufficient to

bring the offense within the purview of “offenses committed in relation to public
office.”

Lacson v. The Executive Secretary, 301 SCRA 298, January 20, 1999.

How to allege an offense committed by the accused “in relation to his office.

“The stringent requirement that the charge be set forth with such
particularity as will reasonably indicate the exact offense which the accused is
alleged to have committed in relation to his office was, sad to say, not satisfied.
We believe that the mere allegation in the amended information that the offense
was committed by the accused public officer "in relation to his office" is not
sufficient. That phrase is merely a conclusion of law, not a factual averment that
would show the close intimacy between the offense charged and the discharge of
the accused's official duties.”
 15

“In the aforecited case of People vs. 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.”

Soller v. Sandiganbayan,
G.R. No. 144261-62, May 9, 2001.

Even if the Information described the accused as being “all public officers,
then being the Municipal Mayor, Municipal Health Officer, SPO II, PO I, Sanitary
Inspector and Midwife” if there was no allegation that the offense of altering and
suppressing the gunshot wound of the victim with intent to impair the veracity,
authenticity and availability as evidence in the investigation of the criminal case for
murder (Criminal Case No. 25521) or of giving false and fabricated information in
the autopsy report and police report to mislead the law enforcement agency and
prevent the apprehension of the offender (Criminal Case No. 25522) was done in
the performance of official function, then the SB has no jurisdiction.

In a case where the Municipal Treasurer was charged together with the
Municipal Mayor for Malversation, can the Sandiganbayan have jurisdiction
over the Municipal Treasurer when her Salary Grade is 24, it was the Mayor,
not her who was the accountable officer for the funds, and the Information
does not state the intimate relationship between her office and the crime
charged?

Dinah C. Barriga v. Sandiganbayan

G.R. Nos. 161784-86, April 26, 2005.

Held:

There are two classes of public office-related crimes under subparagraph

(b) of Section 4 of R.A. No. 8249: first, those crimes or felonies in which the public
office is a constituent element as defined by statute and the relation between the
crime and the offense is such that, in a legal sense, the offense committed cannot
exist without the office; second, such 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.

Since the position of the Mayor, as the accountable officer is a

CONSTITUENT ELEMENT of the crime of malversation and there is an allegation
of conspiracy between them, this falls within the FIRST category of crimes
cognizable by the Sandiganbayan.

According to the SC: We agree with the ruling of the Sandiganbayan that 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
 16

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.

Other notable matters to remember:

1. The Sandiganbayan will have jurisdiction over a case if it has jurisdiction

over ANY ONE OF THE ACCUSED. Example: Janitor charged with
Anti-Graft together with a Regional Director.

2. The Sandiganbayan will also have jurisdiction over PRIVATE INDIVIDUALS

who are accused together with public officers over whom and in cases
where the Sandiganbayan has jurisdiction.

FAMILY COURT (R.A. No. 8369)

SECTION 5. Jurisdiction of Family Courts. — The Family Courts shall have
exclusive original jurisdiction to hear and decide the following cases:

a) Criminal cases 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 victims 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";

xxx

i) Cases against minors cognizable under the Dangerous Drugs Act, 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 results, or

are likely to result in physical, sexual or psychological harm or
suffering to women; and other forms of physical abuse such as
battering or threats and coercion which violate 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.

If any question involving any of the above matters should arise as an incident in
any case pending in the regular courts, said incident shall be determined in that court.
 17

DANGEROUS DRUGS COURT

The Regional Trial Courts designated by the Supreme Court as Dangerous
Drugs Courts have jurisdiction over ALL VIOLATIONS of the Dangerous Drugs Act
(R.A. No. 9165) except cases against minors cognizable under the Dangerous
Drugs Act, as amended.

INTELLECTUAL PROPERTIES COURT

The Regional Trial Courts designated by the Supreme Court as Intellectual
Properties Courts will have jurisdiction over all criminal violations of the Intellectual
Property Code and related laws.

REGULAR COURTS
FROM B.P. Blg. 129 and R.A. No. 7691, the jurisdiction of regular courts, the
RTC and the MTC may be outlined as follows:

RTC MTC, MTCC, MCTC

IF PENALTY IS PENALTY > 6 years PENALTY <6 years

IMPRISONMENT OR
IMPRISONMENT AND
FINE

IF PENALTY IS FINE is > P4,000 FINE is < P4,000

PURELY FINE

Important: ALL cases of reckless imprudence resulting to DAMAGE TO

PROPERTY are cognizable by the MTCC MCTC MTC,
REGARDLESS of the amount of the fine (cf., R.A. No. 7691)

Note: JURISDICTION IS BASED ON THE MAXIMUM IMPOSABLE

PENALTY

NOTE 2: The General Rules do not apply if the law

specifies the court that will have jurisdiction over
the case, e.g., Libel (Art. 360, RPC)

THE REVISED RULES ON CRIMINAL PROCEDURE

AS AMENDED
(RULES 110-127, RULES OF COURT)
EFFECTIVE DECEMBER 1, 2000

RULE 110 - PROSECUTION OF OFFENSES

WHERE WILL THE CASE BE FILED (Section 1 pars. [a] and [b])
 18

General Rule:

Penalty > 4 yrs., 2 mos. -Preliminary Investigation is required

-file with the Prosecutor’s Office for PI
(MTC NO LONGER ALLOWED TO
CONDUCT PI under NEW RULE 112, as
amended by A.M. No. 05-8-26-SC)

Penalty < 4 yrs., 2 mos. -NO PI is required

-file directly with MTC for trial, except in
chartered cities where it should be filed
with the prosecutor's office unless
otherwise provided in the city’s charter

Cognizable by SB. - OMBUDSMAN or Prosecutor’s Office

but in case of the latter, the Resolution
will be approved by the Ombudsman

"The institution of the criminal action shall interrupt the running of the
period of prescription of the offense charged unless otherwise provided in
special laws." (Sec. 1, last par.)

Issue:

Will the filing of a complaint for preliminary investigation interrupt the

running of the period of the prescription of the offense charged?

Rule:

Prescription will be interrupted unless the special law provides otherwise.

Meaning:

If covered by the Revised Penal Code, prescription is interrupted. If under

a Special Law then the provisions of that law on prescription will apply (If the law
requires “institution of judicial proceedings” then prescription will not be
interrupted). Finally, if the Special Law does not have provisions on prescription,
Section 2 of Act No. 3326 (December 4, 1926) will apply and prescription will not
be interrupted until the information or complaint is filed in court for trial.

Based on: REODICA v. CA, 292 SCRA 87.

LLENES v. DICDICAN, 260 SCRA 207 (1996).

Interesting Case:

Citibank N.A., et al. v. Ester H. Tanco-Gabaldon, et al.,

September 4, 2013, G.R. Nos. 198469-70.

This case involved a criminal prosecution for Violation of the Securities

Regulation Code (SRC) where the accused asserted that the offenses had already
prescribed because the said law provided for a two-year prescriptive period for
“any liability” created under Section 62 of the SRC.
 19

Held:

Section 62 provides for two different prescriptive periods.

Section 62.1 specifically sets out the prescriptive period for the liabilities
created under Sections 56, 57, 57.1(a) and 57.1(b). Section 56 refers to Civil
Liabilities on Account of False Registration Statement while Section 57 pertains to
Civil Liabilities on Arising in Connection with Prospectus, Communications and
Reports. Under these provisions, enforcement of the civil liability must be brought
within two (2) years or five (5) years, as the case may be.

On the other hand, Section 62.2 provides for the prescriptive period to
enforce any liability created under the SRC. It is the interpretation of the phrase
"any liability" that creates the uncertainty. Does it include both civil and criminal
liability? Or does it pertain solely to civil liability?

In order to put said phrase in its proper perspective, reference must be

made to the rule of statutory construction that every part of the statute must be
interpreted with reference to the context, i.e., that every part of the statute must be
considered together with the other parts, and kept subservient to the general intent
of the whole enactment.

Section 62.2 should not be read in isolation of the other provision included
in Section 62, particularly Section62.1, which provides for the prescriptive period
for the enforcement of civil liability in cases of violations of Sections 56, 57, 57.1(a)
and 57.1(b).

Moreover, it should be noted that the civil liabilities provided in the SRC are
not limited to Sections 56 and 57. Section 58 provides for Civil Liability For Fraud
in Connection With Securities Transactions; Section 59 – Civil Liability For
Manipulation of Security Prices; Section 60 – Civil Liability With Respect to
Commodity Future Contracts and Pre-need Plans; and Section 61 – Civil Liability
on Account of Insider Trading. Thus, bearing in mind that Section 62.1 merely
addressed the prescriptive period for the civil liability provided in Sections 56, 57,
57.1(a) and 57.1(b), then it reasonably follows that the other sub-provision, Section
62.2, deals with the other civil liabilities that were not covered by Section 62.1,
namely Sections 59, 60 and 61. This conclusion is further supported by the fact
that the subsequent provision, Section 63, explicitly pertains to the amount of
damages recoverable under Sections 56, 57, 58, 59, 60 and 61,22 the trial court
having jurisdiction over such actions, the persons liable and the extent of their
liability.

Clearly, the intent is to encompass in Section 62the prescriptive periods

only of the civil liability in cases of violations of the SRC.

The CA, therefore, did not commit any error when it ruled that "the phrase
‘any liability’ in subsection 62.2 can only refer to other liabilities that are also civil
in nature. The phrase could not have suddenly intended to mean criminal liability
for this would go beyond the context of the other provisions among which it is
found."

Given the absence of a prescriptive period for the enforcement of the

criminal liability in violations of the SRC, Act No. 3326 now comes into play.
Panaguiton, Jr. v. Department of Justice expressly ruled that Act No. 3326 is the
law applicable to offenses under special laws which do not provide their own
prescriptive periods.
 20

COMPLAINT OR INFORMATION (Sec. 2)

1. Must be in writing;

2. in the name of the People of the Philippines;

A mistake in the complaint or information where it is made in the

name of the offended party (e.g., Maria Dimapasok v. Juan Dimakatusok
for Rape) is only a formal defect. Though, if raised, the complaint or
information can be quashed, it will not invalidate the Complaint or
Information and it is curable by a formal amendment.

3. against all persons responsible;

The public prosecutor has no authority to exclude anybody if there is

a showing that such person appears to be guilty of the offense. (Note:
exception is if a person has been administratively declared a state
witness prior to the filing of the information under R.A. No. 6981 or the
Witness Protection Act)

Will the failure of the Information to include other persons who also
appear to be responsible be a ground to dismiss the case against those who
were included?

Betty Bagionza, et al. v. Court of Appeals, et al.,

G.R. No. 161057, September 12, 2008.

“It appears that the Court of Appeals was, without saying so, applying the
rule in civil cases that all indispensable parties must be impleaded in a civil action.
There is no equivalent rule in criminal procedure, and certainly the Court of
Appeals' decision failed to cite any statute, procedural rule or jurisprudence to
support its position that the failure to implead the traders who directly dealt with
petitioners is indeed fatal to the complaint.

Assuming that the traders could be tagged as principals by direct

participation in tandem with Roxas and Nolasco — the principals by inducement
— does it make sense to compel that they be jointly charged in the same complaint
to the extent that the exclusion of one leads to the dismissal of the complaint? It
does not. Unlike in civil cases, where indispensable parties are required to be
impleaded in order to allow for complete relief once the case is adjudicated, the
determination of criminal liability is individual to each of the defendants. Even if the
criminal court fails to acquire jurisdiction over one or some participants to a crime,
it still is able to try those accused over whom it acquired jurisdiction. The criminal
court will still be able to ascertain the individual liability of those accused whom it
could try, and hand down penalties based on the degree of their participation in
the crime. The absence of one or some of the accused may bear impact on the
available evidence for the prosecution or defense, but it does not deprive the trial
court to accordingly try the case based on the evidence that is actually available.”

Complaint defined. – A complaint is a sworn written statement

charging a person with an offense, subscribed by the offended party, any
peace officer, or other public officer charged with the enforcement of the law
violated. (Sec. 3, Rule 110)
 21

Who can file a complaint?

a) the offended party

b) peace officer

c) other public officer charged with the enforcement of the law violated

What if the complaint is not sworn or signed?

This is a formal defect that can be cured by having the complaint signed
and sworn to by the person who filed it.

“other public officer charged with the enforcement of the law violated”

Examples of these persons are Customs Officials in cases involving

violations of the Customs and Tariff Code, BIR officials in violations of the NIRC,
DENR Officials for violations of the Forestry Code or environmental laws, SSS
officials for violations of the SSS law, etc.

Information defined. – an accusation in writing charging a person with

an offense, subscribed by the prosecutor and filed with the court. (Sec. 4,
Rule 110)

“subscribed by the prosecutor and filed with the court”

An information can be filed only by a public prosecutor and only in court.

The person filing a complaint or information must have authority to do so.

CUDIA v. CA, 284 SCRA 173 (1998).

City Prosecutor of Angeles City filed an Information for Illegal Possession

of Firearms committed in Mabalacat, Pampanga.

Held:

If the person who signed the information is not authorized to do so, the entire
proceedings will be null and void even if the accused participated actively in the
proceedings.

DISTINCTIONS BETWEEN A COMPLAINT AND AN INFORMATION

1. A Complaint may be signed or subscribed by the offended party, a peace

officer, or any other public officer charged with the enforcement of the law violated
while an Information can only be subscribed by the public prosecutor.

2. A complaint may be filed with the public prosecutor or it can be filed with
the proper MTC or MCTC, for trial in the cases where direct filing is allowed by law.
An Information, on the other hand, can only be filed with the proper court for trial
of the accused.

Note:
 22

Only a complaint filed in court for TRIAL not PI must be subscribed by the
offended party, peace officer or other public officer charged with enforcing the law
violated.

Evarle v. Sucaldito, 156 SCRA 808.

A complaint filed for purposes of preliminary investigation with the public

prosecutor need not be filed by the offended party. Such a complaint may be filed
by any complainant. The complaint referred to in Section 3 of Rule 110 is one filed
in court and not with the public prosecutors office in which case it has to be initiated
by the aggrieved party.

Note: This is because the public prosecutor is authorized by law to

investigate any complaint. If such an investigation leads to a finding of probable
cause to hold a respondent for trial, the public prosecutor can file the proper
information in court.

Who must prosecute criminal actions? (Sec. 5, R110)

General Rule:

Under the direction or control of the public prosecutor

Exception:

As AMENDED BY En Banc Resolution dated April 10, 2002 A.M. No.

02-2-07 SC

In case of heavy work schedule of a 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. 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.

BEFORE THE AMENDMENT THE EXCEPTION WAS:

IN CASES BEFORE MTCs or MCTCs where the prosecutor assigned is

NOT available, the following may prosecute:

a) the offended party;

b) peace officer;

c) other public officer charged with the enforcement of the law violated.

Can the offended party elevate the criminal aspect of a case to the CA
or SC without the participation of the Office of the Solicitor General?

Elvira O. Ong v. Jose Casim Genio,

 23

G.R. No. 182336, December 23, 2009.

This doctrine is laid down in our ruling in Heirs of Federico C. Delgado and
Annalisa Pesico v. Luisito Q. Gonzalez and Antonio T. Buenaflor, Cariño v. de
Castro, Mobilia Products, Inc. v. Umezawa, Narciso v. Sta. Romana-Cruz, Perez
v. Hagonoy Rural Bank, Inc., and People v. Santiago, where we held that only the
OSG can bring or defend actions on behalf of the Republic or represent the People
or the State in criminal proceedings pending in this Court and the CA.

Exception:

“there may be rare occasions when the offended party may be allowed to
pursue the criminal action on his own behalf, as when there is a denial of due
process.” (Merciales v. Court of Appeals, 429 Phil. 70 [2002])

PRIVATE CRIMES “Crimes which cannot be prosecuted de oficio” Based on

Article 344 of the Revised Penal Code.

Adultery and Concubinage

The complaint or information must be signed by the offended spouse and

must be against BOTH guilty parties unless one is already dead.

Consent and pardon are valid defenses in adultery or concubinage.

Note:

PPPEOPLE OF THE PHILIPPINES v. ILARDE 125 SCRA 11

The affidavit complaint began with this statement:

“I’m formally charging my wife and ‘X’ and would request this affidavit be
considered a formal complaint against them.”

The prosecutor phrased the Information, filed after the death of the
complainant, in this manner:

“the undersigned city fiscal upon sworn statement originally filed by the
offended husband, Xerox copies of which are hereto attached as annexes ‘A’ AND
‘B’.

Held:

The Information sufficiently complies with the requirement that the

complaint or information be signed by the offended party.

Seduction, Abduction and Acts of Lasciviousness

Note:

Rape has been removed from the coverage of private crimes because
under the new Anti-Rape Law, rape is now a crime against persons rather than
chastity. It is no longer a private crime.

Section 5 provides a list of the people who can file the complaint in cases
of seduction, abduction and acts of lasciviousness. These are the following:
 24

a) The Offended Party, EVEN IF SHE IS A MINOR;

b) The offended party’s parents;

c) The offended party’s grandparents;

d) The offended party’s guardian; or

e) The State;

As stated in Section 5, from the parents to the State, the list is exclusive
and followed in the order given.

In practical terms this means that if the offended party, EVEN IF SHE IS A
MINOR, unless she is incompetent or incapable of filing the complaint for reasons
other than minority, if she wants to file the case, her decision is to be followed
regardless of the decision of her parents or of other people.

As probably discussed in the study of the Revised Penal Code, the reason
for this is the fact that the offended party may choose to suffer in silence rather
than suffer the scandal of a public trial.

In these cases, even if there is clear evidence that a crime has been
committed the public prosecutor is helpless to do anything unless there is a
complaint signed by the offended party.

Note: Section 5 DOES NOT APPLY to SPECIAL COMPLEX CRIMES

If an Information in the crimes under Section 5 is filed without a

complaint, is the defect jurisdictional or not?

People of the Philippines v. Elmer Yparraguire y Sepe

G.R. No. 124391, July 5, 2000.

“Once the violation of the law becomes known through a direct original
participation initiated by the victim, the requirements of Article 344 of the Revised
Penal Code (RPC), to the effect that the offense of rape "shall not be prosecuted
except upon a complaint filed by the offended party or her parents," are satisfied.
Said provision is not determinative of the jurisdiction of courts over the
private offenses because the same is governed by the Judiciary law, not the
Revised Penal Code which deals with the definition of felonies and their
punishment. Stated differently, the complaint required in Article 344 is but a
condition precedent to the exercise by the proper authorities of the power to
prosecute the guilty parties.”

“No criminal action for defamation which consists in the imputation of

any of the offenses mentioned above shall be brought except at the instance
of and upon complaint filed by the offended party.”
Le 114 Commented [u4]: QUERY: delete this?

DEFAMATION: SLANDER OR LIBEL IS NOT A PRIVATE CRIME

 25

EXCEPT IF THE DEFAMATION IMPUTES THE

COMMISSION OF adultery, concubinage, seduction,
abduction, or acts of lasciviousness.

Notable case:

Gonzales v. Arcilla, 203 SCRA 629.

“MANG-AAGAW NG ASAWA NG MAY ASAWA” is not an imputation of adultery

as the elements are not imputed.

What must a complaint or information contain? (Sec. 6, Rule 110)

a. name of the accused;

b. designation of the offense given by the statute;
c. acts or omissions complained of as constituting the offense;
d. name of the offended party;
e. approximate date of the commission of the offense;
f. place where the offense was committed.

Purpose:

PpPeople of the .Philippines v. Rosalindo Cutamora, et al., Commented [u5]: QUERY: replace with “People”?
G.R. Nos. 133448-53, October 6, 2000.

The purpose of the above-quoted rule is to inform the accused of the nature
and cause of the accusation against him, a right guaranteed by no less than the
fundamental law of the land. Elaborating on the accused's right to be informed, this
Court held in Pecho v. People, 262 SCRA 518 that the objectives of this right are:

1. To furnish the accused with such a description of the charge against

him as will enable him to make the defense;

2. To avail himself of his conviction or acquittal for protection against

further prosecution for the same cause; and

3. 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.

On the Name of the Accused (Sec. 7, Rule 110)

An Erroneous name is not material it can be cured by amendment for as

long as the identity of the accused is established.

On the Designation of the Offense (Sec. 8., Rule 110)

The rule is that the designation of the offense is not material. What is
material are the averments in the body of the Information. Thus, an error in the
designation of the offense will not invalidate the Information.
 26

Exception to the Rule: When the facts appearing in the body of the complaint or
information are AMBIGUOUS as to permit two or more interpretations, the
designation appearing in the caption controls.

Example:
U.S. v. TICSON, 25 PHIL 67.

Early in the morning of October 6, 1911, and on an occasion when Braulio

Calang, the husband of Epifania Cupo, was absent from home and she was asleep
with her young child in her arms, the defendant entered their house, situated in
Surigao, by cutting the fastenings of the door, approached the sleeping woman
and raised her skirt.

CRIME DESIGNATED WAS TRESPASS TO DWELLING BUT THE FACTS

COULD ALSO CONSTITUTE ACTS OF LASCIVIOUSNESS. Rule: FOLLOW
THE DESIGNATION.

On the Cause of the accusation (Sec. 9, Rule110)

Recite the elements of the crime but not necessarily in the actual words of the law.

Other words can be used for as long as the same idea is conveyed.

Example:

Intent to kill in homicide can be inferred from the other allegations in the
Information.

Intent to gain in theft can be presumed from the allegation of appropriating a thing
belonging to another.

Basic Rule In Determining the Sufficiency of the Allegations in the

Information

People v. Robert P. Balao, et al.,

G.R. No. 176819, January 26, 2011.

“In Cabrera v. Sandiganbayan, the Court held that the fundamental

test in determining the adequacy of the averments in an information is
whether the facts alleged, if hypothetically admitted, would establish the
essential elements of the crime. Matters extrinsic or evidence aliunde
should not be considered.”

Must conspiracy be expressly alleged or may it be inferred from the other

allegations in the Information?

People v. Ronnie Quitlong,

292 SCRA 360.

“A conspiracy indictment need not, of course, aver all the components of

conspiracy or allege all the details thereof, like the part that each of the parties
therein have performed, the evidence proving the common design or the facts
 27

connecting all the accused with one another in the web of the conspiracy. Neither
is it necessary to describe conspiracy with the same degree of particularity
required in describing a substantive offense. It is enough that the indictment
contains a statement of the facts relied upon to be constitutive of the offense in
ordinary and concise language, with as much certainty as the nature of the case
will admit, in a manner that can enable a person of common understanding to know
what is intended, and with such precision that the accused may plead his acquittal
or conviction to a subsequent indictment based on the same facts. It is said,
generally, that an indictment may be held sufficient ‘if it follows the words of
the statute and reasonably informs the accused of the character of the
offense he is charged with conspiring to commit, or, following the language
of the statute, contains a sufficient statement of an overt act to effect the
object of the conspiracy, or alleges both the conspiracy and the
contemplated crime in the language of the respective statutes defining
them.’"

How should conspiracy be alleged as a mode of committing an offense?

Rene M. Francisco v. People of the Philippines,

G.R. No. 177430, July 14, 2009.

“it is sufficient to allege conspiracy as a mode of the commission of an

offense in either of the following manners: (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 same case, is it sufficient to alleged that the accused “did then
and there, willfully, unlawfully and knowingly participate in and facilitate the
transportation, concealment, and possession of dutiable electronic
equipment and accessories with a domestic market value of P20,000,000.00
contained in container van no. TTNU9201241, but which were declared in
Formal Entry and Revenue Declaration No. 118302 as assorted men's and
ladies' accessories . . ."?

On this issue the Supreme Court ruled “We find the phrase ‘participate in
and facilitate’ to be a clear and definite allegation of conspiracy sufficient for those
being accused to competently enter a plea and to make a proper defense.”

Very Important:

Sections 8 and 9 of the Rules have been amended by the Revised Rules
on Criminal Procedure. The said provisions now require that BOTH QUALIFYING
AND ORDINARY AGGRAVATING CIRCUMSTANCES MUST be stated in the
Information.

This requirement is MANDATORY and, being favorable to the accused,

should be given retroactive effect. Thus it affects cases filed prior to the
effectivity of the Revised Rules on December 1, 2000.

PpPeople of the .Philippines v. Daniel Mauricio, Commented [u6]: QUERY: replace with People or
G.R. No. 133695, February 28, 2001. People of the Philippines?
 28

“The use of the word ‘must’ indicates that the requirement is mandatory,
therefore failure to comply with Sec. 4, Rule 110, means that generic aggravating
circumstances, although proven at the trial, cannot be appreciated against the
accused if such circumstances are not stated in the information. It is a cardinal rule
that rules of criminal procedure are given retroactive application insofar as they
benefit the accused.”

Example:

PpPeople of the .Philippines v. Rogelio R. Moreno, Commented [u7]: Query: People? or People of the
G.R. No. 140033, January 25, 2002. Philippines?

Nocturnity was not alleged in the Information filed prior to December 1, 2000
but it cannot be appreciated EVEN IF PROVEN because the new rule is
MANDATORY and is to be given retroactive effect.

People v. Miguelito Malana,

G.R. No. 185716, September 29, 2010.

The twin circumstances of minority of the victim and her relationship to the
offender must concur to qualify the crime of rape. In the instant case, only
relationship was duly alleged and proved.

Sections 8 and 9, Rule 110 of the Revised Rules on Criminal Procedure

now provide that aggravating as well as qualifying circumstances must be alleged
in the information and proven during trial, otherwise they cannot be considered
against the accused. Thus, the same cannot be used to impose the higher penalty
of capital punishment on accused-appellant.

Thus, accused-appellant should be convicted of simple rape only and

sentenced accordingly to reclusion perpetua in each case.

People vs. Renato Dadulla

G. R. No. 172321, February 9, 2011

“A rapacious father who vented his lust on his own daughter without any qualms
is allowed to suffer the lesser penalty because of the failure of the criminal information
to aver his relationship with the victim. Even so, the Court condemns his most
despicable crime.”

“The term aggravating circumstance is strictly construed when the appreciation of

the modifying circumstance can lead to the imposition of the maximum penalty of death.
Consequently, the qualifying circumstance of relationship, even if established
during trial, could not affect the criminal penalty of the accused by virtue of its non-
allegation in the information. The accused could not be convicted of the graver
offense of qualified rape, although proven, because relationship was neither alleged
nor necessarily included in the information. Accordingly, the accused was properly
convicted by the CA for simple rape and justly punished with reclusion perpetua.”

May an aggravating circumstance which was not alleged in the Information

be appreciated in determining CIVIL liability?

People v. Suela,
373 SCRA 163, January 15, 2002.
citing People v. Catubig,
363 SCRA 621.
 29

While, under the new rules, an aggravating circumstance that is NOT

alleged in the information CANNOT be appreciated in determining the criminal
liability of the accused, the rules do not prevent its appreciation for the purpose of
determining CIVIL liability.

Are the Suela and Catubig ruling still applicable to cases where the
Information was filed AFTER the effectivity of the 2000 Rules of Criminal
Procedure?

People v. Antonio Dalisay,

G.R. No. 188106, November 25, 2009.

In the instant case, the information for rape was filed in 2003 or after the
effectivity of the Revised Rules. Following the doctrine in the second set of cases,
the Court can very well deny the award of exemplary damages based on Article
2230 because the special qualifying circumstances of minority and relationship, as
mentioned above, were not sufficiently alleged.

Nevertheless, by focusing only on Article 2230 as the legal basis for the grant
of exemplary damages — taking into account simply the attendance of an
aggravating circumstance in the commission of a crime, courts have lost sight of
the very reason why exemplary damages are awarded. Catubig is enlightening on
this point, thus —

Also known as "punitive" or "vindictive" damages, exemplary or

corrective damages are intended to serve as a deterrent to serious wrong
doings, and as a vindication of undue sufferings and wanton invasion of the
rights of an injured or a punishment for those guilty of outrageous conduct.
These terms are generally, but not always, used interchangeably. In common law,
there is preference in the use of exemplary damages when the award is to account
for injury to feelings and for the sense of indignity and humiliation suffered by a
person as a result of an injury that has been maliciously and wantonly inflicted, the
theory being that there should be compensation for the hurt caused by the highly
reprehensible conduct of the defendant — associated with such circumstances as
willfulness, wantonness, malice, gross negligence or recklessness, oppression,
insult or fraud or gross fraud — that intensifies the injury. The terms punitive or
vindictive damages are often used to refer to those species of damages that may
be awarded against a person to punish him for his outrageous conduct. In either
case, these damages are intended in good measure to deter the wrongdoer and
others like him from similar conduct in the future.

Being corrective in nature, exemplary damages, therefore, can be

awarded, not only in the presence of an aggravating circumstance, but also
where the circumstances of the case show the highly reprehensible or
outrageous conduct of the offender. In much the same way as Article 2230
prescribes an instance when exemplary damages may be awarded, Article
2229, the main provision, lays down the very basis of the award. Thus, in
People v. Matrimonio, the Court imposed exemplary damages to deter other
fathers with perverse tendencies or aberrant sexual behavior from sexually
abusing their own daughters. Also, in People v. Cristobal, the Court awarded
exemplary damages on account of the moral corruption, perversity and
wickedness of the accused in sexually assaulting a pregnant married
woman. Recently, in People of the Philippines v. Cristino Cañada, 47 People
of the Philippines v. Pepito Neverio and The People of the Philippines v.
Lorenzo Layco, Sr., the Court awarded exemplary damages to set a public
 30

example, to serve as deterrent to elders who abuse and corrupt the youth,
and to protect the latter from sexual abuse.

It must be noted that, in the said cases, the Court used as basis Article 2229,
rather than Article 2230, to justify the award of exemplary damages. Indeed, to
borrow Justice Carpio Morales' words in her separate opinion in People of the
Philippines v. Dante Gragasin y Par, "[t]he application of Article 2230 of the
Civil Code strictissimi juris in such cases, as in the present one, defeats the
underlying public policy behind the award of exemplary damages — to set a
public example or correction for the public good."

In this case, finding that appellant, the father figure of the victim, has
shown such an outrageous conduct in sexually abusing his ward, a minor at
that, the Court sustains the award of exemplary damages to discourage and
deter such aberrant behavior. However, the same is increased to P30,000.00 in
line with prevailing jurisprudence.

Important Issue:

Since both qualifying and aggravating circumstances must now be stated in

the Information, is it necessary to specify which circumstances are alleged
as qualifying and which are alleged as ordinary aggravating circumstances?

People v. Rodelio R. Aquino,

G.R. Nos. 144340-42, August 6, 2002 reiterated in
People v. Rommel Dela Cruz, G.R. No. 175929, December 16, 2008.

“x x x, the Court has repeatedly held, even after the recent amendments to
the Rules of Criminal Procedure, that qualifying circumstances need not be
preceded by descriptive words such as ‘qualifying’ or ‘qualified by’ to
properly qualify an offense. The Court has repeatedly qualified cases of rape
where the twin circumstances of minority and relationship have been specifically
alleged in the Information even without the use of the descriptive words ‘qualifying’
or ‘qualified by.’ "

"The fact that the circumstances were described as ‘aggravating’ instead of

‘qualifying’ does not take the Information out of the purview of Article 248 of the
Revised Penal Code. Article 248 does not use the word ‘qualifying’ or ‘aggravating’
in enumerating the circumstances that raise a killing to the category of murder.
Article 248 merely refers to the enumerated circumstances as the ‘attendant
circumstances.’"

“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 Commented [u8]: QUERY: appraise?
accused of the charges against him to enable him to prepare fully for his defense, Commented [CE9R8]: Nope apprise is correct
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.”
 31

In cases of rape, is the allegation in the Information that the accused is the
“uncle” of the victim or that the latter is his “niece” sufficient to qualify the
offense?

People v. Marcial L. Llanto,

G.R. No. 146458, January 20, 2003.

The information:

"That on or about (the) twelfth day of November, 1999 at Pasay City and
within the jurisdiction of this Honorable Court, the above-named accused, actuated
by lust, with use of a knife, through force, violence and intimidation, and by taking
advantage of his moral ascendancy over his twelve (12) year old minor niece
MARIA CRISTY T. BALISI, did then and there willfully, unlawfully and feloniously
have carnal knowledge of Ma. Cristy T. Balisi against her will and consent, to her
damage and prejudice in whatever amounts may be awarded to her under
provisions of the Civil Code."

Held:
“In a catena of cases, we have ruled that the allegation that the accused is
the "uncle" of the victim and the latter is his "niece" is not specific enough to satisfy
the special qualifying circumstance of relationship under Art. 266-B, supra. In
People v. Lachica, we held:

"If the offender is merely a relation — not a parent, ascendant, step-parent,

or guardian or common law spouse of the mother of the victim — it must be
alleged in the Information that he is 'a relative by consanguinity or affinity
[as the case may be] within the third civil degree.'" (People v. Libo-on, G.R.
No. 136737, May 23, 2001, per Gonzaga-Reyes, J.; People v. Banihit, 339 SCRA
86, 96, August 25, 2000, per Ynares-Santiago, J. — both citing People v. Ferolino,
329 SCRA 719, 735, April 5, 2000, per Davide, CJ.) Moreover, even if the
relationship by consanguinity or affinity is alleged in the Information, it is still
necessary to allege further that such relationship is within the third civil degree. . ."
(Emphasis supplied.)

Consequently, because of the defect in the information, the accused can

only be held liable for simple rape.

As applied:

The failure to allege the accused’s lack of a license for a gun in the
Information negates the appreciation of the special aggravating
circumstance against him.

People v. Jessielito Badajos, et. al.,

G.R. No. 139692, January 15, 2004.

“Under Republic Act No. 8294, the use of an unlicensed gun to commit
homicide is a special aggravating circumstance. The culprit's lack of a license for
the gun is an essential element of such circumstance, which must be alleged in
the Information as mandated by Section 8, Rule 110 of the Revised Rules of
Criminal Procedure. However, there is no allegation in the Information that the
appellant had no license to possess the firearm he used to kill Donque. Thus, the
appellant's use of an unlicensed firearm cannot be considered against him.”
 32

The allegation in the Information that the accused is “armed with a knife” is
sufficient to comply with the need to allege that the accused was “armed
with a deadly weapon” to qualify the crime of rape to rape with the use of a
deadly weapon.

People v. Joseph Orilla,

G.R. Nos. 148939-40, February 13, 2004,

“Appellant on the other hand argues that the allegation in the Amended
Information that he was "armed with a knife" does not comply with Sections 8 and
9 of Rule 110 of the 2000 Revised Rules of Criminal Procedure. The allegation in
the Amended Information that the accused was "armed with a knife" is not in any
way equivalent to "use of a deadly weapon." The "knife" could simply be a "butter
knife," a harmless knife. Appellant opines that the Amended Information should
have stated that accused was "armed with a deadly knife, which is a deadly
weapon."

We have held in several cases that the allegation "armed with a knife" is
sufficient to inform the accused of the nature of the accusation against him. The
prosecution also proved during the trial appellant's use of a deadly weapon.
Remilyn testified that she was not able to shout because appellant pointed an
eight-inch kitchen knife at her throat.”
ON SECTION 5(b) OF R.A. 7610

Acts of Lasciviousness in relation to Section 5(b) of R.A. 7610

Eduardo Quimvel vs. People G.R.No. 214497, April18, 2017

The Information:
Formatted: Font: 11 pt, Bold

ISSUE: Can the allegations in this Information be sufficient to justify a conviction

for Acts of Lasciviousness IN RELATION TO Section 5 (b) of RA 7610?

Section 5. Child Prostitution and Other Sexual Abuse. – Children,

whether male or female, who for money, profit, or any other
consideration or due to the coercion or influence of any adult,
 33

syndicate or group, indulge in sexual intercourse or lascivious

conduct, are deemed to be children exploited in prostitution and other
sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion

perpetua shall be imposed upon the following:

(a)xxxxxxxxx

(b) Those who commit the act of sexual intercourse of lascivious

conduct with a child exploited in prostitution or subject to other
sexual abuse; Provided, That when the victims is under twelve (12)
years of age, the perpetrators shall be prosecuted under Article 335,
paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the
Revised Penal Code, for rape or lascivious conduct, as the case may
be: Provided, That the penalty for lascivious conduct when the victim
is under twelve (12) years of age shall be reclusion temporal in its
medium period; and

Contention of the Accused:

Formatted: Font: 11 pt, Bold

RULING OF THE SUPREME COURT:

Formatted: Font: 11 pt, Bold

Formatted: Font: 11 pt, Bold

 34

Formatted: Font: 11 pt, Bold

On the place of commission of the offense (Sec. 10, Rule 110)

The place need not be specific for as long as it is clear that the offense was
committed within the jurisdiction of the court where it was filed.

Exception: The place must be specific only in cases where it is an

essential element of the offense or necessary for the identification of the
offense.

Example: Some Violations of the Omnibus Election Code such as

entering a polling place where the accused is not a voter therein nor an
authorized watcher of a candidate or party.

On the date of the commission of the offense (Sec. 11, Rule 110)

The date or the time of commission need not be specific. The phrase “On
or about” is sufficient to cover a span of a few months.

Exception: When the date or time is an essential element of the offense.

Example: Violation of the liquor ban on the day prior to or on the day of
the elections. Also in the crime of “infanticide” which must be committed
within 72 hours (three days) from the birth of the child otherwise it would be
murder.

People v. Meliton T. Jalbuena,

G.R. No. 171163, July 4, 2007.

Is an allegation that the offense of statutory rape was committed “on or about
the month of August 1996” sufficient?

“In rape, the gravamen of the offense, being the carnal knowledge of a
woman, the date is not an essential element, hence, the specification of the exact
date or time of its commission is not important.

In statutory rape, like in this case, what matters most is that the information
alleges that the victim is a minor under twelve years of age and that the accused
had carnal knowledge of her.”

People v. Nelson Arraz,

 35

G.R. No. 163695, October 24, 2008.

Information for Rape alleges the date of commission as “on or about the
20th day of April, 2003 but the testimony showed that the offense was committed
in the early morning of April 21, 2003.

“[T]he Court sustains the lower courts in holding that the date of the
commission of the rape is not an essential element of the crime. Even a variance
of a few months between the time in the Information and that established by the
evidence during the trial has been held not to constitute a serious error warranting
the reversal of a conviction on that ground.” (reiterated in People v. Gualberto s.
Cinco, G.R. No. 186460, December 4, 2009)

On the Name of the Offended Party (Sec. 12, Rule 110)

General Rule: “The complaint or information must 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.”

Examples:

Slander

PpPeople of the Philippines v. Juliana Uba, 99 Phil 134. Commented [u10]: QUERY: People of the
Philippines?
“While it is probably true that the fiscal or his clerk made a clerical error in
putting in the information the name of Pastora Somod-ong instead of that of
Demetria Somod-ong, as the offended party, the mistake thus committed was on
a very material matter in the case, such that it necessarily affected the identification
of the act charged. The act of insulting X is distinct from a similar act of insult
against Y, even if the insult is preferred by the same person, in the same language
and at about the same time. Note that the pleading that give the court jurisdiction
to try the offense is not the complaint of the offended party, but the information by
the fiscal, because the charge is the utterance of insulting or defamatory language,
not the imputation of an offense which can be prosecuted only at the instance of
the offended party. (People v. Marquez, 68 Phil. 521; Blanco v. People, 70 Phil.
735)

Arturo Borjal v. Court of Appeals,

G.R. No. 126466, January 14, 1999.

In order to maintain a libel suit, it is essential that the victim be identifiable

although it is not necessary that he be named. It is also not sufficient that the
offended party recognized himself as the person attacked or defamed, but it must
be shown that at least a third person could identify him as the object of the libelous
publication.

(citing Kunkle v. Cablenews-American, 42 Phil. 757 (1922). See also Corpus v.

Cuaderno, Sr., No. L-16969, 30 April 1966, 16 SCRA 807; People v. Monton, No.
L-16772, 30 November 1962, 6 SCRA 801)

Statutory Rape

“the victim must be described as being below 12 years of age”

PpPeople of the .Philippines v. Renato Puzon Commented [u11]: QUERY: People of the Philippines
 36

G.R. Nos. 123156-59, August 29, 2000.

“Clearly, conviction of appellant for statutory rape (absent any allegation in

the information that the complainants were below 12 years of age at the time of
the rape), and not for rape through force or intimidation, which was the method
alleged — would violate the right of the appellant to be informed of the nature of
the accusation against him; which right is granted. by the Constitution to every
accused to the end that he could prepare an adequate defense for the offenses
charged against him. Convicting appellant of a crime not alleged while he is
concentrating his defense against the offense alleged would be unfair and
underhanded.”

Exception to the General Rule:

In offenses against property, if the name of the offended party is unknown,

the property must be described with such particularity as to properly identify the
offense charged.

IN CRIMES AGAINST PROPERTY

People v. CFI of Quezon City,

G.R. No. L-41903, June 10, 1992.

We rule that it was error for the lower court to dismiss the Information. The
Information was already sufficient in form and substance. The argument that it was
fatal for the prosecution not to have alleged the State as the offended party is
without merit for in the case of Sayson v. People, G.R. No. 51745, October 28,
1988, 166 SCRA 680, in construing Section 11 of Rule 110 (now Sec. 12, Rules
of Court of the 1985 Rules on Criminal Procedure), we have clearly held that in
offenses against property, the designation of the name of the offended party is not
absolutely indispensable as long as the criminal act charged in the complaint or
information can be properly identified.

Ramon F. Sayson v. People of the Phils.

G.R. No. L-51745, October 28, 1988.

“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 show very clearly that the accused allegedly attempted to defraud
Mever 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 [I]nformation and the evidence offered by the
prosecution in support thereof does not of itself entitle the accused to an acquittal."
(People v. Catli, G.R. No. L-11641, November 29, 1962, 6 SCRA 642)
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. (Rule 110, Section 11, Revised Rules of Court;
now Rule 110, Section 12 of the 1985 Rules on Criminal Procedure) In case of
 37

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.

Exception To The Exception:

Robbery with violence or intimidation

The case of U.S. v. Lahoylahoy, 38 Phil., 330, appears to us to be in point

and decisive of the case. The reasons for the decision in that case were, first,
because, to convict a person of robbing X when the person robbed is Y is
violative of the principles of pleading and, second, because then the plea of
double jeopardy would be of no avail to an accused. To this same effect is our
decision in People v. Balboa, 90 Phil., 5. (quoted from the Uba case)

Another Way of Applying the Rule as Explained in

Ramoncita O. Senador v. People of the Philippines, et al.,
G.R. No. 201620, March 6, 2013.

We conclude that in offenses against property, if the subject matter of the

offense is generic and not identifiable, such as the money unlawfully taken as in
Lahoylahoy an error in the designation of the offended party is fatal and would
resultin the acquittal of the accused. However, if the subject matter of the offense
is specific and identifiable, such as a warrant, as in Kepner, or a check, such as in
Sayson and Ricarze, an error in the designation of the offended party is immaterial.

DUPLICITOUS COMPLAINT OR INFORMATION (Sec.13, Rule 110)

Duplicitous Information

An Information charging more than one offense is called a duplicitous

Information.

Rule:

PpPeople of the .Philippines v. Manalili, Commented [u12]: QUERY: People of the Philippines
G.R. No. 121671, August 14, 1998.

Under the Constitution, an accused has the right to be informed, before trial,
of the nature of the offense with which he or she is charged. Regardless of how
conclusive and convincing the evidence of guilt may be, there can be no conviction,
unless the offense is charged (or is necessarily included) in the Complaint or
Information. On the other hand, an accused, who fails to object prior to arraignment
to a duplicitous information, may be found guilty of any or all of the crimes alleged
therein and duly proven during the trial, for the allegation of the elements of such
component crimes in the said information has satisfied the constitutional guarantee
that an accused be informed of the nature of the offense with which he or she is
being charged.
 38

Does not apply to complex crimes, compound crimes, continued crimes, and
special complex crimes and other instances where only one penalty will be
imposed on several crimes.

Complex Crimes in General

Article 48 of the Revised Penal Code

1. Delito Complejo (Complex Crimes Proper)

When an offense is a necessary means for committing the other.

Example: Estafa through falsification of public documents

Note: Article 48 also applies to culpable felonies (criminal negligence)

PpPeople of the Philippines v. Glenn De Los Santos, Commented [u13]: Query: People of the Philippines?
G.R. No. 131588, March 27, 2001.

In Reodica v. Court of Appeals, we ruled that if a reckless, imprudent, or

negligent act results in two or more grave or less grave felonies, a complex crime
is committed. Thus, in Lapuz v. Court of Appeals, the accused was convicted, in
conformity with Article 48 of the Revised Penal Code, of the complex crime of
"homicide with serious physical injuries and damage to property through reckless
imprudence," and was sentenced to a single penalty of imprisonment, instead of
the two penalties imposed by the trial court. Also, in Soriao v. Court of Appeals, 29 Commented [u14]: Query: delete this?
the accused was convicted of the complex crime of "multiple homicide with
damage to property through reckless imprudence" for causing a motorboat to
capsize, thereby drowning to death its 28 passengers.

2. Delito Compuesto (Compound Crimes)

A single act constitutes two or more grave or less grave felonies.

Example: one gunshot hitting and killing two people.

Interesting case:

Is there such a crime as Murder with Abortion?

PpPeople of the Philippines. v. Bonifacio Lopez, Commented [u15]: Query: People of the Philippines
G.R. No. 136861, November 15, 2000.

It must be emphasized that accused-appellant was charged with the

complex crime of murder with abortion, not of two independent charges of murder
and unintentional abortion. In a complex crime, although two or more crimes are
actually committed, they constitute only one crime in the eyes of the law. The
stabbing and killing of the victim which caused likewise the death of the fetus arose
from the single criminal intent of killing the victim, as shown by accused-appellant's
pursuit of the victim after she was able to escape. (People v. Alacar, 211 SCRA
580 [1992])

Effect of Complex Crimes:

 39

In a complex crime, the penalty for the more or the most serious crime shall
be imposed, the same to be applied in its maximum period. As between murder
and unintentional abortion, murder is the more serious crime and the penalty
therefor is reclusion perpetua to death. Death being the maximum or the greater
penalty must then be imposed, and since this is an indivisible penalty, the presence
of mitigating or aggravating circumstances is inconsequential.

3. Delito Continuado (Continued Crimes)

Also known as “Single Larceny Doctrine”

A series of acts arising out of a single criminal intent not under Article 48
but is applied by the Supreme Court in the case of 49 Phil. 437 [1926].

APPLIED IN THE FOLLOWING:

(1) The theft of 13 cows belonging to two different owners committed by the
accused at the same place and at the same period of time. (People v.
Tumlos, 67 Phil. 320 [1939])

(2) The theft of six roosters belonging to two different owners from the same
coop and at the same period of time. (People v. Jaranillo, 55 SCRA 563
[1974])

(3) The theft of two roosters in the same place and on the same occasion.
(People v. De Leon, 49 Phil. 437 [1926])

(4) The illegal charging of fees for services rendered by a lawyer every time he
collects veteran's benefits on behalf of a client, who agreed that the
attorney's fees shall be paid out of said benefits. (People v. Sabbun, 10
SCRA 156 [1964]) The collections of the legal fees were impelled by the
same motive, that of collecting fees for services rendered, and all acts of
collection were made under the same criminal impulse. (People v. Lawas,
97 Phil. 975 [1955])

NOT APPLIED IN THE FOLLOWING:

(1) Two estafa cases, one of which was committed during the period from
January 19 to December 1955 and the other from January 1956 to July Commented [u16]: QUERY: incomplete year?
1956. (People v. Dichupa, 113 Phil. 306 [1961]) The said acts were
committed on two different occasions.

(2) Several malversations committed in May, June, and July 1936, and
falsifications to conceal the said offenses committed in August and October
1936. The malversations and falsifications "were not the result of only one
purpose or of only one resolution to embezzle and falsify . . ." (People v.
Cid, 66 Phil. 354 [1938])

(3) Two estafa cases, one committed in December 1963 involving the failure of
the collector to turn over the installments for a radio and the other in June
1964 involving the pocketing of the installments for a sewing machine.
(People v. Ledesma, 73 SCRA 77 [1976])
 40

(4) 75 estafa cases committed by the conversion by the agent of collections

from customers of the employer made on different dates. (Gamboa v. Court
of Appeals, 68 SCRA 308 [1975])

Explained in Santiago v. Gartichorena, 228 SCRA 214

and made to apply to special laws under Article 10 of the RPC.

In the case at bench, the original Information charged petitioner with

performing a single criminal act — that of her approving the application for
legalization of aliens not qualified under the law to enjoy such privilege.

The 32 Amended Informations reproduced verbatim the allegation of the

original Information, except that instead of the word "aliens" in the original
Information each amended information states the name of the individual whose
stay was legalized.

As Applied to Shooting Incidents

One shot three dead = one crime (PpPeople of the Philippines v. Hubilo 220 Commented [u17]: QUERY: People?
SCRA 389) – compound crime (delito complejo)

Three shots three dead on one occasion = separate crimes (People v. Ducay, 225
SCRA 1)

Single pressing of the trigger of a machine gun resulting to multiple victims

= separate crimes (PpPeople of the .Philippines v. Tabaco 270 SCRA 32) as Commented [u18]: QUERY: People?
many crimes as there are victims

4. Hernandez Doctrine

People of the Philippine vs. Amado Hernandez, 99 Phil 515 and Enrile v. Commented [u19]: QUERY: incomplete citation. Pls.
Salazar 186 SCRA 217 supply the whole citation. ty

The felony of rebellion absorbs common crimes committed pursuant to the

rebellion.

5. Special Complex Crimes specifically provided for in the RPC

Examples:

Robbery with Rape Article 335 of the RPC, as amended by R.A. No. 7659

Robbery with Homicide Article 294

Note:
An Information alleging more than one way the same crime was committed
IS NOT DUPLICITOUS.

Example:

People v. Buenviaje, 47 Phil. 536,.

“[W]here the defendant was charged with violation of the Medical Law and
the [I]nformation charged both illegal practice of medicine and illegally advertising
 41

oneself as a doctor, it was held that "the [I]nformation 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.”

Bernardo Gallego v. Sandiganbayan,

G.R. No. L-57841, July 30, 1982.

The chairman and three other members of the Board for Marine Deck
Officers in the May 1979 examinations, two of whom are petitioners, were charged
in the Sandiganbayan for violation of Section 3(e) of the Anti-Graft and Corrupt
Practices Act, for giving unwarranted benefits to particular examinees. In the
motion to quash the aforesaid Information, petitioners Gallego and Agoncillo
claimed, among others, that Section 3(e) of the Anti-Graft and Corrupt Practices
Act is null and void because it is unconstitutionally vague and therefore cannot be
a basis of any criminal prosecution and that the information charges the accused
with three distinct offenses, to wit: "(a) the giving of 'unwarranted' benefits through
manifest partiality; (b) the giving of 'unwarranted' benefits through evident bad
faith; and (c) the giving of 'unwarranted' benefits through gross inexcusable
negligence" while in the discharge of their official and/or administrative functions.
The motion to quash was denied by the Sandiganbayan. Hence this petition.

The Supreme Court held that Section 3(e) of the Anti-Graft and Corrupt
Practices Act does not suffer from the constitutional defect of vagueness since the
phrases "manifest partiality,'' "evident bad faith'' and "gross inexcusable
negligence'' merely describe the different modes by which the offense penalized
in the said section of the statute may be committed, and the use of all the phrases
in the same information does not mean that the indictment charges three distinct
offenses.

AMENDMENT OR SUBSTITUTION (Sec. 14, Rule110)

RULES ON AMENDMENTS BEFORE PLEA

General Rule:

Before the arraignment of the accused, the prosecution may amend the
Information whether in form or in substance.

Exception Introduced in the Revised Rules of Criminal Procedure:

However, 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. (n)

RULES ON AMENDMENTS AFTER PLEA

“After the plea and during the trial, a formal amendment may only be made
with leave of court and when it can be done without causing prejudice to the rights
of the accused”
 42

Requisites:

1. The amendment is merely formal;

2. There must be leave of court;

3. It must not prejudice the rights of the accused;

Formal v. Substantial Amendments

Substantial amendments consists of major or material changes in the

information, such as a change in the manner of the commission of the offense, in
the date of the commission over a wide span of time, or change in the name of the
victim or offended party. Formal amendments come in the form of correcting the
spelling or clerical errors or other minor changes in the Information 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.

Examples of Formal Amendments:

In the case of Dennis T. Gabionza v. Court of Appeals, G.R. No. 140311,

March 30, 2001, the Supreme court said that “Jurisprudence allows amendments
to information so long as:

1. it does not deprive the accused of the right to invoke prescription;

2. it does not affect or alter the nature of the offense originally charged;

3. it does not involve 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;

4. it does not expose the accused to a charge which would call for a
higher penalty;

5. it does not cause surprise nor deprive the accused of an opportunity

to meet the new averment.

Cases:

Vega v. Panis, No. L-40842, September 30, 1982, 117 SCRA 269.
People v. Casey, No. L-30146, February 24, 1981, 103 SCRA 21.

Examples of Substantial Amendments:

1. An amendment which changes the manner of the commission of the

offense

PpPeople of the .Philippines v. Zulueta, 89 Phil. 755 Commented [u20]: QUERY: People

The allegation of conspiracy among all the private respondents-accused,

which was not previously included in the original information, is likewise a
 43

substantial amendment saddling the respondents with the need of a new defense
in order to meet a different situation in the trial court.

2. An amendment which changes the name of the offended party

PpPeople of the Philippines vs. Juliana Uba, 99 Phil 134 Commented [u21]: QUERY: People?

An amendment to change the name of the offended party in the information

to the name of the true victim as established by evidence is substantial because
defamation against X is different from defamation against Y.

Do not confuse this with

Danilo Buhat v. CA,

G.R. No. 119601, December 17, 1996.

“[T]he amendment to replace the name, "John Doe" with the name of
Renato Buhat who was found by the Secretary of Justice to be one of the two
persons who held the arms of the victim while petitioner was stabbing him, is only
a formal amendment and one that does not prejudice any of the accused's rights.
Such amendment to insert in the [I]nformation the real name of the accused
involves merely a matter of form as it does not, in any way, deprive any of the
accused of a fair opportunity to present a defense; neither is the nature of the
offense charged affected or altered since the revelation of accused's real name
does not change the theory of the prosecution nor does it introduce any new and
material fact. In fact, it is to be expected that the information has to be amended
as the unknown participants in the crime became known to the public prosecutor.”

3. An amendment to change the date of commission of the offense over

a wide span of time.

People v. Alfredo C. Reyes,

G.R. No. L-32557, October 23, 1981.

In the present case, private respondent Francisco Estrella was investigated

for an offense allegedly committed in August 1964. Then, he was charged for an
offense allegedly committed in August 1969. He pleaded not guilty to the latter
charge. Now petitioner desires to put him on trial for the alleged 1964 offense. This
cannot legally be done.

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 prosecuting 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.

Note:

Dennis T. Gabionza v. Court of Appeals,

G.R. No. 140311, March 30, 2001.

“The public prosecutor filed a Motion for Leave of Court to Amend

Information, to change the material dates stated in the Information from "January
 44

1991 to May 1993" to "January 1991 to May 1992." Petitioner opposed the motion
contending that the proposed amendment was substantial in nature, hence to allow
the same would be a violation of his right to be informed of the cause and nature
of the accusation against him, and would negate or prejudice defenses that were
otherwise available to him.”

Held:
In the case at bar, it is clear that the questioned amendment is one of form
and not of substance. The allegation of time when an offense is committed is a
matter of form, unless time is a material ingredient of the offense. It is not even
necessary to state in the Information the precise time the offense was committed
unless time is a material factor. It is sufficient that the act is alleged to have been
committed at any time as near to the actual date at which the offense was
committed as the Complaint or Information will permit.

Thus, petitioner's argument that the amendment prejudiced his rights is

untenable. We fail to see how his original defenses would be rendered inapplicable
by the amendment, nor the prosecution's theory in anyway altered by the same.
Petitioner failed to adduce any evidence in support of his allegation that the
amendment would adversely affect his rights.

Note:

But if the change is only within a span of a few months such as from June
24, 1981 to August 28, 1981, the amendment is formal. (PpPeople of the
.Philippines v. Borromeo, 123 SCRA 253) (See also PpPeople of the .Philippines Commented [u22]: Query: People of the Philippines?
v. Molero 144 SCRA 397) Commented [u23]: QUERY: People of the
Philippines?

4. An amendment for the purpose of making the Information charge an

offense when the original information does not charge any offense.

5. An amendment which changes the fact or ground of responsibility of

the accused.

People v. Hon. Eduardo Montenegro, et al.,

G.R. No. L-45772, March 25, 1988.

It will be observed that private respondents were accused as accessories-

after-the-fact of the minor Ricardo Cabaloza 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.

“when it can be done without causing prejudice to the rights of the accused”

TEST TO DETERMINE WHETHER OR NOT THE ACCUSED WILL BE

PREJUDICED BY THE 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 be
inapplicable to the complaint or information as amended.”(People v. Hon. Eduardo
Montenegro, et. al. G.R. No. L-45772. March 25, 1988)
 45

New Interesting Case: Formatted: Font: Bold

Susan Fronda-Baggao v. People,

G.R. No. 151785, December 10, 2007.

Can four Informations for Simple Illegal Recruitment be amended into one
Information for Large Scale Illegal Recruitment before arraignment?

“Simply stated, before the accused enters his plea, a formal or substantial
amendment of the complaint or information may be made without leave of court.
After the entry of a plea, only a formal amendment may be made but with leave of
court and only if it does not prejudice the rights of the accused. After arraignment,
a substantial amendment is proscribed except if the same is beneficial to the
accused.

Following the above provisions and considering that petitioner has not yet
entered her plea, the four Informations could still be amended.

Petitioner also contends that the above Rule refers to an amendment of one
Information only, not four or multiple Informations which cannot be joined into only
one Information.

We disagree.

A careful scrutiny of the above Rule shows that although it uses the singular
word complaint or information, it does not mean that two or more complaints or
Informations cannot be amended into only one Information. Surely, such could not
have been intended by this Court. Otherwise, there can be an absurd situation
whereby two or more complaints or Informations could no longer be amended into
one or more Informations.”

SUBSTITUTION

“If it appears at anytime 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 section 19, Rule 119, provided the accused shall
not be placed in double jeopardy. The court may require the witnesses to
give bail for their appearance at the trial. (14a)”

Rule:

There can be substitution only if the offense charged is WHOLLY

DIFFERENT from the offense proven.

Test to determine identity of offenses:

There is identity between the two offenses when the evidence to support a
conviction for one offense would be sufficient to warrant a conviction for the other,
or when the second offense is exactly the same as the first, or when the second
offense is an attempt to commit or a frustration of, or when it necessarily includes
or is necessarily included in, the offense charged in the first Information. In this
connection, an offense may be said to necessarily include another when some of
the essential elements or ingredients of the former, as this is alleged in the
information, constitute the latter. And, vice versa, and offense may be said to be
 46

necessarily included in another when the essential ingredients of the former

constitute or form a part of those constituting the latter. (Teehankee, Jr. v
Madayag, et al., G.R. No. 103102, March 6, 1992, 207 SCRA 134, 140)

Does not apply if the offense proven is necessarily included in or necessarily

includes the offense charged

Galvez v. CA,
237 SCRA 695.

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 offense proved
does not necessarily include or is not necessarily included in the offense charged
in the original information.

DISTINCTIONS BETWEEN SUBSTITUTION AND AMENDMENT

Teehankee, Jr. v Madayag, et al.,

G.R. No. 103102, March 6, 1992, 207 SCRA 134, 140. Commented [u24]: QUERY: delete this, since GR No.
has already been provided? ty
"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:

1. Amendment may involve either formal or substantial changes, while

substitution necessarily involves a substantial change from the
original charge;

2. Except for amendments which downgrade the offense or excludes

any of the accused, an amendment before plea has been entered
can be effected without leave of court, but substitution of information
must ALWAYS be with leave of court as the original information has
to be dismissed; (as amended by the Revised Rules on Criminal
Procedure)

3. 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

4. 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. On the other hand, substitution requires or presupposes
that the new Information involves a different offense which does not
 47

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."

WHERE SHOULD A CRIMINAL CASE BE INSTITUTED? (Sec. 15, R110)

General Rule:

Shall be instituted and tried in the court of the municipality or

territory where the offense was committed or where any of its essential
ingredients occurred.

Ratio Legis:

What is the reason why the rules provide that the case should be tried in the place
where the crime was committed?

1. The interest of the public requires that to secure the best results and effects
in the punishment of crimes, it is necessary to prosecute and punish the
criminal in the very place or as near as may be where he committed the
crime.

2. Insofar as the interest of the accused is concerned, it will be inconvenient

for him to take witnesses and other evidence in another place.

In the crime of perjury where the false sworn Petition for Reconstituion of
Lost Title was subscribed and sworn to in Pasig City and filed in Makati City
and Tagaytay, where is the proper venue of the criminal case?

Erlinda K. Ilusorio v. Maria Erlinda I. Bildner, et al.,

G.R. No. 173935-38, December 23, 2008.

Sample Information (Similar Informations filed in Tagaytay):

“On or about November 4, 1999, in Pasig City, and within the

jurisdiction of this Honorable Court, the accused, conspiring and
confederating together and mutually helping and aiding one another, did
then and there willfully, unlawfully, feloniously and falsely subscribe and
swear to a Petition for Issuance of a New Owner’s Duplicate Copy of
Condominium Certificate of Title No. 21578before Rafael Arsenio S.
Dizon, a notary public in and for Pasig City, duly appointed, qualified and
acting as such, and in which Petition said accused subscribed and swore to,
among other things, facts known to them to be untrue, that is: That the
Petitioners claim that the title was lost, which fact was material matter and
required by law to be stated in said Petition, when in truth and in fact as
the said accused very well knew at the time they swore to and signed the
said petition for Issuance of a New Owner’s Duplicate Copy of
 48

Condominium Certificate of Title No. 21578, that said statement appearing

in paragraph 4 of said Petition:

“4. Pending registration of the mortgage document with the

Registry of Deeds of Makati City, the petitioners had their respective
offices, renovated and by reason thereof, documents were moved from their
usual places and thereafter, sometime in the early part of the second quarter
of this year, when petitioners were ready to have the mortgage documents
registered, the said owner’s duplicate copy of CCT No. 21578 could no
longer be located at the places where they may and should likely be found
despite earnest and diligent efforts of all the petitioners to locate the
same;”

was false and untrue because the said title was in the possession of the Commented [u25]: QUERY: incomplete paragraph?
complainant, Erlinda K. Ilusorio, and the above false statement was made Pls. verify
in order to obtain a New Owner’s Duplicate Copy of Condominium Commented [CE26R25]: Nope, this is as quoted from
Certificate of Title No. 21578, to the damage and prejudice of complainant the cited case
Erlinda K. Ilusorio.”

Held:

“The allegation in each of the four similarly-worded Informations that perjury was
committed in Pasig is neither controlling nor sufficient to show that the Pasig MeTC has
jurisdiction over them. The purported perjurious petition quoted in each of the
Informations in fact indicates that, with respect to the CCT of the Registry of Deeds of
Makati the TCTs of the Registry of Deeds of Tagaytay, venue of the criminal action arising
therefrom is in Makati and Tagaytay, respectively.

Perjury is committed as follows

Article 183, Revised Penal Code.

False Testimony in other cases and perjury in solemn affirmations.

– The penalty of arresto mayor in its maximum period to prision
correccional in its minimum period shall be imposed upon any person who,
knowingly making untruthful statements and not being included in the
provisions of the next preceding articles, shall testify under oath, or make
an affidavit, upon any material matter before a competent person authorized
to administer an oath in cases in which the law so requires.

x x x (Italics in the original; underscoring supplied)

There are thus four elements to be taken into account “in determining whether there
is a prima facie case” of perjury, viz.:

(a) that the accused made a statement under oath or executed an affidavit
upon a material matter; (b) that the statement or affidavit was made before
a competent officer, authorized to receive and administer oath; (c) that in
the statement or affidavit, the accused made a willful and deliberate
assertion of a falsehood; and (d) that the sworn statement or affidavit
containing the falsity is required by law or made for a legal purpose. .6[27] Commented [u27]: QUERY: delete this?
(Citation omitted)

It is the deliberate making of untruthful statements upon any material matter,

however, before a competent person authorized to administer an oath in cases in which the
law so requires,] which is imperative in perjury.
 49

Venue, in criminal cases, being jurisdictional, the action for perjury must be
instituted and tried in the municipality or territory where the deliberate making of an
untruthful statement upon any matter was made, in this case, in Makati and Tagaytay.

It was in Makati and Tagaytay where the intent to assert an alleged falsehood
became manifest and where the alleged untruthful statement finds relevance or materiality
in deciding the issue of whether new owner’s duplicate copies of the CCT and TCTs may
issue.
Whether the perjurious statements contained in the four petitions were subscribed
and sworn in Pasig is immaterial, the gist of the offense of perjury being the intentional
giving of false statement.

Exceptions when existing laws provide otherwise:

Examples:

1. Article 360 of the Revised Penal Code on Libel allows the filing of
the case: (a) where the libelous matter was printed or first published; (b)
where the offended party resides; or (c) if he is a public officer, where
he holds office at the time of commission.
2. R.A. No. 8249 – Cases covered by the Sandiganbayan Law will be tried
in the places designated by the law.

3. Section 5, Article VIII of the Constitution – The Supreme Court

can order a change of venue in order to avoid a miscarriage of
justice.

Rules on Venue in Libel and Defamation in Criminal Cases:

Armand Nocum, et al. v. Lucio Tan,

G.R. No. 145022, September 23, 2005
citing earlier cases.

The rules on venue in Article 360 [are] as follows:

1. Whether the offended party is a public official or a private

person, the criminal action may be filed in the Court of First Instance of the
province or city where the libelous article is printed and first published.

2. If the offended party is a private individual, the criminal

action may also be filed in the Court of First Instance of the province where
he actually resided at the time of the commission of the offense.

3. 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 Court of First Instance of Manila.

4. If the offended party is a public officer holding office outside

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.

MARKER
What are the types of offenses as to place of commission?
 50

1. Local Refers to an offense where all the elements were committed

in the same place or, in other words, one which was fully
consummated in one place.

2. Transitory Refers to a case where the elements of the offense were

committed in several places.

Cases on Transitory Offenses:

People v. Hon Nathaniel Gorospe,

G.R. Nos. L-74053-54, January 20, 1988.

As to estafa:

Estafa by postdating or issuing a bad check, may be a transitory or

continuing offense. Its basic elements of deceit and damage may arise
independently in separate places. (People vs. Yabut, L-42902, April 29, 1977, 76
SCRA 624)People v. Yabut, supra) In this case, deceit took place in San Fernando, Commented [u28]: QUERY: pls. supply full citation.
Pampanga, while the damage was inflicted in Bulacan where the check was thanks
dishonored by the drawee bank in that place. (See People v. Yabut, supra) Commented [u29]: QUERY: pls. supply full citation.
Jurisdiction may, therefore, be entertained by either the Bulacan Court or the thanks
Pampanga Court. For 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. What is of decisive importance is the delivery thereof. The
delivery of the instrument is the final act essential to its consummation as an
obligation. (People v. Larue, 83 P. 2d 725, cited in People vs. Yabut, supra)

As to B.P. Blg. 22:

In respect of the Bouncing Checks Case, the offense also appears to be

continuing in nature. It is true that the offense is committed by the very fact of its
performance (Colmenares v. Villar, No. L-27126, May 29, 1970, 33 SCRA 186);
and that 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.
(People v. Hon. Veridiano, II, No. L-62243, 132 SCRA 523) The case, therefore,
could have been filed also in Bulacan. As held in Que v. People of the Philippines,
G.R. Nos. 75217-18, September 11, 1987 "the determinative factor (in determining
venue) is the place of the issuance of the check." However, it is likewise 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. (People v. Hon.
Manzanilla, G.R. Nos. 66003-04, December 11, 1987) Accordingly, jurisdiction to
take cognizance of the offense also lies in the Regional Trial Court of Pampanga.

Robbery and Anti-Fencing Law

People v. Hon Jose C. De Guzman,

G.R. No. 77368, October 5, 1993.

Robbery is the taking of personal property belonging to another, with intent

to gain, by means of violence against or intimidation of any person, or using force
upon anything. "Fencing," upon the other hand, is the act of any person who, with
intent to gain for himself or for another, shall buy, receive, possess, keep, acquire,
conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any
article, item, object or anything of value which he knows, or shall be known to him,
to have been derived from the proceeds of the crime of robbery or theft. The crimes
 51

of robbery and fencing are clearly then two distinct offenses. The law on fencing
does not require the accused to have participated in the criminal design to commit,
or to have been in any wise involved in the commission of, the crime of robbery or
theft. Neither is the crime of robbery or theft made to depend on an act of fencing
in order that it can be consummated. True, the object property in fencing must have
been previously taken by means of either robbery of theft but the place where the
robbery or theft occurs is inconsequential. It may not be suggested, for instance,
that, in the crime of bigamy which presupposes a prior subsisting marriage of an
accused, the case should thereby be triable likewise at the place where the prior
marriage has been contracted.

Specific rule on offenses committed in a train, aircraft, or other public

or private vehicle in the course of its trip.

Instituted and tried in the court of any municipality or territory where such
train, aircraft, or other vehicle passed during its trip, including the place of its
departure and arrival.

Example:

People v. Francisco Zafra,

October 19, 1994.

The accused stole a passenger jeepney and killed the owner in Alabang,
Muntinlupa and were arrested, still riding the stolen jeepney in Calamba,
Laguna.

Held:

“As accused-appellants were apprehended in Calamba while they were

in the carnapped jeepney, the information was validly filed in Calamba.”

Specific rule on offenses committed on board a vessel in the course of

its voyage.

Shall be instituted and tried in the court of the first port of entry or of any
municipality or territory where the vessel passed during such voyage, subject
to the generally accepted principles of international law.

Venue of a Criminal Case committed aboard a seagoing vessel:

1. First Port of Entry – where the vessel will first dock. Note: does not
include place of departure

2. Any Municipality or Territory through which the vessel passed

Example:

Wenefredo Calme v. CA,

G.R. No. 116688. August 30, 1996.

Petitioner and four other persons were accused of killing Edgardo Bernal
by allegedly throwing him overboard the M/V "Cebu City," an interisland
 52

passenger ship owned and operated by William Lines, Inc., while the vessel was
sailing from Ozamis City to Cebu City on the night of May 12, 1991. The case was
filed in Oroquieta City.

Petitioner claims that the proper venue is Siquijor because, according to

the Marine Protest filed by the vessel's captain, Elmer Magallanes, the ship was
8.0 miles off Minalonan Point, Siquijor Island, when he (Capt. Magallanes)
received the report that "a passenger jumped overboard."

“The exact location where the alleged offense was committed was not duly
established. The Marine protest simply adverted that the vessel was within the
waters of Siquijor Island when the captain was informed of the incident, which
does not necessarily prove that the alleged murder took place in the same area.
In any case, where the crime was actually committed is immaterial since it
is undisputed that it occurred while the vessel was in transit. "In transit"
simply means "on the way or passage; while passing from one person or
place to another. In the course of transportation." Hence, undoubtedly, the
applicable provision is par. (c) of Sec. 15 (now Section 14), Rule 100 which
provides that "(w)here an offense is committed on board a vessel in the course of
its voyage, the criminal action may be instituted and tried in the proper court of
the first port of entry of any municipality or territory through which the vessel
passed during such voyage subject to the generally accepted principles of
international law."

Petitioner further contends that even if Sec. 15(c), Rule 110 governs,
Oroquieta City would still be excluded as a proper venue because the reckoning
point for determining the venue under the aforementioned paragraph is the first
port of entry or the municipalities/territories through which the ship passed after
the discovery of the crime, relying on Act No. 400.

We disagree. Obviously, Act No. 400 was amended by Sec. 15(c), Rule
110 of the Revised Rules of Court in that under the former law, jurisdiction was
conferred to the CFI of any province into which the ship or water craft upon which
the crime or offense was committed shall come after the commission thereof,
while the present rule provides that jurisdiction is vested "in the proper court of
the first port of entry or of any municipality or territory through which the vessel
passed during such voyage . . ." This is the applicable provision and since it does
not contain any qualification, we do not qualify the same.

Specific rule on “Crimes committed outside the Philippines but

punishable under Article 2 of the Revised Penal Code.”

Shall be cognizable by the court where the criminal action is first filed.
(15a)

Principle of Extraterritoriality in the Revised Penal Code.

ARTICLE 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:

1. Should commit an offense while on a Philippine ship or airship;

2. 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;
 53

3. Should be liable for acts connected with the introduction into these islands of the
obligations and securities mentioned in the preceding number;

4. While being public officers or employees, should commit an offense in the

exercise of their functions; or

5. Should commit any of the crimes against national security and the law of nations,
defined in Title One of Book Two of this Code.

In these cases, the first court that takes cognizance of the case will have
jurisdiction to try it.

PRIVATE PROSECUTORS:

Where the civil action for recovery of civil liability is instituted in the criminal
action pursuant to Rule 111, the offended party may intervene by counsel in
the prosecution of the offense. (Sec. 16, Rule 110)

What are the rights of the offended party in relation to a criminal case?

1. To take part in the prosecution of the offense;

2. To recover civil liabilities arising out of the offense charged;

3. To appeal an adverse judgment or order affecting his claim

to such civil liability.

Can an offended party intervene in a case punished under a special law

when the said law does not provide for the civil aspect of the case?

Violation of B.P. Blg. 22

Charmina Banal v. Tomas V. Tadeo, Jr.,

156 SCRA 325, 330 (1987).

It is the fact of damage or injury party that is the basis of civil liability in a
criminal case, thus there can be an award of civil liability in Violations of B.P. Blg.
22 even if it is a crime against public order.

Who can be an offended party?

Jose S. Ramiscal, Jr. v. Sandiganbayan,

G.R. Nos. 140576-99, December 13, 2004.

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 evidence 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.
 54

Formatted: Normal

RULE 111 – PROSECUTION OF CIVIL ACTION

Institution of criminal and civil actions. (Sec. 1, Rule 111)

MAJOR AMENDMENT

Under the 1985 Rules of Criminal Procedure, the civil action for the recovery
of civil liability arising out of ALL SOURCES of civil liability was deemed instituted
in the criminal case and a waiver of any of the civil actions extinguishes the others
and even the institution of, or the reservation of the right to file, any of said civil
actions separately waives the others.

However, under the Revised Rules of Criminal Procedure ONLY THE CIVIL
LIABILITY ARISING OUT OF THE OFFENSE CHARGED IS DEEMED
INSTITUTED.

SOME MAJOR EFFECTS OF THE AMENDMENT

1. Actions premised on quasi-delicts and other independent civil

actions may be filed separately by the complainant/plaintiff
WITHOUT ANY RESERVATION OF THE RIGHT TO FILE A
SEPARATE CIVIL ACTION. (Casupanan v. Laroya, August 26,
2002)

2. The acquittal of the accused in the criminal case or the failure of the
judge therein to award civil liability against the accused will not bar,
by res judicata, the filing of a separate civil action based on quasi
delicts. (Jose S. Cancio, Jr. v. Emerenciana Isip, November 12,
2002)

3. The judge in a criminal case MAY NO LONGER APPLY the

provisions in the Civil Code on quasi-delicts as basis for an award of
civil liability. (This is an abandonment of the rulings in the cases of
Maniago v. CA, 253 SCRA 674 and San Idelfonso Lines v. CA, 289
SCRA 568)a

4. The pendency of the criminal case will not preclude THE ACCUSED
therein from filing a separate civil action based on quasi-delict
against the private complainant. (Casupanan v. Laroya, August 26,
2002)

When is the claim for civil liability ARISING out of the offense charged NOT
deemed instituted?

1. The offended party waives the civil action;

2. He reserves the right to institute it separately;

3. He institutes the civil action prior to the criminal action;

 55

4. He institutes the civil action after the criminal action but before presentation
of prosecutions evidence and he duly informs the court where the criminal
case is pending of the institution of the civil action. (Yakult v. CA 190 SCRA
357)

Note:
Again, the civil action referred to here is one ARISING OUT OF THE
OFFENSE CHARGED.

MARKER

Docket (Filing) Fees Rule:

There is NO FILING FEE for claims for ACTUAL DAMAGES in criminal
cases.
Exception:
If the Rules provide otherwise.

Example:
B.P. Blg. 22 cases and recently Estafa Cases

Claims for OTHER (moral, nominal, temperate, or exemplary) will be

assessed filing fees upon filing of the case in court ONLY when the amounts
thereof are specified in the complaint or information. If the amounts are not
specified then the filing fees will be first lien on the judgment based on whatever is
awarded by the court.

Distinguish rules on docket fees in criminal cases from the rules in civil
cases.

1. In civil cases, docket fees are levied on ALL FORMS OF DAMAGES while
in criminal cases no docket fees are charged on ACTUAL DAMAGES.

2. In civil cases, the amount of the claims must be stated in the Complaint or
Counterclaim so that the proper docket fees can be computed and paid. In
criminal cases in general, even if the amount of the damages are not stated
in the Information or Complaint, these can still be proven and the docket
fees on these claims will be a lien on the judgment.

Another Amendment:

“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. (1a)”
This abandons the Rulings in Shafer v. RTC of Olongapo, 167 SCRA 376,
and Javier v. IAC, 171 SCRA 376.

BATAS PAMBANSA BLG. 22 (incorporation of Circ. 57-97 into the rules)

Exception to the rule that no filing fees are assessed on ACTUAL

DAMAGES in criminal cases. In B.P. 22 cases, filing fees are based on the amount
of the check which is considered as the actual damages claimed.

As to other kinds of damages the applicable rule is the same as in other

criminal cases.
 56

The rules now require MANDATORY consolidation of the claim for civil
liability in B.P. 22 cases but if the civil case was filed ahead, consolidation will be
done only if the trial of the civil case has not yet commenced and there must be an
application for consolidation in the court trying the criminal case.

Interesting Case:

Anita Cheng v. Spouses William Sy and Tessie Sy,

G.R. No. 174238, July 7, 2009.

Facts:

Petitioner Anita Cheng filed two estafa cases before the RTC, Branch 7,
Manila against respondent spouses William and Tessie Sy (Criminal Case No. 98-
969952 against Tessie Sy and Criminal Case No. 98-969953 against William Sy)
for issuing to her Philippine Bank of Commerce (PBC) Check Nos. 171762 and
71860 for P300,000 each, in payment of their loan, both of which were dishonored
upon presentment for having been drawn against a closed account.

Meanwhile, based on the same facts, petitioner, on January 20, 1999, filed
against respondents two cases for violation of B.P. Blg. 22 before the Metropolitan
Trial Court (MeTC), Branch 25, Manila (Criminal Case Nos. 341458-59).

On March 16, 2004, the RTC, Branch 7, Manila dismissed the estafa cases
for failure of the prosecution to prove the elements of the crime. The Order
dismissing Criminal Case No. 98-969952 contained no declaration as to the civil
liability of Tessie Sy. On the other hand, the Order in Criminal Case No. 98-969953
contained a statement, “Hence, if there is any liability of the accused, the same is
purely ‘civil,’ not criminal in nature.”

Later, the MeTC, Branch 25, Manila, dismissed, on demurrer, the B.P. Blg.
22 cases in its Order dated February 7, 2005 on account of the failure of petitioner
to identify the accused respondents in open court. The Order also did not make
any pronouncement as to the civil liability of accused respondents.

On April 26, 2005, petitioner lodged against respondents before the RTC,
Branch 18, Manila, a complaint for collection of a sum of money with damages
(Civil Case No. 05-112452) based on the same loaned amount of P600,000
covered by the two PBC checks previously subject of the estafa and B.P. Blg. 22
cases.

In the assailed Order dated January 2, 2006, the RTC, Branch 18, Manila,
dismissed the complaint for lack of jurisdiction, ratiocinating that the civil action to
collect the amount of P600,000 with damages was already impliedly instituted in
the B.P. Blg. 22 cases in light of Section 1, par. (b) of Rule 111 of the Revised
Rules of Court.

Issues:

1. Will Section 1 of Rule 111 requiring the mandatory consolidation of

the civil aspect of the case with the B.P. 22 case be given
RETROACTIVE EFFECT such that the failure of the complainants
to appeal the civil aspect of the dismissed B.P. 22 case will bar
them from filing a separate civil action?
 57

2. Considering that the reason of the dismissal in this case was the
failure of the prosecutor to have the complainant identify the
accused in the case and since they were not represented by a
private prosecutor, will the negligence of the public prosecutor be
binding upon the complainant?

Ruling:

On the First Issue:

Petitioner is in error when she insists that the 2000 Rules on Criminal
Procedure should not apply because she filed her B.P. Blg. 22 complaints in 1999.
It is now settled that rules of procedure apply even to cases already pending at the
time of their promulgation. The fact that procedural statutes may somehow affect
the litigants’ rights does not preclude their retroactive application to pending
actions. It is axiomatic that the retroactive application of procedural laws does not
violate any right of a person who may feel that he is adversely affected, nor is it
constitutionally objectionable. The reason for this is that, as a general rule, no
vested right may attach to, nor arise from, procedural laws.

Indeed, under the present revised Rules, the criminal action for violation of
B.P. Blg. 22 includes the corresponding civil action to recover the amount of the
checks. It should be stressed, this policy is intended to discourage the separate
filing of the civil action. In fact, the Rules even prohibits the reservation of a
separate civil action, i.e., 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 encourages the consolidation of the civil and criminal cases. Thus,
where petitioner’s rights may be fully adjudicated in the proceedings before the
court trying the B.P. Blg. 22 cases, resort to a separate action to recover civil
liability is clearly unwarranted on account of res judicata, for failure of petitioner to
appeal the civil aspect of the cases. In view of this special rule governing actions
for violation of B.P. Blg. 22, Article 31 of the Civil Code is not applicable.

Be it remembered that rules governing procedure before the courts, while

not cast in stone, are for the speedy, efficient, and orderly dispensation of justice
and should therefore be adhered to in order to attain this objective.

On the Second Issue:

Faced with the dismissal of the B.P. Blg. 22 cases, petitioner’s recourse
pursuant to the prevailing rules of procedure would have been to appeal the civil
action to recover the amount loaned to respondents corresponding to the bounced
checks. Hence, the said civil action may proceed requiring only a preponderance
of evidence on the part of petitioner. Her failure to appeal within the reglementary
period was tantamount to a waiver altogether of the remedy to recover the civil
liability of respondents. However, due to the gross mistake of the prosecutor in
the B.P. Blg. 22 cases, we are constrained to digress from this rule.

It is true that clients are bound by the mistakes, negligence and omission of
their counsel. But this rule admits of exceptions – (1) where the counsel’s mistake
is so great and serious that the client is prejudiced and denied his day in court, or
(2) where the counsel is guilty of gross negligence resulting in the client’s
deprivation of liberty or property without due process of law. Tested against these
guidelines, we hold that petitioner’s lot falls within the exceptions.
 58

It is an oft-repeated exhortation to counsels to be well-informed of existing

laws and rules and to keep abreast with legal developments, recent enactments
and jurisprudence. Unless they faithfully comply with such duty, they may not be
able to discharge competently and diligently their obligations as members of the
Bar. Further, lawyers in the government service are expected to be more
conscientious in the performance of their duties as they are subject to public
scrutiny. They are not only members of the Bar but are also public servants who
owe utmost fidelity to public service. Apparently, the public prosecutor neglected
to equip himself with the knowledge of the proper procedure for B.P. Blg. 22 cases
under the 2000 Rules on Criminal Procedure such that he failed to appeal the civil
action impliedly instituted with the B.P. Blg. 22 cases, the only remaining remedy
available to petitioner to be able to recover the money she loaned to respondents,
upon the dismissal of the criminal cases on demurrer. By this failure, petitioner
was denied her day in court to prosecute the respondents for their obligation to
pay their loan.

Moreover, we take into consideration the trial court’s observation when it

dismissed the estafa charge in Criminal Case No. 98-969953 that if there was any
liability on the part of respondents, it was civil in nature. Hence, if the loan be
proven true, the inability of petitioner to recover the loaned amount would be
tantamount to unjust enrichment of respondents, as they may now conveniently
evade payment of their obligation merely on account of a technicality applied
against petitioner.

Under OCA Circular 21-03, docket fees are NOW also assessed on estafa
cases UPON filing of the information in court.

SUSPENSION OF CIVIL ACTION. (Sec. 2, R112)

Note:
This applies only to the civil aspect arising out of the offense charged
(based on Art. 100 of the RPC and related articles)

If the offended party reserves the right to file a separate civil action, it cannot
be filed until the criminal case is finished.

If he filed the separate civil action ahead of the criminal case, then the civil
case will be suspended until the criminal case is finished.

The prescriptive period of the suspended action will be tolled until there is
a final judgment in the criminal case while the criminal case is still ongoing.

Option:

The offended party can ask for the consolidation of the separate civil action
with the criminal case only if there has been no judgment yet in the civil case.

In case of such a consolidation, the evidence already adduced in the civil

action shall be deemed automatically reproduced in the criminal action but the
accused/defense shall have the right to cross-examine the witnesses of the
offended party in the civil case and both parties may present additional evidence.
 59

Note:

The provision stating “without prejudice to the right of the prosecution

to cross-examine the witness presented by the offended party in the criminal
case and of the parties to present additional evidence” MUST BE A
TYPOGRAPHICAL ERROR.

This should be “without prejudice to the right of the accused/defense

to cross-examine the witness presented by the offended party in the civil
case.”

Otherwise, it would not make sense. Why would the prosecution cross-
examine the witnesses of the offended party when they are on the same side?

If the consolidation cannot be done under the Rules on Criminal Procedure,

it may be allowed under the Rules of Civil Procedure

Naguiat v. IAC, 164 SCRA 505.

Violation of P.D. No. 957 cannot be consolidated, under Section 2 of Rule

111, with civil action for specific performance to deliver titles because the civil
action “did not arise out of the act complained of in the criminal case.”

However, consolidation can be done under the Rules of Civil Procedure

which allow consolidation of cases with similar questions of fact and law.

General Rule:

Consolidation Is Optional Except:

1. Article 360 of the RPC;

2. Cases cognizable by the Sandiganbayan;

3. B.P. Blg. 22 cases. (SC Circ No. 57-97)

These are cases where the law imposes MANDATORY CONSOLIDATION.

“The extinction of the penal action does not carry with it extinction of
the civil action. However, the civil action based on delict shall be deemed
extinguished if there is a finding in a final judgment in the criminal action
that the act or omission from which the civil liability may arise did not exist.”

Old Rule:

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 liability might arise did not exist.

Remedios Nota Sapiera, Petitioner v. CA and Ramon Sua, Respondents, G.R.

No. 128927, September 14, 1999.

The judgment of acquittal extinguishes the liability of the accused for

damages only when it includes a declaration that the fact from which the civil
 60

liability might arise did not exist. Thus, the civil liability is not extinguished by
acquittal where:

(a) the acquittal is based on reasonable doubt;

(b) where the court expressly declares that the liability of the
accused is not criminal but only civil in nature; and (Even if not
expressly declared if based on an exempting circumstance.)

(c) where the civil liability is not derived from or based on the
criminal act of which the accused is acquitted.

Plus some others based on criminal law:

(d) acquittal is based on an exempting circumstance

Note:
“IF ACQUITTAL IS BASED ON AN JUSTIFYING CIRCUMSTANCE except
STATE OF NECESSITY then there is NO CIVIL LIABILITY.”

Note:

People v. Salao,
284 SCRA 493

“The civil liability referred to in this Rule is the civil liability arising from crime
(ex delicto). It is not the civil liability for quasi delict which is allowed to be brought
"separately and independently" of the criminal action by Art. 33 of the Civil Code.
The civil liability based on such cause of action 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. Indeed, because the offended party does
not intervene in the criminal prosecution, it is entirely possible that all the witnesses
presented in the civil action may not have been presented by the public prosecutor
in the criminal action with the result that the accused in the criminal case may be
acquitted. This is what happened in the recent case of Heirs of Guaring v. Court of
Appeals where, because the only survivor in a motor car accident whose
testimony proved to be pivotal in the civil case was not called to testify in the
criminal prosecution of the driver of the other vehicle, the latter was acquitted on
reasonable doubt.”

marker

INDEPENDENT CIVIL ACTIONS (Sec. 3, Rule111)

RESERVATION IS NO LONGER REQUIRED IN INDEPENDENT CIVIL

ACTIONS.

DMPI Employees Credit Cooperative, Inc. v. Hon. Alejandro Velez

G.R. No. 129282, November 29, 2001.

“Under the present rule, only the civil liability arising from the offense
charged is deemed 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.

There is no more need for a reservation of the right to file the

independent civil actions under Articles 32, 33, 34 and 2176 of the Civil Code
 61

of the Philippines.Philippines "The reservation and waiver referred to refers

only to the civil action for the recovery of the 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.’ “

What are the effects of the removal of the reservation requirement for
independent civil actions?

Neplum, Inc. v. Orbeso,

G.R. No. 141986, July 11, 2002, 3rd Division.

“At the outset, we must explain that the 2000 Rules on Criminal Procedure
deleted the requirement of reserving independent civil actions and allowed these
to proceed separately from criminal ones. Thus, the civil actions referred to in
Articles 32, 33, 34 and 2176 of the Civil Code shall remain "separate, distinct and
independent" of any criminal prosecution based on the same act. Here are some
direct consequences of such revision and omission:

1. The right to bring the foregoing actions based on the Civil Code need not
be reserved in the criminal prosecution, since they are not deemed included
therein.

2. The institution or waiver of the right to file a separate civil action arising from
the crime charged does not extinguish the right to bring such action.

3. The only limitation is that the offended party cannot recover more than once
for the same act or omission.

EFFECT OF THE DEATH OF THE ACCUSED ON THE CIVIL LIABILITY (Sec. 4,

Rule 111)

An entirely new provision inserted that was based on the case of

PPPEOPLE OF THE .PHILIPPINES v. Bayotas, 236 SCRA 239. Commented [u30]: QUERY: People of the
Philippines?
“[T]he death of the accused pending appeal of his conviction extinguishes
his criminal liability as well as the civil liability ex delicto. The criminal action is
extinguished inasmuch as there is no longer a defendant to stand as the accused,
the civil action instituted therein for recovery of civil liability ex delicto is ipso facto
extinguished, grounded as it is on the criminal case. Corollarily, the claim for civil
liability survives notwithstanding the death of the accused, if the same may also
be predicated on a source of obligation other than delict.”

PpPeople of the Philippines. v. Pedro Abungan, September 28, 2000. Commented [u31]: QUERY: People of the
also in ABS-CBN Broadcasting Corp. Et Al vs. Office of the Ombudsman Et Al. Philippines?
G.R. No. 133347. October 15, 2008. Commented [u32]: QUERY: pls. provide SCRA or GR
No.

“1. Death of the accused pending appeal of his conviction extinguishes his criminal
liability as well as the civil liability based solely thereon. As opined by Justice
Regalado, in this regard, “the death of the accused prior to final judgment
terminates his criminal liability and only the civil liability directly arising from and
based solely on the offense committed, i.e., civil liability ex delicto in senso
strictiore.”
 62

“2. Corollarily, the claim for civil liability survives notwithstanding the death of (the)
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
d) ...
e) Quasi-delicts.

"3. Where the civil liability survives, as explained in Number 2 above, an action for
recovery therefor may be pursued but only by way of filing a separate civil action
and subject to Section 1, Rule 111 of the 1985 Rules on Criminal Procedure as
amended. This separate civil action may be enforced either against the
executor/administrator or the estate of the accused, depending on the source of
obligation upon which the same is based as explained above.

"4. Finally, the private offended party need not fear a forfeiture of his right to file this
separate civil action by prescription, in cases where during the prosecution of the
criminal action and prior to its extinction, the private offended party instituted
together therewith the civil action. In such case, the statute of limitations on the
civil liability is deemed interrupted during the pendency of the criminal case,
conformably with the provisions of Article 1155 of the Civil Code, that should
thereby avoid any apprehension on a possible privation of right by prescription."

PREJUDICIAL QUESTION (Secs. 6 and 7, Rule 110)

Major Change:

Old Elements:

a) the civil action involves an issue similar or intimately related to the

issue raised in the criminal action;

(b) the resolution of such issue is determinative of whether or not the

criminal action may proceed.

New Elements:

(a) the previously instituted civil action involves an issue similar or

intimately related to the issue raised in the subsequent criminal
action; and

(b) the resolution of such issue determines whether or not the criminal
action may proceed.

Where and when may prejudicial questions be raised?

During preliminary investigation (whether by a public prosecutor or an

MTC) or in court if the case has already been filed in court. However, the issue
must be raised before the prosecution rests.

A Civil Action MUST be a PREVIOUSLY INSTITUTED Civil Action to give rise to a

Prejudicial Question
Dreamwork Construction, Inc. vs. Cleofe S. Janiola, Et Al
G.R. No. 184861, June 30, 2009
 63

On December 1, 2000, the 2000 Rules on Criminal Procedure, however, became

effective and the above provision was amended by Sec. 7 of Rule 111, which applies here
and now provides:

SEC. 7. Elements of prejudicial question.—The elements of a prejudicial

question are: (a) the previously instituted civil action involves an issue similar or
intimately related to the issue raised in the subsequent criminal action, and (b) the
resolution of such issue determines whether or not the criminal action may
proceed. (Emphasis supplied.)

Petitioner interprets Sec. 7(a) to mean that in order for a civil case to create a
prejudicial question and, thus, suspend a criminal case, it must first be established that
the civil case was filed previous to the filing of the criminal case. This, petitioner argues,
is specifically to guard against the situation wherein a party would belatedly file a civil
action that is related to a pending criminal action in order to delay the proceedings in the
latter.

On the other hand, private respondent cites Article 36 of the Civil Code which
provides:

Art. 36. Pre-judicial questions which must be decided before

any criminal prosecution may be instituted or may proceed, shall be
governed by rules of court which the Supreme Court shall promulgate
and which shall not be in conflict with the provisions of this Code.
(Emphasis supplied.)

Private respondent argues that the phrase “before any criminal prosecution may
be instituted or may proceed” must be interpreted to mean that a prejudicial question exists
when the civil action is filed either before the institution of the criminal action or during the
pendency of the criminal action. Private respondent concludes that there is an apparent
conflict in the provisions of the Rules of Court and the Civil Code in that the latter considers
a civil case to have presented a prejudicial question even if the criminal case preceded
the filing of the civil case.

We cannot agree with private respondent.

First off, it is a basic precept in statutory construction that a “change in

phraseology by amendment of a provision of law indicates a legislative intent to change
the meaning of the provision from that it originally had.” In the instant case, the phrase,
“previously instituted,” was inserted to qualify the nature of the civil action involved in a
prejudicial question in relation to the criminal action. This interpretation is further
buttressed by the insertion of “subsequent” directly before the term criminal action. There
is no other logical explanation for the amendments except to qualify the relationship of the
civil and criminal actions, that the civil action must precede the criminal action.

Xxxxx

Additionally, it is a principle in statutory construction that “a statute should be

construed not only to be consistent with itself but also to harmonize with other laws on the
same subject matter, as to form a complete, coherent and intelligible system.” This
principle is consistent with the maxim, interpretare et concordare leges legibus est optimus
interpretandi modus or every statute must be so construed and harmonized with other
statutes as to form a uniform system of jurisprudence.

In other words, every effort must be made to harmonize seemingly conflicting laws.
It is only when harmonization is impossible that resort must be made to choosing which
law to apply.

In the instant case, Art. 36 of the Civil Code and Sec. 7 of Rule 111 of the
Rules of Court are susceptible of an interpretation that would harmonize both
 64

provisions of law. The phrase “previously instituted civil action” in Sec. 7 of Rule
111 is plainly worded and is not susceptible of alternative interpretations. The
clause “before any criminal prosecution may be instituted or may proceed” in Art.
36 of the Civil Code may, however, be interpreted to mean that the motion to
suspend the criminal action may be filed during the preliminary investigation with
the public prosecutor or court conducting the investigation, or during the trial with
the court hearing the case.

This interpretation would harmonize Art. 36 of the Civil Code with Sec. 7 of Rule
111 of the Rules of Court but also with Sec. 6 of Rule 111 of the Civil Code, which provides
for the situations when the motion to suspend the criminal action during the preliminary
investigation or during the trial may be filed.

Joselito R. Pimentel vs. Maria Chrysantine L. Pimentel, Et Al

G.R. No. 172060. September 13, 2010

“The rule is clear that the civil action must be instituted first before the filing of the
criminal action. In this case, the Information for Frustrated Parricide was dated 30 August
2004. It was raffled to RTC Quezon City on 25 October 2004 as per the stamped date of
receipt on the Information. The RTC Quezon City set Criminal Case No. Q-04-130415 for
pre-trial and trial on 14 February 2005. Petitioner was served summons in Civil Case No.
04-7392 on 7 February 2005. Respondent's petition in Civil Case No. 04-7392 was dated
4 November 2004 and was filed on 5 November 2004. Clearly, the civil case for annulment
was filed after the filing of the criminal case for frustrated parricide. As such, the
requirement of Section 7, Rule 111 of the 2000 Rules on Criminal Procedure was not met
since the civil action was filed subsequent to the filing of the criminal action.
-in this case the Supreme Court used the dates of the filing of the Information in
court vis a vis the filing of the complaint in the civil case to determine if the civil
case is a previously instituted action.
Nota Bene: The SC also ruled in this case that an action for annullment of marriage
under Art. 36 of the Family Code is NOT a prejudicial question to a pending case for
frustrated parricide. Thus:

Other recent cases on prejudicial questions:

a. Land Bank of the Phils. Vs. Ramon P. Jacinto (G.R. No. 154622. August
3, 2010)- an action for Declaration of Novation of a Credit Line Agreement is
NOT a prejudicial question to criminal charges for Violation of BP 22
b. Krizia Katrina Ty- De Zuzuarregui vs. Joselito C. Villarosa, Et Al (G.R.
No. 183788. April 5, 2010)- a pending action for annullment of judgment in
the Court of Appeals involving the determination of whether or not some
persons are biological heirs of the decedent IS A PREJUDICIAL QUESTION
to a crimnal case for falsification based on alleged false statements about the
very same question of filiation.
c. Teodoro Reyes vs. Ettore Rossi G.R. No. 159823, February 18, 2013
(BERSAMIN, J.) An action for rescission of a contract of sale is not a prejudicial
question that will warrant the suspension of the criminal proceedings
commenced to prosecute the buyer for violations of the Bouncing Checks Law
(Batas Pambansa Blg. 22) arising from the dishonor of the checks the buyer
issued in connection with the sale.
d. Rafael Consing Jr. vs. People of the Philippines G.R. No. 161075, July 15,
2013 (BERSAMIN, J).: An independent civil action based on fraud initiated by
the defrauded party does not raise a prejudicial question to stop the
proceedings in a pending criminal prosecution of the defendant for estafa
through falsification. This is because the result of the independent civil action
is irrelevant to the issue of guilt or innocence of the accused.

NOTA BENE: An exceptional case on prejudicial question involving an administrative

case:
 65

Generally, there can be a prejudicial question vis a vis a criminal case can only arise from
a CIVIL case
However, in
San Miguel Properties, Inc. vs. Sec. Hernando Perez G.R. No. 166836, September 4,
2013 (BERSAMIN, J:)
“The pendency of an administrative ease for specific performance brought by the
buyer of residential subdivision lots in the Housing and Land Use Regulatory .Board
(IILURH) to compel the seller to deliver the transfer certificate of title (TCTs) of the fully
paid Jots is properly considered a ground to suspend a criminal prosecution for violation
of Section 25 of Presidential Decree No. 957 on tile ground of a prejudicial question. The
administrative determination is a logical antecedent of the resolution of the criminal
charges based on non-delivery of the TCTs.”

Read:
Dreamwork Construction, Inc. v. Cleofe S. Janiola, et al.,
G.R. No. 184861, June 30, 2009.

Some cases:

Alfredo Ching v. Court of Appeals,

G.R. No. 110844. April 27, 2000April 27, 2000 Commented [u33]: QUERY: incomplete citation. Pls.
provide the GR No. or SCRA. thanks
Civil action for nullity of documents is not a PQ in a case for estafa.

“Verily, under the prevailing circumstances, the alleged prejudicial question

in the civil case for declaration of nullity of documents and for damages, does not
juris et de jure determine the guilt or innocence of the accused in the criminal action
for estafa. Assuming arguendo that the court hearing the civil aspect of the case
adjudicates that the transaction entered into between the parties was not a trust
receipt agreement, nonetheless the guilt of the accused could still be established
and his culpability under penal laws determined by other evidence. To put it
differently, even on the assumption that the documents are declared null, it does
not ipso facto follow that such declaration of nullity shall exonerate the accused
from criminal prosecution and liability.”

Isabela Marbella Bobis v. Isagani D. Bobis,

G.R. No. 110844. April 27, 2000
July 31, 2000. Commented [u34]: QUERY: incomplete citation. Pls.
supply GR No. or SCRA. thanks
A civil action for declaration of nullity of marriage is not a prejudicial
question in a criminal case for bigamy.

“In the case at bar, respondent's clear intent is to obtain a judicial

declaration of nullity of his first marriage and thereafter to invoke that very same
judgment to prevent his prosecution for bigamy. He cannot have his cake and eat
it too. Otherwise, all that an adventurous bigamist has to do is to disregard Article
40 of the Family Code, contract a subsequent marriage and escape a bigamy
charge by simply claiming that the first marriage is void and that the subsequent
marriage is equally void for lack of a prior judicial declaration of nullity of the first.
A party may even enter into a marriage aware of the absence of a requisite —
usually the marriage license and thereafter contract a subsequent marriage without
obtaining a declaration of nullity of the first on the assumption that the first marriage
is void. Such scenario would render nugatory the provisions on bigamy.”
 66

“(P)arties to a marriage should not be permitted to judge for themselves its

nullity, only competent courts having such authority. Prior to such declaration of
nullity, the validity of the first marriage is beyond question. A party who contracts
a second marriage then assumes the risk of being prosecuted for bigamy. “

In criminal violations of P.D. No. 957 or 1344, is a finding of

administrative liability by the HLURB a condition sine qua non to the
assumption of jurisdiction by the prosecution service in conducting a
preliminary investigation?

Sps. Leonardo and Milagros Chua v. Jacinto G. Ang, et al.,

G.R. No. 156164, September 4, 2009.

“Viewed from this perspective, the HLURB's jurisdiction over contractual

rights and obligations of parties under subdivision and condominium contracts
comes out very clearly. But hand in hand with this definition and grant of authority
is the provision on criminal penalties for violations of the Decree, provided under
the Decree's Section 39, heretofore quoted. Significantly, nothing in P.D. No. 957
vests the HLURB with jurisdiction to impose the Section 39 criminal penalties.
What the Decree provides is the authority of the HLURB to impose administrative
fines under Section 38, as implemented by the Rules Implementing the Subdivision
and Condominium Buyer's Protective Decree. This Section of the Decree provides:

Sec. 38. Administrative Fines. — The Authority may prescribe and

impose fines not exceeding ten thousand pesos for violations of the provisions of
this Decree or of any rule or regulation thereunder. Fines shall be payable to the
Authority and enforceable through writs of execution in accordance with the
provisions of the Rules of Court.

The Implementing Rules, for their part, clarify that "The implementation and
payment of administrative fines shall not preclude criminal prosecution of the
offender under Section 39 of the Decree." Thus, the implementing rules
themselves expressly acknowledge that two separate remedies with differing
consequences may be sought under the Decree, specifically, the administrative
remedy and criminal prosecution.

Unless the contrary appears under other provisions of law (and in this case
no such provision applies), the determination of the criminal liability lies within the
realm of criminal procedure as embodied in the Rules of Court. Section 2, Rule
112 of these Rules provide that the prerogative to determine the existence or non-
existence of probable cause lies with the persons duly authorized by law.”

Going Back to the General Rule:

CRIMINAL CASES WILL HAVE PRECEDENCE OVER CIVIL EXCEPT:

1. Independent Civil Actions;

2. When the civil action presents a prejudicial question;

3. Where the civil action is consolidated with the criminal action;

4. When the civil action is not one intended to enforce the civil
liability arising from the offense.
 67

(Naguiat v. IACCA 164 SCRA 505 ) Commented [u35]: QUERY: incomplete citation. Pls.
provide G.R. No. or SCRA. Thanks

RULE 112 - PRELIMINARY INVESTIGATION

Note: AMENDED BY A.M. No. 05-8-26-SC (RE: Amendment of Rules 112 and
114 of the Revised Rules on Criminal Procedure by removing the conduct of
preliminary investigation from the judges of the first level courts)

Preliminary investigation is an inquiry or proceeding to determine

whether there is sufficient ground to engender a well-founded belief that a crime
has been committed and the respondent is probably guilty thereof, and should be
held for trial.

PI is required if the imposable penalty for the offense exceeds four years
and two months.

Note:
The “4 y 2 m” guideline is a major amendment because the 1985 Rules
required PI for all RTC cases and this was heavily affected when R.A. No. 7691
expanded the jurisdiction of the MTCs. The amendment, restored the situation
prior to R.A. No. 7691.

PURPOSE OF PRELIMINARY INVESTIGATION:

People of the Philippines v. Court of Appeals,

G.R. No. 126005, January 21, 1999.

Citing Ledesma v. Court of Appeals, 151 SCRA 462 Commented [u36]: QUERY: pls supply GR or SCRA.
thanks
“The primary objective of a preliminary investigation is to free the
respondent from the inconvenience, expense, ignominy and stress of defending
himself/herself in the course of a formal trial, until the reasonable probability of his
or her guilt in a more or less summary proceeding by a competent office designated
by law for that purpose. Secondarily, such summary proceeding also protects the
state from the burden of the unnecessary expense and effort in prosecuting alleged
offenses and in holding trials arising from false, frivolous or groundless charges.”

IS LACK OF PI A JURISDICTIONAL DEFECT?

Sanciangco, Jr. v. People, 149 SCRA 1.

Doromal v. Sandiganbayan, 177 SCRA 354 (1989)
as cited in Pilapil v. Sandiganbayan, 221 SCRA 349.

"The absence of preliminary investigation does not affect the court's

jurisdiction over the case. Nor do they impair the validity of the information or
 68

otherwise render it defective, but, if there were no preliminary investigations 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, order the fiscal to conduct it or remand the case to the inferior court
so that the preliminary investigation may be conducted . . ."

“Lack of jurisdiction is not waivable but absence of preliminary investigation

is waivable. In fact, it is frequently waived.”

Is a new P.I. required if there is an amendment of the Information?

Remember the case of Teehankee v. Madayag.

If the change in an Information is only formal and thereby does not affect
the defense of the accused, a new P.I. is not required.

The test of Probable Cause

Teresita Domalanta, et al. v. COMELEC, et al.,

G.R. No. 125586, June 29, 2000.

“Probable cause is a reasonable ground of presumption that a matter is, or

may be, well founded, such a state of facts in the mind of the prosecutor as would
lead a person of ordinary caution and prudence to believe or entertain 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. 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 the offense
charged. Precisely, there is a trial for the reception of evidence of the prosecution
in support of the charge.”

Who may conduct Preliminary Investigations? (Sec. 2, Rule 112)

(a) Provincial or City Prosecutors and their assistants;

(b) National and Regional State Prosecutors; and

(c) Other officers as may be authorized by law.

Note:
MTC, MTCC, MCTC Judges cannot conduct preliminary investigations
anymore under the amendments of the rules in A.M. No. 05-8-26-SC which took
effect last October 3, 2005.

What is the scope of their authority?

All crimes cognizable by the proper court in their respective territorial

jurisdictions.

Cudia v. CA, 284 SCRA 173 (1998).

City Prosecutor of Angeles City filed an Information for Illegal Possession

of Firearms committed in Mabalacat, Pampanga.
 69

Held:
If the person who signed the information is not authorized to do so, the entire
proceedings will be null and void even if the accused participated actively in the
proceedings.

Other officers :

Criminal Violations of the Omnibus Election Code

P.I. to be conducted by the COMELEC.

Office of the Ombudsman

May the Office of the Ombudsman investigate a public official even if the
offense is not in relation to his public office?

Deloso v. Domingo, G.R. No. 90591, November 21, 1990.

“The clause "any [illegal] act or omission of any public official" is broad
enough to embrace any crime committed by a public official. The law does not
qualify the nature of the illegal act or omission of the public official or employee
that the Ombudsman may investigate. It does not require that the act or omission
be related to or be connected with or arise from, the performance of official duty.
Since the law does not distinguish, neither should we. The reason for the creation
of the Ombudsman in the 1987 Constitution and for the grant to it of broad
investigative authority, is to insulate said office from the long tentacles of
officialdom that are able to penetrate judges' and fiscals' offices, and others
involved in the prosecution of erring public officials, and through the exertion of
official pressure and influence, quash, delay, or dismiss investigations into
malfeasances and misfeasances committed by public officers.”

“In Relation to Public Office” is material in determining the jurisdiction of

the Sandiganbayan but it its NOT a limit to the investigative powers of the Office
of the Ombudsman.

Natividad v. Felix, G.R. No. 111616, February 4, 1994.

As we held in Aguinaldo v. Domagas (G.R. No. 98452, En Banc Resolution Commented [u37]: QUERY: incomplete citation?
of September 26, 1991) and recently, Sanchez v. Demetriou (G.R. Nos. 111771- Commented [u38]: QUERY: incomplete citation?
77, November 9, 1993), such authority of the Ombudsman "is not an exclusive
authority but rather a shared or concurrent authority in respect of the offense
charged," in other words, concurrent with similarly authorized agencies of the
government. Accordingly, the Ombudsman may take over the investigation
of such case at any stage from any investigative agency of the Government.

A careful scrutiny of Section 15 (1) of the Ombudsman Act of 1989 will

reveal that the word "may" is used in regard to the Ombudsman's assumption of
its primary jurisdiction over cases cognizable by the Sandiganbayan. The word
"may," being generally permissive and since it operates to confer discretion, it
follows that the Ombudsman's investigatory powers are but directory in nature.

IMPORTANT CHANGES IN THE PROCEDURE FOR PI. (Sec. 3, Rule 112)

“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
 70

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.

Objects as evidence need not be furnished a party but shall be made

available for examination, copying, or photographing at the expense of the
requesting party.”

This provision came from Webb v. De Leon, 247 SCRA 652.

We uphold the legal basis of the right of petitioners to demand from their
prosecutor, the NBI, the original copy of the April 28, 1995 sworn statement of
Alfaro and the FBI Report during their preliminary investigation considering their
exculpatory character, and hence, unquestionable materiality to the issue of their
probable guilt. The right is rooted on the constitutional protection of due process
which we rule to be operational even during the preliminary investigation to a
potential accused. It is also implicit in [S]ection (3)(a) of Rule 112 which requires
during the preliminary investigation the filing of a sworn complaint which 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. . ."

Will a delay in the resolution of the preliminary investigation violate the right
of the respondent to speedy disposition of cases?

The Tatad Ruling

(Tatad v. Sandiganbayan, 159 SCRA 70, 82, March 21, 1988)

The delay of three years was already violative of the right of the respondent
to speedy disposition of cases and right to due process in view of the simplicity
of the issues in the cases.

How should the Tatad Doctrine be applied?

Socrates v. Sandiganbayan, G.R. Nos. 116259-60,

February 20, 1996.

“We have only to reiterate the declaration made in Tatad to the effect that
in the application of the constitutional guaranty of the right to speedy disposition of
cases, particular regard must also be taken of the facts and circumstances peculiar
to each case. It is palpably clear that the application of the Tatad doctrine should
not be made to rely solely on the length of time that has passed but equal concern
should likewise be accorded to the factual ambiance and considerations.

Binay v. Sandiganbayan,
G.R. Nos. 120681-83, October 1, 1999.

In Tatad v. Sandiganbayan (159 SCRA 70 (1988)), the Court held that the
length of delay and the simplicity of the issues did not justify the delay in the
disposition of the cases therein. The "unexplained inaction" of the prosecutors
called for the dismissal of the cases against petitioner Tatad.

In Alvizo v. Sandiganbayan (220 SCRA 55 (1993)), the Court also ruled that Commented [u39]: QUERY: incomplete citation?
there was no violation of the right to speedy disposition. The Court took into
account the reasons for the delay, i.e., the frequent amendments of procedural
laws by presidential decrees, the structural reorganizations in existing
prosecutorial agencies and the creation of new ones by executive fiat, resulting in
 71

changes of personnel, preliminary jurisdiction, and the functions and powers of

prosecuting agencies. The Court likewise considered the failure of the accused to
assert such right, and the lack of prejudice caused by the delay to the accused.

In Santiago v. Garchitorena, ( 228 SCRA 214) the complexity of the

issues and the failure of the accused to invoke her right to speedy disposition at
the appropriate time spelled defeat to her claim to the constitutional guarantee.

In Cadalin v. POEA’s Administrator (238 SCRA 722), the Court, considering Commented [u40]: QUERY: incomplete citation?
also the complexity of the cases ("not run-of-the-mill variety") and the conduct of
the parties’ lawyers, held that the right to speedy disposition was not violated
therein.

Will the Tatad Ruling apply even if the respondent did not take actions to
accelerate the disposition of his case?

Elpidio C. Cervantes v. Sandiganbayan,

G.R. No. 108595. May 18, 1999May 18, 1999 Commented [u41]: QUERY: pls provide GR or SCRA.
thanks
Formatted: Font: Not Bold
“It is the duty of the prosecutor to speedily resolve the complaint, as
mandated by the Constitution, regardless of whether the petitioner did not object
to the delay or that the delay was with his acquiescence provided that it was not
due to causes directly attributable to him.”

NOTABLE ISSUES ON THE RESOLUTION OF THE INVESTIGATING

PROSECUTOR AND IT’S REVIEW. (Sec. 4, R 112)

Will the lack of certification invalidate an Information?

Sec. 4, Rule112 requires that in preparing the resolution and information

when a prosecutor finds probable cause, he shall “certify under oath in the
information that he, or as shown by the record, an authorized officer, has
personally examined the complainant and his witnesses; that there is reasonable
ground to believe that a crime has been committed and that the accused is
probably guilty thereof; that the accused was informed of the complaint and of the
evidence submitted against him; and that he was given an opportunity to submit
controverting evidence”

Alvizo v. Sandiganbayan, 220 SCRA 45.

The lack of a certification will not invalidate the information because the
certification is not an essential part of the information. It is merely a formal defect.

Note:

Resolutions of investigating prosecutors are forwarded for approval, within

five days, to:

Provincial Prosecutor If PI is conducted by the Provincial

Prosecutor’s Office

City Prosecutor If PI is conducted by the City

Prosecutor’s Office
 72

Chief State Prosecutor If PI is conducted by the Regional State

Prosecutors’ Office

Ombudsman or his Deputy In cases of offenses cognizable by the

Sandiganbayan in the exercise of its
original jurisdiction

Note:
The amendment to include the Ombudsman or his deputy is intended
to avoid conflicts of jurisdiction since the authority of the Office of the
Ombdusman to conduct PIs is concurrent with the prosecutors.

What happens if a resolution of dismissal is disapproved?

“Where the investigating prosecutor recommends the dismissal of the

complaint but his recommendation is disapproved by the provincial or city
prosecutor or chief state prosecutor or the Ombudsman or his deputy on the
ground that a probable cause exists, the latter may, by himself, file the information
against the respondent, or direct another assistant prosecutor or state prosecutor
to do so without conducting another preliminary investigation.”

What happens in case a resolution is reversed by the Secretary of Justice?

If upon petition by a proper party under such rules as the Department of

Justice may prescribe or motu propio, the Secretary of Justice reverses or modifies
the resolution of the provincial or city prosecutor or chief state prosecutor, he shall
direct the prosecutor concerned either to file the corresponding information without
conducting anther preliminary investigation, or to dismiss or move for dismissal of
the complaint or information with notice to the parties. The same rule shall apply
in preliminary investigations conducted by the officers of the Office of the
Ombudsman. (4a)

ISSUANCE OF WARRANT OF ARREST

By Rtc or Mtc upon Filing of an Information

“Within ten (10) days from the filing of the complaint or information, the
judge shall personally evaluate the resolution of the prosecutor and its supporting
evidence. He may immediately dismiss the case if the evidence on record clearly
fails to establish probable cause. If he finds probable cause, he shall issue a
warrant of arrest, or a commitment order if the accused has already been arrested
pursuant to a warrant issued by the judge who conducted the preliminary
investigation or when the complaint or information was filed pursuant to section 7
of this Rule. In case of doubt on the existence of probable cause, the judge may
order the prosecutor to present additional evidence within five (5) days from notice
and the issue must be resolved by the court within thirty (30) days from the filing
of the complaint of information.”

Chester De Joya v. Placido C. Marquez,

G.R. No. 162416, January 31, 2006.

“Probable cause to issue a warrant of arrest pertains to facts and

circumstances which would lead a reasonably discreet and prudent person to
believe that an offense has been committed by the person sought to be arrested.
 73

It bears remembering that "in determining probable cause, the average man
weighs facts and circumstances without resorting to the calibrations of our
technical rules of evidence of which his knowledge is nil. Rather, he relies on the
calculus of common sense of which all reasonable men have an abundance."
Thus, the standard used for the issuance of a warrant of arrest is less stringent
than that used for establishing the guilt of the accused. As long as the evidence
presented shows a prima facie case against the accused, the trial court judge has
sufficient ground to issue a warrant of arrest against him.”

NO WARRANT OF ARREST IS NECESSARY IF:

1. Accused is already in detention due to:

a. Warrantless arrest and subsequent inquest investigation;

b. Accused was already arrested based on a warrant issued

by an MTC judge during preliminary investigation. (NOT
APPLICABLE ANYMORE)

2. Cases where the penalty is purely fine;

3. Cases covered by the Summary Rules. Note in cases covered by the

Summary rules, a warrant is issued only if the accused fails to appear during
arraignment despite notice.

Some Notes:

The requirement that the judge, upon filing of the information, shall
personally evaluate the resolution of the prosecutor and its supporting evidence
and the additional power of the judge to immediately dismiss a case if he finds that
the evidence on record clearly fails to establish probable cause or to require the
prosecutor to present additional evidence in case he has doubts as to the
existence of probable cause are amendments recognizing jurisprudence
establishing the following:

1. The judge may issue a warrant of arrest on the basis of the records
of the preliminary investigation but he cannot rely on the certification
of the prosecutor alone. (Soliven v. Makasiar, 167 SCRA 393, Lim v.
Felix 194 SCRA 292, Teresa Ho v. People of the Philippines, 280
SCRA 365)

2. The judge is now clearly empowered to dismiss a case if he finds that

the evidence on record clearly fails to establish probable cause or to
require the prosecutor to present additional evidence in case he has
doubts as to the existence of probable cause. (This clarifies some
confusion as to what the judge is supposed to do if the prosecutor
finds probable cause to hold the accused for trial but the judge does
not find probable cause to issue a warrant of arrest.)

The Supreme Court emphasized the power of a judge to immediately dismiss

a case if the evidence on record clearly fails to establish probable cause.

Elvira O. Ong v. Jose Casim Genio,

 74

G.R. No. 182336, December 23, 2009.

Pursuant to the aforementioned provision, the RTC judge, upon the filing of
an Information, has the following options: (1) dismiss the case if the evidence on
record clearly failed to establish probable cause; (2) if he or she finds probable
cause, issue a warrant of arrest; and (3) in case of doubt as to the existence of
probable cause, order the prosecutor to present additional evidence within five
days from notice, the issue to be resolved by the court within thirty days from the
filing of the information.

It bears stressing that the judge is required to personally evaluate the

resolution of the prosecutor and its supporting evidence. He may immediately
dismiss the case if the evidence on record clearly fails toestablish probable
cause. This, the RTC judge clearly complied with in this case.

Distinguish probable cause to hold an accused for trial from probable cause
to issue a warrant of arrest.

People v. Court of Appeals,

G.R. No. 126005, January 21, 1999.

Probable cause for the issuance of a warrant of arrest is the existence of

such facts and circumstance that would lead a reasonably discreet and prudent
person to believe that an offense has been committed by the person sought to be
arrested. Hence, the judge, before issuing a warrant of arrest, "must satisfy himself
that based on the evidence submitted, there is sufficient proof that a crime has
been committed and that the person to be arrested is probably guilty thereof."

On the other hand, probable cause to hold an accused for trial is a

reasonable ground of presumption that a matter is, or may be well-founded, such
a state of facts in the mind of the prosecutor as would lead a person of ordinary
caution and prudence to believe, or entertain an honest or strong suspicion, that a
thing is so. The term does nor mean "actual and positive cause" nor does it import
absolute certainly. It is merely based on opinion and reasonable belief. Thus, a
finding of probable cause does not require an inquiry as to whether there is
sufficient evidence to procure a conviction. It is enough that it is believed that the
act or omission complained of constitutes the offense charged.

The determination of probable cause to hold an accused for trial is within

the authority of the prosecutor while the determination of probable cause to issue
a warrant is within the exclusive authority of the judge.

If a petition for review of the resolution of the investigating prosecutor is

filed with the DOJ, should the issuance and implementation of a Warrant of
Arrest be suspended if an Information has already been filed in court?

Enrique V. Viudez II v. Court of Appeals,

G.R. No. 152889, June 5, 2009.

The purpose of the mandate of the judge to first determine probable cause
for the arrest of the accused is to insulate from the very start those falsely charged
with crimes from the tribulations, expenses and anxiety of a public trial.
The function of the judge to issue a warrant of arrest upon the determination
of probable cause is exclusive; thus, the consequent implementation of a warrant
of arrest cannot be deferred pending the resolution of a petition for review by the
 75

Secretary of Justice as to the finding of probable cause, a function that is executive

in nature. To defer the implementation of the warrant of arrest would be an
encroachment on the exclusive prerogative of the judge. It must be emphasized
that petitioner filed with the trial court a motion to suspend proceedings and to
suspend the implementation of the warrant of arrest in pursuance of a DOJ circular,
and not a motion to quash the warrant of arrest questioning the issuance thereof.
Thus, there is no contest as to the validity or regularity of the issuance of the
warrant of arrest. Petitioner merely wanted the trial court to defer the
implementation of the warrant of arrest pending the resolution by the Secretary of
Justice of the petition for review that he filedciting the provision of the DOJ NPS
Rules on Appeal that “The appellant and the trial prosecutor shall see to it that,
pending resolution of the appeal, the proceedings in court are held in abeyance.”

The above provision of the Department Circular is directed specifically at

the appellant and the trial prosecutor, giving them latitude in choosing a remedy to
ensure that the proceedings in court are held in abeyance. However, nowhere in
the said provision does it state that the court must hold the proceedings in
abeyance. Therefore, the discretion of the court whether or not to suspend
the proceedings or the implementation of the warrant of arrest, upon the
motion of the appellant or the trial prosecutor, remains unhindered. This is in
consonance with the earlier ruling 33 of this Court that once a complaint or
information is filed in court, any disposition of the case as to its dismissal, or the
conviction or acquittal of the accused, rests on the sound discretion of the said
court, as it is the best and sole judge of what to do with the case before it. In the
instant case, the judge of the trial court merely exercised his judicial discretion
when he denied petitioner's motion to suspend the implementation of the warrant
of arrest. Consequently, the CA was correct when it found no whimsicality or
oppressiveness in the exercise of the trial judge's discretion in issuing the
challenged orders.

ON THE REMEDIES OF PRELIMINARY INVESTIGATION, REINVESTIGATION, AND

PETITION FOR REVIEW

PLEASE TAKE NOTE OF DEPARTMENT CIRCULAR NO. 018 OF THE DOJ

ON THE RULE ON ELECTRONIC FILING OF PETITIONS FOR REVIEW
-Parties are required to file only ONE set of original papers (petition and comment)
but must be accompanied by a CD (should be DVD) of electronic copies and
accompanied by a Declaration of Completenes

Jose Antonio C. Leviste vs. Elmo M. Alameda, Et Al

G.R. No. 182677. August 3, 2010

Can the Resolution of the Inquest Prosecutor be the subject of a Motion for
Reconsideration?
“The accelerated process of inquest, owing to its summary nature and the
attendant risk of running against Article 125, ends with either the prompt filing of an
information in court or the immediate release of the arrested person. Notably, the rules
on inquest do not provide for a motion for reconsideration”

Can the private complainant file a Petition for Review to the Office of the Secretary
vis a vis the said Resolution?

Contrary to petitioner's position that private complainant should have appealed to

the DOJ Secretary, such remedy is not immediately available in cases subject of inquest.
Noteworthy is the proviso that the appeal to the DOJ Secretary is by "petition by a
proper party under such rules as the Department of Justice may prescribe." 35 The rule
referred to is the 2000 National Prosecution Service Rule on Appeal, 36 Section 1 of which
 76

provides that the Rule shall "apply to appeals from resolutions . . . in cases subject of
preliminary investigation/reinvestigation." IN CASES SUBJECT OF INQUEST,
THEREFORE, THE PRIVATE PARTY SHOULD FIRST AVAIL OF A PRELIMINARY
INVESTIGATION OR REINVESTIGATION, IF ANY, BEFORE ELEVATING THE
MATTER TO THE DOJ SECRETARY.

Can a PRIVATE COMPLAINANT move for Reinvestigation of a Criminal Case if the

Information has already been filed in Court?
“The Court holds that the private complainant can move for reinvestigation, subject
to and in light of the ensuing disquisition.
All criminal actions commenced by a complaint or information shall be prosecuted
under the direction and control of the public prosecutor. The private complainant in a
criminal case is merely a witness and not a party to the case and cannot, by himself, ask
for the reinvestigation of the case after the information had been filed in court, the proper
party for that being the public prosecutor who has the control of the prosecution of the
case. Thus, in cases where the private complainant is allowed to intervene by
counsel in the criminal action, and is granted the authority to prosecute, the private
complainant, by counsel and with the conformity of the public prosecutor, can file
a motion for reinvestigation.
In fact, the DOJ instructs that before the arraignment of the accused, trial
prosecutors must "examine the Information vis-à-vis the resolution of the
investigating prosecutor in order to make the necessary corrections or revisions
and to ensure that the information is sufficient in form and substance."
. . . 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[.] (emphasis and underscoring supplied)

If a case involving the same facts and parties has already been filed with the Office
of the Ombudsman, the DOJ cannot assume jurisdiction over the new case filed.

Department of Justice vs. Hermogenes Liwag

G.R. No. 149311. February 11, 2005

Facts: On January 8, 2001, Mary Ong filed criminal cases with the Office of the
Ombudsman against PNP General Panfilo M. Lacson, PNP Colonel Michael Ray B.
Aquino, other high-ranking officials of the PNP, and several private individuals. The Office
of the Ombudsman required the respondents to file counteraffidavits.

On March 9, 2001, Mary Ong and other witnesses executed affidavits

before the NBI raising the same complaints. NBI filed the case with the DOJ which also
assumed jurisdiction.

Issue: Whether or not the DOJ has jurisdiction to conduct a preliminary

investigation despite the pendency before the Ombudsman of a complaint involving the
same accused, facts, and circumstances.

Held: No. The law and the constitution gives the Office of the Ombudsman
primary jurisdiction over cases against public officers particularly in cases
cognizable by the Sandiganbayan. The Ombudsman is even given authority to take
over, at any stage, from any investigatory agency, the investigation of such cases.

The power of the Ombudsman to investigate cases cognizable by the

Sandiganbayan is not co-equal with other investigative bodies, such as the DOJ. The
Ombudsman can delegate the power but the delegate cannot claim equal power. While
the doctrine of concurrent jurisdiction means equal jurisdiction to deal with the same
 77

subject matter, the settled rule is that the body or agency that first takes cognizance of the
complaint shall exercise jurisdiction to the exclusion of the others.

NOTE: If the situation were reversed and the 2nd case was filed with the Ombudsman, the
latter could still take over under the doctrine of primary jurisdiction.

NOTA BENE: This is already covered by the Memorandum of Agreement between

the DOJ and the Office of the Ombudsman, dated March 29, 2012 which took effect
ONE (1) MONTH thereafter

Can a private prosecutor file a Motion for Reconsideration of an order of the trial
court granting the motion of the Provincial Prosecutor to withdraw the information?

Nelson Ramirez vs. Hon. Court of Appeals and Doroteo Salazar.

G.R. No. 142384. April 4, 2005

Under Section 5, Rule 110 of the 1985 Rules on Criminal Procedure, all criminal
actions either commenced by complaint or information shall be prosecuted under the
direction and control of the prosecutor. The prosecution of a criminal case is the
responsibility of the public prosecutor and no one else. This is true even if a private
prosecutor is allowed to assist him. In the case at bar, it was the private prosecutor
who sought to have the libel case revived by filing a motion for reconsideration.
Such motion should have been dismissed by the trial court.

In preliminary investigations, is there a requirement that the affidavits must be

subscribed before the prosecutor investigating the case? Is the investigating
prosecutor REQUIRED to conduct a clarificatory hearing where there will be a
confrontation between the parties?

AURELIO M. SIERRA, vs. JHOSEP Y. LOPEZ,

A.C. No. 7549. August 29, 2008

Rule 112, particularly Section 3 of the Rules of Court, lays down the basic
procedure in preliminary investigation
This provision of the Rules does not require a confrontation between the parties.
Preliminary investigation is ordinarily conducted through submission of affidavits and
supporting documents, through the exchange of pleadings.

In Rodis, Sr. v. Sandiganbayan 1 we ruled that —

(the New Rules on Criminal Procedure) do 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
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.

Since confrontation between the parties is not imperative, it follows that it is

not necessary that the counter-affidavit of respondent be sworn to before the
investigating prosecutor himself. It can be sworn to before another prosecutor. In
fact, this is specifically provided in paragraph (c) of Sec. 3, which states that the
"counter-affidavit shall be subscribed and sworn to and certified as provided in
paragraph (a) of this section . . ."; and paragraph (a), provides:

the affidavits shall be subscribed and sworn to before any prosecutor or

government official or in their absence or unavailability, before a notary public . . .

Lastly, we hold that the investigating prosecutors did not abuse their
discretion when they denied the request of the complainant for the conduct of
 78

clarificatory questioning. Under paragraph (e) of Section 3 above, the conduct of

clarificatory questioning is discretionary upon the prosecutor. Indeed, we already
held in Webb v. De Leon 2 that the decision to call witnesses for clarificatory
questions is addressed to the sound discretion of the investigator, and the
investigator alone.

CAN THE PROSECUTION OF A CRIMINAL CASE BE ENJOINED?

Salonga v. Cruz Paño, 134 SCRA 438 – General rule

Brocka v. Enrile, 192 SCRA 183 (1990)
Deloso v. Desierto, G.R. No. 129939, September 9, 1999.
Roger Posadas, et al. vs. Ombudsman, et al.,
G.R. No. 131492, September 29, 2000.

General Rule:

The prosecution of a criminal case MAY NOT be enjoined except in the

following circumstances:

a. To afford protection to the constitutional rights of the accused (Hernandez

v. Albano, et al., L-19272, January 25, 1967, 19 SCRA 95);

b. When necessary for the orderly administration of justice or to avoid

oppression or multiplicity of actions (Dimayuga, et al. v. Fernandez, 43 Phil.
304; Hernandez v. Albano, supra; Fortun v. Labang, et al., L-38383, May
27, 1981, 104 SCRA 607);

c. When there is a prejudicial question which is sub judice (De Leon v.

Mabanag, 70 Phil. 202);

d. When the acts of the officer are without or in excess of authority (Planas v.
Gil, 67 Phil. 62);

e. Where the prosecution is under an invalid law, ordinance or regulation

(Young v. Rafferty, 33 Phil. 556; Yu Cong Eng v. Trinidad, 47 Phil. 385,
389);

f. When double jeopardy is clearly apparent (Sangalang v. People and

Alvendia, 109 Phil. 1140);

g. Where the court has no jurisdiction over the offense (Lopez v. City Judge,
L-25795, October 29, 1966, 18 SCRA 616);

h. Where it is a case of persecution rather than prosecution (Rustia v.

Ocampo, CA-G.R. No. 4760, March 25, 1960);

i. Where the charges are manifestly false and motivated by the lust for
vengeance (Recto v. Castelo, 18 L.J. (1953), cited in Rañoa v. Alvendia,
CA G.R. No. 30720-R, October 8, 1962; cf., Guingona, et al. v. City Fiscal,
L-60033, April 4, 1984, 128 SCRA 577);

What happens if a person is arrested without a warrant? (Sec. 6, R112)

 79

If a person is arrested without a warrant, the police have a limited time within
which to FILE A CASE WITH THE COURT because Article 125 requires the
delivery of the person arrested to JUDICIAL AUTHORITIES within the periods
provided therein.

If the entire process of a preliminary investigation is utilized, all of our police

officers will end up in jail.

Breakdown of the Process:

1. Arrest;

2. Recording at the police station;

3. Inquest Investigation – The fiscal will determine probable cause on

the basis of the affidavit of the arresting officer and the witnesses,
whether by affidavit or examination.

Except: if the accused asks for a full preliminary investigation and

executes a waiver of his rights under Article 125 of the RPC in the
presence of his counsel in which case the normal procedure for a
preliminary investigation will be followed. Note: The waiver of Article
125 of the RTC must be in the presence of the counsel of the
accused due to Section 2(e) of R.A. No. 7438;

4. The prosecutor will file the information in court;

5. Within five days from the time he learns of its filing, the accused may
ask for a preliminary investigation with the same right to adduce
evidence in his defense as provided in this Rule. (People v. Court of
Appeals, G.R. No. 116623. March 23, 1995March 23, 1995 – the Commented [u42]: QUERY: incomplete citation?
five-day period is mandatory)

But a motion for preliminary investigation must be filed before

arraignment. (Go v. Court of Appeals, 206 SCRA 138, 153 [1992])
The right to a preliminary investigation is waived when the accused
fails to invoke it before or at the time of entering a plea on
arraignment by her failure to invoke her right to a preliminary
investigation, Pria forfeited her right to one and she can no longer
invoke it for the first time on appeal. (People v. Lazo, 198 SCRA 274,
284 [1991])

DIRECT FILING WITH THE RTC (THIS IS AN ENTIRELY NEW PROVISION)

“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.

IT SEEMS THAT THE RULES NOW ALLOW A SITUATION WHERE

DIRECT FILING WITH THE RTC IS ALLOWED.

Situation:

1. A person is arrested via warrantless arrest;

 80

2. Inquest prosecutor is absent or unavailable;

3. The complaint can be filed by the offended party or a peace officer

on the basis of the affidavit of the offended party or arresting officer
or person.

When may a criminal case be filed DIRECTLY with the courts for trial ?

1. In cases in municipalities not requiring preliminary investigation, the

complaint may be filed directly with the MTC for trial by the offended party, peace
officer, or person charged with the enforcement of the law violated.

2. In cases cognizable by the RTC or MTC where the accused was

arrested via a warrantless arrest and no inquest prosecutor is available, the
complaint can be filed by the offended party or a peace officer on the basis of the
affidavit of the offended party or arresting officer or person.

Procedure in cases not requiring a preliminary investigation nor covered by

the Rule on Summary Procedure. (Sec. 8, Rule 112)

(a) If filed with the prosecutor. – If the complaint is filed directly with
the prosecutor involving an offense punishable by imprisonment of less than
four (4) years, two (2) months and one (1) day, the procedure outlined in
section 3(a) of this Rule shall be observed. The prosecutor shall act on the
complaint based on the affidavits and other supporting documents
submitted by the complainant within ten (10) days from its filing.

(b) If filed with the Municipal Trial Court – If the complaint or

information is filed with the Municipal Trial Court or Municipal Circuit Trial
Court for an offense covered by this section, the procedure in section 3 (a)
of this Rule shall be observed. If within ten (10) days after the filing of the
complaint or information, the judge finds no probable cause after personally
evaluating the evidence, or after personally examining in writing and under
oath the complainant and his witnesses in the form of searching questions
and answers, he shall dismiss the same. He may, however, require the
submission of additional evidence, within ten (10) days from notice, to
determine further the existence of probable cause. If the judge still finds no
probable cause despite the additional evidence, he shall, within ten (10) days
from its submission or expiration of said period, dismiss the case. When he
finds probable cause, he shall issue a warrant of arrest, or a commitment
order if the accused had already been arrested, and hold him for trial.
However, if the judge is satisfied that there is no necessity for placing the
accused under custody, he may issue summons instead of a warrant of
arrest. (9a)

REVISED RULE ON SUMMARY PROCEDURE

November 15, 1991

B. Criminal Cases:

(1) Violations of traffic laws, rules and regulations;

 81

(2) Violations of the rental law;

(3) Violations of municipal or city ordinances;

(4) Violations of B.P. Blg. 22 (Bouncing Checks Law);7

(5) All other criminal cases where the penalty prescribed by law for the
offense charged is imprisonment not exceeding six months, or a fine
not exceeding one thousand pesos (P1,000.00), or both irrespective
of other imposable penalties, accessory or otherwise, or of the civil
liability arising therefrom: Provided, however, That in offenses
involving damage to property through criminal negligence, this Rule
shall govern where the imposable fine does not exceed ten thousand
pesos (P10,000.00).

Thus, the foregoing procedure is generally applicable to cases punishable

with a penalty from six months and one day to four years and two months.

RULE 113 – ARREST

Definition of arrest. – Arrest is the taking of a person into custody in order

that he may be bound to answer for the commission of an offense.

Cf., Jurisdiction over the person of the accused:

The Courts will acquire jurisdiction over the person of the accused through
the arrest or voluntary submission of the accused.

Rule 113 deals with the provisions or procedure relating to the arrest of
persons accused of criminal offenses.

Relevance of the Constitution

Considering that the arrest of a person will necessarily involve a distraint of

his personal liberty, the provisions of the Bill of Rights, particularly on the right of
all persons to be secure in their persons and property will necessarily come into
play.

Section 2 of Article III of the 1987 Constitution

SECTION 2. The right of the people to be secure in their persons, houses,

papers, and effects against unreasonable searches and seizures 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.

NORMALLY, a person will be arrested by virtue of a warrant of arrest. The

exceptions are the cases where warrantless arrest are allowed.

Formatted: Font: Not Bold

7
As amended by A.M. No. 00-11-01-SC. March 25, 2003 to take effect on April 15, 2003.
 82

Under the constitution, as we have already discussed, there are

requirements for the issuance of a warrant of arrest:

1. Issued by a judge;

2. probable cause;

3. premised upon the judge’s personal

evaluation of the affidavits of witnesses
and evidence;

4. particularly describing the person to be seized.

Pangandaman v. Casar,
159 SCRA 599, April 14, 1988.

“A warrant is issued against fifty (50) "John Does" not one of whom the
witnesses to the complaint could or would identify, it is of 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." Clearly violative
of the constitutional injunction that warrants of arrest should particularly describe
the person or persons to be seized, the warrant must, as regards its unidentified
subjects, be voided.”

An invalid arrest will mean that the Court did not acquire jurisdiction over
the person of the accused.

However in
PpPeople of the .Philippines v. Salvatierra, Commented [u43]: QUERY: People of the
276 SCRA 55. Philippines?

Appellant is estopped from questioning the legality of his arrest considering

that he never raised this before entering his plea. Any objection involving a warrant
of arrest or the procedure in the acquisition of jurisdiction over the person of an
accused must be made before he enters his plea, otherwise, the objection is
deemed waived. This is the first time that appellant is raising this issue as he did
not even move for the quashal of the information before the trial court on the
ground of illegal arrest. Consequently, any irregularity attendant to his arrest, if
any, had been cured by his voluntary submission to the jurisdiction of the trial court
when he entered his plea and participated during the trial. Verily, the illegal arrest
of appellant is not a sufficient cause for setting aside a valid judgment rendered
upon a sufficient complaint and where the trial was free from error.

PPPEOPLE OF THE PHILIPPINES v. ROLANDO ZASPA, Commented [u44]: Query: People of the Philippines?
September 21, 2000.

“any objection regarding the regularity of an arrest must be made before the
accused enters his plea otherwise, the defect shall be deemed cured by the
voluntary submission by the accused to the jurisdiction of the trial court. “

Execution of a warrant of arrest (Sec 4, Rule 113)

The head of the office to whom the warrant of arrest was delivered for
execution shall cause the warrant to be executed within ten (10) days from its
 83

receipt. Within ten (10) days after the expiration of the period, the officer to whom
it was assigned for execution shall make a report to the judge who issued the
warrant. In case of his failure to execute the warrant, he shall state the reason
therefore. (4a)

What is the lifetime of a warrant of arrest?

Malaloan v. CA,
May 6, 1994

“In our jurisdiction, no period is provided for the enforceability of warrants

of arrest, and although within ten days from the delivery of the warrant of arrest
for execution a return thereon must be made to the issuing judge, said warrant
does not become functus officio but is enforceable indefinitely until the same is
enforced or recalled.”

People v. Cesar G. Givera,

G.R. No. 132159, January 18, 2001.

“Accused-appellant claims that his arrest at the East Avenue Medical

Center on May 4, 1996 was made without a warrant. This is not true. He was
arrested by virtue of a warrant issued by the court on April 27, 1995. However, as
the records show, the warrant of arrest was returned unserved by the arresting
officer on June 7, 1995 as accused-appellant could not be found. He was finally
found only on May 4, 1996. Now, no alias warrant of arrest is needed to make the
arrest. Unless specifically provided in the warrant, the same remains
enforceable until it is executed, recalled or quashed. The ten-day period
provided in Rule 113, §4 is only a directive to the officer executing the
warrant to make a return to the court.”

WARRANTLESS ARRESTS (Sec. 5, Rule 113)

When may a person be arrested without a warrant?

Under Section 5 of Rule 113:

(a) When, in his presence, the person to be arrested has committed, is

actually committing, or is attempting to commit an offense;

(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; and

(c) 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
is temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.

Plus
 84

(d) If a person lawfully arrested escapes or is rescued, any person may

immediately pursue or retake him without a warrant at any time and in
any place within the Philippines.Philippines (Sec. 13, Rule 113)

(e) For the purpose of surrendering the accused, his bondsmen may
arrest him without a warrant. (Sec. 23, Rule114)

(f) An accused released on bail may be re-arrested without the necessity

of a warrant if he attempts to depart from the Philippines without
permission of the court where the case is pending. (Sec. 23, Rule 114)

“OR A PRIVATE PERSON”

In the situations covered by Section 5, even a private citizen can cause a

CITIZEN’s ARREST.

“When, in his presence, the person to be arrested has committed, is

actually committing, or is attempting to commit an offense.”

IN FLAGRANTE DELICTO

What is meant by “in his presence”?

PpPeople of the .Philippines v. Sucro March 18, 1991, 195 SCRA 388, Commented [u45]: QUERY: People of the
repeated in People v. Evaristo 216 S 431 Philippines?
as stated in PpPeople of the .Philippines v. Joselito del Rosario, Commented [u46]: QUERY: SCRA?
April 14, 1999. Commented [u47]: QUERY: People of the
Philippines?
“It must be recalled that del Rosario was arrested by SP04 De Leon during Commented [u48]: QUERY: pls. provide the GR or
the police raid at the place of "Jun" Marquez at Brgy. Dicarma on 14 May 1996. In SCRA. thanks
People vs. Sucro44 [G.R. No. 93239, 18 March 1991, 195 SCRA 388.] we held
that when a police officer sees the offense, although at a distance, or hears
the disturbances created thereby, and proceeds at once to the scene thereof,
he may effect an arrest without a warrant on the basis of Sec. 5, par. (a), Rule
113, since the offense is deemed committed in his presence or within his
view. In essence, Sec. 5, par. (a), Rule 113, requires that the accused be
caught in flagrante delicto or caught immediately after the consummation of
the act. The arrest of del Rosario is obviously outside the purview of the
aforequoted rule since he was arrested on the day following the commission of the
robbery with homicide.”

“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.”

also known as ARREST EFFECTED IN HOT PURSUIT

“just been committed”

People v. Manlulu,
G.R. No. 102140 April 22, 1994. Commented [u49]: QUERY: pls. provide GR or SCRA

Nineteen (19) hours later is no longer “just been committed.”

 85

What is meant by “personal knowledge of facts”?

PpPeople of the Philippines. v. Anthony Escordial Commented [u50]: QUERY: People of the
G.R. No. 138934-35, January 16, 2002. Philippines?
Posadas v. Ombudsman, Commented [u51]: QUERY: pls. supply SCRA or GR
341 SCRA 388, 397
citing People v. Doria, 301 SCRA 668, 709 (1991).

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 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 officer making the arrest.

Probable Cause to justify a warrantless arrest?

PpPeople of the .Philippines v. Doria, Commented [u52]: QUERY: People of the

January 22, 1999 Philippines?
Commented [u53]: QUERY: pls. provide SCRA or GR
“[P]robable cause 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.”

PpPeople of the .Philippines v. Nasario Molina, Commented [u54]: QUERY: People of the Philippines
G.R. No. 133917. February 19, 2001
February 19, 2001 Commented [u55]: QUERY: pls. provide the GR or
SCRA
Comprehensive discussion of situations relating to “probable cause.”

“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 is
temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another.”

No explanation needed.

Interesting case on the authority of a police officer to effect a warrantless

arrest.

PpPeople of the .Philippines v. Jose Rayray, Commented [u56]: QUERY: People of the
G.R. No. 90628, February 1, 1995. Philippines?

“We cannot yield to appellant's view that just because Lt. Ancheta was
assigned in Baguio City he could not arrest persons caught in the act of committing
 86

a crime in some other place, especially so where he was the intended victim. A
policemen cannot callously set aside his essential duty of apprehending criminal
offenders and of keeping peace and order on the shallow excuse that he is not in
his place of assignment. His responsibility to protect the public by apprehending
violators of the law, especially one caught in flagrante delicto is not limited by
territorial constraints. It follows him wherever he goes. Moreover, Sec. 5, par. (a),
Rule 113, of the Revised Rules on Criminal Procedure authorizes a warrantless
arrest, otherwise called a citizen's arrest, "when, in his presence, the person to be
arrested has committed, is actually committing, or is attempting to commit an
offense." Thus, although officially assigned in Baguio City, Lt. Ancheta’s act of
arresting accused-appellant (after the latter offered to sell him marijuana in San
Fernando, La Union) is justified not only by his duty as a law enforcer but also by
Sec. 5 of Rule 113, which authorizes instances of warrantless or citizens' arrests.”

WHEN MAY AN ARREST BE EFFECTED? (Sec. 6, Rule 113)

An arrest may be made on any day and at any time of the day or night.
(6)

Under present law, there is no prohibition against arrests made on Fridays

or weekends or at night.

In effecting an arrest with a warrant, what must the person to be arrested be

informed of? (Sec. 7, Rule 113)

General Rule:

Person to be arrested must be informed:

1. The cause of the arrest;

2. The fact that a warrant has been issued for his arrest.

Except:

1. When the person to be arrested flees;

2. He forcibly resists before the arresting officer had opportunity to

inform him;

3. When giving the information will imperil the arrest.

“The officer NEED NOT HAVE THE WARRANT in his possession at the
time of the arrest but after the arrest, if the person arrested so requires, the
warrant shall be shown to him as soon as practicable.”

Diosdado Mallari v. Court of Appeals,

G.R. No. 110569, December 9, 1996.

“At this juncture, the Court would like to stress that this is not a case of a
warrantless arrest but merely an instance of an arrest effected by the police
authorities without having the warrant in their possession at that precise moment.
Finding as it does, this Court deems it unnecessary to delve into the applicability
of Section 5, Rule 113 of the Rules of Court and on the merits of both the
 87

petitioner's and the Office of the Solicitor General's arguments with respect thereto.
The applicable provision is not Section 5, Rule 118 of the Rules of Court on
warrantless arrests, but Section 7, Rule 113 which provides as follows:

"Sec. 8. Method of Arrest by officer by virtue of warrant.

— When making an arrest by virtue of a warrant the officer shall
inform the person to be arrested of the cause of the arrest and the
fact that a warrant has been issued for his arrest, except when he
flees or forcibly resists before the officer has opportunity so to inform
him or when the giving of such information will imperil the arrest. The
officer need not have the warrant in his possession at the time of the
arrest but after the arrest, if the person arrested so requires, the
warrant shall be shown to him as soon as practicable." (Emphasis
supplied)

In effecting an arrest without warrant by a peace officer, what must the

person to be arrested be informed of? (Sec. 8, Rule 113)

General Rule:

Person to be arrested should be informed of:

1. The authority of the person making the arrest;

2. The Cause of the arrest.

Except:

1. When the person to be arrested is then ENGAGED IN THE

COMMISSION OF THE OFFENSE;

2. He is being pursued immediately after the commission;

3. He is being pursued immediately after escaping or fleeing;

4. He forcibly resists before the officer has opportunity to inform him;

5. When the giving of such information will imperil the arrest.

PpPeople of the .Philippines v. Larry Mahinay Commented [u57]: QUERY: People of the Philippines
G.R. No. 122485, February 1, 1999.

It is high-time to educate our law-enforcement agencies who neglect either

by ignorance or indifference the so-called Miranda rights which had become
insufficient and which the Court must update in the light of new legal
developments:

1. 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 he 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;

2. 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;
 88

3. 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;

4. 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;

5. That whether or not the person arrested has a lawyer, he must be informed
that no custodial investigation in any form shall be conducted except in the
presence of his counsel or after a valid waiver has been made;

6. 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 by any one from his immediate family or by his counsel,
or be visited by/confer with duly accredited national or international non-
government organization. It shall be the responsibility of the officer to
ensure that this is accomplished;

7. 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;

8. 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;

9. That the person arrested must be informed that he may indicate in any
manner at any time or 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 cease if it has already begun;

10. 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 statements;

11. 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.

In effecting an arrest without warrant by a private person, what must the

person to be arrested be informed of? (Sec. 9, Rule 113)

General Rule:

Person to be arrested should be informed of:

1. The intention of the private person of arresting him;

2. The Cause of the arrest.

Except:
 89

1. When the person to be arrested is then ENGAGED IN THE

COMMISSION OF THE OFFENSE;

2. He is being pursued immediately after the commission;

3. He is being pursued immediately after escaping or fleeing;

4. He forcibly resists before the officer has opportunity to inform him;

5. When the giving of such information will imperil the arrest.

OFFICER MAY SUMMON ASSISTANCE. (Sec. 10, Rule 113)

An officer making a lawful arrest may orally summon as many persons

as he deems necessary to assist him in effecting the arrest. Every person so
summoned by an officer shall assist him in effecting the arrest when he can
render such assistance without detriment to himself. (10a)

History of this provision

U.S. v. Silvestre Pompeya,

G.R. No. 10255, August 6, 1915.

“This ancient obligation of the individual to assist in the protection of the

peace and good order of his community is still recognized in all well-organized
governments in the "posse comitatus" (power of the county, poder del condado).
(Book 1 Cooley's Blackstone's Commentaries, 343; Book 4, 122) Under this power,
those persons in the state, county, or town who were charged with the
maintenance of peace and good order were bound, ex officio, to pursue and to
take all persons who had violated the law. For that purpose they might command
all the male inhabitants of a certain age to assist them. This power is called "posse
comitatus" (power of the county). This was a right well recognized at common law.
Act No. 1309 is a statutory recognition of such common-law right. Said Act
attempts simply to designate the cases and the method when and by which the
people of the town (pueblo) may be called upon to render assistance for the
protection of the public and the preservation of peace and good order. It is an
exercise of the police power of the state.”

When can an officer making an arrest break into any building or enclosure?
(Sec. 11, Rule 113)

1. He has announced his authority to effect the arrest;

2. He has announced his purpose in making the arrest;
3. He is refused admittance after the foregoing announcements.
 90

Right to break out from building or enclosure. (Sec. 12, Rule 113)

Whenever an officer has entered the building or enclosure in accordance

with the preceding section, he may break out therefrom when necessary to liberate
himself. (12a)

Right of attorney or relative to visit person arrested (Sec. 14, Rule 113) Commented [u58]: QUERY: insert Rule 113?

Any member of the Philippine Bar shall, at the request of the person
arrested or of another acting in his behalf, have the right to visit and confer privately
with such person in the jail or any other place of custody at any hour of the day
or night. Subject to reasonable regulations, a relative of the person arrested can
also exercise the same right. (14a)

This provision should be cross-referenced with R.A. No. 7438.

Section 2, R.A. No. 7438 (took effect on July 7, 1992).

“f. 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 of 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, fiancé
or fiancée, parent or child, brother or sister, grandparent or grandchild, uncle or
aunt, nephew or niece, and guardian or ward.”

Note:
A fiancé or fiancée is considered as “immediate family.”

Section 4

“SECTION 4. Penalty Clause. — a) Any arresting public officer or employee,

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

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, detained 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
 91

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).”

People v. Wilfredo Rodriguez,

G.R. No. 129211, October 2, 2000.

“In People v. De la Cruz, 279 SCRA 245 (1997), we declared as

inadmissible the extrajudicial confession of accused where the interrogation
started at 9:00 A.M. and his lawyer arrived only at 11:00 A.M. Jurisprudence is
clear that an accused under custodial investigation must continuously have a
counsel assisting him from the very start thereof. In this case, Rodriguez and
appellant were in the hands of the police for about four days without the assistance
of counsel. In People v. Compil, 244 SCRA 135, 142 (1995) we held that:

The operative act, it has been stressed, is when the police

investigation is no longer a general inquiry into an unsolved crime but has
begun to focus on a particular suspect who has been taken into custody by
the police to carry out a process of interrogation that lends itself to eliciting
incriminatory statements, and not the signing by the suspect of his
supposed extrajudicial confession. Thus in People v. de Jesus (213 SCRA
345 [1992]) we said that admissions obtained during custodial investigation
without the benefit of counsel although later reduced to writing and signed
in the presence of counsel are still flawed under the Constitution.

So flagrant a violation of the constitutional right to counsel of the accused

cannot be countenanced. In People v. Olivarez, Jr., 299 SCRA 635, 650 (1998).
we explained that:

The purpose of providing counsel to a person under custodial

investigation is to curb the uncivilized practice of extracting confession
even by the slightest coercion as would lead the accused to admit
something false. What is sought to be avoided is the "evil of extorting from
the very mouth of the person undergoing interrogation for the commission
of an offense, the very evidence with which to prosecute and thereafter
convict him." These constitutional guarantees have been made available
to protect him from the inherently coercive psychological, if not physical,
atmosphere of such investigation.”
 92

RULE 114 - BAIL

Bail defined. (Sec. 1, Rule 114)

Bail is the security given for the release of a person in custody of the
law, furnished by him or a bondsman, to guarantee his appearance before
any court as required under the conditions hereinafter specified. Bail may be
given in the form of corporate surety, property bond, cash deposit, or
recognizance. (1a)

Constitutional Provision on the Right to Bail.

Section 13, Article III, 1987 Constitution.

“SECTION 13. All persons, except those charged with offenses

punishable by reclusion perpetua when evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties, or be released on recognizance as
may be provided by law. The right to bail shall not be impaired even when the
privilege of the writ of habeas corpus is suspended. Excessive bail shall not be
required.”

The Right to Bail does not apply to military personnel

under Court Martial

Jose Comendador v. Renato S. De Villa,

G.R. No. 95020, August 20, 1991.

“We find that the right to bail invoked by the private respondents in G.R.
Nos. 95020 has traditionally not been recognized and is not available in the
military, as an exception to the general rule embodied in the Bill of Rights. This
much was suggested in Arula, where we observed that "the right to a speedy trial
is given more emphasis in the military where the right to bail does not exist."

The justification for this exception was well explained by the Solicitor
General as follows:

The unique structure of the military should be enough reason

to exempt military men from the constitutional coverage on the right
to bail.

Aside from structural peculiarity, it is vital to note that mutinous

soldiers operate within the framework of democratic system, are
allowed the fiduciary use of firearms by the government for the
discharge of their duties and responsibilities and are paid out of
revenues collected from the people. All other insurgent elements
carry out their activities outside of and against the existing political
system.

xxx xxx xxx

National security considerations should also impress upon

this Honorable Court that release on bail of respondents constitutes
 93

a damaging precedent. Imagine a scenario of say 1,000 putschists

roaming the streets of the Metropolis on bail, or if the assailed July
25, 1990 Order were sustained, on 'provisional" bail. The sheer
number alone is already discomforting. But, the truly disquieting
thought is that they could freely resume their heinous activity which
could very well result in the overthrow of duly constituted authorities,
including this Honorable Court, and replace the same with a system
consonant with their own concept of government and justice.

The argument that denial from the military of the right to bail would violate
the equal protection clause is not acceptable. This guaranty requires equal
treatment only of persons or things similarly situated and does not apply where the
subject of the treatment is substantially different from others. The accused officers
can complain if they are denied bail and other members of the military are not. But
they cannot say they have been discriminated against because they are not
allowed the same right that is extended to civilians.”

Purpose and Nature of Bail

Paderanga v. Court of Appeals,

247 SCRA 741 (1995)
reiterated in Go, et al. v. Judge Benjamin A. Bongolan,
A.M. No. RTJ-99-1464, July 26, 1999.

“Section 13, Article III of the Constitution lays down the rule that before
conviction, all indictees shall be allowed bail, except only those charged with
offenses punishable by reclusion perpetua when the evidence of guilt is strong. In
pursuance thereof, Section 4 of Rule 114, as amended, now provides that all
persons in custody shall, before conviction by a regional trial court of an offense
not punishable by death, reclusion perpetua or life imprisonment, be admitted to
bail as a matter of right. The right to bail, which may be waived considering its
personal nature and which, to repeat, arises from the time one is placed in the
custody of the law, springs from the presumption of innocence accorded
every accused upon whom should not be inflicted incarceration at the outset
since after the trial he would be entitled to acquittal, unless his guilt be
established beyond reasonable doubt.”

The person seeking to be admitted to bail

must first be in the CUSTODY OF THE LAW

Manigbas v. Luna, 98 Phil. 466 (1956)

Necito C. Hilario v. Julian C. Ocampo III
Adm. Case No. 3066, December 3, 2001.

“Bail is defined as the "security given for the release of a person in custody
of the law." By its definition, bail requires that a person must first be arrested or
deprived of liberty before it can be availed of: Thus, although the posting thereof
is tantamount to submission to the jurisdiction of the court, it presupposes that the
accused is under detention or in the custody of law. Indeed, it would be absurd
and incongruous to grant bail to one who is free. In this case, respondent deemed
it appropriate for the accused to file the corresponding bail bonds, even when the
latter had not yet been arrested or placed under custody.”
 94

Guillerma Delos Santos-Reyes v. Judge Camilo O. Montesa,

Adm. Matter No. RTJ-93-983, August 7, 1995.

“From the above recitals of the factual and procedural antecedents of the
criminal cases before the trial court, it is obvious that the accused filed their
petitions to grant bail and to reduce bail, motion to reinstate petition to grant bail
and urgent motion to quash warrants of arrests before the court acquired
jurisdiction over their persons either through the effective service and enforcement
of the warrants of arrest or their voluntary surrender, i.e., before they were placed
in the custody of the law or otherwise deprived of their liberty. Such being so, the
trial court, initially, denied correctly the petition for grant of bail but subsequently
disregarded law and jurisprudence when it favorably acted on the motion to
reinstate the petition for grant of bail and set the motion for hearing on 6 April 1991,
directing, for that purpose the Department of Justice and the Office of the
Provincial Prosecutor to forward to it the records of the preliminary investigation.

In this jurisdiction it is settled that a person applying for bail should be in the
custody of the law or otherwise deprived of his liberty x x x”

Theory of Constructive Custody.

An exception to the General Rule that an accused has to be arrested or has

to voluntarily surrender before he can be admitted to bail.

Paderanga v. Court of Appeals

247 SCRA 741 (1995).
Santiago v. Vasquez
217 SCRA 633.

“It should be stressed herein that petitioner, through his counsel,

emphatically made it known to the prosecution and to the trial court during the
hearing for bail that he could not personally appear as he was then confined at the
nearby Cagayan Capitol College General Hospital for acute costochondritis, and
could not then obtain medical clearance to leave the hospital. The prosecution and
the trial court, notwithstanding their explicit knowledge of the specific whereabouts
of petitioner, never lifted a finger to have the arrest warrant duly served upon him.
Certainly, it would have taken but the slightest effort to place petitioner in the
physical custody of the authorities, since he was then incapacitated and under
medication in a hospital bed just over a kilometer away, by simply ordering his
confinement or placing him under guard.

The undeniable fact is that petitioner was by then in the constructive custody
of the law. Apparently, both the trial court and the prosecutors agreed on that point
since they never attempted to have him physically restrained. Through his lawyers,
he expressly submitted to physical and legal control over his person, firstly, by filing
the application for bail with the trial court; secondly, by furnishing true information
of his actual whereabouts; and, more importantly, by unequivocally recognizing the
jurisdiction of the said court. Moreover, when it came to his knowledge that a
warrant for his arrest had been issued, petitioner never made any attempt or
evinced any intent to evade the clutches of the law or concealed his whereabouts
from the authorities since the day he was charged in court, up to the submission
of his application for bail, and until the day of the hearing thereof.”

TYPES OF BAIL:
 95

Corporate Surety

Refers to the type of bail, similar to an insurance contract whereby a

bonding company will issue a bond in the amount fixed by the court which will be
forfeited if the bonding company fails in its obligation to warrant compliance with
the conditions of bail.

Property Bond

Refers to a situation where property is put up by the accused or somebody

else to warrant compliance with the conditions of bail. If such conditions are
violated, the said property will be sold at public auction and the proceeds thereof,
up to the amount of bail fixed by the court will be forfeited in favor of the
government.

Cash Bond

Refers to the type of bail whereby the accused or somebody else will
actually deposit the amount fixed by the court as bail to warrant compliance with
the conditions of bail. If these conditions are violated, the money can be forfeited.

Recognizance

Refers to the type of bail where a person is released in his own custody or
to the custody of a responsible person. This type of bail is allowable only in the
cases when specific provisions of the law or the rules allow it.

Victory Liner v. Reynaldo B. Bellosillo,

A.M. No. MTJ-00-1321, March 10, 2004.

Requiring bail to be posted in cash and in the amounts of P50,000.00

and P350,000.00 in cases of reckless imprudence resulting to homicide
amounts to a denial of the constitutional right to bail. The decision to post a
surety bond or cash as bail belongs to the accused and the court cannot
require him to post cash.

Conditions of the bail; requirements. (Sec. 2, Rule 114)

All kinds of bail are subject to the following conditions:

(a) The undertaking shall be effective upon approval, and unless cancelled,
shall remain in force at all stages of the case until promulgation of the
judgment of the Regional Trial Court, irrespective of whether the case
was originally filed in or appealed to it;

(b) The accused shall appear before the proper court whenever required by
the court or these Rules;

(c) The failure of the accused to appear at the trial without justification and
despite due notice shall be deemed a waiver of his right to be present
thereat. In such case, the trial may proceed in absentia; and

(d) The bondsman shall surrender the accused to the court for execution of
the final judgment.
 96

The Court has the right to restrict the travel of the accused

Ricardo Manotoc, Jr. v. Court of Appeals,

142 SCRA 149, May 30, 1986.
Ricardo C. Silverio v. Court of Appeals,
195 SCRA 760 (1991).
Imelda Marcos v. Sandiganbayan,
247 SCRA 127 (1995).

“A court has the power to prohibit a person admitted to bail from leaving the
Philippines.Philippines This is a necessary consequence of the nature and function
of a bail bond. The condition imposed upon petitioner to make himself available at
all times whenever the court requires his presence operates as a valid restriction
on his right to travel. As we have held in People v. Uy Tuising, 61 Phil. 404 (1935).
" . . . the result of the obligation assumed by appellee (surety) to hold the accused
amenable at all times to the orders and processes of the lower court, was to
prohibit said accused from leaving the jurisdiction of the Philippines, because,
otherwise, said orders and processes will be nugatory, and inasmuch as the
jurisdiction of the courts from which they issued does not extend beyond that of
the Philippines they would have no binding force outside of said jurisdiction."
Indeed, if the accused were allowed to leave the Philippines without sufficient
reason, he may be placed beyond the reach of the courts.”

WHEN IS BAIL A MATTER OF RIGHT (Sec. 4, Rule114)

1. BEFORE conviction by the MTC;

2. AFTER conviction by the MTC;

3. BEFORE conviction by the RTC except if the offense charged is punishable

by reclusion perpetua, life imprisonment, or death, where the evidence of
guilt is strong;

4. BEFORE conviction by the RTC in cases punishable by death, reclusion

perpetua or life imprisonment where the court has already ruled that the
evidence of guilt is NOT STRONG.

WHEN IS BAIL A MATTER OF DISCRETION? (Sec. 5, Rule 114)

1. AFTER conviction by the RTC if the penalty IMPOSED is six years or lower;

2. AFTER conviction by the RTC even if the penalty imposed is greater than
six years if none of the conditions under par. 3 of Section 5 are present
except if the penalty imposed is death, reclusion perpetua, or life
imprisonment.

WHEN MUST BAIL BE DENIED. (Secs. 5 and 7, Rule 114)

1. BEFORE conviction by the RTC if the offense charged is punishable

by reclusion perpetua, life imprisonment, or death, where the
evidence of guilt is strong;

2. AFTER conviction by the RTC where the penalty imposed is greater

than six years and any of the following conditions are present:
 97

(a) That the accused is a recidivist, quasi-recidivist, or habitual

delinquent, or has committed the crime aggravated by the
circumstance of reiteration;

(b) That the accused has previously escaped from legal confinement,
evaded sentence, or violated the conditions of his bail without
valid justification;

(c) That the accused committed the offense while under probation,
parole, or conditional pardon;

(d) That the circumstances of the case indicate the probability of flight
if released on bail; or

(e) That there is undue risk that the accused may commit another
crime during the pendency of the appeal.

3. AFTER conviction by the RTC if the penalty imposed is death,

reclusion perpetua, or life imprisonment.

The conviction of the accused rebuts the presumption of innocence

Francisco Yap, Jr. v. CA,

G.R. No. 141529, June 6, 2001.

The importance attached to conviction is due to the underlying principle that

bail should be granted only where it is uncertain whether the accused is guilty or
innocent, and therefore, where that uncertainty is removed by conviction it would,
generally speaking, be absurd to admit to bail. After a person has been tried and
convicted the presumption of innocence which may be relied upon in prior
applications is rebutted, and the burden is upon the accused to show error in the
conviction. From another point of view it may be properly argued that the
probability of ultimate punishment is so enhanced by the conviction that the
accused is much more likely to attempt to escape if liberated on bail than before
conviction.

CAPITAL OFFENSE – is an offense which, under the law existing at the time of
its commission and of the application for admission to bail, may be punished with
death. (Sec. 6, Rule 114)

THE APPLICATION FOR BAIL. (Sec. 8, Rule 114)

Once an application for bail has been filed in cases, punishable by death,
reclusion perpetua, or life imprisonment THE BURDEN OF EVIDENCE shifts to
the prosecution to prove that the evidence of guilt is strong.

Note:
What is discretionary on the part of the court in a hearing under Section 8
is only the determination of whether or not the evidence of guilt is strong.

Important:
 98

Where the imposable penalty is death, reclusion perpetua or life

imprisonment and the accused files an application for bail, the court’s discretion is
limited to determining whether or not the evidence of guilt is strong.

If the evidence of guilt is strong the court MUST DENY bail. On the other
hand if the evidence of guilt is not strong the court MUST GRANT bail.

Steps to be taken by the judge when there is an application for bail.

Basco v. Rapatalo,
269 SCRA 220.

"(1) Notify the prosecutor of the hearing of the application for bail or
require him to submit his recommendation;

"(2) Conduct a hearing of the application for bail regardless of whether or

not the prosecution refuses to present evidence to show that the
guilt of the accused is strong for the purpose of enabling the court to
exercise its sound discretion;

"(3) Decide whether the evidence of guilt of the accused is strong based
on the summary of evidence of the prosecution;

"(4) If the evidence of the guilt of the accused is not strong, discharge
the accused upon the approval of the bailbond.

(Sec. 19, supra) Otherwise, petition should be denied." Commented [u59]: QUERY: pls. provide full citation.
thanks
Hearing is MANDATORY Commented [CE60R59]: Just delete this, this is as
quoted from the basco case
Borinaga v. Tamin
26 SCRA 206 (1993);
Cardines v. Rozete, 242 SCRA 557 (1995).

“[T]he prosecution must be given an opportunity to present its evidence

within a reasonable time whether the motion for bail of an accused who is in
custody for a capital offense be resolved in a summary proceeding or in the course
of a regular trial. If the prosecution is denied such an opportunity, there would be
a violation of procedural due process.”

Joselito V. Narciso v. Flor Marie Sta. Romana-Cruz,

G.R. No. 134504, March 17, 2000.

“When the penalty prescribed by law is death, reclusion perpetua or life

imprisonment, a hearing must be conducted by the trial judge before bail can be
granted to the accused. Absent such hearing, the order granting bail is void for
having been issued with grave abuse of discretion” EVEN IF THE PETITION FOR
BAIL HAS THE PROSECUTOR’S CONFORMITY.

People v. Cresenia C. Reyes,

G.R. Nos. 101127-31, August 7, 1992.

If the accused in a case where the imposable penalty is death, reclusion

perpetua, or life imprisonment is granted bail pending trial, such will be cancelled,
and the accused placed in confinement upon conviction for the crime charged.
 99

Modifying Circumstances Shall NOT be considered in determining

the right to bail UNLESS admitted by the prosecution

Jojo Pastor Bravo, Jr. v. Hon. Melecio B. Borja,

G.R. No. L-65228, February 18, 1985.

“Petitioner's posture hardly finds support in the law. Under Section 5 of Rule
114 of the Rules of Court, a capital offense is "an offense which, under the law
existing at the time of its commission, and at the time of the application to be
admitted to bail, may be punished by death." It his clear from this provision that the
capital nature of an offense is determined by the penalty prescribed by law, with
reference to which it is relatively easy to ascertain whether the evidence of guilt
against the accused is strong. Moreover, when the Constitution or the law speaks
of evidence of guilt, it evidently to refers to a finding of innocence or culpability,
regardless of the modifying circumstances.”

“Where it has been established without objection that the accused is only
16 years old, it follows that, if convicted, he would be given "the penalty next lower
then that prescribed by law," which effectively rules out the death penalty. The
Constitution withholds the guaranty of bail from one who is accused of a capital
offense where the evidence of guilt is strong. The obvious reason is that one who
faces a probable death sentence has a particularly strong temptation to flee. This
reason does not hold where the accused has been established without objection
to be a minor who by law cannot be sentenced to death.”

Can a judge fix the amount of bail upon motion of the accused in a case for
murder if in a prior denial of a demurrer to evidence there was a finding that
there was sufficient evidence to convict for homicide but not for murder?

People v. Luis B. Plaza,

G.R. No. 176933, October 2, 2009.

“Since Judge Tan concurred with the assessment by Judge Buyser of the
prosecution evidence when he denied the Demurrer and the latter's statement that
the evidence was sufficient to convict respondent of Homicide, holding a summary
hearing merely to determine whether respondent was entitled to bail would have
been unnecessary as the evidence in chief was already presented by the
prosecution.”

In the same case, will not Section 5 of Rule 114 which provides that “if the
decision of the trial court convicting the accused changed the nature of the
offense from non-bailable to bailable, the application for bail can only be filed
with and resolved by the appellate court.” be violated if bail is fixed?

The People's recourse to Section 5, 14 Rule 114 of the Revised Rules of

Criminal Procedure to support its contention that respondent should be denied bail
is unavailing, for said Section clearly speaks of an application for bail filed by the
accused after a judgment of conviction has already been handed down by the trial
court.

Things to be considered in determining the amount of bail. (Sec. 9, Rule

114)

(a) Financial ability of the accused to give bail;

 100

(b) Nature and circumstance of the offense;

(c) Penalty for the offense charged;
(d) Character and reputation of the accused;
(e) Age and health of the accused;
(f) Weight of the evidence against the accused;
(g) Probability of the accused appearing at the trial;
(h) Forfeiture of other bail;
(i) The fact that the accused was a fugitive from justice when
arrested; and
(j) Pendency of other cases where the accused is on bail.

ON RECOGNIZANCE:

What are the instances when recognizance is allowed by the law and the
rules?

Roberto Espiritu v. Eduardo Jovellanos,

October 16, 1997 280 SCRA 579.

(a) when the offense charged is for violation of an ordinance, a light

felony, or a criminal offense, the imposable penalty for which does
not exceed 6 months imprisonment and/or P2,000 fine, under the
circumstances provided in R.A. No. 6036;

(b) where a person has been in custody for a period equal to or more
than the minimum of the imposable principal penalty, without
application of the Indeterminate Sentence Law or any modifying
circumstance, in which case the court, in its discretion, may allow his
release on his own recognizance;

(c) where the accused has applied for probation, pending resolution of
the case but no bail was filed or the accused is incapable of filing
one; and

(d) in case of a youthful offender, held for physical and mental

examination, trial, or appeal, if he is unable to furnish bail and under
the circumstances envisaged in P.D. No. 603, as amended. (Art.
191)

R.A. No. 7610

“SECTION 25. Rights of Children Arrested for Reasons Related to

Armed Conflict. — Any child who has been arrested for reasons related to armed
conflict, either as combatant, courier, guide or spy is entitled to the following rights;

(a) Separate detention from adults except where families are accommodated
as family units;
(b) Immediate free legal assistance;
(c) Immediate notice of such arrest to the parents or guardians of the child; and
(d) Release of the child on recognizance within twenty-four (24) hours to the
custody of the Department of Social Welfare and Development or any
responsible member of the community as determined by the court.”
 101

P.D. No. 603

ARTICLE 191. Care of Youthful Offender Held for Examination or Trial. —

A youthful offender held for physical and mental examination or trial or pending
appeal, if unable to furnish bail, shall from the time of his arrest be committed to
the care of the Department of Social Welfare or the local rehabilitation center or a
detention home in the province or city which shall be responsible for his
appearance in court whenever required: Provided, That in the absence of any such
center or agency within a reasonable distance from the venue of the trial, the
provincial, city and municipal jail shall provide quarters for youthful offenders
separate from other detainees. The court may, in its discretion, upon
recommendation of the Department of Social Welfare or other agency or agencies
authorized by the Court, release a youthful offender on recognizance, to the
custody of his parents or other suitable person who shall be responsible for his
appearance whenever required.

SUPREME COURT CIRCULAR NO. 20-79

R.A. No. 6036

SECTION 1. Any provision of existing law to the contrary notwithstanding,

bail shall not be required of a person charged with violation of a municipal or city
ordinance, a light felony and/or a criminal offense the prescribed penalty for which
is not higher than six months imprisonment and/or a fine of two thousand pesos,
or both, where said person has established to the satisfaction of the court or any
other appropriate authority hearing his case that he is unable to post the required
cash or bail bond, except in the following cases:

(a) When he is caught committing the offense in flagrante;

(b) When he confesses to the commission of the offense unless the

confession is later repudiated by him in a sworn statement or in open court
as having been extracted through force or intimidation;

(c) When he is found to have previously escaped from legal confinement,

evaded sentence, or jumped bail;

(d) When he is found to have previously violated the provisions of Section 2

hereof;

(e) When he is found to be a recidivist or a habitual delinquent or has been

previously convicted for an offense to which the law or ordinance attaches
an equal or greater penalty or for two or more offenses to which it attaches
a lighter penalty;

(f) When he commits the offense while on parole or under conditional pardon;
and

(g) When the accused has previously been pardoned by the municipal or city
mayor for violation of municipal or city ordinance for at least two times.

SECTION 2. Instead of bail, the person charged with any offense

contemplated by Section 1 hereof shall be required to sign in the presence of two
witnesses of good standing in the community a sworn statement binding himself,
pending final decision of his case, to report to the Clerk of the Court hearing his
case periodically every two weeks. The Court may, in its discretion and with the
consent of the person charged, require further that he be placed under the custody
 102

and subject to the authority of a responsible citizen in the community who may be
willing to accept the responsibility. In such a case the affidavit herein mentioned
shall include a statement of the person charged that he binds himself to accept the
authority of the citizen so appointed by the Court. The Clerk of Court shall
immediately report the presence of the accused person to the Court. Except when
his failure to report is for justifiable reasons including circumstances beyond his
control to be determined by the Court, any violation of this sworn statement shall
justify the Court to order his immediate arrest unless he files bail in the amount
forthwith fixed by the Court.

Where a person is charged with any offense contemplated by R.A. No.

6036 (copy attached), the Judge should as therein provided order the release
of the accused on recognizance instead of requiring bail.

SEC. 16 OF THE REVISED RULE ON SUMMARY PROCEDURE.

SECTION 16. Arrest of accused. — The court shall not order the
arrest of the accused except for failure to appear whenever required. Release of
the person arrested shall either be on bail or on recognizance by a responsible
citizen acceptable to the court.

SEC. 16. OF RULE 114

“When a person has been in custody for a period equal to or more than the
possible maximum imprisonment prescribed for the offense charged, he shall be
released immediately, without prejudice to the continuation of the trial or the
proceedings on appeal. If the maximum penalty to which the accused may be
sentenced is destierro, he shall be released after thirty (30) days of preventive
imprisonment.”

A person in custody for a period equal to or more than the minimum of the
principal penalty prescribed for the offense charged, without application of the
Indeterminate Sentence Law or any modifying circumstance, shall be released on
a reduced bail or on his own recognizance, at the discretion of the court. (16a)

WHERE SHOULD BAIL BE FILED. (Sec. 17, Rule 114)

General Rule:

Bail must be filed with the court where the case is pending.

Exceptions:

1. If the judge of the court where the case is pending is absent or

unavailable bail may be filed with any regional trial judge,
metropolitan trial judge, municipal trial judge, or municipal circuit trial
judge in the province, city or municipality.

2. If the accused is arrested in a province, city, or municipality other

than where the case is pending, bail may also be filed with any
regional trial court of said place, or if no judge thereof is available,
with any metropolitan trial judge, municipal trial judge, or municipal
circuit trial judge therein.
 103

3. Any person in custody who is not yet charged in court may apply for
bail with any court in the province, city, or municipality where he is
held.

Exception to the exception:

Where the grant of bail is a matter of discretion, or the accused seeks to

be released on recognizance, the application may only be filed in the court where
the case is pending.

If an accused learns of the issuance of a warrant of arrest against him, can

that accused post bail with the court where he is at that time even if he has
not yet been arrested?

Divina Luz P. Aquino-Simbulan v. Nicasio Bartolome, et al.,

A.M. No. MTJ-05-1588, June 5, 2009.

Section 14 of Rule 114 provides

Sec. 14. Bail, where filed. — (a) Bail in the amount fixed may be filed
with the court where the case is pending, or, in the absence or unavailability of the
judge thereof, with another branch of the same court within the province or city. If
the accused is arrested in a province, city or municipality other than where the
case is pending, bail may be filed also with any regional trial court of said place,
or, if no judge thereof is available, with any metropolitan trial judge, municipal trial
judge or municipal circuit trial judge therein. . .

The OCA's Report revealed that the accused Rosalina Mercado was not
arrested. The proper procedure, according to the above-cited rules, would have
been to file her bail bond with the RTC Branch 41, San Fernando, Pampanga
where her case was pending. Had complainant Judge been absent or was
unavailable at that time, the accused could have filed for bail with another branch
of the RTC in Pampanga or in San Fernando City. However, the accused filed her
surety bond with the MTC of Sta. Maria, Bulacan, where it was approved by
respondent Judge.

Not only did respondent Judge erroneously order the release of the
accused, but he also failed to require submission of the supporting documents
needed in the application for a bond.

PROCEDURE FOR THE FORFEITURE OF BAIL. (Sec. 21, Rule 114)

When the presence of the accused is required by the court or these Rules,
his bondsmen shall be notified to produce him before the court on a given date
and time. If the accused fails to appear in person as required, his bail shall be
declared forfeited and the bondsmen given 30 days within which to produce their
principal and to show why no judgment should be rendered against them for the
amount of their bail. Within the said period, the bondsmen must:
 104

(a) produce the body of their principal or give the reason for his non-
production; and
(b) explain why the accused did not appear before the court when first
required to do so.

Failing in these two requisites, a judgment shall be rendered against the

bondsmen, jointly and severally, for the amount of the bail. The court shall not
reduce or otherwise mitigate the liability of the bondsmen, unless the accused has
been surrendered or is acquitted. (21a)

CANCELLATION OF BAIL. (Sec. 22, Rule 114)

Upon application of the bondsmen, with due notice to the prosecutor, the
bail may be cancelled upon surrender of the accused or proof of his death.

The bail shall be deemed automatically cancelled upon acquittal of the

accused, dismissal of the case, or execution of the judgment of conviction.

In all instances, the cancellation shall be without prejudice to any liability on

the bail. (22a)

POSTING BAIL IS NOT A WAIVER OF ILLEGALITY OF THE ARREST OR

LACK OF PRELIMINARY INVESTIGATION (Sec. 26-NEW PROVISION)

“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 therefore, 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. (n)”

This abandons the ruling of the Supreme Court in the case of People v.
Timon, 281 SCRA 597 (1997) and similar cases that “an application for bail
constitutes a waiver of right of the accused to question whatever irregularities and
defects attended the arrest”

This principle was reiterated as lately as the case of People v. Carmen

Lacson, G.R. No. 126174, August 29, 2000.

RULE 115 - RIGHTS OF ACCUSED

On the Presumption of Innocence

The Equipoise Rule

People v. Edgar Lagmay, April 21, 1999.
 105

“where the evidence in a criminal case evenly balanced, the constitutional

presumption of innocence should tilt the scales in favor of the accused.”
(People v. Benemerito, 264 SCRA 677)

On the right to be informed of the charges against him

Rationale

“Inasmuch as `not only the liberty but even the life of the accused may be
at stake, it is always wise and proper that the accused should be fully apprised of
the true charges against them, and thus avoid all and any possible surprises which
may be detrimental to their rights and interests.’ The main purpose of this
requirement is to enable the accused to suitably prepare his defense. He is
presumed to be innocent and has, therefore, no independent knowledge of the
acts that constitute the offense with which he is charged. (Matilde v. Jabson, 68
SCRA 456)

PpPeople of the .Philippines v. Artemio Calayca Jan. 20, 1999. Commented [u61]: QUERY: People of the
PpPeople of the .Philippines v. Cesar Larena June 29, 1999. Philippines?
Commented [u62]: QUERY: People of the
A person charged with simple rape cannot be convicted of qualified forms Philippines?
of rape if the qualifying circumstances are not stated in the Information. Otherwise Commented [u63]: QUERY: pls. provide SCRA or GR
there will be a violation of his right to be informed.

On the right of the accused to be present and defended by counsel

PpPeople of the .Philippines v. Rufino Bermas, April 21, 1999. Commented [u64]: QUERY: People of the
Philippines?
"In criminal cases there can be no fair hearing unless the accused be given
an opportunity to be heard by counsel. The right to be heard would be of little avail
if it does not include the right to be heard by counsel. Even the most intelligent or
educated man may have no skill in the science of the law, particularly in the rules
of procedure, and, without counsel, he may be convicted not because he is guilty
but because he does not know how to establish his innocence. And this can
happen more easily to persons who are ignorant or uneducated. It is for this reason
that the right to be assisted by counsel is deemed so important that it has become
a constitutional right and it so implemented that under our rules of procedure it is
not enough for the Court to apprise an accused of his right to have an attorney, it
is not enough to ask him whether he desires the aid of an attorney, but it is
essential that the court should assign one de oficio for him if he so desires and he
is poor or grant him a reasonable time to procure an attorney of his own." (Citing
PpPeople of the .Philippines v. Holgado 85 Phil. 752) Commented [u65]: QUERY: People?

On the right to remain silent

PpPeople of the .Philippines v. Donato Continente Commented [u66]: QUERY: People?

G.R. Nos. 100801-02 August 25, 2000 Commented [u67]: QUERY: incomplete citation. Pls.
provide GR or SCRA
The rights to remain silent and to counsel may be waived by the accused
provided that the constitutional requirements are complied with. It must appear
clear that the accused was initially accorded his right to be informed of his right to
remain silent and to have a competent and independent counsel preferably of his
 106

own choice. In addition, the waiver must be in writing and in the presence of
counsel. If the waiver complies with the constitutional requirements, then the
extrajudicial confession will be tested for voluntariness, i.e., if it was given freely
— without coercion, intimidation, inducement, or false promises; and credibility, 2 Commented [u68]: QUERY: delete this?
i.e., if it was consistent with the normal experience of mankind.

We have consistently declared in a string of cases that the advice or

"Paliwanag" found at the beginning of extrajudicial confessions that merely
enumerate to the accused his custodial rights do not meet the standard provided
by law. They are terse and perfunctory statements that do not evince a clear and
sufficient effort to inform and explain to the appellant his constitutional rights. We
emphasized that when the constitution requires a person under investigation "to
be informed" of his rights to remain silent and to have an independent and
competent counsel preferably of his own choice, it must be presumed to
contemplate the transmission of meaningful information rather than just the
ceremonial and perfunctory recitation of an abstract constitutional principle. In
other words, the right of a person under investigation "to be informed" implies a
correlative obligation on the part of the police investigator to explain, and
contemplates an effective communication that results in understanding of what is
conveyed. Short of this, there is a denial of the right.

PpPeople of the Philippines. v. Ayson July 7, 1989. Commented [u69]: QUERY: People?

In fine, a person suspected of having committed a crime and subsequently

charged with its commission in court, has the following rights in that matter of his
testifying or producing evidence, to wit:

1) BEFORE THE CASE IS FILED IN COURT (or with the public prosecutor,
for preliminary investigation), but after having been taken into custody or
otherwise deprived of his liberty in some significant way, and on being
interrogated by the police: the continuing right to remain silent and to
counsel, and to be informed thereof, not to be subjected to force, violence,
threat, intimidation or any other means which vitiates the free will; and to
have evidence obtained in violation of these rights rejected; and

2) AFTER THE CASE IS FILED IN COURT —

a) to refuse to be a witness;
b) not to have any prejudice whatsoever result to him by such refusal;
c) to testify to his own behalf, subject to cross-examination by the
prosecution;
d) WHILE TESTIFYING, to refuse to answer a specific question which
tends to incriminate him for some crime other than that for which he is
prosecuted.

A pro-forma question and answer form prepared by the police is insufficient

to inform the accused of his rights prior to questioning him under custodial
investigation.

People v. Benjamin Sabayoc,

G.R. No. 147201, January 15, 2004
citing People v. Jara, 144 SCRA 516.

“The stereotyped "advice" appearing in practically all extrajudicial

confessions which are later repudiated has assumed the nature of a "legal form"
 107

or model. Police investigators either automatically type it together with the curt
"Opo" as the answer or ask the accused to sign it or even copy it in their
handwriting. Its tired, punctilious, fixed, and artificially stately style does not create
an impression of voluntariness or even understanding on the part of the accused.
The showing of a spontaneous, free, and unconstrained giving up of a right is
missing.

The right to be informed requires "the transmission of meaningful

information rather than just the ceremonial and perfunctory recitation of an abstract
constitutional principle." It should allow the suspect to consider the effects and
consequences of any waiver he might make of these rights. More so when the
suspect is one like Sayaboc, who has an educational attainment of Grade IV, was
a stranger in Nueva Vizcaya, and had already been under the control of the police
officers for two days previous to the investigation, albeit for another offense.”

A counsel assisting the accused who remains silent throughout the

custodial investigation indicates that the accused was not afforded his
constitutional right to a competent counsel.

People v. Benjamin Sabayoc,

G.R. No. 147201, January 15, 2004
citing People v. Deniega, 321 Phil. 1028, 1043 (1995).

“The desired role of counsel in the process of custodial investigation is

rendered meaningless if the lawyer merely gives perfunctory advice as opposed
to a meaningful advocacy of the rights of the person undergoing questioning. If the
advice given is so cursory as to be useless, voluntariness is impaired.”

“This is not to say that a counsel should try to prevent an accused from
making a confession. Indeed, as an officer of the court, it is an attorney's duty to,
first and foremost, seek the truth. However, counsel should be able, throughout
the investigation, to explain the nature of the questions by conferring with his client
and halting the investigation should the need arise. The duty of a lawyer includes
ensuring that the suspect under custodial investigation is aware that the right of an
accused to remain silent may be invoked at any time.”

On the right not to be compelled to be a witness against himself

Beltran v. Samson,
53 Phil. 570 (1929).

The prohibition against compelling a man to be a witness against himself

extends to any attempt to compel the accused to furnish a specimen of his
handwriting for the purpose of comparing it with the handwriting in a document in
a prosecution for falsification. "Writing is something more than moving the body,
or the hand, or the fingers; writing is not a purely mechanical act because it
requires the application of intelligence and attention."

PpPeople of the .Philippines v. Radel Gallarde Commented [u70]: QUERY: People?

Feb. 17, 2000 Commented [u71]: QUERY: incomplete citation

“The constitutional right of an accused against self-incrimination proscribes

the use of physical or moral compulsion to extort communications from the
accused and not the inclusion of his body in evidence when it may be material.
Purely mechanical acts are not included in the prohibition as the accused does not
thereby speak his guilt, hence the assistance and guiding hand of counsel is not
 108

required. The essence of the right against self-incrimination is testimonial

compulsion, that is, the giving of evidence against himself through a testimonial
act. Hence, it has been held that a woman charged with adultery may be compelled
to submit to physical examination to determine her pregnancy; and an accused
may be compelled to submit to physical examination and to have a substance
taken from his body for medical determination as to whether he was suffering from
gonorrhea which was contracted by his victim; to expel morphine from his mouth;
to have the outline of his foot traced to determine its identity with bloody footprints;
and to be photographed or measured, or his garments or shoes removed or
replaced, or to move his body to enable the foregoing things to be done.”

On the Right to cross-examine the witnesses against him

PpPeople of the .Philippines v. Edgar Crispin, Commented [u72]: QUERY: People?

G.R. No. 128360. March 2, 2000, March 2, 2000 Commented [u73]: QUERY: incomplete citation

Affidavits cannot be allowed because they cannot be cross-examined.

An affidavit is hearsay and has weak probative value, unless the affiant is
placed on the witness stand to testify on it. Being hearsay evidence, it is
inadmissible because the party against whom it is presented is deprived of his right
and opportunity to cross-examine the person to whom the statement or writing is
attributed. The right to confront and cross-examine the witnesses against him is a
fundamental right of every accused which may not be summarily done away with.
Another reason why the right to confrontation is so essential is because the trial
judge's duty to observe and test the credibility of the affiant can only be met by his
being brought to the witness stand. That the affidavit formed part of the record of
the preliminary investigation does not justify its being treated as evidence because
the record of the preliminary investigation does not form part of the record of the
case in the RTC. Such record must be introduced as evidence during trial, and the
trial court is not compelled to take judicial notice of the same. The prosecution
having failed to present Cesar Delima as a witness, his sworn statement was
patently inadmissible and deserves no consideration at all.

On the Right to compulsory processes

If the defense believes that there are other witnesses who could have
exculpated the accused, it should have called for them even by compulsory
process. (People v. Boholst, 152 SCRA 263 [1987])

On the Right to Speedy Trial

Roque v. Desierto May 12, 1999 Commented [u74]: QUERY: incomplete citation
G.R. No. 129978. May 12, 1999

Consistent with the rights of all persons to due process of law and to speedy
trial, the Constitution commands the Office of the Ombudsman to act promptly on
complaints filed against public officials. Thus, the failure of said office to resolve a
complaint that has been pending for six years is clearly violative of this mandate
 109

and the public officials’ rights. In such event, the aggrieved party is entitled to the
dismissal of the complaint.

Canson v. Garchitorena, July 28, 1999 Commented [u75]: QUERY: incomplete citation
SB-99-9-J. July 28, 199

Once again we reiterate that tired old legal maxim, justice delayed is justice
denied. It need not be over-emphasized that this oft-repeated adage requires the
expeditious resolution of disputes much more so in criminal cases where an
accused is constitutionally guaranteed the right to a speedy trial, which, as defined
is one "[c]onducted according to the law of criminal procedure and the rules and
regulations, free from vexatious, capricious and oppressive delays." The primordial
purpose of this constitutional right is to prevent the oppression of the accused by
delaying criminal prosecution for an indefinite period of time. It, likewise, is
intended to prevent delays in the administration of justice by requiring judicial
tribunals to proceed with reasonable dispatch in the trial of criminal prosecutions.

Binay vs. Sandiganbayan Oct. 1, 1999 Commented [u76]: QUERY: incomplete citation
G.R. Nos. 120681-83, October 1, 1999.

However, the right to speedy disposition of a case, like the right to speedy
trial, is deemed violated only when the proceedings is attended by vexatious,
capricious, and oppressive delays; or when unjustified postponements of the trial
are asked for and secured, or when without cause or justifiable motive a long
period of time is allowed to elapse without the party having his case tried. Equally
applicable is the balancing test used to determine whether a defendant has been
denied his right to a speedy trial, or a speedy disposition of a case for that matter,
in which the conduct of both the prosecution and the defendant is weighed, and
such factors as the length of the delay, the reasons for such delay, the assertion
or failure to assert such right by the accused, and the prejudice caused by the
delay. The concept of speedy disposition is a relative term and must necessarily
be a flexible concept.

Right to appeal. The only right under Rule 115 not found in the Constitution.

RULE 116 - ARRAIGNMENT AND PLEA

“The accused must be arraigned before the court where the complaint
or information was filed or assigned for trial. The arraignment shall be made
in open court by the judge or clerk by furnishing the accused with a copy of
the complaint or information, reading the same in the language or dialect
known to him, and asking him whether he pleads guilty or not guilty. The
prosecution may call at the trial witnesses other than those named in the
complaint or information.” (Sec. 1, par. [a])

Is arraignment mandatory or can it be waived?

 110

PpPeople of the Philippines v. Demetrio Cabale May 8, 1990 Commented [u77]: QUERY: incomplete citation

In the instant cases, counsel for the appellant entered into trial without
objecting that his client, the appellant herein, had not yet been arraigned. Said
counsel had also the full opportunity of cross-examining the witnesses for the
prosecution. Then, when the cases were being retried after the appellant had been
arraigned, appellant's counsel filed a joint manifestation with the prosecution,
adopting all proceedings had previous to the arraignment of the appellant. There
was, therefore, no violation of the appellant's constitutional right to be informed of
the nature and cause of the accusation against him.

What is the effect of arraignment on the right of an accused to preliminary

investigation?

The rule is that the right to preliminary investigation is waived when the
accused fails to invoke it before or at the time of entering a plea at arraignment.
(Go v. Court of Appeals, 206 SCRA 138)

Exceptional case:

Francisco Larranaga v. Court of Appeals, March 13, 1998 Commented [u78]: QUERY: incomplete citation

“The rule is that the right to preliminary investigation is waived when the
accused fails to invoke it before or at the time of entering a plea at arraignment.
Petitioner, in this case, has been actively and consistently demanding a regular
preliminary investigation even before he was charged in court. Also, petitioner
refused to enter a plea during the arraignment because there was a pending case
in this Court regarding his right to avail of a regular preliminary investigation.
Clearly, the acts of petitioner and his counsel are inconsistent with a waiver.
Preliminary investigation is part of procedural due process. It cannot be waived
unless the waiver appears to be clear and informed.”

Can there be an arraignment of a respondent during a preliminary

investigation by a municipal trial court judge? (MTC JUDGES NO LONGER
ALLOWED TO CONDUCT PI)

Warlito Alisangco v. Judge Jose C. Tabiliran, Jr.,

224 SCRA 1

Considering that the MCTC of Manukan-Jose Dalman only had preliminary

jurisdiction over the case, the respondent judge did not have any authority to set
the case for arraignment. All it could do was to calendar the same for preliminary
investigation. There is no law or rule requiring an arraignment during the
preliminary investigation. Under Section 1, Rule 116 of the Revised Rules of Court,
the arraignment must be conducted by the court having jurisdiction to try the case
on its merits. Thus, with respect to the case filed against the complainant, this
would be the proper Regional Trial Court which has exclusive original jurisdiction
over the said case by reason of the prescribed penalty.

“reading the same in the language or dialect known to him”

PpPeople of the .Philippines vs. Arnel B. Alicando Dec. 12, 1995

PpPeople of the .Philippines vs. Melchor Estomaca , April 22, 1996 Commented [u79]: QUERY: incomplete citations
 111

“The records of the court must clearly indicate full compliance with Section
1 of Rule 116, otherwise, the arraignment, and consequently all subsequent
proceedings will be declared null and void.

The requirement that the reading be made in a language or dialect that the
accused understands and knows is a mandatory requirement, just as the whole of
said Section 1 should be strictly followed by trial courts. This the law affords the
accused by way of implementation of the all-important constitutional mandate
regarding the right of an accused to be informed of the precise nature of the
accusation leveled at him and is, therefore, really an avenue for him to be able to
hoist the necessary defense in rebuttal thereof. It is an integral aspect of the due
process clause under the Constitution.”

“(b) The accused must be present at the arraignment and must personally
enter his plea. Both arraignment and plea shall be made of record, but failure
to do so shall not affect the validity of the proceedings.”

NO ARRAIGNMENT BY PROXY. This is one of the instances when the

rules requires the presence of the accused (cf., Bail)

“(c) When the accused refuses to plead or makes a conditional plea, a plea
of not guilty shall be entered for him. (1a)”

What is considered by law to be a proper plea of guilty is an absolute plea

of guilt.

If the accused will make a conditional plea, i.e., I am guilty but it was his
fault or “Opo sinakal ko sya pero kasi inunahan nya ako” or if he refuses to plea at
all, the court will enter a plea of not guilty.

What is deemed admitted when a plea of guilty is entered?

"While an unqualified plea of guilty is mitigating, it, at the same time,

constitutes an admission of all the material facts alleged in the information,
including the aggravating circumstances therein recited.” (People v. Egido, 90 Phil.
762; People v. Santos and Vicente, 105 Phil. 40)

What is then not deemed admitted?

1. Facts and circumstances not alleged in the complaint or information;

2. Conclusions of fact;
3. Jurisdiction of the court (conferred by law not by admission);
4. Sufficiency of the Complaint or Information;

“When the accused pleads guilty but presents exculpatory evidence, his plea
shall be deemed withdrawn and a plea of not guilty shall be entered for him.
(n)”

PpPeople of the .Philippines v. Padernal, Commented [u80]: QUERY: People?

21 SCRA 34 (1967).
 112

Where the accused pleads guilty and proceeds, in a hearing to prove the
mitigating circumstance of incomplete self-defense, to state facts constituting full
and complete self-defense. The trial judge should declare his plea of guilty thereby
withdrawn, order that a plea of not guilty be entered and proceed to trial on the
merits.

“When the accused is under preventive detention, his case shall be

raffled and its records transmitted to the judge to whom the case was raffled
within three (3) days from the filing of the information or complaint. The
accused shall be arraigned within ten (10) days from the date of the raffle.
The pre-trial conference of his case shall be held within ten (10) days after
arraignment.”

This provision is NEW and is meant to ensure compliance with the right of
an accused to speedy trial.

“The private offended party shall be required to appear at the

arraignment for purposes of plea bargaining, determination of civil liability,
and other matters requiring his presence. In case of failure of the offended
party to appear despite due notice, the court may allow the accused to enter
a plea of guilty to a lesser offense which is necessarily included in the
offense charged with the conformity of the trial prosecutor alone. (cir. 1-89)

This is from Section B par. 1 of Supreme Court Circular No. 1-89. However,
there is an additional proviso that the failure of the private offended party to appear
will be a waiver of the requirement of his consent to a plea bargain.”

Plea of guilty to a lesser offense

At arraignment, the accused, with the consent of the offended party and
prosecutor, may be allowed by the trial court to plead guilty to a lesser offense
which is necessarily included in the offense charged. After arraignment but before
trial, the accused may still be allowed to plead guilty to said lesser offense after
withdrawing his plea of not guilty. No amendment of the complaint or information
is necessary. (Sec. 2, Rule 116)

Plea bargaining in criminal cases “ is a process whereby the accused and

the prosecution work out a mutually satisfactory disposition of the case subject to
court approval” (PpPeople of the .Philippines v. Martin Villarama, June 23, 1992) Commented [u81]: QUERY: incomplete citation

REQUISITES:

1. It must be B4 trial (cf., PpPeople of the .Philippines v. Martin

Villarama); Commented [u82]: QUERY: incomplete citation

2. The prosecutor and the offended party must consent except if

the offended party fails to appear during arraignment
DESPITE NOTICE in which case the consent of the
prosecutor alone is sufficient;

3. The plea of guilt must be to a lesser offense necessarily

included in the offense charged.
 113

PpPeople of the .Philippines vs. Martin Villarama

June 23, 1992 Commented [u83]: QUERY: incomplete citation

In the case at bar, the private respondent (accused) moved to plead guilty
to a lesser offense after the prosecution had already rested its case. In such
situation, jurisprudence has provided the trial court and the Office of the Prosecutor
with a yardstick within which their discretion may be properly exercised. Thus, in
People v. Kayanan (L-39355, May 31, 1978, 83 SCRA 437, 450), We held that the
rules allow such a Plea only when the prosecution does not have sufficient
evidence to establish the guilt of the crime charged. In his concurring opinion in
People v. Parohinog (G.R. No. L-47462, February 28, 1980, 96 SCRA 373, 377),
then Justice Antonio Barredo explained clearly and tersely the rationale or the law:

". . . (A)fter the prosecution had already rested, the only basis
on which the fiscal and the court could rightfully act in allowing the
appellant to change his former plea of not guilty to murder to guilty to
the lesser crime of homicide could be nothing more nothing less than
the evidence already in the record. The reason for this being that
Section 4 of Rule 118 (now Section 2, Rule 116) under which a plea
for a lesser offense is allowed was not and could not have been
intended as a procedure for compromise, much less bargaining."

“necessarily included”

UNDER THE 1985 RULES

“regardless of whether or not it is necessarily included in the crime charged, or is

cognizable by a court of lesser jurisdiction than the trial court”

Theoretically, under the 1985 Rules, an accused charged with serious

physical injuries could plead guilty to jaywalking.

This produced too much confusion and the Supreme Court apparently
decided to go back to the language of the 1964.

Thus, the rule under the Revised Rules of Criminal Procedure now
require that the plea be made to an offense that is necessarily included in the
offense charged.

Can a person charged with murder plead guilty to attempted homicide?

Panfilo Amatan vs. Vicente Aujero Sept. 27, 1995 Commented [u84]: QUERY: incomplete citation

“Section 2, Rule 116 of the 1985 Revised Rules of Criminal Procedure, as

amended, allows the accused in a criminal case to plead guilty "to a lesser offense
regardless of whether or not it is necessarily included in the crime charged." The
fact of death of the victim for which the accused Rodrigo Umpad was criminally
liable, cannot by simple logic and plain common sense be reconciled with the plea
of guilty to the lower offense of attempted homicide. The crime of homicide as
defined in Article 249 of the Revised Penal Code necessarily produces death,
attempted homicide does not. Concededly, hiatus in the law exists in the case
before us, which could either lead to a misapprehension of Section 2 of Rule 116
or to outright confusion. Such a result was itself recognized by the Deputy Court
Administrator when he recommended an amendment to the provision in his
Memorandum”.
 114

PLEA OF GUILT TO A CAPITAL OFFENSE (Sec. 3, Rule 116)

Despite a plea of guilt to a capital offense, the Court MUST require the
prosecution to present evidence to prove the guilt of the accused and to determine
the precise degree of culpability.

People v. Joseph Lakindanum G.R. No. 127123. March 10, 1999.

People v. Dayot, 187 SCRA 637 reiterated in People v. Jonathan Besonia
G.R. Nos. 151284-85, February 5, 2004 and People v. Joselito A. Lopit
G.R. No. 177742, December 17, 2008.

The rule is that where the accused desires to plead guilty to a capital
offense, the court is enjoined to observe the following:

1. It must conduct a searching inquiry into the voluntariness and full

comprehension of the consequences of his plea;

2. The court must require the prosecution to present evidence to prove the
guilt of the accused and the precise degree of his culpability; and

3. The court must ask the accused if he desires to present evidence in his
behalf and allow him to do so if he desires.

Guidelines on what is covered by the “searching inquiry” particularly in

relation to cases punishable by death.

People v. Jonathan Besonia,

G.R. Nos. 151284-85, February 5, 2004.

“A searching inquiry must focus on the voluntariness of the plea and the full
comprehension by the accused of the consequences of the plea so that the plea
of guilty can truly be said to be based on a free and informed judgment. While there
can be no hard and fast rule as to how a judge may conduct a searching inquiry,
we declared in People v. Aranzado (418 Phil. 125 [2001]) citing a plethora of cases,
that it would be well for the court to do the following:

(1) Ascertain from the accused himself (a) how he was brought into the
custody of the law; (b) whether he had the assistance of a competent
counsel during the custodial and preliminary investigations; and (c)
under what conditions he was detained and interrogated during the
investigations. These the court shall do in order to rule out the
possibility that the accused has been coerced or placed under a state
of duress by actual threats of physical harm coming from malevolent
or avenging quarters.

(2) Ask the defense counsel a series of questions as to whether he has

conferred with, and completely explained to, the accused the
meaning and consequences of a plea of guilty.

(3) Elicit information about the personality profile of the accused, such
as his age, socio-economic status, and educational background
which may serve as a trustworthy index of his capacity to give a free
and informed plea of guilty.
 115

(4) Inform the accused the exact length of imprisonment or nature of the
penalty under the law and the certainty that he will serve such
sentence. Not infrequently indeed an accused pleads guilty in the
hope of a lenient treatment or upon bad advice or because of
promises of the authorities or parties of a lighter penalty should he
admit guilt or express remorse. It is the duty of the judge to see to it
that the accused does not labor under these mistaken impressions.

(5) Require the accused to fully narrate the incident that spawned the
charges against him or make him reenact the manner in which he
perpetrated the crime, or cause him to supply missing details of
significance.

Moreover, in some cases, we ruled that the trial court should also explain
to the accused the essential elements of the crime charged, as well as the penalty
and civil liabilities.”

PpPeople of the .Philippines vs. Paulino Sevilleno March 29, 1999. Commented [u85]: QUERY: incomplete citation?

Facts:
After the accused pleaded guilty to rape with homicide, the judge asked
him only two questions, First, “Do you understand your plea of guilt?” and second
“Do you know that your plea of guilt could bring death penalty?”

Held:
“Only a clear, definite and unconditional plea of guilty by the accused must
be accepted by trial courts. There is no such rule which provides that simply
because the accused pleaded guilty to the charge that his conviction should
automatically follow. A judge should always be an embodiment of competence. As
an administrator of justice, it is imperative that the trial judge carry out his duties
ably and competently so as not to erode public confidence in the judiciary.”

The judge was found to have committed grave abuse of discretion.

Plea of guilty to non-capital offense (Sec. 4) Commented [u86]: QUERY: Rule?

Reception of Evidence is DISCRETIONARY

Please take note of the exceptional case of:

People v. Mendoza,
231 SCRA 264.

Facts:
Accused pleaded guilty to robbery but the court required presentation of
evidence. When the prosecution failed to present sufficient evidence, the court
acquitted the accused.

Was the procedure proper?

Held:
While the court was correct in acquitting the accused, the proper procedure
should have been to consider the plea of guilt withdrawn and a plea of not guilty
 116

entered before acquitting the accused to avoid the absurd situation of an acquittal
when the plea was guilty.

Withdrawal of improvident plea of guilty. (Sec. 5, Rule 116)

At any time before the judgment of conviction becomes final, the court may
permit an improvident plea of guilty to be withdrawn and be substituted by a plea
of not guilty.

Duty of court to inform accused of his right to counsel. (Sec. 6, Rule 116)

Counsel De Parte – engaged by the accused himself.

Counsel De Officio – appointed by the court to defend the accused.

What are the steps that a court must take to properly inform the accused of
his right to counsel?

PpPeople of the .Philippines v. Holgado, Commented [u87]: QUERY: People?

85 Phil. 752

(1) It must inform the defendant that it is his right to have attorney before
being arraigned;

(2) After giving him such information the court must ask him if he desires
the aid of an attorney;

(3) If he desires and is unable to employ attorney, the court must assign
attorney de oficio to defend him; and

(4) if the accused desires to procure an attorney of his own the court
must grant him a reasonable time therefor.

The right of an accused to a counsel de parte is not absolute

PpPeople of the .Philippines v. Mario Serzo, Jr., June 20, 1997 Commented [u88]: QUERY: incomplete citation?

“Accordingly, an accused may exercise his right to counsel by electing to

be represented either by a court-appointed lawyer or by one of his own choice.
While his right to be represented by counsel is immutable, his option to secure the
services of counsel de parte, however, is not absolute. The court is obliged to
balance the privilege to retain a counsel of choice against the state's and the
offended party's equally important right to speedy and adequate justice. Thus, the
court may restrict the accused's option to retain a counsel de parte if the accused
insists on an attorney he cannot afford, or the chosen counsel is not a member of
the bar, or the attorney declines to represent the accused for a valid reason, e.g.,
conflict of interest and the like.”

Bill of particulars

The accused may, before arraignment, move for a bill of particulars to

enable him properly to plead and prepare for trial. The motion shall specify the
 117

alleged defects of the complaint or information and the details desired. (Sec.9,
Rule 116)

A Bill of Particulars is one of the Modes of Discovery.

The accused is basically asking the Court to Order the the prosecution to
set forth the details in vague portions of a Complaint or an Information.

Cinco v. Sandiganbayan 202 SCRA 726.

Webb v. De Leon, et al., 247 SCRA 652.

The remedy of a Bill of Particulars is not available in a preliminary

investigation.

Production or inspection of material evidence in possession of prosecution.

Procedure:

There must be a motion of the accused showing good cause and

with notice to the parties, the court, in order to prevent surprise,
suppression, or alteration.

Coverage:

The court may order the prosecution to produce and permit the
inspection and copying or photographing of any written statement given by
the complainant and other witnesses in any investigation of the offense
conducted by the prosecution or other investigating officers, as well as any
designated documents, papers, books, accounts, letters, photographs,
object, or tangible things not otherwise privileged, which constitute or
contain evidence material to any matter involved in the case and which are
in the possession or under the control of the prosecution, police, or other
law investigating agencies.

Purpose:

The purpose of this remedy is to prevent surprise, suppression, or

alteration of evidence.

When may the arraignment be suspended? (Sec. 11, Rule 116)

(a) The accused appears to be suffering from an unsound mental condition

which effectively renders him unable to fully understand the charge against
him and to plead intelligently thereto. In such case, the court shall order his
mental examination and, if necessary, his confinement for such purpose;

(b) There exists a prejudicial question; and

(c) 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. (12a)
 118

Effects of insanity:

a. Time of Commission Exempting (Art. 12, RPC)

b. Time of Arraignment Suspension of Arraignment (Sec. 11,
Rule 116)
c. Time of Trial Suspension of Trial ( Commented [u89]: QUERY: missing citation?
d. Serving Sentence Suspension of Execution of Sentence
(Art. 79 RPC)

RULE 117 - MOTION TO QUASH

When must a motion to quash be filed:

BEFORE ARRAIGNMENT because generally, the arraignment of the

accused will operate as a waiver of the defects in the information or preliminary
investigation.

Is the movant in a motion to quash limited to what is stated in the

information?

General Rule:

In resolving the motion to quash a criminal Complaint or Information, the

facts alleged in the complaint or information should be taken as they are.

Exception:

However, the following may be considered in a motion to quash:

a) facts showing the extinction of criminal liability;

b) double jeopardy; and

c) facts that have been admitted or are not denied by the prosecution.
(Edgardo Lopez v. Sandiganbayan October, 13, 1995)

People v. Alagao 16 SCRA 879.

Jose Garcia v. Court of Appeals
January 27, 1997 Commented [u90]: QUERY: incomplete citation?

“The petitioner's contention that a motion to quash cannot go beyond

the information in Criminal Case No. Q-92-27272 which states that the
crime was discovered in 1989, is palpably unmeritorious. Even People v.
Alagao, 24 which he cites, mentions the exceptions to the rule as provided
in paragraphs (f) and (h) of Section 2, and Sections 4 and 5 of the old Rule
117 viz., (a) extinction of criminal liability, and (k) double jeopardy. His
additional claim that the exception of extinction can no longer be raised due
to the implied repeal of the former Section 4, 25 Rule 117 of the Rules of
 119

Court occasioned by its non-reproduction after its revision, is equally without

merit.”

“It is clear from this Section that a motion to quash may be based on
factual and legal grounds, and since extinction of criminal liability and
double jeopardy are retained as among the grounds for a motion to quash
in Section 3 of the new Rule 117, it necessarily follows that facts outside the
information itself may be introduced to prove such grounds.”

“The court shall consider no ground other than those stated in the motion,
except lack of jurisdiction over the offense charged.”

This is because jurisdiction over the subject matter of the case IS

CONFERRED BY LAW and CANNOT BE WAIVED.

Can the judge initiate the consideration of a ground for quashal?

PpPeople of the .Philippines v. David G. Nitafan, Feb. 1, 1999 Commented [u91]: QUERY: pls. provide GR or SCRA

“It is also clear from Section 1 that the right to file a motion to quash belongs
only to the accused. There is nothing in the rules which authorizes the court or
judge to motu proprio initiate a motion to quash if no such motion was filed by the
accused. A motion contemplates an initial action originating from the accused. It is
the latter who is in the best position to know on what ground/s he will based his
objection to the information. Otherwise, if the judge initiates the motion to quash,
then he is not only pre-judging the case of the prosecution but also takes side with
the accused. This would violate the right to a hearing before an independent and
impartial tribunal. Such independence and impartiality cannot be expected from a
magistrate, such as herein respondent judge, who in his show cause orders, orders
dismissing the charges and order denying the motions for reconsideration stated
and even expounded in a lengthy disquisition with citation of authorities, the
grounds and justifications to support his action. Certainly, in compliance with the
orders, the prosecution has no choice but to present arguments contradicting that
of respondent judge. Obviously, however, it cannot be expected from respondent
judge to overturn the reasons he relied upon in his different orders without
contradicting himself. To allow a judge to initiate such motion even under the guise
of a show cause order would result in a situation where a magistrate who is
supposed to be neutral, in effect, acts as counsel for the accused and judge as
well. A combination of these two personalities in one person is violative of due
process which is a fundamental right not only of the accused but also of the
prosecution.”

Grounds for a Motion to quash:

(a) That the facts charged do not constitute an offense;

(b) That the court trying the case has no jurisdiction over the offense charged;
(c) That the court trying the case has no jurisdiction over the person of the
accused;
(d) That the officer who filed the information had no authority to do so;
(e) That it does not conform substantially to the prescribed form;
(f) That more than one offense is charged except when a single punishment
for various offenses is prescribed by law;
(g) That the criminal action or liability has been extinguished;
(h) That it contains averments which, if true, would constitute a legal excuse or
justification; and
 120

(i) That the accused has been previously convicted or acquitted of the offense
charged, or the case against him was dismissed or otherwise terminated
without his express consent. (3a)

(a) That the facts charged do not constitute an offense;

This ground simply means that the facts as alleged in the complaint or
information do not charge an offense.

In other words, there is no law penalizing the acts stated in the complaint or
information. NULLUM CRIMEN NULLE POENA SINE LEGE

Example: “Than on or about the evening of September 12, 2001, X went

inside the premises of the Hallelujah Massage Parlor and went out one hour later
with a big smile on his face.

Contrary to law”

These facts do not constitute an offense.

People vs. Pedro Flores

December 27, 2002 Commented [u92]: QUERY: incomplete citation

The Information:

“That on the 28th day of December 1996, in the evening at Sitio Buenlag,
Brgy. Nancamaliran West, Municipality of Urdaneta, Province of Pangasinan,
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, with deliberate intent and by means of force and intimidation, did then
and there, willfully, unlawfully, criminally and feloniously sexually abuse the herein
complaining witness FILIPINA FLORES, an 11 years old and daughter of the
herein accused with the use of sharp pointed bladed weapon and all against her
will.”

Held:

The case at bar, however, is not one of variance between allegation and
proof. The recital of facts in the criminal complaints simply does not properly
charge rape, "sexual abuse" not being an essential element or ingredient thereof.
Neither can accused-appellant be convicted of acts of lasciviousness or of
any offense for that matter under our penal laws. It is settled that what
characterizes the charge is the actual recital of facts in the complaint or
information. For every crime is made up of certain acts and intent which must be
set forth in the complaint or information with reasonable particularity of time, place,
names (plaintiff and defendant), and circumstances. In other words, the complaint
must contain a specific allegation of every fact and circumstance necessary to
constitute the crime charged, the accused being presumed to have no independent
knowledge of the facts that constitute the offense.

An example of an Information that SEEMS TO but actually FAILS TO CHARGE AN

OFFENSE

PEOPLE OF THE PHILIPPINES vs. BERNABE PANGILINAN

G.R. No. 183090, November 14, 2011
 121

On the charge for Sexual Abuse:

The Information charging the accused with Sexual Abuse stated thus:

That on or about 1995 up to about June 2001, at Barangay Apsayan, Municipality

of Gerona, Province of Tarlac, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused with lewd design, did then and there
willfully, unlawfully and criminally commit acts of lasciviousness upon the person
of AAA, a minor subjected to sexual abuse.

That accused is the stepfather of AAA, who was born on January 29, 1988.

Issue: Does the said Information charge an offense?

HELD: Under Section 8, Rule 110 of the Rules of Criminal Procedure, it provides:

Sec. 8. Designation of the offense. — The complaint or information shall state the
designation of the offense given by the statute, aver the acts or omissions constituting the
offense, and specify its qualifying and aggravating circumstances. If there is no
designation of the offense, reference shall be made to the section or subsection of the
statute punishing it.

A reading of the allegations in the above-quoted Information would show the

insufficiency of the averments of the acts alleged to have been committed by
appellant. It does not contain the essential facts constituting the offense, but a
statement of a conclusion of law. Thus, appellant cannot be convicted of sexual abuse
under such Information.

(b) That the court trying the case has no jurisdiction over the offense
charged;

This refers to lack of jurisdiction over the

1) person of the accused;

2) subject matter of the case; or
3) territory.

(d) That the officer who filed the information had no authority to do so;

Can the lack of authority on the part of the officer signing the Information
be cured by silence, acquiescence or express consent?

Cudia v. CA
G.R. No. 110315, January 16, 1998.

City Prosecutor of Angeles City filed an Information for Illegal Possession

of Firearms committed in Mabalacat, Pampanga.

Held:

If the person who signed the Information is not authorized to do so, the
entire proceedings will be null and void even if the accused participated actively in
the proceedings.

(e) That it does not conform substantially to the prescribed form;

Refer to Rule 110 on the essential requisites of a sufficient complaint or

information. If there is no compliance with these requisites, this is the proper
ground for a motion to quash.
 122

(f) That more than one offense is charged except when a single
punishment for various offenses is prescribed by law;

This refers to DUPLICITOUS COMPLAINTS OR INFORMATIONS. Cf.,

Rule110, Section 13.

(g) That the criminal action or liability has been extinguished;

How is criminal liability extinguished?

ARTICLE 89. How criminal liability is totally extinguished. — Criminal

liability is totally extinguished:

1. By the death of the convict, as to the personal penalties; and as to pecuniary

penalties, liability therefor is extinguished only when the death of the
offender occurs before final judgment.
2. By service of the sentence.
3. By amnesty, which completely extinguishes the penalty and all its effects.
4. By absolute pardon.
5. By prescription of the crime.
6. By prescription of the penalty.
7. By the marriage of the offended woman, as provided in Article 344 of this
Code.

(h) That it contains averments which, if true, would constitute a legal

excuse or justification; and

In relation to Libel

Danguilan-Vitug v. CA,
232 SCRA 460.

Where the complaint or information itself alleged that the averred libelous
material was privileged communication, then this would constitute a legal excuse
or justification.

(i) That the accused has been previously convicted or acquitted of the
offense charged, or the case against him was dismissed or otherwise
terminated without his express consent. (3a)

double jeopardy

PROCEDURE IF GROUND IS CURABLE BY AMENDMENT (Sec. 4, Rule 117)

1. If the motion to quash is based on an alleged defect of the Complaint

or Information which can be cured by amendment, the court shall order that an
amendment be made. (4a)

2. If it is based on the ground that the facts charged do not constitute

an offense, the prosecution shall be given by the court an opportunity to correct
the defect by amendment. The motion shall be granted if the prosecution fails to
make the amendment, or the complaint or information still suffers from the same
defect despite the amendment. (n)

What is the effect if a motion to quash is sustained? (Sec. 5, Rule 117)

 123

If the motion to quash is sustained, the court may order that another
complaint or information be filed except if it was sustained on the grounds of
double jeopardy or extinction of criminal liability. In such case, the accused, if
in custody, shall not be discharged unless admitted to bail.

If not, or if the prosecutor fails to comply with the order of the court within
the time allowed, the accused, if in custody, shall be discharged unless he is also
in custody for another charge.

Note:
The quashal of an Information will not prevent the refilling of the same case
unless it was quashed due to double jeopardy or extinction of the criminal liability.
(Sec. 6, Rule 117)

DOUBLE JEOPARDY (Sec. 7 Rule 117)

BASIS: Section 21 of Article III of the 1987 Constitution

“Section 21. No person shall be twice put in jeopardy of punishment for the
same offense. If an act is punished by a law and an ordinance, conviction or
acquittal under either shall constitute a bar to another prosecution for the same
act.”

1st Sentence SAME OFFENSE

No person shall be twice put in jeopardy of punishment for the same

offense.

2nd Sentence SAME ACT

If an act is punished by a law and an ordinance, conviction or acquittal

under either shall constitute a bar to another prosecution for the same
act.”

RULE:

Double jeopardy will bar a second prosecution for the SAME ACT only if it
is punished by a national law AND a local ordinance.

Example:
B.P. Blg. 22 and ESTAFA can co-exist because both are punished by
national laws. Nierra v. Dacuycuy ,181 S 1 Commented [u93]: QUERY: SCRA?

Where a bank officer borrows money from the bank where there is a failure
to observe and comply with procedural, reportorial or ceiling requirements
prescribed by law in the grant of a loan to a director, officer, stockholder and
other related interests in the bank and is also charged with estafa through
falsification of commercial documents can he still be charged with a criminal
violation of the General Banking Act for violation of DOSRI rules?

Hilario Soriano, et al. v. People of the Philippines,

G.R. Nos. 159517-18, June 30, 2009.
 124

Jurisprudence teems with pronouncements that a single act or incident

might offend two or more entirely distinct and unrelated provisions of law, thus
justifying the filing of several charges against the accused.

As aptly pointed out by the BSP in its memorandum, there are differences
between the two offenses. A DOSRI violation consists in the failure to observe and
comply with procedural, reportorial or ceiling requirements prescribed by law in the
grant of a loan to a director, officer, stockholder and other related interests in the
bank, i.e., lack of written approval of the majority of the directors of the bank and
failure to enter such approval into corporate records and to transmit a copy thereof
to the BSP supervising department. The elements of abuse of confidence, deceit,
fraud or false pretenses, and damage, which are essential to the prosecution for
estafa, are not elements of a DOSRI violation. The filing of several charges against
Soriano was, therefore, proper.

Elements of Double Jeopardy

People v. Leviste, 255 SCRA 238,

People v. Tampal, 244 SCRA 202.

(a) the first jeopardy must have attached prior to the second;
(b) the first jeopardy must have been validly terminated; and
(c) the second jeopardy must be for the same offense as that in the first
or the second offense includes or is necessarily included in the
offense charged in the first information, or is an attempt to commit
the same or is a frustration thereof.

When does the first jeopardy attach?

Cudia v. CA, G.R. No. 110315, January 16, 1998;

Guerrero v. CA, 257 SCRA 703

(1) upon a valid indictment;

(2) before a competent court;
(3) after arraignment;
(4) when a valid plea has been entered; and
(5) when the defendant was convicted or acquitted, or the case was
dismissed or otherwise terminated without the express consent of
the accused.

Will the pendency of another criminal case for the same offense bar
subsequent prosecution by reason of double jeopardy?

This is already clear under the new rules because the phrase “previously
convicted or in jeopardy of being convicted” under the old Section 3 has been
amended to read “previously convicted or acquitted of the offense charged.”

The change was based on the ruling in PpPeople of the .Philippines vs.
Pineda ( G.R. No. 44205, 16 February 1993) which overturned the ruling in cases Commented [u94]: QUERY: incomplete citation
like PpPeople of the .Philippines v. City Court of Manila 121 SCRA 627 where a Formatted: Font: Not Bold
contrary rule was espoused.
Formatted: Font: Not Bold
Commented [u95]: QUERY: incomplete citation/SCRA
Later reiterations:
 125

PpPeople of the .Philippines v. David G. Nitafan,

G.R. Nos. 107964-66. February 1, 1999Feb. 1, 1999 Commented [u96]: QUERY: incomplete citation
Other pending cases will not amount to double jeopardy.

Binay vs. Sandiganbayan Oct. 1, 1999. Commented [u97]: QUERY: incomplete citation
G.R. Nos. 120681-83, October 1, 1999.

The filing of the Information in the Sandiganbayan did not put petitioners in
double jeopardy even though they had already pleaded "not guilty" to the
information earlier filed in the RTC. The first jeopardy never attached in the first
place, the RTC not being a court of competent jurisdiction. There can be no double
jeopardy where the accused entered as plea in a court that had no jurisdiction. The
remedy of petitioners, therefore, was not to move for the quashal of the information
pending in the Sandiganbayan on the ground of double jeopardy. Their remedy
was to move for the quashal of the information pending in the RTC on the ground
of lack of jurisdiction.

Will a previous conviction for Reckless Imprudence Resulting to Slight Physical

Injuries BAR a subsequent prosecution for Reckless Imprudence Resulting to
Homicide and Damage to Property arising from the same vehicular mishap?

YES- double jeopardy will set in because it is the Reckless Imprudence that is the
crime not the consequences thereof

Jason A. Ivler vs. Maria Rowena Modesto-San Pedro, Et Al

G.R. No. 172716 November 17, 2010

The two charges against petitioner, arising from the same facts, were prosecuted
under the same provision of the Revised Penal Code, as amended, namely, Article 365
defining and penalizing quasi-offenses.

Indeed, the notion that quasi-offenses, whether reckless or simple, are distinct
species of crime, separately defined and penalized under the framework of our penal laws,
is nothing new. As early as the middle of the last century, we already sought to bring clarity
to this field by rejecting in Quizon v. Justice of the Peace of Pampanga the
proposition that "reckless imprudence is not a crime in itself but simply a way of
committing it . . ." on three points of analysis: (1) the object of punishment in quasi-
crimes (as opposed to intentional crimes); (2) the legislative intent to treat quasi-crimes as
distinct offenses (as opposed to subsuming them under the mitigating circumstance of
minimal intent) and; (3) the different penalty structures for quasi-crimes and intentional
crimes

Issue: Can an Information for Bigamy be quashed on the basis of the subsequent
declaration of nullity of a marriage AFTER the second marriage BUT BEFORE the
filing of the filing of the Bigamy case?

People vs. Edgardo V. Odtuhan

G.R. No. 191566. July 17, 2013

HELD: The Family Code has settled once and for all the conflicting jurisprudence on the
matter. A declaration of the absolute nullity of a marriage is now explicitly required either
as a cause of action or a ground for defense. It has been held in a number of cases that
a judicial declaration of nullity is required before a valid subsequent marriage can be
contracted; or else, what transpires is a bigamous marriage, reprehensible and immoral.
 126

XXX

To conclude, the issue on the declaration of nullity of the marriage between

petitioner and respondent only after the latter contracted the subsequent marriage
is, therefore, immaterial for the purpose of establishing that the facts alleged in the
information for Bigamy does not constitute an offense. Following the same
rationale, neither may such defense be interposed by the respondent in his motion
to quash by way of exception to the established rule that facts contrary to the
allegations in the information are matters of defense which may be raised only
during the presentation of evidence.

An examination of the information filed against respondent, however, shows the

sufficiency of the allegations therein to constitute the crime of bigamy as it contained all
the elements of the crime as provided for in Article 349 of the Revised Penal Code, to wit:

(1)That the offender has been legally married;

(2)That the first marriage has not been legally dissolved or, in case his or her spouse is
absent, the absent spouse could not yet be presumed dead according to the Civil Code;

(3)That he contracts a second or subsequent marriage; and

(4)That the second or subsequent marriage has all the essential requisites for validity.

EXCEPTIONS UNDER SECTION 7

(a) the graver offense developed due to supervening facts arising

from the same act or omission constituting the former charge;
(e.g., Teehankee)

(b) the facts constituting the graver charge became known or were
discovered only after a plea was entered in the former complaint
or information; or

Note: Under the 1985 RULES “after filing of the information” NEW
RULES “after a plea was entered.”

why? before plea there can be, as yet, no double jeopardy.

(c) the plea of guilty to the lesser offense was made without the
consent of the prosecutor and of the offended party except as
provided in section 1(f) of Rule 116.

Section 1(f) of Rule 116- If the offended party fails to show up during the Commented [u98]: QUERY: incomplete provision?
arraignment, there can be a plea to a lesser offense even if only the prosecutor Pls. verify
agrees.

DISMISSAL WAS WITHOUT THE CONSENT OF THE ACCUSED

If the accused invokes his right to a speedy trial and the case is dismissed,
can the case be refiled? NO, it cannot because DOUBLE JEOPARDY WILL
ATTACH.
 127

If the accused moves for a reinvestigation and, thereafter, the prosecutor

moves for the dismissal of the case, will double jeopardy lie to bar
subsequent prosecution?

People v. Vergara,
221 SCRA 960.

Filing a Motion for Reinvestigation does not amount to express consent to

the dismissal of the case. Express consent means direct and unequivocal consent
requiring no inference or implication.

If the acquittal was void, double jeopardy will not lie (PpPeople of the Commented [u99]: QUERY: People?
Philippines. v. Bagul
131 SCRA 296 Gorion v. RTC of Cebu) Commented [u100]: QUERY: replace with “SCRA”?
213 SCRA 138 Commented [u101]: QUERY: incomplete case title

TEST TO DETERMINE IDENTITY OF OFFENSES

Andres S. Suero v. People of the Philippines,

G.R. No. 156408, January 31, 2005.

“The test for the third element is whether one offense is identical with the
other or is an attempt to commit it or a frustration thereof; or whether one offense
necessarily includes or is necessarily included in the other, as provided in Section
7 of Rule 117 of the Rules of Court.”

Can double jeopardy operate to bar a prosecution for falsification of public

documents when there is already a prior acquittal in a case for violation of
Section 3(e) of R.A. No. 3019?

Andres S. Suero v. People of the Philippines,

G.R. No. 156408, January 31, 2005.

“Indeed, the crime under Section 3(e) of RA 3019 shares two common
elements with the felony under Article 171 of the Revised Penal Code — that the
offender is a public officer and that the act is related to the officer's public position.
However, the latter offense is not necessarily inclusive of the former. The essential
elements of each are not included among or do not form part of those enumerated
in the former. For there to be double jeopardy, the elements of one offense should
— like the ribs of an umbrella — ideally encompass those of the other. The
elements of a violation of Section 3(e) of RA 3019 fall outside the realm of those
of falsification of a public document and vice versa. At most, the two offenses may
be considered as two conjoined umbrellas with one or two common ribs. Clearly,
one offense does not include the other.”

Provisional dismissal. (NEW, Sec. 8, Rule 117) Commented [u102]: QUERY: incomplete citation:
“NEW”?
A case shall not be provisionally dismissed except with the express consent
of the accused and with notice to the offended party.

The provisional dismissal of offenses punishable by imprisonment not

exceeding six (6) years or a fine of any amount, or both, shall become permanent
one (1) year after issuance of the order without the case having been revived. With
respect to offenses punishable by imprisonment of more than six (6) years, their
provisional dismissal shall become permanent two (2) years after issuance of the
order without the case having been revived. (n)
 128

AN INTERESTING CASE ON PROVISIONAL DISMISSAL

WILLIAM CO a.k.a. XU QUING HE, petitioner, vs. NEW PROSPERITY PLASTIC

PRODUCTS, represented by ELIZABETH UY
G.R. No. 183994, June 30, 2014

In a B.P. 22 case, upon motion of the accused, in the absence of the private
complainant and private prosecutor, the cases were ordered provisionally
dismissed in open court on June 9, 2003 pursuant to Sec. 8, Rule 117.

The order was received by the private complainant on July 2, 2003 and by the private
prosecutor on July 3, 2003.

A motion to revive the case was filed on July 2, 2004 and was granted by the MTC
on October 14, 2004.

ISSUES:

Co argues that the June 9, 2003 Order provisionally dismissing Criminal Case Nos.
206655-59, 206661-77 and 209634 should be considered as a final dismissal on the
ground that his right to speedy trial was denied. He reasons out that from his arraignment
on March 4, 2002 until the initial trial on June 9, 2003, there was already a "vexatious,
capricious and oppressive" delay, which is in violation of Section 6 of Republic Act 8493
(Speedy Trial Act of 1998) 24 and Section 2, Paragraph 2, Rule 119 of the Revised Rules
of Criminal Procedure 25 mandating that the entire trial period should not exceed 180 days
from the first day of trial. As the dismissal is deemed final, Co contends that the MeTC lost
its jurisdiction over the cases and cannot reacquire jurisdiction over the same based on a
mere motion because its revival would already put him in double jeopardy.

Assuming that the criminal cases were only provisionally dismissed, Co further
posits that such dismissal became permanent one year after the issuance of the
June 9, 2003 Order, not after notice to the offended party. He also insists that both
the filing of the motion to revive and the trial court's issuance of the order granting
the revival must be within the one-year period. Lastly, even assuming that the one-
year period to revive the criminal cases started on July 2, 2003 when Uy received the June
9, 2003 Order, Co asserts that the motion was filed one day late since year 2004 was a
leap year.

HELD:

First, Co's charge that his right to a speedy trial was violated is baseless. Obviously, he
failed to show any evidence that the alleged "vexatious, capricious and oppressive" delay
in the trial was attended with malice or that the same was made without good cause or
justifiable motive on the part of the prosecution. This Court has emphasized that "'speedy
trial' is a relative term and necessarily a flexible concept." In determining whether the
accused's right to speedy trial was violated, the delay should be considered in view of the
entirety of the proceedings. The factors to balance are the following: (a) duration of the
delay; (b) reason therefor; (c) assertion of the right or failure to assert it; and (d) prejudice
caused by such delay. Surely, mere mathematical reckoning of the time involved would
not suffice as the realities of everyday life must be regarded in judicial proceedings which,
after all, do not exist in a vacuum, and that particular regard must be given to the facts
and circumstances peculiar to each case. 29 "While the Court recognizes the accused's
right to speedy trial and adheres to a policy of speedy administration of justice, we cannot
deprive the State of a reasonable opportunity to fairly prosecute criminals. Unjustified
postponements which prolong the trial for an unreasonable length of time are what offend
the right of the accused to speedy trial." AEIDTc

Second, Co is burdened to establish the essential requisites of the first paragraph of

Section 8, Rule 117 of the Rules, which are conditions sine qua non to the application of
 129

the time-bar in the second paragraph thereof, to wit: (1) the prosecution with the express
conformity of the accused or the accused moves for a provisional (sin perjuicio) dismissal
of the case; or both the prosecution and the accused move for a provisional dismissal of
the case; (2) the offended party is notified of the motion for a provisional dismissal of the
case; (3) the court issues an order granting the motion and dismissing the case
provisionally; and (4) the public prosecutor is served with a copy of the order of provisional
dismissal of the case. In this case, it is apparent from the records that there is no notice
of any motion for the provisional dismissal of Criminal Cases Nos. 206655-59, 206661-77
and 209634 or of the hearing thereon which was served on the private complainant at
least three days before said hearing as mandated by Section 4, Rule 15 of the Rules. The
fact is that it was only in open court that Co moved for provisional dismissal "considering
that, as per records, complainant had not shown any interest to pursue her complaint."
The importance of a prior notice to the offended party of a motion for provisional dismissal
is aptly explained in People v. Lacson:

. . . It must be borne in mind that in crimes involving private interests, the

new rule requires that the offended party or parties or the heirs of the
victims must be given adequate a priori notice of any motion for the
provisional dismissal of the criminal case. Such notice may be served on
the offended party or the heirs of the victim through the private
prosecutor, if there is one, or through the public prosecutor who in turn
must relay the notice to the offended party or the heirs of the victim to
enable them to confer with him before the hearing or appear in court
during the hearing. The proof of such service must be shown during the
hearing on the motion, otherwise, the requirement of the new rule will
become illusory. Such notice will enable the offended party or the heirs
of the victim the opportunity to seasonably and effectively comment on or
object to the motion on valid grounds, including: (a) the collusion between
the prosecution and the accused for the provisional dismissal of a
criminal case thereby depriving the State of its right to due process; (b)
attempts to make witnesses unavailable; or (c) the provisional dismissal
of the case with the consequent release of the accused from detention
would enable him to threaten and kill the offended party or the other
prosecution witnesses or flee from Philippine jurisdiction, provide
opportunity for the destruction or loss of the prosecution's physical and
other evidence and prejudice the rights of the offended party to recover
on the civil liability of the accused by his concealment or furtive
disposition of his property or the consequent lifting of the writ of
preliminary attachment against his property.

Third, there is evident want of jurisprudential support on Co's supposition that the
dismissal of the cases became permanent one year after the issuance of the June 9, 2003
Order and not after notice to the offended party. When the Rules states that the provisional
dismissal shall become permanent one year after the issuance of the order temporarily
dismissing the case, it should not be literally interpreted as such. Of course, there is a vital
need to satisfy the basic requirements of due process; thus, said in one case:

Although the second paragraph of the new rule states that the order
of dismissal shall become permanent one year after the issuance
thereof without the case having been revived, the provision should
be construed to mean that the order of dismissal shall become
permanent one year AFTER SERVICE OF THE ORDER OF
DISMISSAL ON THE PUBLIC PROSECUTOR WHO HAS CONTROL
OF THE PROSECUTION WITHOUT THE CRIMINAL CASE HAVING
BEEN REVIVED. The public prosecutor cannot be expected to
comply with the timeline unless he is served with a copy of the order
of dismissal.

We hasten to add though that if the offended party is represented by a private

counsel the better rule is that the reckoning period should commence to run from
the time such private counsel was actually notified of the order of provisional
dismissal. When a party is represented by a counsel, notices of all kinds emanating
 130

from the court should be sent to the latter at his/her given address. Section 2, Rule
13 of the Rules analogously provides that if any party has appeared by counsel,
service upon the former shall be made upon the latter.

Fourth, the contention that both the filing of the motion to revive the case and the
court order reviving it must be made prior to the expiration of the one-year period
is unsustainable. Such interpretation is not found in the Rules. Moreover, to permit
otherwise would definitely put the offended party at the mercy of the trial court, which may
wittingly or unwittingly not comply. Judicial notice must be taken of the fact that most, if
not all, of our trial court judges have to deal with clogged dockets in addition to their
administrative duties and functions. Hence, they could not be expected to act at all times
on all pending decisions, incidents, and related matters within the prescribed period of
time. It is likewise possible that some of them, motivated by ill-will or malice, may simply
exercise their whims and caprices in not issuing the order of revival on time.

Fifth, the fact that year 2004 was a leap year is inconsequential to determine the timeliness
of Uy's motion to revive the criminal cases. What is material instead is Co's categorical
admission that Uy is represented by a private counsel who only received a copy of the
June 9, 2003 Order on July 3, 2003. Therefore, the motion was not belatedly filed on July
2, 2004. Since the period for filing a motion to revive is reckoned from the private counsel's
receipt of the order of provisional dismissal, it necessarily follows that the reckoning period
for the permanent dismissal is likewise the private counsel's date of receipt of the order of
provisional dismissal. HEcTAI

And Sixth, granting for the sake of argument that this Court should take into account 2004
as a leap year and that the one-year period to revive the case should be reckoned from
the date of receipt of the order of provisional dismissal by Uy, We still hold that the motion
to revive the criminal cases against Co was timely filed. A year is equivalent to 365 days
regardless of whether it is a regular year or a leap year. Equally so, under the
Administrative Code of 1987, a year is composed of 12 calendar months. The number of
days is irrelevant. This was our ruling in Commissioner of Internal Revenue v. Primetown
Property Group, Inc., which was subsequently reiterated in Commissioner of Internal
Revenue v. Aichi Forging Company of Asia, Inc., thus:

. . . [In] 1987, EO 292 or the Administrative Code of 1987 was enacted.

Section 31, Chapter VIII, Book I thereof provides:

Sec. 31. Legal Periods. — "Year" shall be understood to be

twelve calendar months; "month" of thirty days, unless it refers
to a specific calendar month in which case it shall be computed
according to the number of days the specific month contains;
"day", to a day of twenty-four hours and; "night" from sunrise to
sunset. (emphasis supplied)

A calendar month is "a month designated in the calendar without regard

to the number of days it may contain." It is the "period of time running
from the beginning of a certain numbered day up to, but not including,
the corresponding numbered day of the next month, and if there is not
a sufficient number of days in the next month, then up to and including
the last day of that month." To illustrate, one calendar month from
December 31, 2007 will be from January 1, 2008 to January 31, 2008;
one calendar month from January 31, 2008 will be from February 1,
2008 until February 29, 2008.

Applying Section 31, Chapter VIII, Book I of the Administrative Code of 1987 to this case,
the one-year period reckoned from the time Uy received the order of dismissal on July 2,
2003 consisted of 12 calendar months, computed as follows:

1st calendar month July 3, 2003 to August 2, 2003

2nd calendar month August 3, 2003 to September 2, 2003
3rd calendar month September 3, 2003 to October 2, 2003
 131

4th calendar month October 3, 2003 to November 2, 2003

5th calendar month November 3, 2003 to December 2, 2003
6th calendar month December 3, 2003 to January 2, 2004
7th calendar month January 3, 2004 to February 2, 2004
8th calendar month February 3, 2004 to March 2, 2004
9th calendar month March 3, 2004 to April 2, 2004
10th calendar month April 3, 2004 to May 2, 2004
11th calendar month May 3, 2004 to June 2, 2004
12th calendar month June 3, 2004 to July 2, 2004

Formatted: Indent: Left: 0"

THE FAILURE TO RAISE A GROUND IN A MOTION TO QUASH OPERATES

AS A WAIVER OF THE GROUND EXCEPT THE FOLLOWING:

(a) That the facts charged do not constitute an offense;

(b) That the court trying the case has no jurisdiction over the offense charged;
(c) That the criminal action or liability has been extinguished;
(d) That the accused has been previously convicted or acquitted of the offense
charged, or the case against him was dismissed or otherwise terminated
without his express consent. (Sec. 9, Rule 117)

RULE 118 – PRE-TRIAL

PURPOSE OF PRE-TRIAL

Abubakar v. Abubakar,
G.R. No. 134622. October 22, 1999October 22, 1999. Commented [u103]: QUERY: incomplete citation/ title

That a pre-trial is indispensable in any civil or criminal action in this

jurisdiction is clearly laid out in Rules 18 and 118 of the Rules of Court. It is a
procedural device meant to limit the issues to be tackled and proved at the trial. A
less cluttered case environment means that there will be fewer points of contention
for the trial court to resolve. This would be in keeping with the mandate of the
Constitution according every person the right to a speedy disposition of their cases.
If the parties can agree on certain facts prior to trial — hence, the prefix "pre" —
the court can later concentrate on those which are seemingly irreconcilable. The
purpose of pre-trials is the simplification, abbreviation and expedition of the trial, if
not indeed its dispensation. The stipulations are perpetuated in a pre-trial order
which legally binds the parties to honor the same.

Pre-trial agreement. (Sec. 2) Formatted: Font: Bold

All agreements or admissions made or entered during the pre-trial

conference shall be reduced in writing and signed by the accused and counsel,
otherwise, they cannot be used against the accused. The agreements covering the
matters referred to in section 1 of this Rule shall be approved by the court. (from
Sec. 4, Cir. 38-98)

Is the approval by the court of the pre-trial agreement necessary for it to be

binding upon the parties?
 132

Bayas, et al. v. Sandiganbayan

G.R. Nos. 143689-91, November 12, 2002.

“[F]or a pretrial agreement to be binding on the accused, it must satisfy the

following conditions: (1) the agreement or admission must be in writing, and (2) it
must be signed by both the accused and their counsel. The court's approval,
mentioned in the last sentence of the above-quoted Section, is not needed
to make the stipulations binding on the parties. Such approval is necessary
merely to emphasize the supervision by the court over the case and to enable it to
control the flow of the proceedings.”

Cristeta Chua-Burce v. CA,

G.R. No. 109595, April 27, 2000.

Petitioner was arraigned and assisted by counsel de parte, entered a plea

of not guilty. While the trial of the criminal case was suspended, the trial of the civil
case continued. At the time of arraignment, the civil case was already submitted
for decision. Hence, during the pre-trial conference of the criminal case, the parties
agreed to adopt their respective evidence in the civil case as their respective
evidence in the criminal case. The trial court ordered the parties to submit their
written agreement pursuant to Section 4 of Rule 118 of the Rules of Court.
Thereafter, petitioner, duly assisted by her counsel, with the conforme of the public
prosecutor, entered into a pre-trial agreement.

The accused now assails the validity of the proceedings in the criminal case.

Held:
It was during pre-trial conference when the parties agreed to adopt their
respective evidence in the civil case to the criminal case. This is allowed under
Section 2(e) of Rule 118 of the Rules of Court 17 which provides that during pre-
trial conference, the parties shall consider "such other matters as will promote a
fair and expeditious trial." The parties, in compliance with Section 4 of Rule 118 ,
18 reduced to writing such agreement. Petitioner, her counsel, and the public Commented [u104]: QUERY: delete this?
prosecutor signed the agreement. Petitioner is bound by the pre-trial agreement,
and she cannot now belatedly disavow its contents.

The express admission of the accused during pre-trial that he is the father
of the complainant is inadmissible if he and his counsel did not sign the
Stipulation of Facts.

People v. Dionisio,
G.R. No. 142431, January 14, 2004.

“Moreover, the fact that appellant admitted that he is the father of Ginalyn
during the pre-trial, thus dispensing with the need to present evidence to prove the
same, will not justify the trial court's appreciation of the qualifying circumstance of
relationship. A perusal of the pre-trial order would readily show that the said
stipulation was not signed by the appellant and his counsel. Hence, it cannot be
used as evidence against him. Rule 118, Sec. 2 of the Revised Rules of Criminal
Procedure provides that "all agreements or admissions made or entered during
the pre-trial conference shall be reduced in writing and signed by the accused and
counsel, otherwise, they cannot be used against the accused." This requirement
is mandatory. Thus, the omission of the signature of the accused and his counsel,
as mandatorily required by the Rules, renders the Stipulation of Facts inadmissible
in evidence.”
 133

SEC. 3. Non-appearance at pre-trial conference. – If the counsel for the

accused or the prosecutor does not appear at the pre-trial conference and
does not offer an acceptable excuse for his lack of cooperation, the court
may impose proper sanctions or penalties. (Sec. 5, Cir. 38-98)

SEC. 4. Pre-trial order. – After the pre-trial conference, the court shall
issue an order reciting the actions taken, the facts stipulated, and evidence
marked. Such order shall bind the parties, limit the trial to matters not
disposed of, and control the course of the action during the trial, unless
modified by the court to prevent manifest injustice. (3)

RULE 119 – TRIAL

Formatted: Indent: First line: 1"

Trial is the time allotted by law for the parties to present their evidence
in accordance with the rules of procedure.

SECTION 1. Time to prepare for trial.– After a plea of not guilty is

entered, the accused shall have at least fifteen (15) days to prepare for trial.
The trial shall commence within thirty (30) days from receipt of the pre-trial
order. (Sec. 6, Cir. 38-98)

Under the old rule (1985 Rules) the time to prepare for trial was only
two days.

SEC. 2. Continuous trial until terminated; postponements. – Trial once

commenced shall continue from day to day as far as practicable until
terminated. It may be postponed for a reasonable period of time for good
cause. (2a)

The court shall, after consultation with the prosecutor and defense
counsel, set the case for continuous trail on a weekly or other short-term
trial calendar at the earliest possible time so as to ensure speedy trial. In no
case shall the entire trial period exceed one hundred eighty (180) days from
the first day of trial, except as otherwise authorized by the Supreme Court.
(Sec. 8, Cir. 38-98)

The time limitations provided under this section and the preceding
section shall not apply where special laws or circulars of the Supreme Court
provide for a shorter period of trial. (n)

The second and third paragraphs are new provisions that are taken from
the Speedy Trial Act and, more particularly, from Supreme Court Circular No. 38-
98
 134

What is important to remember here is to remember that the law now sets
or provides for a time limit of (180) days from the first day of trial, except as
otherwise authorized by the Supreme Court for the trial to be terminated.

Nota Bene:

Sections 3 to 10 ARE ALL NEW PROVISIONS LIFTED FROM THE

SPEEDY TRIAL ACT AND SC Circular No. 38-98 (REVIEW THEM!)

SEC. 9 IS VERY IMPORTANT

SEC. 9. Remedy where accused is not brought to trial within the time
limit. – If the accused is not brought to trial within the time limit required by
Section 1(g), Rule 116 and Section 1, as extended by Section 6 of this rule,
the information may be dismissed on motion of the accused on the ground
of denial of his right to speedy trial. The accused shall have the burden of
proving the motion but the prosecution shall have the burden of going
forward with the evidence to establish the exclusion of time under section 3
of this rule. The dismissal shall be subject to the rules on double jeopardy.

Section 1(g) Rule 116 – accused should be arraigned within 30 days from the
date the court acquires jurisdiction over his person
excluding the pendency of a motion to quash or for a
bill of particulars or other grounds for suspending
arraignment

Section 1 Rule 119 – trial should begin within 30 days from receipt of pre-
trial order. (Note: pre-trial should be conducted within
30 days from the date the court acquires jurisdiction
over the person of the accused – Section 1, Rule 118)

Extension under Sec. 6 – period from arraignment to trial is 80 days. (Note: This
is because over three years have already passed since
September 15, 1998)

Note: Failure of the accused to move for dismissal prior to trial shall
constitute a waiver of the right to dismiss under this section. (Sec. 14, Cir. 38-98)

Law on speedy trial not a bar to provision on speedy trial in the Constitution.
(Sec. 10, Rule 119)

No provision of law on speedy trial and no rule implementing the same

shall be interpreted as a bar to any charge of denial of the right to speedy
trial guaranteed by section 14(2), article III, of the 1987 Constitution. (Sec. 15,
Cir. 38-98)

What is the balancing test in applying the time limits imposed in the Speedy
Trial Act of 1998?
 135

Federico Miguel Olbes vs. Danilo A. Buemio, et al.,

G.R. No. 173319, December 4, 2009.

“The time limits set by the Speedy Trial Act of 1998 do not thus preclude
justifiable postponements and delays when so warranted by the situation. To the
Court, the reasons for the postponements and delays attendant to the present case
reflected above are not unreasonable. While the records indicate that neither
petitioner nor his counsel was notified of the resetting of the pre-trial to October
23, 2003, the same appears to have been occasioned by oversight or simple
negligence which, standing alone, does not prove fatal to the prosecution's case.
The faux pas was acknowledged and corrected when the MeTC recalled the arrest
warrant it had issued against petitioner under the mistaken belief that petitioner
had been duly notified of the October 23, 2003 pre-trial setting.

Reiterating the Court's pronouncement in Solar Team Entertainment, Inc. that

"speedy trial" is a relative and flexible term, Lumanlaw v. Peralta, Jr. summons the
courts to maintain a delicate balance between the demands of due process and
the strictures of speedy trial on the one hand, and the right of the State to prosecute
crimes and rid society of criminals on the other.

Applying the balancing test for determining whether an accused has been
denied his constitutional right to a speedy trial, or a speedy disposition of his case,
taking into account several factors such as the length and reason of the delay, the
accused's assertion or non-assertion of his right, and the prejudice to the accused
resulting from the delay, the Court does not find petitioner to have been unduly
and excessively prejudiced by the "delay" in the proceedings, especially given that
he had posted bail.”

INTERESTING CASE ON THE ORDER OF TRIAL (Section 11)

Section 11 (e) of Rule 119 provides:

“When the accused admits the act or omission charged in the complaint or
information but interposes a lawful defense, the order of trial may be
modified.”

Is this Mandatory or Discretionary?

People vs. Mario Marcial, et al.,

G.R. Nos. 152864-65, September 27, 2006.

Modifying the Order of Trial is within the sound discretion of the court.
Section 11(e) uses the phrase “the order of trial MAY be modified,” Section 7 of
R.A. No. 8493 (Speedy Trial Act) uses the phrase “MAY modify the order of trial”
and Section 3 of Supreme Court Circular No. 38-98 uses the SAME phrase.

Thus, even if an accused raises justifying circumstances or some other

lawful defense while admitting the act or omission charged in the information, the
court may still deny a motion to reverse the order of trial.
 136

SEC. 12. Application for examination of witness for accused before

trial. – When the accused has been held to answer for an offense, he may,
upon motion with notice to the other parties, have witnesses conditionally
examined in his behalf. The motion shall state: (a) the name and residence
of the witness; (b) the substance of his testimony; and (c) that the witness is
sick or infirm as to afford reasonable ground for believing that he will not be
able to attend the trial, or resides more than one hundred (100) kilometers
from the place of trial and has no means to attend the same, or that other
similar circumstances exist that would make him unavailable or prevent him
from attending the trial. The motion shall be supported by an affidavit of the
accused and such other evidence as the court may require. (4a)
SEC. 13. Examination of defense witness; how made. – If the court is
satisfied that the examination of a witness for the accused is necessary, an
order shall be made directing that the witness be examined at a specific date,
time and place and that a copy of the order be served on the prosecutor at
least three (3) days before the scheduled examination. The examination shall
be taken before a judge, or, if not practicable, a member of the Bar in good
standing so designated by the judge in the order, or if the order be made by
a court of superior jurisdiction, before an inferior court to be designated
therein. The examination shall proceed notwithstanding the absence of the
prosecutor provided he was duly notified of the hearing. A written record of
the testimony shall be taken. (5a)

SEC. 14. Bail to secure appearance of material witness. – When the

court is satisfied, upon proof of oath, that a material witness will not testify
when required, it may, UPON MOTION OF EITHER PARTY, order the witness
to post bail in such sum as may be deemed proper. Upon refusal to post bail,
the court shall commit him to prison until he complies or is legally
discharged after his testimony has been taken. (6a)

Applies to witnesses for both the prosecution and the defense.

Cross reference with WITNESS PROTECTION LAW (R.A. No. 6981) – to

protect witnesses who do not want to testify by reason of fear.

SEC. 15. Examination of witness for the prosecution. – When it is

satisfactorily appears that a witness for the prosecution is too sick or infirm
to appear at the trial as directed by the court, of has to leave the Philippines
with no definite date of returning, he may forthwith be conditionally
examined before the court where the case is pending. Such examination, in
the presence of the accused, or in his absence after reasonable notice to
attend the examination has been served on him, shall be conducted in the
same manner as an examination at the trial. Failure or refusal of the accused
to attend the examination at the trial. Failure or refusal of the accused to
attend the examination after notice shall be considered a waiver. The
statement taken may be admitted in behalf of or against the accused. (7a)

Distiguish Section 13 and 15

13- Defense Witness

15- Prosecution Witness

13- Examination may be made before any member of the bar in good
standing or the judge of an inferior court designated by the judge of
the court where the case is pending.
 137

15- Examination may be made only before the judge or the court where
the case is pending.

Why? Because the prosecution (the State) is presumed to have all

the resources of the government available to it to cause the production of
its witnesses.

Can the prosecution conduct a deposition of a prosecution witness in a

place other than the place of the court where the case is pending by invoking
the rules on deposition under Rule 23?

[G.R. No. 152643. August 28, 2008.] Commented [u105]: QUERY: Sir, saang case title po
Concepcion Cuenco Vda. De Manguerra and the Hon. Ramon C. Codilla, Jr., natin ilalagay ang GR No.? thanks po
Presiding Judge of the Regional Trial Court of Cebu City, Branch 19,
Petitioners v. Raul Risos, Susana Yongco, Leah Abarquez and Atty. Gamaliel
D.B. Bonje, Respondents.

On the more important issue of whether Rule 23 of the Rules of Court

applies to the instant case, we rule in the negative.

It is basic that all witnesses shall give their testimonies at the trial of the
case in the presence of the judge. This is especially true in criminal cases in order
that the accused may be afforded the opportunity to cross-examine the witnesses
pursuant to his constitutional right to confront the witnesses face to face. It also
gives the parties and their counsel the chance to propound such questions as they
deem material and necessary to support their position or to test the credibility of
said witnesses. Lastly, this rule enables the judge to observe the witnesses'
demeanor.

This rule, however, is not absolute. As exceptions, Rules 23 to 28 of the

Rules of Court provide for the different modes of discovery that may be resorted
to by a party to an action. These rules are adopted either to perpetuate the
testimonies of witnesses or as modes of discovery. In criminal proceedings,
Sections 12, 29 13 30 and 15, 31 Rule 119 of the Revised Rules of Criminal Commented [u106]:
Procedure, which took effect on December 1, 2000, allow the conditional
examination of both the defense and prosecution witnesses.

In the case at bench, in issue is the examination of a prosecution witness,

who, according to the petitioners, was too sick to travel and appear before the trial
court. Section 15 of Rule 119 thus comes into play, and it provides:

Section 15. Examination of witness for the prosecution. — When it

satisfactorily appears that a witness for the prosecution is too sick or infirm to
appear at the trial as directed by the court, or has to leave the Philippines with no
definite date of returning, he may forthwith be conditionally examined before the
court where the case is pending. Such examination, in the presence of the
accused, or in his absence after reasonable notice to attend the examination has
been served on him, shall be conducted in the same manner as an examination at
the trial. Failure or refusal of the accused to attend the examination after notice
shall be considered a waiver. The statement taken may be admitted in behalf of or
against the accused. HECTaA Commented [u107]: QUERY: delete this?

Petitioners contend that Concepcion's advanced age and health condition

exempt her from the application of Section 15, Rule 119 of the Rules of Criminal
Procedure, and thus, calls for the application of Rule 23 of the Rules of Civil
Procedure.
 138

The contention does not persuade.

The very reason offered by the petitioners to exempt Concepcion from the
coverage of Rule 119 is at once the ground which places her squarely within the
coverage of the same provision. Rule 119 specifically states that a witness may be
conditionally examined: 1) if the witness is too sick or infirm to appear at the trial;
or 2) if the witness has to leave the Philippines with no definite date of returning.
Thus, when Concepcion moved that her deposition be taken, had she not been too
sick at that time, her motion would have been denied. Instead of conditionally
examining her outside the trial court, she would have been compelled to appear
before the court for examination during the trial proper. EAcTDH Commented [u108]: QUERY: delete this?

Undoubtedly, the procedure set forth in Rule 119 applies to the case at bar.
It is thus required that the conditional examination be made before the court where
the case is pending. It is also necessary that the accused be notified, so that he
can attend the examination, subject to his right to waive the same after reasonable
notice. As to the manner of examination, the Rules mandate that it be conducted
in the same manner as an examination during trial, that is, through question and
answer.

At this point, a query may thus be posed: in granting Concepcion's motion

and in actually taking her deposition, were the above rules complied with? The CA
answered in the negative. The appellate court considered the taking of deposition
before the Clerk of Court of Makati City erroneous and contrary to the clear
mandate of the Rules that the same be made before the court where the case is
pending. Accordingly, said the CA, the RTC order was issued with grave abuse of
discretion. prcd Commented [u109]: QUERY: delete this?

We agree with the CA and quote with approval its ratiocination in this wise:

Unlike an examination of a defense witness which, pursuant to Section 5,

Rule 119 of the previous Rules, and now Section 13, Rule 119 of the present
Revised Rules of Criminal Procedure, may be taken before any "judge, or, if not
practicable, a member of the Bar in good standing so designated by the judge in
the order, or, if the order be made by a court of superior jurisdiction, before an
inferior court to be designated therein," the examination of a witness for the
prosecution under Section 15 of the Revised Rules of Criminal Procedure
(December 1, 2000) may be done only "before the court where the case is
pending".

Rule 119 categorically states that the conditional examination of a

prosecution witness shall be made before the court where the case is pending.
Contrary to petitioners' contention, there is nothing in the rule which may remotely
be interpreted to mean that such requirement applies only to cases where the
witness is within the jurisdiction of said court and not when he is kilometers away,
as in the present case. Therefore, the court may not introduce exceptions or
conditions. Neither may it engraft into the law (or the Rules) qualifications not
contemplated. When the words are clear and categorical, there is no room for
interpretation. There is only room for application.

Petitioners further insist that Rule 23 applies to the instant case, because
the rules on civil procedure apply suppletorily to criminal cases. TSEcAD Commented [u110]: QUERY: delete this?

It is true that Section 3, Rule 1 of the Rules of Court provides that the rules
of civil procedure apply to all actions, civil or criminal, and special proceedings. In
effect, it says that the rules of civil procedure have suppletory application to
criminal cases. However, it is likewise true that the criminal proceedings are
primarily governed by the Revised Rules of Criminal Procedure. Considering that
 139

Rule 119 adequately and squarely covers the situation in the instant case, we find
no cogent reason to apply Rule 23 suppletorily or otherwise.

To reiterate, the conditional examination of a prosecution witness for the

purpose of taking his deposition should be made before the court, or at least before
the judge, where the case is pending. Such is the clear mandate of Section 15,
Rule 119 of the Rules. We find no necessity to depart from, or to relax, this rule.
As correctly held by the CA, if the deposition is made elsewhere, the accused may
not be able to attend, as when he is under detention. More importantly, this
requirement ensures that the judge would be able to observe the witness'
deportment to enable him to properly assess his credibility. This is especially true
when the witness' testimony is crucial to the prosecution's case. DACaTI Commented [u111]: QUERY: delete this?

While we recognize the prosecution's right to preserve its witness' testimony

to prove its case, we cannot disregard rules which are designed mainly for the
protection of the accused's constitutional rights. The giving of testimony during trial
is the general rule. The conditional examination of a witness outside of the trial is
only an exception, and as such, calls for a strict construction of the rules.

POSSIBLE WORKAROUND UNDER THE RULES ON ELECTRONIC EVIDENCE

People vs. Noel Enojas, Et Al, (G.R. No. 204894, March 10, 2014) the Supreme Court
affirmed that in view of A.M. No. 01-7-01-SC, September 24, 2002, expanding the
coverage of the Rules on Electronic Evidence, the said rules are APPLICABLE TO
CRIMINAL CASES.8

Rule 10 EXAMINATION OF WITNESSES

Section 1. Electronic testimony. – After summarily hearing the parties pursuant to Rule 9
of these Rules, the court may authorize the presentation of testimonial evidence by
electronic means. Before so authorizing, the court shall determine the necessity for such
presentation and prescribe terms and conditions as may be necessary under the
circumstances, including the protection of the rights of the parties and witnesses
concerned.

Section 2. Transcript of electronic testimony. – When examination of a witness is done

electronically, the entire proceedings, including the questions and answers, shall be
transcribed by a stenographer, stenotypist or other recorder authorized for the purpose,
who shall certify as correct the transcript done by him. The transcript should reflect the
fact that the proceedings, either in whole or in part, had been electronically recorded.

Section 3. Storage of electronic evidence. – The electronic evidence and recording thereof
as well as the stenographic notes shall form part of the record of the case. Such transcript
and recording shall be deemed prima facie evidence of such proceedings.

SEC. 17. Discharge of accused to be state witness. – When two

or more persons are jointly charged with the commission of any
offense, upon motion of the prosecution before resting its case, the
court may direct one or more of the accused to be discharged with
their consent so that they may be witnesses for the state when, after
requiring the prosecution to present evidence and the sworn

8
Nota Bene: There was previously a problem with the application of the Rules on
Electronic Evidence to Criminal Cases because in the case of Rustan Ang vs. Court of
Appeals, G.R. No. 182835, April 20, 2010, the Supreme Court held that “The Rules on
Electronic Evidence applies only to civil actions, quasi-judicial proceedings, and
administrative proceedings” although it did not mention the 2002 amendment to the said
rules.
 140

statement of each proposed state witness at a hearing in support of

the discharge, the court is satisfied that:

(a) There is absolute necessity for the testimony of the accused

whose discharge is requested;

(b) There is no other direct evidence available for the proper

prosecution of the offense committed, except the testimony of
said accused;

(c) The testimony of said accused can be substantially

corroborated in its material points;

(d) Said accused does not appear to be the most guilty; and

(e) Said accused has not at any time been convicted of any offense
involving moral turpitude.

Evidence adduced in support of the discharge shall

automatically form part of the trial. If the court denies the motion for
discharge of the accused as state witness, his sworn statement shall
be inadmissible in evidence. (9a)

SEC. 18. Discharge of accused operates as acquittal. – The

order indicated in the preceding section shall amount to an acquittal
of the discharged accused and shall be a bar to future prosecution for
the same offense, unless the accused fails or refuses to testify against
his co-accused in accordance with his sworn statement constituting
the basis for his discharge. (10a)

Important principles:

1. Since the discharge of the accused operates as an acquittal, (Sec. 18)

regardless of whether or not his testimony is used by the prosecution it
cannot be revoked on this basis only.

2. Even if the judge erred in granting the discharge (e.g., the accused was the
most guilty) this will not affect the validity of the discharge or the
admissibility of the testimony of the witness but judges are warned in these
instances to take the said testimony with a grain of salt. (Goco Case, 209
SCRA 329)

3. The term “does not appear to be the most guilty” refers to degree of actual
participation and not to the imposable penalty which would be equal if there
is conspiracy (PpPeople of the Philippines. v. Sumail, 212 SCRA 626) Commented [u112]: QUERY: People

4. The witness who is an accused may be discharged AFTER he testifies (for

as long as the prosecution has not yet rested “upon motion of the
prosecution before resting its case “ (Sec. 17) (Rosales v. CA, 215 SCRA
102)

5. The fiscal has no right to omit the inclusion of any of the accused from the
information even if he intends to use him as a state witness (because under
Rule 110, Sec. 2 the information is supposed to be filed against all persons
who appear to be responsible for the offense involved) and it is the
judge who is trying the case who has the authority, under Sec. 17, to order
the discharge of the accused. (Note: exception is if a person has been
 141

administratively declared a state witness prior to the filing of the

information under R.A. No. 6981 or the Witness Protection Act)

Is the authority of the Department of Justice to grant immunity to state

witnesses under the Witness Protection Act an unconstitutional usurpation
of judicial authority?

People v. Wilfredo Peralta,

G.R. No. 133267, August 8, 2002.

“In the case of Webb vs. De Leon, where, as in this case, the petitioners
questioned the non-inclusion of Alfaro in the Information considering her alleged
conspiratorial participation in the crime, this Court explained:

“x x x the prosecution of crimes appertains to the executive department of

government whose principal power and responsibility is to see that our laws are
faithfully executed. A necessary component of this power to execute our laws is
the right to prosecute their violators. The right to prosecute vests the prosecutor
with a wide range of discretion---the discretion of whether, what and whom to
charge, the exercise of which depends on a smorgasboard of factors which are Commented [u113]: QUERY: pls verify
best appreciated by prosecutors. We thus hold that it is not constitutionally
impermissible for Congress to enact R.A. No. 6981 (Witness Protection
Security and Benefit Act) vesting in the Department of Justice the power to
determine who can qualify as a witness in the program and who shall be
granted immunity from prosecution. Section 9 of Rule 119 does not support
the proposition that the power to choose who shall be state witness is an
inherent judicial prerogative. Under this provision, the court is given the power
to discharge a state witness only because it has already acquired jurisdiction over
the crime and the accused. The discharge of an accused is part of the exercise of
jurisdiction but is not a recognition of an inherent judicial function. x x x”

6. For this same reason, an MTC JUDGE who is conducting a preliminary

investigation in a criminal case cognizable by the RTC cannot order the
discharge of an accused since he is not the judge trying the case. (MTCs
cannot conduct PI anymore)

7. What is meant by the requirement of “a hearing in support of the

discharge”? It is the hearing where the affidavit of the witness who is
proposed to be discharged is presented to the court and the other accused
are given an opportunity to oppose the motion to discharge him. The
witness is not actually required to testify during that same hearing.
(PpPeople of the .Philippines v. CA and Jose Pring, 223 SCRA 479) Commented [u114]: QUERY: People?

Note: The requirement of the submission of an affidavit of the proposed

witness was introduced in the 1985 Rules so that the judge would have an
idea as to what this witness will be testifying on. (This inadequacy in the
old law was noted by the SC in the case of Flores v. SB, 124 SCRA 109)

Is it necessary for the testimony of a proposed state witness to be

corroborated by other witnesses?

Rimberto T. Salvanera v. People of the Philippines,

G.R. No. 143093, May 21, 2007.

“To require the two witnesses Parane and Salazar to corroborate the
testimony of Abutin and Tampelix on the exact same points is to render nugatory
 142

the other requisite that “there must be no other direct evidence available for
the proper prosecution of the offense committed, except the testimony of the
state witness.” The corroborative evidence required by the Rules does not have
to consist of the very same evidence as will be testified on by the proposed
state witnesses. We have ruled that “a conspiracy is more readily proved by the
acts of a fellow criminal than by any other method. If it is shown that the statements
of the conspirator are corroborated by other evidence, then we have convincing
proof of veracity. Even if the confirmatory testimony only applies to some
particulars, we can properly infer that the witness has told the truth in other
respects.” It is enough that the testimony of a co-conspirator is corroborated by
some other witness or evidence. In the case at bar, we are satisfied from a reading
of the records that the testimonies of Abutin and Tampelix are corroborated on
important points by each other’s testimonies and the circumstances disclosed
through the testimonies of the other prosecution witnesses, and “to such extent
that their trustworthiness becomes manifest.”

SEC. 19. When mistake has been made in charging the proper offense.
– 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 charged or any other offense necessarily included
therein, the accused shall not be discharged if there appears 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
information. (11a)

Cf., with last par of Sec. 14, Rule 110.

“If it appears at anytime 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 section 19, Rule 119, provided the accused shall not be placed in double
jeopardy. The court may require the witnesses to give bail for their appearance at
the trial.” (14a)

Also Secs. 4 and 5 of Rule 117.

SEC. 4. Amendment of complaint or information. – If the motion to quash is

based on an alleged defect of the complaint or information which can be cured by
amendment, the court shall order that an amendment be made. (4a)

If it is based on the ground that the facts charged do not constitute an

offense, the prosecution shall be given by the court an opportunity to correct the
defect by amendment. The motion shall be granted if the prosecution fails to make
the amendment, or the complaint or information still suffers from the same defect
despite the amendment. (n)

SEC. 5. Effect of sustaining the motion to quash. – If the motion to quash is

sustained, the court may order that another complaint or information be filed except
as provided in section 6 of this rule. If the order is made, the accused, if in custody,
shall not be discharged unless admitted to bail. If no order is made or if having
been made, no new information is filed within the time specified in the order or
 143

within such further time as the court may allow for good cause, the accused, if in
custody, shall be discharged unless he is also in custody of another charge. (5a)

Exclusion of the public. (Sec. 21, Rule 119)

The judge may, motu proprio, exclude the public from the courtroom
if the evidence to be produced during the trial is offensive to decency or
public morals. He may also, on motion of the accused, exclude the public
from the trial except court personnel and the counsel of the parties. (13a)

The right of the accused to a public trial is not absolute. The public may be
excluded if the evidence to be produced is offensive to decency or public
morals.

Examples of instances when the public or some of the public may be excluded:

1. The evidence to be presented is of such character as to be offensive

to public morals;

2. When the accused requests it;

3. To prevent disorder in the court;

4. To prevent the embarrassment of a witness;

5. To limit the attendance to seating capacity.

Consolidation of trials of related offenses. (Sec. 22, Rule 119)

Charges for offenses founded on the same facts or forming part of a

series of offenses of similar character may be tried jointly at the discretion
of the court. (14a)

Cf., Section 2, Rule 111 – TAKE NOTE that Rule 111 refers to
consolidation of the civil aspect with the criminal in case where a separate
civil action was filed.

Section 22 refers to consolidation of trials of related cases.

DEMURRER TO EVIDENCE

SOME PRINCIPLES RELATING TO DEMURRER TO EVIDENCE:

1. After the prosecution rests, the court motu propio can dismiss the case
due to insufficiency of evidence without the accused filing a demurrer to
evidence. However, the judge must give the prosecution an opportunity to
be heard before he can dismiss the case.

2. The motion for leave of court to file demurrer to evidence shall be filed within
a non-extendible period of five days after the prosecution rests its case and
the prosecution may oppose the motion within a non-extendible period of
five days from its receipt.
 144

3. If a demurrer to evidence is filed with leave of court, the accused can

present evidence if it is denied. However, if it is filed without leave of
court, the accused waives the right to present evidence.

4. The order denying the motion for leave of court to file demurrer to evidence
or the demurrer itself shall not be reviewable by appeal or by certiorari
before judgment.

5. If the court grants a demurrer to evidence and thus, dismisses the case, this
amounts to an acquittal. DOUBLE JEOPARDY CAN ARISE DESPITE
THE FACT THAT THE DEMURRER WAS FILED BY THE ACCUSED. (i.e.,
filing a demurrer to evidence does not amount to the express consent of the
accused to the dismissal)

Section 15, Rules 119 of the Rules of Criminal Procedure is clear on the fact
that if an accused files a Demurrer to Evidence WITHOUT LEAVE OF COURT,
he WAIVES the right to present evidence if it is DENIED.

People v. Dominador Cachola,

G.R. Nos. 148712-15, January 21, 2004.

“The filing by the appellants of a demurrer to evidence in the absence of

prior leave of court was a clear waiver of their right to present their own evidence.
To sustain their claim that they had been denied due process because the
evidence they belatedly sought to offer would have exculpated them would be to
allow them to “wager on the outcome of judicial proceedings by espousing
inconsistent viewpoints whenever dictated by convenience.”

When is the prosecution deemed to have rested or when will the 5 day period
to file a motion for leave start?

Elsa B. Reyes vs. Sandiganbayan (G.R. No. 148607, September 5, 2012)

“Section 23, Rule 119 of the Rules of Criminal Procedure provides that a
“motion for leave of court to file demurrer to evidence shall specifically state
its grounds and shall be filed with in a non-extendible period of five (5) days after
the prosecution rests its case.” This period runs, according to Cabador v.
People (G.R. No. 186001, October 2, 2009) only after the court shall have
ruled on the prosecution’s formal offer for that is when it can be deemed
to have rested its case”

Reopening (Sec. 24, Rule 119)

At any time before finality of the judgment of conviction, the judge

may, motu proprio or upon motion, with hearing in either case, reopen the
proceedings to avoid a miscarriage of justice. The proceedings shall be
terminated within thirty (30) days from the order granting it.(n)

Crossreference Rule 119 with

R.A. No. 4908 SPEEDY TRIAL OF CASES WHERE OFFENDED PARTY

IS ABOUT TO LEAVE THE PHILS WITH NO DEFINITE DATE OF
RETURN.

R.A. No. 6033 PREFERRENCE OF CASES INVOLVING INDIGENTS

 145

R.A. No. 6034 TRANSPORT AND ALLOWANCES FOR INDIGENT

LITIGANTS

R.A. No. 6035 FREE TRANSCRIPTS FOR INDIGENT LITIGANTS

RULE 120 – JUDGMENT

Judgment; definition and form.

Judgment is the adjudication by the court that the accused is guilty or not
guilty of the offense charged and the imposition on him of the proper penalty
and civil liability, if any. It must be written in the official language, personally
and directly prepared by the judge and signed by him and shall contain clearly
and distinctly a statement of the facts and the law upon which it is based. (1a)

JUDGMENT MUST BE IN WRITING

Abay, Sr. v. Garcia,

162 SCRA 665.

Marcelino Rivera, Jr. v. PpPeople of the Philippines Commented [u115]: QUERY: People?
August 30, 1990 G. R. No. 93219 August 30, 1990 Commented [u116]: QUERY: pls. supply SCRA or
GR. thanks
"Where there is a valid information and the accused has been arraigned, an
order of dismissal issued by the court, motu proprio, in the course of a trial of a
criminal case, whether based on the merits or for failure of prosecution witnesses
to appear, has the effect of a judgment of acquittal and double jeopardy attaches.
The order is also immediately executory. However, this order of dismissal must be
written in the official language, personally and directly prepared by the judge and
signed by him conformably with the provisions of Rule 120, section 2 of the Rules
of Court. In the instant case, it is very clear that the order was merely dictated in
open court by the trial judge. There is no showing that this verbal order of dismissal
was ever reduced to writing and duly signed by him. Thus, it did not yet attain the
effect of a judgment of acquittal, so that it was still within the powers of the judge
to set it aside and enter another order, now in writing and duly signed by him,
reinstating the case."

What must a judgment contain? (Sec. 2, Rule 120)

IF FOR CONVICTION:

(1) the legal qualification of the offense constituted by the acts

committed by the accused and the aggravating or mitigating
circumstances which attended its commission;

(2) the participation of the accused in the offense, whether as principal,

accomplice, or accessory after the fact;

(3) the penalty imposed upon the accused; and

 146

(4) the civil liability or damages caused by his wrongful act or omission
to be recovered from the accused by the offended party, if there is
any, unless the enforcement of the civil liability by a separate civil
action has been reserved or waived.

People of the Philippines vs. Marcelino A. Bugarin

G.R. Nos. 110817-22. June 13, 1997Pp vs. Marcelino A. Bugarin
June 13, 1997
Pp. vs. Elegio Nadera
Feb. 2, 2000
Eligio Madrid vs. CA
May 31, 2000 Commented [u117]: o

Formatted: Indent: First line: 0"

In a two-page decision, promulgated on February 11, 1993, the trial court,

after giving a summary of the testimonies of the complainant and accused-
appellant, laconically ruled:

The issue is simple. Is the private complainant credible in her

story of how she was raped? The answer of this Court is an undoubtful
and a definite yes.

Does this comply with the required contents of a judgment?

“The decision of the trial court falls short of this requirement in at least three
respects. First, it does not contain an evaluation of the evidence of the parties and
a discussion of the legal questions involved. It does not explain why the trial court
considered the complainant's testimony credible despite the fact that, as accused-
appellant points out, complainant could not remember the time of the day when
she was allegedly raped. It does not explain why accused-appellant's licking of
complainant's genital constituted attempted rape and not another crime. Second,
the complainant testified that she had been raped five times, to wit, in November
1989, on December 24, 1989, in June 1990, on March 14, 1991, and on December
23, 1991, and that once, on January 17, 1992, she was molested by her father
who licked her private part, for which reason six informations were filed against
him, but the decision found the accused-appellant guilty of only four counts of rape
(which the trial court erroneously said three counts) and one count of attempted
rape, without explaining whether accused-appellant was being acquitted of one
charge of rape. Third, the decision is so carelessly prepared that it finds the
accused-appellant guilty of three counts of consummated rape but sentences him
to suffer the penalty of reclusion perpetua ‘for each of the four counts of . . . rape.’"

“The requirement that the decisions of courts must be in writing and that
they must set forth clearly and distinctly the facts and the law on which they are
based serves many functions. It is intended, among other things, to inform the
parties of the reason or reasons for the decision so that if any of them appeals, he
can point out to the appellate court the finding of facts or the rulings on points of
law with which he disagrees. More than that, the requirement is an assurance to
the parties that, in reaching judgment, the judge did so through the processes of
legal reasoning. It is, thus, a safeguard against the impetuosity of the judge,
preventing him from deciding by ipse dixit. Vouchsafed neither the sword nor the
purse by the Constitution but nonetheless vested with the sovereign prerogative of
passing judgment on the life, liberty or property of his fellowmen, the judge must
ultimately depend on the power of reason for sustained public confidence in the
 147

justness of his decision. The decision of the trial court in this case disrespects the
judicial function.”

These requirements are applicable even on appealed cases

Ong Chiu Kwan v. CA,

G.R. No. 113006. November 23, 2000
November 23, 2000. Commented [u118]: QUERY: incomplete citation. Pls.
provide the SCRA or GR No. thanks
The Court notes that in the decision of the Regional Trial Court which the
Court of Appeals affirmed peremptorily without noticing its nullity, the Regional
Trial Court merely quoted the decision of the Municipal Trial Court in full and added
two paragraphs, thus:

"This Court, in accordance with the rules, required the parties to submit
their corresponding memorandum or brief. The prosecution filed its memorandum,
and also with the defense.

"After a careful perusal of the record of the case and evaluating the
evidence thereto and exhibits thereof, this Court finds no ground to modify, reverse
or alter the above-stated decision and hereby affirms the decision of the lower
court in toto."

The Constitution requires that "[N]o decision shall be rendered by any court
without expressing therein clearly and distinctly the facts and the law on which it is
based." The 1985 Rules of Criminal Procedure, as amended, provides that "[T]he
judgment must be written in the official language, personally and directly prepared
by the judge and signed by him and shall contain clearly and distinctly a statement
of the facts proved or admitted by the accused and the law upon which the
judgment is based."

Although a memorandum decision is permitted under certain conditions, it

cannot merely refer to the findings of fact and the conclusions of law of the lower
court. The court must make a full findings of fact and conclusion of law of its own.

Consequently, the decision of the regional trial court is a nullity.

IF FOR ACQUITTAL

“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. (2a)

Judgment for two or more offenses. – (Sec. 3, Rule 120)

Considering that it has already been settled that while under Rule 110, an
information or complaint should only charge one offense and that this is a ground
for quashal under Rule 117, this defect is waivable.

Thus, if it is waived, the accused can be convicted of as many crimes as

there are charged in the information or complaint.
 148

People v. Conde Rapisora,

G.R. No. 138086. January 25, 2001
January 25, 2001. Commented [u119]: QUERY: incomplete citation

“The information against the accused has charged him with multiple rape,
at least six times according to the trial court in its findings. Section 3, Rule 120, of
the Rules of Court provides that "when two or more offenses are charged 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 him the penalty for each and every one of them . . ." Rapisora can
thus be held responsible for as many rapes as might have been committed by him
which are duly proven at the trial.”

Can an accused be convicted of TWO (2) COUNTS OF MURDER under an

information that charges the accused with a complex crime of Double Murder?

People of the Philippines v. Rosendo Rebucan,

G.R. No. 182551, July 27, 2011.

The body of the Information for Double Murder in this case stated thus:

“That on or about the 6th day of November, 2002, in the Municipality of Carigara,
Province of Leyte, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, with deliberate intent to kill, with treachery and evident
premeditation and abuse of superior strength, did then and there willfully, unlawfully and
feloniously attack, assault and wound FELIPE LAGERA Y OBERO, 65 years old and
RANIL TAGPIS Y LAGERA, 1 year old, with the use of a long bolo (sundang) which the
accused had provided himself for the purpose, thereby inflicting upon Felipe Lagera:

Hypovolemic shock, massive blood loss and multiple hacking wounds upon Ranil
Tagpis:

Hypovolemic shock, massive blood loss and hacking wound, head[,] which wounds
caused the death of Felipe Lagera y Obera and Ranil Tagpis y Lagera, immediately
thereafter.”

Held:

With regard to the conflicting rulings of the RTC and the Court of Appeals vis-a-vis
the nature of crimes committed, we agree with the appellate court that the accused-
appellant should be held liable for two (2) separate counts of murder, not the complex
crime of double murder.

Article 48 of the Revised Penal Code provides that [w]hen 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. There are, thus, two kinds of complex crimes. The
first is known as compound crime, or when a single act constitutes two or more grave or
less grave felonies. The second is known as complex crime proper, or when an offense is
a necessary means for committing the other.

The Court finds that there is a paucity of evidence to prove that the instant case
falls under any of the two classes of complex crimes. The evidence of the prosecution
failed to clearly and indubitably establish the fact that Felipe and Ranil were killed by a
single fatal hacking blow from the accused-appellant. The eyewitness testimony of
Carmela did not contain any detail as to this material fact. To a greater degree, it was
neither proven that the murder of Felipe was committed as a necessary means for
committing and/or facilitating the murder of Ranil and vice versa. As the factual milieu of
the case at bar excludes the application of Article 48 of the Revised Penal Code, the
 149

accused-appellant should be made liable for two separate and distinct acts of murder. In
the past, when two crimes have been improperly designated as a complex crime,
this Court has affirmed the conviction of the accused for the component crimes
separately instead of the complex crime.

Judgment in case of variance between allegation and proof. (Sec. 4, Rule 120)

When there is variance between the offense charged in the complaint or

information and that proved, and the offense as charged is included in or
necessarily includes the offense proved, the accused shall be convicted of the
offense proved which is included in the offense charged, or of the offense charged
which is included in the offense proved. (4a)

SIMPLE PRINCIPLE: The accused can be convicted of an offense

necessarily included in the offense charged but he can
NEVER be convicted of a higher offense

e.g., Charged with murder. If only homicide is proven he can be convicted of

homicide.

But if charged with homicide, even if murder is proven, he can only be

convicted of homicide.

When does an offense include and when is it included in another offense?

(Sec. 5, Rule 120)

An offense charged necessarily includes the offense proved when some of

the essential elements or ingredients of the former, as alleged in the complaint or
information, constitute the latter. And an offense charged is necessarily included
in the offense proved, when the essential ingredients of the former constitute or
form part of those constituting the latter.

Important: If the offense proven is not necessarily included or does not

necessarily include the offense charged then follow the rule on mistake in charging
the offense. This is because, in this situation, the offense proven it is clearly a
WHOLLY DIFFERENT OFFENSE from the offense charged.

Can a municipal mayor charged with UNLAWFUL INTERVENTION in the

issuance of a cockpit license be convicted of POSSESSION OF PROHIBITED
INTEREST of the same cockpit when the latter offense is not included in the
information but was proven during the trial?

Edgar Teves v. Sandiganbayan (En Banc)

G.R. No. 154182, December 17, 2004.

The answer is in the affirmative in view of the variance doctrine embodied

in Section 4, in relation to Section 5, Rule 120, Rules of Criminal Procedure.

Can a person accused of murder as a principal be convicted of murder as an

accessory?

Lito Vino v. CA,

G.R. No. 84163 October 19, 1989
October 19, 1989. Commented [u120]: QUERY: pls. provide SCRA or
GR No.
 150

“In this case, the correct offense of murder was charged in the information.
The commission of the said crime was established by the evidence. There is no
variance as to the offense committed. The variance is in the participation or
complicity of the petitioner. While the petitioner was being held responsible as a
principal in the information, the evidence adduced, however, showed that his
participation is merely that of an accessory. The greater responsibility necessarily
includes the lesser. An accused can be validly convicted as an accomplice or
accessory under an information charging him as a principal.”

Is Malversation included in Technical Malversation?

Oscar Parungao v. Sandiganbayan,

274 Phil. 451 (1991).
May 15, 1991. Commented [u121]: QUERY: incomplete case title

“A comparison of the two articles reveals that their elements are entirely
distinct and different from the other. In malversation of public funds, the offender
misappropriates public funds for his own personal use or allows any other person
to take such public funds for the latter's personal use. In technical malversation,
the public officer applies public funds under his administration not for his or
another's personal use, but to a public use other than that for which the fund was
appropriated by law or ordinance. Technical malversation is, therefore, not
included in nor does it necessarily include the crime of malversation of public funds
charged in the information. Since the acts constituting the crime of technical
malversation were not alleged in the information, and since technical malversation
does not include, or is not included in the crime of malversation of public funds, he
cannot resultantly be convicted of technical malversation.”

Rape and Qualified Seduction

PpPeople of the Philippines. v. Servillano Velasquez, Commented [u122]: QUERY: People?

205 Phil. 741.

“Assuming it to be a fact that the appellant may be considered a "domestic"

within the meaning of Art. 337 of the Revised Penal Code — a point disputed by
the appellant who claimed that he was not staying in the house of his sister but
only operated a radio repair shop in the ground floor of said house — still, no
conviction for qualified seduction may be decreed against the appellant. This is
because there is no allegation in the information filed against him of two of the
essential elements of the crime of qualified seduction, to wit: virginity of the
offended party, and that the latter is over 12 but under 18 years of age. In the event
of a variance between the offense charged in the complaint or information and that
proved or established by the evidence, the accused may only be convicted of the
offense proved included in that which is charged, or of the offense charged
included in that which is proved. The view that conviction for qualified seduction
may not be had on a charge of rape had already been expounded by Chief Justice
Enrique M. Fernando in People vs. Ramires, 69 SCRA 144. For similar reasons,
neither may the appellant be validly convicted of the crime of simple seduction. As
may be noted from the information filed against the appellant, there is likewise no
 151

allegation therein of the elements of the good reputation of the offended party and
of the latter being over 12 but under 18 years of age, which are essential for the
commission of the crime simple seduction.”

PpPeople of the Philippines. v. Napoleon Subingsubing, Commented [u123]: QUERY: People?

November 25, 1993. Commented [u124]: QUERY: incomplete case title

The verified complainant for rape contains allegations, sans averment on

the use of force, which impute the crime of qualified seduction. Any deficiency in
the complaint is supplied by the supporting affidavit, where complainant averred
that the accused Napoleon Subingsubing, her uncle, who was living in the same
house as the complainant, had sexual intercourse with her. The accused took
advantage of his moral ascendancy if not dominance over the complainant. She
was presumably a virgin. As already stated, the accused was a domestic in relation
to the complainant within the meaning of Art. 337 of the Revised Penal Code.

Apolinario Gonzales vs. CA

G.R. No. 108811 May 31, 1994
May 31, 1994 Commented [u125]: QUERY: incomplete case title

Rape and qualified seduction are not identical offenses. The elements of
rape — (1) that the offender has had carnal knowledge of a woman; and (2) that
such act is accomplished (a) by using force or intimidation, or (b) when the woman
is deprived of reason or otherwise unconscious, or (c) when the woman is under
twelve (12) years of age — substantially differ from the elements of qualified
seduction. The latter requires (1) that the offended party is a virgin, which is
presumed if she is unmarried and of good reputation; (2) that she must be over
twelve (12) and under eighteen (18) years of age; (3) that the offender has sexual
intercourse with her; and (4) that there is abuse of authority, confidence or
relationship on the part of the offender. While the two felonies have one common
element, i.e., carnal knowledge of a woman, they significantly vary in all other
respects. Contrary to the assertion of accused-petitioner, the case of People vs.
Samillano (56 SCRA 573), did not hold that qualified seduction is necessarily
included in rape; what this Court has said is that one who is charged with rape may
be found guilty of qualified seduction when the "verified complaint for rape contains
allegations which aver the crime of seduction."

PpPeople of the .Philippines vs. Benjamin Ortega

G.R. No. 116736. July 24, 1997
July 24, 1997 Commented [u126]: QUERY: incomplete case title

Appellant Garcia cannot be convicted of homicide through drowning under

an information that charges murder by means of stabbing.

Odon Pecho v. Sandiganbayan

G.R. No. 111399. September 27, 1996
Nov. 14, 1994 Commented [u127]: QUERY: incomplete case title,
pls. provide SCRA or GR No.
There is no such thing as attempted violation of the Anti-Graft and Corrupt
Practices Act. These stages apply only to felonies under the RPC.
 152

Can an accused held liable for reckless imprudence resulting to homicide if

the information charges murder?

PpPeople of the Philippines. v. Eutiquia Carmen, et al., Commented [u128]: QUERY: replace with “People”?
G.R. No. 137268, March 26, 2001.

The parents of a young boy, believing that their son is “possessed” brought
him to a “healer” who said she could exorcise the “bad spirit”. However the process
of “exorcism” done through immersing the boy head first into a drum of water
resulted to his death. The accused, the healer and her assistants, were charged
with murder.

Held:

“In United States v. Divino, the accused, who was not a licensed physician,
in an attempt to cure the victim of ulcers in her feet, wrapped a piece of clothing
which had been soaked in petroleum around the victim's feet and then lighted the
clothing, thereby causing injuries to the victim. The Court held the accused liable
for reckless imprudence resulting in physical injuries. It was noted that the accused
had no intention to cause an evil but rather to remedy the victim's ailment.

In another case, People v. Vda. de Golez, the Court ruled that the proper
charge to file against a non-medical practitioner, who had treated the victim despite
the fact that she did not possess the necessary technical knowledge or skill to do
so and caused the latter's death, was homicide through reckless imprudence.”

“While a criminal negligent act is not a simple modality of a willful crime, as

we held in Quizon v. Justice of the Peace of Bacolor, G.R. No. L-6641, July 28,
1955, but a distinct crime in itself, designated as a quasi offense in our Penal Code,
it may however be said that a conviction for the former can be had under an
information exclusively charging the commission of a willful offense, upon the
theory that the greater includes the lesser offense.”

“The fact that the information odes not allege that the falsification was
committed with imprudence is of no moment for here this deficiency appears
supplied by the evidence submitted by appellant himself and the result has proven
beneficial to him.”

“In People v. Fernando, the accused was charged with, and convicted of,
murder by the trial court. On appeal, this Court modified the judgment and held the
accused liable for reckless imprudence resulting in homicide after finding that he
did not act with criminal intent.”

Can an information charging the accused with having “sexually abused” the
victim be sufficient to justify a conviction for rape?

People v. Pedro Flores,

December 27, 2002.

The information:

“That on the 28th day of December 1996, in the evening at Sitio Buenlag,
Brgy Nancamaliran West, Municipality of Urdaneta, Province of Pangasinan,
Philippines and within the jurisdiction of this Honorable Court, the above-named
 153

accused, with deliberate intent and by means of force and intimidation, did then
and there, willfully, unlawfully, criminally and feloniously sexually abuse the herein
complaining witness FILIPINA FLORES, an 11 years old and daughter of the
herein accused with the use of sharp pointed bladed weapon and all against her
will”

Held:
The case at bar, however, is not one of variance between allegation and
proof. The recital of facts in the criminal complaints simply does not properly
charge rape, "sexual abuse" not being an essential element or ingredient thereof.
Neither can accused-appellant be convicted of acts of lasciviousness or of
any offense for that matter under our penal laws. It is settled that what
characterizes the charge is the actual recital of facts in the complaint or
information. For every crime is made up of certain acts and intent which must be
set forth in the complaint or information with reasonable particularity of time, place,
names (plaintiff and defendant), and circumstances. In other words, the complaint
must contain a specific allegation of every fact and circumstance necessary to
constitute the crime charged, the accused being presumed to have no independent
knowledge of the facts that constitute the offense.
And even under the provisions of Republic Act No. 7610 (The Special
Protection of Children Against Child Abuse, Exploitation and Discrimination Act),
accused-appellant cannot be held liable.
Section 2 (g) of the Rules and Regulations on the Reporting and
Investigation of Child Abuse Cases 40, issued pursuant to Section 32 of Republic
Act No. 7610, defines "sexual abuse" by inclusion as follows:
Sexual abuse includes 1) the employment, use, persuasion, enticement, or
coercion of a child to engage in, or assist another person to engage in sexual
intercourse or lascivious conduct or 2) the molestation, 3) prostitution, or 4) incest
with children. (Emphasis supplied.)
From this broad, non-exclusive definition, this Court finds that the phrase
"sexually abuse" in the criminal complaints at bar does not comply with the
requirement that the complaint must contain a specific averment of every fact
necessary to constitute the crime. Notably, the phrase "sexual abuse" is not used
under R.A. No. 7610 as an elemental fact but as an altogether separate offense.
above-quoted Section 5 thereof enumerates the punishable acts that must be
alleged in the complaint or information to hold an accused liable, none of which is
reflected, in the complaints at bar charging accused-appellant.”
The Supreme Court found the information to be VOID and DISMISSED the
case.

Can an accused be convicted of illegal discharge of firearm if the charge is

murder?
People v. Geronimo Dado
G.R. No. 131421. November 18, 2002Nov. 18, 2002 Commented [u129]: QUERY: incomplete case title

Formatted: Indent: First line: 0"

“In the same vein, petitioner cannot be held responsible for the wound
inflicted on the victim's right outer lateral arm for the same reason that there is no
evidence proving beyond moral certainty that said wound was caused by the bullet
fired from petitioner's .45 caliber pistol.
Nevertheless, petitioner is not completely without liability. The Court
sustains the finding of the trial court that petitioner fired his .45 caliber pistol
towards the victim. From the attendant circumstances, it appears that there is no
 154

evidence tending to prove that petitioner had animus interficendi or intent to kill the
victim. Note that the prosecution witnesses did not see whether petitioner aimed
to kill the victim. Intent to kill cannot be automatically drawn from the mere fact that
the use of firearms is dangerous to life. Animus interficendi must be established
with the same degree of certainty as is required of the other elements of the crime.
The inference of intent to kill should not be drawn in the absence of circumstances
sufficient to prove such intent beyond reasonable doubt.
Absent an intent to kill in firing the gun towards the victim, petitioner should
be held liable for the crime of illegal discharge of firearm under Article 254 of the
Revised Penal Code. The elements of this crime are: (1) that the offender
discharges a firearm against or at another person; and (2) that the offender has no
intention to kill that person. Though the information charged the petitioner with
murder, he could be validly convicted of illegal discharge of firearm, an offense
which is necessarily included in the crime of unlawful killing of a person.”

In case of an acquittal may the accused be found CIVILLY LIABLE in the

same criminal case?

Anamer Salazar v. People of the Philippines,

G.R. No. 151931, September 23, 2003.

The acquittal of the accused does not prevent a judgment against him on
the civil aspect of the case where:

(a) the acquittal is based on reasonable doubt as only preponderance of

evidence is required;

(b) where the court declared that the liability of the accused is only civil;

(c) where the civil liability of the accused does not arise from or is not based
upon the crime of which the accused was acquitted.

Moreover, the civil action based on the delict is extinguished if there is a

finding in the final judgment in the criminal action that the act or omission from
which the civil liability might arise did not exist or where the accused did not commit
the acts or omission imputed to him”

Sonny D. Romero vs. People of the Philippines

G.R. No. 167546. July 17, 2009

The 2nd paragraph of Section 2 of Rule 120 of the Revised Rules of Court provides
that “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.”

Thus, the rule is that the acquittal of an accused of the crime charged will not
necessarily extinguish his civil liability, unless the court declares in a final
judgment that the fact from which the civil liability might arise did not exist. Courts
can acquit an accused on reasonable doubt but still order payment of civil damages
in the same case. It is not even necessary that a separate civil action be instituted

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, if any.
 155

Oscar Maccay, Et Al vs. Spouses Nobela

G.R. No. 145823. March 31, 2005

The trial court erred in ordering complainant petitioner Maccay and prosecution
witness Potenciano, as part of the judgment in the criminal case, to reimburse the
P300,000 and pay damages to the accused respondent spouses. This 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.

On PROMULGATION

“In the presence of the accused”

Promulgation of judgment is one of the instances where the presence of the

accused is required.

As provided, one of the exceptions is when the conviction is for a light

offense.

What are light felonies?

Article 9 of the Revised Penal Code

“Light felonies are those infractions of law for the commission of which the
penalty of arresto menor or a fine not exceeding 200 pesos or both, is provided.”

What about if the judgment is for acquittal?

Myla Paredes et al. v. Judge Jacinto Manalo,

A.M. No. MTJ-93-842 May 10, 1995
May 10, 1995 Commented [u130]: QUERY: incomplete case title

The delay in the promulgation of the decision in Crim. Case No. 1603 was
ironically caused by respondent Judge. We find that he acquitted complainants in
the case. Such being the case, the presence of accused was not necessary as the
judgment was one of acquittal. Moreover, Sec. 6, Rule 120, of the Rules of Court
explicitly provides that if the accused fails to appear, the promulgation shall consist
in the recording of the judgment in the criminal docket and a copy thereof served
upon his counsel.

Yolanda Cruz v. Filomeno Pascual

A.M. No. MTJ-93-782 May 12, 1995 May 12, 1995 Commented [u131]: QUERY: incomplete case title

With regard to the absence of the accused during the promulgation of the
judgment, we hold that respondent Judge did not administratively err in proceeding
with the promulgation. In a verdict of acquittal, the presence of the accused is not
indispensable since no appeal is necessary and the judgment become final and
executory immediately after promulgation. The reading of the sentence in open
 156

court to counsel for the accused or giving a copy of the decision to the accused or
his counsel is sufficient promulgation.

Is it necessary for the offended party to be notified?

Abraham Ramirez v. Antonia Corpuz-Macandong

A.M. No. R-351-RTJ, Sept. 26, 1986 Commented [u132]: QUERY: incomplete case title

Neither could respondent be held administratively liable for failing to notify

complainant of the promulgation of the decision in said criminal case. While it may
be the better practice to notify the offended party of such promulgation, the Rules
of Court do not require a judge to do so.

The last paragraph was taken from the case of PpPeople of the Philippines. Commented [u133]: QUERY: People
v. Omar Mapalao, G.R. No. 92415. May 14, 1991
May 14, 1991 Commented [u134]: QUERY: incomplete case title

“If the judgment is for conviction and the failure of the accused to appear
was without justifiable cause, he shall lose the remedies available in these rules
against the judgment and the court shall order his arrest. Within fifteen (15) days
from promulgation of judgment, however, the accused may surrender and file a
motion for leave of court to avail of these remedies. He shall state the reasons for
his absence at the scheduled promulgation and if he proves that his absence was
for a justifiable cause, he shall be allowed to avail of said remedies within fifteen
(15) days from notice. (6a)”

The reason for this rule is because once an accused escapes from prison
or confinement or jumps bail or flees to a foreign country, he loses his standing in
court and unless he surrenders or submits to the jurisdiction of the court he is
deemed to have waived any right to seek relief from the court.

Note: The judgment must be promulgated during the

incumbency of the judge rendering the decision
otherwise it would no longer be a decision penned
personally and directly by the judge.

PpPeople of the Philippines. v. CFI of Quezon City, Commented [u135]: QUERY: People?
227 SCRA 457.

Judge who penned the decision detailed to another branch of the RTC OF
QC.

No violation because he belongs to the same court even if different

branch.

TYPES OF PROMULGATION (Sec. 6)

1. ORDINARY PROMULGATION – reading it in the presence of the

accused and any judge of the court in which it was rendered.
 157

2. PROMULGATION OF CONVICTION IN A LIGHT FELONY – the judgment

may be pronounced in the presence of his counsel or representative.

3. PROMULGATION BY CLERK OF COURT – when the judge is absent or

outside the province or city, the judgment may be promulgated by the
clerk of court.

4. PROMULGATION BY EXEC. JUDGE – If the accused is confined or

detained in another province or city, the judgment may be
promulgated by the executive judge of the Regional Trial Court having
jurisdiction over the place of confinement or detention upon request
of the court which rendered the judgment.

5. PROMULGATION IN ABSENTIA – In case the accused fails to appear at

the scheduled date of promulgation of judgment despite notice, the
promulgation shall be made by recording the judgment in the criminal
docket and serving him a copy thereof at his last known address or
thru his counsel.

Essential requisites of promulgation in absentia:

(a) that the accused was notified of the scheduled date of promulgation;

(b) that despite such notice, he failed to appear;

(c) that the judgment be recorded in the criminal docket; and

(d) that a copy thereof shall be served upon the accused or counsel.

If the accused fails to appear during promulgation despite notice and the
judgment is read in the presence of her counsel, will the failure of the
recording of the judgment in the criminal docket affect the validity of the
promulgation?

Marilyn C. Pascua vs. Court of Appeals

G.R. No. 140243. December 14, 2000
December 14, 2000 Commented [u136]: QUERY: incomplete case title

In the absence of the recording of the judgment in the criminal docket, there
can be NO VALID PROMULGATION.

In the same case, will the fact that the accused subsequently received a copy
of the decision cause the 15-day period to appeal to begin to run?

“We rule in the negative. Petitioner's later receipt of the copy of the
decision does not in any way cure an invalid promulgation. And even if said
decision be recorded in the criminal docket later, such piece-meal compliance with
the Rules will still not validate the May 5, 1998 promulgation which was invalid at
the time it was conducted. The express mention in the provision of both
requirements for a valid promulgation in absentia clearly means that they indeed
must concur.”

If the accused jumps bail, it amounts to an abandonment of his appeal and

the judgment immediately becomes final and executory.
 158

Philippine Rabbit Bus Lines, Inc. v. People of the Philippines,

G.R. No. 147703, April 14, 2004.

“As to when a judgment of conviction attains finality is explained in Section

7 of Rule 120 of the 2000 Rules of Criminal Procedure, which we quote:

“A judgment of conviction may, upon motion of the accused, be modified or

set aside before it becomes final or before appeal is perfected. Except where the
death penalty is imposed, a judgment becomes final after the lapse of the period
for perfecting an appeal, or when the sentence has been partially or totally satisfied
or served, or when the accused has waived in writing his right to appeal, or has
applied for probation.”

In the case before us, the accused-employee has escaped and refused to
surrender to the proper authorities; thus, he is deemed to have abandoned his
appeal. Consequently, the judgment against him has become final and executory.”

If there is more than one accused and, during the promulgation, only one of
the accused was present and the others jumped bail, can the court take
cognizance of a joint motion for reconsideration?

People v. Joven De Grano,

G.R. No. 167710, June 5, 2009.

The RTC should have considered the joint motion to have been filed solely
by the accused who was present as the other accused had lost all remedies
against the judgment.

If, in the same case, the judge ACQUITTED two of the accused on the basis
of the motion for reconsideration, can these two claim double jeopardy if the
case against them is reinstated?

No, the court had no jurisdiction or authority to take cognizance of the

motion for reconsideration as to the accused who were at large, thus their acquittal
upon action on the motion for reconsideration was VOID. They cannot thus claim
double jeopardy on the basis of a VOID order.

Modification of judgment (Sec. 7)

A judgment of conviction may, upon motion of the accused, be modified or

set aside before it becomes final or before appeal is perfected. Except where the
death penalty is imposed, a judgment becomes final after the lapse of the period
for perfecting an appeal, or when the sentence has been partially or totally satisfied
or served, or when the accused has waived in writing his right to appeal, or has
applied for probation. (7a)

NOTE: Prosecution cannot move for modification.

PpPeople of the .Philippines v. Eladio Viernes, Commented [u137]: QUERY: People?

G.R. Nos. 136733-35, December 13, 2001.

In 1985, Section 7 of Rule 120 was amended to include the phrase "upon
motion of the accused" — effectively resurrecting the Ang Cho Kio ruling (95 Phil.
 159

475) prohibiting the prosecution from seeking a modification of a judgment of

conviction.

Under this Rule, a judgment of conviction, before it became final, could be

modified or set aside upon motion of the accused. It obviously aims to protect the
accused from being put anew to defend himself from more serious offenses or
penalties which the prosecution or the court may have overlooked in the original
trial. It does not however bar him from seeking or receiving more favorable
modifications.

Significantly, the present Rules, as amended last year, retained the phrase
"upon motion of the accused,"

Note: Even if finality of the criminal aspect is accelerated, the civil aspect will
become final only after the lapse of the 15-day period to appeal.

PpPeople of the .Philippines vs. Pedro Santiago

June 20, 1989 G.R. No. 80778, 20 June 1989
Reiterated in
Formatted: Normal, Justified
Palu-ay vs. CA,
G.R. No. 112995, July 30, 1998 July 30, 1998 Commented [u138]: QUERY: incomplete case titles

It is well-settled that in criminal cases where the offended party is the State,
the interest of the private complainant or the private offended party is limited to the
civil liability. Thus, in the prosecution of the offense, the complainant's role is
limited to that of a witness for the prosecution. If a criminal case is dismissed by
the trial court or if there is an acquittal, an appeal therefrom on the criminal aspect
may be undertaken only by the State through the Solicitor General. Only the
Solicitor General may represent the People of the Philippines on appeal. The
private offended party or complainant may not take such appeal. However, the said
offended party or complainant may appeal the civil aspect despite the acquittal of
the accused.

RULE 121 - NEW TRIAL OR RECONSIDERATION

New trial or reconsideration. – At any time before a judgment of conviction

becomes final, the court may, on motion of the accused or at its own instance but
with the consent of the accused, grant a new trial or reconsideration. (Sec. 1, Rule
121)

“At any time before a judgment of conviction becomes final”

1. This Rule applies only to judgments of conviction- an acquittal is

immediately final and executory.

2. Within fifteen days from the date of promulgation the accused can appeal.
The period to appeal is interrupted by the filing of a Motion for
Reconsideration or a Motion for New Trial. The period will run again from
 160

notice of the denial of the Motion. (A new 15-day period per the Neypes
Ruling)

3. If the accused files a Motion for New Trial or a Motion for Reconsideration,
he waives the right against double jeopardy. This means that the court can
modify the judgment to a graver offense, e.g., Charged with Murder
Convicted of Homicide, filed a Motion for Reconsideration, judge modified
the judgment to murder.

4. Distinctions between Motion for Reconsideration or New Trial and

Modification of judgment.

BOTH can affect only judgments of conviction.

a) Modification of judgment can be had only upon motion of the accused

while Recon and New Trial can also be at the court’s own instance
with the consent of the accused.

b) In modification of judgment the original judgment stands while in a

Motion for Recon or New Trial, if it is granted, there will be an entirely
new judgment.

Grounds for a new trial (Sec. 2, Rule 121)

“That errors of law or irregularities prejudicial to the substantial rights of the

accused have been committed during the trial”

This refers to instances where there was a serious breach of procedure that
prejudiced the substantial rights of the accused. Examples:

1. The accused was forced to go into trial without counsel;

2. The counsel for the accused turned out to be a fraud who is

not actually a lawyer;

3. A material witness for the accused was not allowed to testify

on the basis on an erroneous application of the rules;

4. The court erroneously refused to issue subpoena to compel

the attendance of a material witness for the accused.

“newly discovered evidence”

Requisites:

PpPeople of the .Philippines vs. Alberto Tirona

G.R. No. 128907 December 22, 1998
Dec. 22, 1998 Commented [u139]: QUERY: pls provide the SCRA or
GR No. thanks
For newly discovered evidence to be a ground for new trial under paragraph (b)
above, it is required that

i) the evidence is discovered after trial;

ii) such evidence could not have been discovered and produced at the trial
even with the exercise of reasonable diligence; and
 161

iii) the evidence is material, not merely cumulative, corroborative, or

impeaching, and of such weight that, if admitted, would probably change
the judgment.

Will the recantation of a witness through an affidavit of desistance be

sufficient ground for a new trial?

Gomez v. IAC, 135 SCRA 6.

PpPeople of the Philippines vs. Eduardo Garcia
G.R. No. 120387-88. March 31, 1998
March 31, 1998 Commented [u140]: QUERY: pls provide GR or
SCRA No.
“When confronted with an affidavit of recantation, courts are called upon to
weigh countervailing values in our legal and judicial system. A recantation, as a
general rule, is not sufficient to warrant a new trial. If it were otherwise, a new trial
would be granted whenever an interested party succeeds in intimidating or
inducing any or some of the witnesses to retract after trial their testimony, thus,
opening the door to endless litigation. It is also injudicious to reject a testimony
solely on the basis of such recantation, which may later be repudiated, as this "will
make a solemn trial a mockery and place the investigation at the mercy of
unscrupulous witnesses."

To warrant a new trial, Joylyn's affidavit of desistance must constitute a

recantation and not a mere withdrawal from the prosecution of the case. The Court
en banc in Alonte, speaking through Mr. Justice Jose C. Vitug, held that the
complainant's affidavit of desistance did not constitute a recantation, because she
did not deny the truth of her complaint but merely sought to "be allowed to
withdraw" and "discontinue" the case because she wished "to start life anew and
live normally again." She never absolved or exculpated the accused. In other
words, a recantation of a prior statement or testimony must necessarily renounce
the said statement or testimony and withdraw it formally and publicly

Ground for reconsideration (Sec. 3, Rule 121)

“errors of law or fact in the judgment, which requires no further

proceedings”

What are the grounds?

1. court made a mistake in arriving at its decision

2. decision is not in accordance with the law.

3. decision not in accordance with the evidence.

Effects of granting a new trial or reconsideration. (Sec. 6, Rule 121)

The effects of granting a new trial or reconsideration are the following:

(a) When a new trial is granted on the ground of errors of law or

irregularities committed during the trial, all the proceedings and
evidence affected thereby shall be set aside and taken anew.
The court may, in the interest of justice, allow the introduction
of additional evidence.
 162

(b) When a new trial is granted on the ground of newly-discovered

evidence, the evidence already adduced shall stand and the
newly-discovered and such other evidence as the court may, in
the interest of justice, allow to be introduced shall be taken and
considered together with the evidence already in the record.

(c) In all cases, when the court grants new trial or reconsideration,
the original judgment shall be set aside or vacated and a new
judgment rendered accordingly. (6a)

RULE 122 - APPEAL

Who may appeal? (Sec. 1, Rule 122)

Any party may appeal from a judgment or final order, unless the
accused will be placed in double jeopardy. (2a)

1. Prosecution for as long as the accused will not be placed in double

jeopardy.

General Rule: Prosecutor cannot appeal because the

accused will be placed in double jeopardy.

Exception: e.g., accused filed motion to quash on the basis

of lack of jurisdiction granted by court, pros can appeal, no
double jeopardy since it was at the instance of the accused.

2. The accused. (An appeal by the accused waives double jeopardy.

Thus, if he was convicted for homicide under a charge of murder and
he appeals, the appellate court can convict him for murder)

3. Offended party insofar as the civil aspect is concerned. (Palu-ay v.

CA, July 30, G.R. No. 112995,1998) Commented [u141]: QUERY: incomplete case title

PpPeople of the .Philippines vs. Madali

Jan 16, 2001.
G.R. No. 126050. January 16, 2001 Commented [u142]: QUERY: incomplete case title

“Rule 122, §1 of the Revised Rules on Criminal

Procedure provides that "(a)ny party may appeal from a
judgment or final order, unless the accused will be placed in
double jeopardy." It has been held that the word "party" in the
provision in question includes not only the government and the
accused but other persons as well, such as the complainant
who may be affected by the judgment rendered in the criminal
proceedings. The complainant has an interest in the civil
liability arising from the crime, unless of course he has
reserved to bring a separate civil action to recover the civil
liability. Hence, in the prosecution of the offense, the
complainant's role is that of a witness for the prosecution.
Ordinarily, the appeal of criminal cases involves as parties only
the accused, as appellants, and the State, represented by the
 163

Office of the Solicitor General, as the appellee. The

participation of the private offended party would be a mere
surplusage, if the State were simply to seek the affirmation of
a judgment of conviction. However, where the Office of the
Solicitor General takes a contrary position and recommends,
as in this case, the acquittal of the accused, the complainant's
right to be heard on the question of award of indemnity and
damages arises. In the interest of justice and equity and to
provide perspective for this appeal, therefore, the Court hereby
allows in this case the memorandum filed by complainant
which is hereby admitted as part of the records of this appeal”.

4. bondsmen of the accused in relation to liability on the bond.

5. employer in relation to subsidiary liability under Article 103 of the

RPC Commented [u143]: Nope continuation of the list of
people who can appeal
If the employee absconds or jumps bail and there is a judgment
for civil liability, can the employer appeal?

Philippine Rabbit Bus Lines, Inc. v. People of the Philippines

G.R. No. 147703, April 14, 2004.

“When the accused-employee absconds or jumps bail, the

judgment meted out becomes final and executory. The employer
cannot defeat the finality of the judgment by filing a notice of appeal
on its own behalf in the guise of asking for a review of its subsidiary
civil liability. Both the primary civil liability of the accused-employee
and the subsidiary civil liability of the employer are carried in one
single decision that has become final and executory.”

“Just because the present petitioner participated in the defense

of its accused-employee does not mean that its liability has
transformed its nature; its liability remains subsidiary. Neither will its
participation erase its subsidiary liability. The fact remains that since
the accused-employee’s conviction has attained finality, then the
subsidiary liability of the employer ipso facto attaches.”

“As to the argument that petitioner was deprived of due

process, we reiterate that what is sought to be enforced is the
subsidiary civil liability incident to and dependent upon the
employee’s criminal negligence. In other words, the employer
becomes ipso facto subsidiarily liable upon the conviction of the
employee and upon proof of the latter’s insolvency, in the same way
that acquittal wipes out not only his primary civil liability, but also his
employer’s subsidiary liability for his criminal negligence

It should be stressed that the right to appeal is neither a natural

right nor a part of due process. It is merely a procedural remedy of
statutory origin, a remedy that may be exercised only in the manner
prescribed by the provisions of law authorizing such exercise. Hence,
the legal requirements must be strictly complied with.”

NOTA BENE -interesting case on Subsidiary Liability

Rolito Calang, Et Al vs. People

G.R. No. 190696, August 3, 2010
 164

The provisions of the Revised Penal Code on subsidiary liability Articles 102 and
103 are deemed written into the judgments in cases to which they are applicable. Thus,
in the dispositive portion of its decision, the trial court need not expressly
pronounce the subsidiary liability of the employer. Nonetheless, before the employers
subsidiary liability is enforced, adequate evidence must exist establishing that (1) they are
indeed the employers of the convicted employees; (2) they are engaged in some kind of
industry; (3) the crime was committed by the employees in the discharge of their duties;
and (4) the execution against the latter has not been satisfied due to insolvency. The
determination of these conditions may be done in the same criminal action in which the
employees liability, criminal and civil, has been pronounced, in a hearing set for that
precise purpose, with due notice to the employer, as part of the proceedings for the
execution of the judgment.

What is the remedy of the offended party if the court grants an accused’s
motion to withdraw the Information?

First Women’s Credit Corp. et al. v. Hon. Rommel O. Baybay, et al.,

G.R. No. 166888, January 31, 2007.

“As to what mode of review petitioners may avail of after a court grants an
accused’s motion to withdraw information and/or to dismiss the case, Section 1
of Rule 122 of the 2000 Revised Rules of Criminal Procedure instructs: “Any
party may appeal from a judgment or final order, unless the accused will be
placed in double jeopardy.”

In availing of the remedy of certiorari before the RTC, petitioners claim

that they had no plain, adequate and speedy remedy to question the MeTC’s
grant of the motion.

The records of the cases show, however, that the motion was granted by
the MeTC before respondents were arraigned. Thus, the prohibitionagainst appeal
in case a criminal case is dismissed as the accused would be placed in double
jeopardy does not apply. “

EFFECT OF FAILURE TO FILE MEMORANDUM ON APPEAL

Jose Sanico vs. People of the Philippines

G.R. No. 198753, March 25, 2015
BERSAMIN, J.

Failure to file a memorandum on appeal is a ground for the RTC to dismiss an

appeal ONLY IN CIVIL CASES BUT NOT IN CRIMINAL CASES.

Section 9(c) Rule 122, provides that the RTC must decide the appeal “on the basis
of the entire record of the case and of such memoranda or briefs as may have been filed”
upon the submission of the appellate memoranda or briefs, or upon the expiration of the
period to file the same.

Effect of appeal by any of several accused. (Sec. 11, Rule 122)

(a) An appeal taken by one or more of several accused shall not affect those
who did not appeal, except insofar as the judgment of the appellate court
is favorable and applicable to the latter;

(b) The appeal of the offended party from the civil aspect shall not affect
the criminal aspect of the judgment or order appealed from;
 165

(c) Upon perfection of the appeal, the execution of the judgment or final
order appealed from shall be stayed as to the appealing party. (11a)

People of the Philippines vs. PO2 Eduardo Valdez and Edwin Valdez
G.R. No. 175602, February 13, 2013 (BERSAMIN, J.)

Facts: Edwin and Eduardo were convicted by the RTC for three (3) counts of murder
which was affirmed by the CA. They both appealed to the SC but pending the appeal,
Edwin filed a motion to withdraw appeal which was granted the SC deemed the appeal,
as to him, closed and terminated.

Thereafter, the SC ruled on Eduardo’s appeal by downgrading the conviction to

three (3) counts of homicide instead of murder. Edwin sent a letter to the Court
Administrator a letter pleading that the same judgment be made applicable to him.

Issue: Whether or not the SC’s judgment should benefit Edwin in view of the withdrawal
of his appeal

Ruling: Yes. Section 11(a), Rule 122 of the Rules of Court is applicable. “Section 11.
Effect of appeal by any of several accused. – (a) An appeal taken by one or more of
several accused shall not affect those who did not appeal, except insofar as the
judgment of the appellate court is favorable and applicable to the latter.

Withdrawal of appeal (Sec. 12 Rule 122)

Notwithstanding perfection of the appeal, the Regional Trial Court,

Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, or
Municipal Circuit Trial Court, as the case may be, may allow the appellant to
withdraw his appeal before the record has been forwarded by the clerk of court to
the proper appellate court as provided in Section 8, in which case the judgment
shall become final. The Regional Trial Court may also, in its discretion, allow the
appellant from the judgment of a Metropolitan Trial Court, Municipal Trial Court in
Cities, Municipal Trial Court, or Municipal Circuit Trial Court to withdraw his appeal,
provided a motion to that effect is filed before rendition of the judgment in the case
on appeal, in which case the judgment of the court of origin shall become final and
the case shall be remanded to the latter court for execution of the judgment. (12a)

People v. Ricardo Rio,

G.R. No. 90294, September 24, 1991.

This right to a counsel de oficio does not cease upon the conviction of an
accused by a trial court. It continues, even during appeal, such that the duty of
the court to assign a counsel de oficio persists where an accused interposes an
intent to appeal. Even in a case, such as the one at bar, where the accused had
signified his intent to withdraw his appeal, the court is required to inquire into the
reason for the withdrawal. Where it finds the sole reason for the withdrawal to be
poverty, as in this case, the court must assign a counsel de oficio, for despite such
withdrawal, the duty to protect the rights of the accused subsists and perhaps,
with greater reason. After all, "those who have less in life must have more in law."
Justice should never be limited to those who have the means. It is for everyone,
whether rich or poor. Its scales should always be balanced and should never
equivocate or cogitate in order to favor one party over another.

It is with this thought in mind that we charge clerks of court of trial courts
to be more circumspect with the duty imposed on them by law (Section 13, Rule
122 of the Rules of Court) so that courts will be above reproach and that never (if
possible) will an innocent person be sentenced for a crime he has not committed
nor the guilty allowed to go scot-free.
 166

SEC. 13. Appointment of counsel de oficio for accused on

appeal - It shall be the duty of the clerk of court of the trial court, upon
filing of a notice of appeal to ascertain from the appellant, if confined
in prison, whether he desires the Regional Trial Court, Court of
Appeals or the Supreme Court to appoint a counsel de oficio to defend
him and to transmit with the record on a form to be prepared by the
clerk of court of the appellate court, a certificate of compliance with
this duty and of the response of the appellant to his inquiry. (13a)

RULE 123 - PROCEDURE IN THE MUNICIPAL TRIAL

COURTS

SECTION 1. Uniform Procedure. – The procedure to be observed

in the Metropolitan Trial Courts, Municipal Trial Courts and Municipal
Circuit Trial Courts shall be the same as in the Regional Trial Courts,
except where a particular provision applies only to either of said
courts and in criminal cases governed by the Revised Rule on
Summary Procedure. (1a)

1991 RULE ON SUMMARY PROCEDURE

Coverage as to Criminal Cases (Sec. 1 [B])

B. Criminal Cases:

(1) Violations of traffic laws, rules and regulations;

(2) Violations of the rental law;
(3) Violations of municipal or city ordinances;
(4) Violations of Batas Pambansa Bilang 22 (Bouncing Checks Law);
(5) All other criminal cases where the penalty prescribed by law for the
offense charged is imprisonment not exceeding six months, or a fine not
exceeding (P1,000.00), or both, irrespective of other imposable penalties,
accessory or otherwise, or of the civil liability arising therefrom: Provided,
however, that in offenses involving damage to property through criminal
negligence, this Rule shall govern where the imposable fine does not
exceed ten thousand pesos (P10,000.00).

This Rule shall not apply to a civil case where the plaintiffs cause of action
is pleaded in the same complaint with another cause of action subject to the
ordinary procedure; nor to a criminal case where the offense charged is
necessarily related to another criminal case subject to the ordinary
procedure.

Section 15, 2nd par.

Except in rebuttal or surrebuttal, no witness shall be allowed to testify unless

his affidavit was previously submitted to the court in accordance with Section 12
hereof.

Atty. Hugolino V. Balayon, Jr., vs. Judge Gaydifredo O. Ocampo

A.M. No. MTJ-91-619 January 29, 1993
 167

January 29, 1993 Commented [u144]: QUERY: incomplete case title

Formatted: Font: Bold
In Orino v. Judge Gervasio, the Supreme Court ruled in a Minute Resolution
Formatted: Font: Bold
that even if a witness has not priorly submitted his/her affidavit, he may be called
Formatted: Font: Bold
to testify in connection with a specific factual matter relevant to the issue. Thus, a
medical doctor whose medical certificate is among the evidence on record may be Formatted: Indent: First line: 0"
called to testify. This also applies to a Register of Deeds or Provincial Assessor in Formatted: Font: Bold
connection with official documents issued by his office. Formatted: Font: Bold
Formatted: Indent: First line: 0"

RULE 126 – SEARCH AND SEIZURE

Section 2, Article III of the 1987 Constitution provides —

The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures 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.

This Rule speaks of searches where a warrant is issued.

Jurisprudence mentions the following instances under which a warrantless

search and seizure may be effected, to wit:

VALID WARRANTLESS SEARCHES:

From the concurring opinion of Justice Panganiban
In the case of People v. Florencio Doria
G.R. No. 125299. January 22, 1999January 22, 1999 Commented [u145]: QUERY: incomplete case title

1. Search Incident to Lawful Arrest

Section 12 of Rule 126 provides that a lawfully arrested person may be
searched without a warrant for dangerous weapons or anything else that may be
used as evidence of the offense. Such incidental search is, however, limited to the
person of the arrestee at the time of the apprehension. The search cannot be
extended to or made in a place other than the place of the arrest.

2. The "Plain View" Doctrine

The "plain view" doctrine applies when the following requisites concur: (1)
the law enforcement officer is in a position where he has a clear view of a particular
area or has prior justification for an intrusion; (2) said officer inadvertently comes
across (or sees in plain view) a piece of incriminating evidence; and (3) it is
immediately apparent to such officer that the item he sees may be evidence of a
crime or a contraband or is otherwise subject to seizure.

3. Search of Moving Vehicles

 168

The warrantless search of moving vehicles (including shipping vessels and

aircraft) is justified by practicability, viz.:
"The guaranty of freedom from unreasonable searches and seizures
construed as recognizing a necessary difference between a search of a dwelling
house or other structure in respect of which a search warrant may readily be
obtained and a search of a ship, motorboat, wagon, or automobile for contraband
goods, where it is not practicable to secure a warrant, because the vehicle can be
quickly moved out of the locality or jurisdiction in which the warrant must be sought.
xxx xxx xxx
"The automobile is a swift and powerful vehicle x x x Constructed as
covered vehicles to standard form in immense quantities, and with a capacity for
speed rivaling express trains, they furnish for successful commission of crime a
distinguishing means of silent approach and swift escape unknown in the history
of the world before their advent. The question of their police control and reasonable
search on highways or other public place is a serious question far deeper and
broader than their use in so-called 'bootlegging' or 'rum running,' which in itself is
no small matter. While a possession in the sense of private ownership, they are
but a vehicle constructed for travel and transportation on highways. Their active
use is not in homes or on private premises, the privacy of which the law especially
guards from search and seizure without process. The baffling extent to which they
are successfully utilized to facilitate commission of crime of all degrees, from those
against morality, chastity, and decency to robbery, rape, burglary, and murder, is
a matter of common knowledge. Upon that problem, a condition, and not a theory,
confronts proper administration of our criminal laws. Whether search of and
seizure from an automobile upon a highway or other public place without a search
warrant is unreasonable is in its final analysis to be determined as a judicial
question in view of all the circumstances under which it is made."
4. Customs Searches
Under the Tariff and Customs Code, searches, seizures and arrests may
be made even without warrants, for purposes of enforcing customs and tariff laws.
Without mention of the need to priorly obtain a judicial warrant, the Code
specifically allows police authorities to "enter, pass through or search any land,
enclosure, warehouse, store or building, not being a dwelling house; and also to
inspect, search and examine any vessel or aircraft and any trunk, package, box or
envelope or any person on board[;]or stop and search and examine any vehicle,
beast or person suspected of holding or conveying any dutiable or prohibited article
introduced into the Philippines contrary to law."

5. Search With Consent

Waiver of any objection to the unreasonableness or invalidity of a search is
a recognized exception to the rule against a warrantless search. The consent to
the search, however, must be express, knowing and voluntary. A search based
merely on implied acquiescence is not valid, because such consent is not within
the purview of the constitutional guarantee, but only a passive conformity to the
search given under intimidating and coercive circumstances.
In People v. Lacerna, it was held that the otherwise prohibited intrusive
search of appellant's plastic bag was validated by the express consent of appellant
himself, who was observed to be "urbanized in mannerism and speech," and who
moreover stated that he had nothing to hide and had done nothing wrong.

6. "Stop and Frisk"

 169

The "stop and frisk" concept is of American origin, the most notable case
thereon being Terry v. Ohio. The idea is that a police officer may after properly
introducing himself and making initial inquiries, approach and restrain a person
manifesting unusual and suspicious conduct, in order to check, the latter's outer
clothing for possibly concealed weapons. The strict manner in which this notion
should be applied has been laid down as follows:
"x x x where a police officer observes unusual conduct which leads him
reasonably to conclude in the light of his experience that criminal activity may be
afoot and that the persons with whom he is dealing may be armed and presently
dangerous, where in the course of investigating this behavior, he identifies himself
as a policeman and makes reasonable inquiries, and where nothing in the initial
stages of the encounter serves to dispel his reasonable fear for his own and others'
safety, he is entitled for the protection of himself and others in the area to conduct
a carefully limited search of the outer clothing of such persons in an attempt to
discover weapons which might be used to assault him."
As in the warrantless arrest of a person reasonably suspected of having
just committed a crime, mere suspicious behavior would not call for a "stop and
frisk." There must be a genuine reason, in accordance with the police officer's
experience and the surrounding conditions, to warrant the belief that the person to
be held has weapons (or contraband) concealed about him.
A valid application of the doctrine was recognized in Posadas v. Court of
Appeals and in Manalili v. Court of Appeals. In Manalili, the law enforcers who were
members of the Anti-Narcotics Unit of the Caloocan City Police, observed during
their surveillance that appellant had red eyes and was walking in a wobbly manner
along the city cemetery which, according to police information, was a popular
hangout of drug addicts. Based on police experience, such suspicious behavior
was characteristic of persons who were "high" on drugs. The Court held that past
experience and the surrounding circumstances gave the police sufficient reason
to stop the suspect and to investigate if he was really high on drugs. The marijuana
that they found in the suspect's possession was held to be admissible in evidence.

Some cases where “tipped information” was sufficient to justify warrantless

searches
From People vs. Samuel Valdez
G.R. No. 127801. March 3, 1999
March 3, 1999 Commented [u146]: QUERY: incomplete case title

In People v. Tangliben, two police officers and a barangay tanod were

conducting surveillance mission at the Victory Liner terminal compound in San
Fernando, Pampanga against persons who may commit misdemeanors and also
on those who may be engaging in the traffic of dangerous drugs based on
Information supplied by informers. At 9:30 in the evening, the policemen noticed a
person carrying a red travelling bag who was acting suspiciously. An informer
pointed to the accused-appellant as carrying marijuana. 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 of his arrest. Hence, faced with such on-the-spot tip, the police officers
acted quickly as there was not enough time to secure a search warrant.
In People v. Maspil, a checkpoint was set up by elements of the First
Narcotics Regional Unit of the Narcotics Command at Sayangan, Atok, Benguet,
to monitor, inspect and scrutinize vehicles on the highway going towards Baguio
City. This was done because of a confidential report by informers that Maspil and
 170

Bagking, would be transporting a large quantity of marijuana to Baguio City. In fact,

the informers were with the policemen manning the checkpoint. As expected, at
about two o'clock in the early morning of November 1, 1986, a jeepney approached
the checkpoint, driven by Maspil, with Bagking as passenger. The officers stopped
the vehicle and saw that on it were loaded 2 plastic sacks, a jute sack, and three
big round tin cans. When opened, the sacks and cans were seen to contain what
appeared to be marijuana leaves. The policemen thereupon placed Maspil and
Bagking under arrest, and confiscated the leaves which, upon scientific
examination, were verified to be marijuana leaves. The Court upheld the validity of
the search thus conducted, as being incidental to lawful warrantless arrest and
declared that Maspil and Bagking had been caught in flagrante delicto transporting
prohibited drugs.
In People v. Malmstedt, Narcom agents set up checkpoint at Acop, Tublay,
Mountain Province in view of reports that vehicles coming from Sagada were
transporting marijuana. They likewise received information that a Caucasian
coming from Sagada had in his possession prohibited drugs. There was no
reasonable time to obtain a search warrant, especially since the identity of the
suspect could not be readily ascertained. Accused's actuations also aroused the
suspicion of the officers conducting the inspection aboard the bus. The Court held
that in light of such circumstances, to deprive the agents of the ability and facility
to act promptly, including a search without a warrant, would be to sanction
impotence and ineffectiveness in law enforcement, to the detriment of society.
In People v. Bagista, the NARCOM officers had probable cause to stop
and search all vehicles coming from the north to Acop, Tublay, Benguet in view of
the confidential information they received from their regular informant that a
woman having the same appearance as that of accused-appellant would be
bringing marijuana from up north. They likewise had probable cause to search
accused-appellant's belongings since she fitted the description given by the
NARCOM informant.
In Manalili v. Court of Appeals, the policemen conducted a surveillance
in an area of the Kalookan Cemetery based on information that drug addicts were
roaming therein. Upon reaching the place, they chanced upon a man in front of the
cemetery who appeared to be "high" on drugs. He was observed to have reddish
eyes and to be walking in a swaying manner. Moreover, he appeared to be trying
to avoid the policemen. When approached and asked what he was holding in his
hands, he tried to resist. When he showed his wallet, it contained marijuana. The
Court held that the policemen had sufficient reason to accost accused-appellant to
determine if he was actually "high" on drugs due to his suspicious actuations,
coupled with the fact that based on information, this area was a haven for drug
addicts

What is the extent of an allowable “routine search” at police or military

checkpoints (part of Search of Moving Vehicles)?
Rudy Caballes v. Court of Appeals
G.R. No. 136292. January 15, 2002

January 15, 2002 Commented [u147]: QUERY: incomplete case title

Routine inspections are not regarded as violative of an individual's right

against unreasonable search. The search which is normally permissible in this
instance is limited to the following instances:
(1) where the officer merely draws aside the curtain of a vacant vehicle which
is parked on the public fair grounds;
 171

(2) simply looks into a vehicle;

(3) flashes a light therein without opening the car's doors;
(4) where the occupants are not subjected to a physical or body search;
(5) where the inspection of the vehicles is limited to a visual search or visual
inspection; and
(6) where the routine check is conducted in a fixed area.

Examples of valid warrantless searches with consent:

Also from Rudy Caballes v. Court of Appeals
G.R. No. 136292. January 15, 2002
January 15, 2002. Commented [u148]: QUERY: incomplete case title

In Asuncion v. Court of Appeals, the apprehending officers sought the

permission of petitioner to search the car, to which the latter agreed. Petitioner
therein himself freely gave his consent to said search.
In People v. Lacerna, the appellants who were riding in a taxi were stopped
by two policemen who asked permission to search the vehicle and the appellants
readily agreed. In upholding the validity of the consented search, the Court held
that appellant himself who was "urbanized in mannerism and speech" expressly
said that he was consenting to the search as he allegedly had nothing to hide and
had done nothing wrong.
In People v. Cuizon, the accused admitted that they signed a written
permission stating that they freely consented to the search of their luggage by the
NBI agents to determine if they were carrying shabu.
In People v. Montilla, it was held that the accused spontaneously
performed affirmative acts of volition by himself opening the bag without being
forced or intimidated to do so, which acts should properly be construed as a clear
waiver of his right.
In People v. Omaweng, the police officers asked the accused if they could
see the contents of his bag to which the accused said "you can see the contents
but those are only clothings." Then the policemen asked if they could open and
see it, and accused answered "you can see it." The Court said there was a valid
consented search

SECTION 1. Search warrant defined. – A search warrant is an

order in writing issued in the name of the People of the Philippines,
signed by a judge and directed to a peace officer, commanding him to
search for personal property described therein and bring it before the
court. (1)

SEC. 2. Court where application for search warrant shall be

filed.– An application for search warrant shall be filed with the
following:

(a) Any court within whose territorial jurisdiction a crime was

committed.

(b) For compelling reasons stated in the application, any court

within the judicial region where the crime was committed if the
 172

place of the commission of the crime is known, or any court

within the judicial region where the warrant shall be enforced.

However, if the criminal action has already been filed, the

application shall only be made in the court where the criminal action
is pending. (n)

THIS IS AN ENTIRELY NEW PROVISION

Whether or not a court may take cognizance of an application for a search

warrant in connection with an offense committed outside its territorial boundary
and, thereafter, issue the warrant to conduct a search on a place outside the court's
supposed territorial jurisdiction.

Elizalde Malaloan, et al., v. CA,

G.R. No. 104879, May 6, 1994.

Application for search warrant was filed with RTC of Caloocan and
enforced/implemented in Quezon City.

Held:

“No law or rule imposes such a limitation on search warrants, in the same
manner that no such restriction is provided for warrants of arrest. Parenthetically,
in certain states within the American jurisdiction, there were limitations of the time
wherein a warrant of arrest could be enforced. In our jurisdiction, no period is
provided for the enforceability of warrants of arrest, and although within ten days
from the delivery of the warrant of arrest for execution a return thereon must be
made to the issuing judge, said warrant does not become functus officio but is
enforceable indefinitely until the same is enforced or recalled. On the other hand,
the lifetime of a search warrant has been expressly set in our Rules at ten days
but there is no provision as to the extent of the territory wherein it may be enforced,
provided it is implemented on and within the premises specifically described
therein which may or may not be within the territorial jurisdiction of the issuing
court.”

GUIDELINES LAID DOWN IN MALALOAN

In relation to the authority of courts to issue warrants of arrest

1. The Court wherein the criminal case is pending shall have primary
jurisdiction to issue search warrants necessitated by and for purposes of
said case. An application for a search warrant may be filed with another
court only under extreme and compelling circumstances that the applicant
must prove to the satisfaction of the latter court which may or may not give
due course to the application depending on the validity of the justification
offered for not filing the same in the court with primary jurisdiction thereover.

2. When the latter court issues the search warrant, a motion to quash the same
may be filed in and shall be resolved by said court, without prejudice to any
proper recourse to the appropriate higher court by the party aggrieved by
the resolution of the issuing court. All grounds and objections then available,
existent or known shall be raised in the original or subsequent proceedings
for the quashal of the warrant, otherwise they shall be deemed waived.

3. Where no motion to quash the search warrant was filed in or resolved by

the issuing court, the interested party may move in the court where the
 173

criminal case is pending for the suppression as evidence of the personal

property seized under the warrant if the same is offered therein for said
purpose. Since two separate courts with different participations are involved
in this situation, a motion to quash a search warrant and a motion to
suppress evidence are alternative and not cumulative remedies. In order to
prevent forum shopping, a motion to quash shall consequently be governed
by the omnibus motion rule, provided, however, that objections not
available, existent or known during the proceedings for the quashal of the
warrant may be raised in the hearing of the motion to suppress. The
resolution of the court on the motion to suppress shall likewise be subject
to any proper remedy in the appropriate higher court.

4. Where the court which issued the search warrant denies the motion to
quash the same and is not otherwise prevented from further proceeding
thereon, all personal property seized under the warrant shall forthwith be
transmitted by it to the court wherein the criminal case is pending, with the
necessary safeguards and documentation therefor.

5. These guidelines shall likewise be observed where the same criminal

offense is charged in different Informations or complaints and filed in two or
more courts with concurrent original jurisdiction over the criminal action.
When the issue of which court will try the case shall have been resolved,
such court shall be considered as vested with primary jurisdiction to act on
applications for search warrants incident to the criminal case.

TAKE NOTE OF SPECIAL EXCEPTION UNDER Administrative Matter No. 99-

10-09-SC

Spouses Joel and Marietta Marimla v. People of the Philippines

G.R. No. 158467, October 16, 2009.

“it may be seen that A.M. No. 99-10-09-SC authorizes the Executive
Judge and Vice Executive Judges of the RTCs of Manila and Quezon City to
act on all applications for search warrants involving heinous crimes, illegal
gambling, dangerous drugs and illegal possession of firearms on application
filed by the PNP, NBI, PAOC-TF, and REACT-TF. On the other hand, Rule 126
of the Revised Rules on Criminal Procedure provides that the application for
search warrant shall be filed with: (a) any court within whose territorial
jurisdiction a crime was committed, and (b) for compelling reasons, any
court within the judicial region where the crime was committed if the place
of the commission of the crime is known, or any court within the judicial
region where the warrant shall be enforced.

SEC. 3. Personal property to be seized. – A search warrant may

be issued for the search and seizure of personal property:

(a) Subject of the offense;

(b) Stolen or embezzled and other proceeds, or fruits of the
offense; or
(c) Used or intended to be used as the means of committing an
offense. (2a)
 174

Requisites for issuing a search warrant

Republic v. Sandiganbayan,
255 SCRA 438, March 29, 1996.

(1) probable cause is present;

(2) such presence is determined personally by the judge;

(3) the complainant and the witnesses he or she may produce are personally
examined by the judge, in writing and under oath or affirmation;

(4) the applicant and the witnesses testify on facts personally known to them;
and

(5) the warrant specifically describes the place to be searched and the things
to be seized;

Add:

(6) the warrant is in connection with one specific offense.

1. Probable Cause is present

Burgos, Sr. v. Chief of Staff,

133 SCRA 800 Commented [u149]: QUERY: incomplete SCRA
Quintero v. National Bureau of Investigation, et al., number. thanks
June 23, 1988, 162 SCRA 467.

“In Philippine jurisprudence, probable cause has been uniformly defined as

such facts and circumstances which would lead a reasonable, discreet and prudent
man to believe that an offense has been committed, and that the objects sought in
connection with the offense are in the place sought to be searched.”

2. Determined Personally by the judge

Abdula v. Guiani
G.R. No. 118821. February 18, 2000
Feb. 18, 2000 Commented [u150]: QUERY: incomplete case title

Similar to the requirements for the issuance of a warrant of arrest where

jurisprudence clearly explains that “What the Constitution underscores is the
exclusive and personal responsibility of the issuing judge to satisfy himself of the
existence of probable cause.”

3. The complainant and the witnesses he or she may produce are

personally examined by the judge, in writing and under oath or
affirmation;

Paper Industries Corp. of the Phil. vs. Asuncion Commented [u151]: QUERY: incomplete case title
G.R. No. 122092. May 19, 1999May 19, 1999 Formatted: Font: Not Bold
Formatted: Font: Bold
Formatted: Font: Bold
 175

“Chief Inspector Pascua's application for a search warrant was supported

by (1) the joint Deposition of SPO3 Cicero S. Bacolod and SPO2 Cecilio T. Morito,
(2) a summary information and (3) supplementary statements of Mario Enad and
Felipe Moreno. Except for Pascua and Bacolod, however, none of the
aforementioned witnesses and policemen appeared before the trial court.
Moreover, the applicant's participation in the hearing for the issuance of the search
warrant consisted only of introducing Witness Bacolod and it turned out that even
Bacolod testified only that he believed that the PICOP security guards had no
license to possess the subject firearms. This, however, does not meet the
requirement that a witness must testify on his personal knowledge, not belief.

Held:

"Mere affidavits of the complainant and his witnesses are thus not
sufficient. The examining Judge has to take depositions in writing of the
complainant and the witnesses he may produce and attach them to the record.
Such written deposition is necessary in order that Judge may be able to properly
determine the existence or non-existence of the probable cause, to hold liable for
perjury the person giving it if it will be found later that his declarations are false.”

"It is axiomatic that the examination must be probing and exhaustive not
merely routinary or pro forma, if the claimed probable cause is to be established.
The examining magistrate must not simply rehash the contents of the affidavit but
must make his own inquiry on the intent and justification of the application.”

4. The Applicant And The Witnesses Testify On Facts Personally Known

To Them;

Paper Industries Corp. of the Phil. vs. Asuncion

G.R. No. 122092. May 19, 1999May 19, 1999 Commented [u152]: QUERY: incomplete citation
Formatted: Font: Bold
Formatted: Font: Bold
Affidavits and hearsay testimony is not sufficient

5 The Warrant Specifically Describes The Place To Be Searched And

The Things To Be Seized

Frank Uy, et al., v. BIR,

G.R. No. 129651, October 20, 2000.

As to place

Search Warrant A-1 indicates the address of Uy Chin Ho alias Frank Uy as

"Hernan Cortes St., Cebu City" while the body of the same warrant states the
address as "Hernan Cortes St., Mandaue City." Parenthetically, Search Warrants
A-2 and B consistently state the address of petitioner as "Hernan Cortes St.,
Mandaue City."

The rule is that a description of a place to be searched is sufficient if the

officer with the warrant can, with reasonable effort, ascertain and identify the place
intended and distinguish it from other places in the community. Any designation or
description known to the locality that points out the place to the exclusion of all
others, and on inquiry leads the officers unerringly to it, satisfies the constitutional
requirement. Thus, in Castro v. Pabalan, where the search warrant mistakenly
identified the residence of the petitioners therein as Barrio Padasil instead of the
 176

adjoining Barrio Maria Cristina, this Court "admitted that the deficiency in the writ
is not of sufficient gravity to call for its invalidation."

In this case, it was not shown that a street similarly named Hernan Cortes
could be found in Cebu City. Nor was it established that the enforcing officers had
any difficulty in locating the premises of petitioner corporation. That Search
Warrant A-1, therefore, inconsistently identified the city where the premises to be
searched is not a defect that would spell the warrant's invalidation in this case.

As to things to be seized

“We agree that most of the items listed in the warrants fail to meet the test
of particularity, especially since witness Abos had furnished the judge photocopies
of the documents sought to be seized. The issuing judge could have formed a
more specific description of these documents from said photocopies instead of
merely employing a generic description thereof. The use of a generic term or a
general description in a warrant is acceptable only when a more specific
description of the things to be seized is unavailable. The failure to employ the
specificity available will invalidate a general description in a warrant. The use by
the issuing judge of the terms "multiple sets of books of accounts, ledgers, journals,
columnar books, cash register books, sales books or records, provisional & official
receipts," "production record books/inventory lists, stock cards," "sales records, job
order," "corporate financial records," and "bank statements/cancelled checks" is
therefore unacceptable considering the circumstances of this case.

As regards the terms "unregistered delivery receipts" and "unregistered

purchase & sales invoices," however, we hold otherwise. The Solicitor General
correctly argues that the serial markings of these documents need not be specified
as it is not possible to do so precisely because they are unregistered. 36 Where,
by the nature of the goods to be seized, their description must be rather general,
it is not required that a technical description be given, as this would mean that no
warrant could issue. Taking into consideration the nature of the articles so
described, it is clear that no other more adequate and detailed description could
have been given, particularly because it is difficult to give a particular description
of the contents thereof. Although it appears that photocopies of these unregistered
documents were among those handed by Abos to the issuing judge, it would be
impractical to require the latter to specify each and every receipt and invoice, and
the contents thereof, to the minutest detail.

The general description of most of the documents listed in the warrants

does not render the entire warrant void. Insofar as the warrants authorize the
search and seizure of unregistered delivery receipts and unregistered purchase
and sales invoices, the warrants remain valid. The search warrant is severable,
and those items not particularly described may be cut off without destroying the
whole warrant.

6. In Connection With One Specific Offense

GENERAL WARRANT OR “SCATTER-SHOT WARRANT”

SHOTGUN WARRANT

Tambasan v. People,
246 SCRA 184, July 14 1995.

On its face, the search warrant violates Section 3, Rule 126 of the Revised
Rules of Court, which prohibits the issuance of a search warrant for more than one
 177

specific offense. The caption of Search Warrant No. 365 reflects the violation of
two special laws: P.D. No. 1866 for illegal possession of firearms, ammunition and
explosives; and R.A. No. 1700, the Anti-Subversion Law. Search Warrant No. 365
was therefore a "scatter-shot warrant" and totally null and void.

Kenneth Roy Savage vs. Aproniano Taypin, et al.,

May 11, 2000 Commented [u153]: QUERY: incomplete citation
Kenneth Roy Savage vs. Aproniano Taypin, et al.,
G.R. No. 134217. May 11, 2000
May 11, 2000

Search warrant issued in relation to alleged “unfair competition” (Intellectual

Properties case)

No such crime under the Intellectual Properties Code that should be given
retroactive effect to benefit the accused.

No basis for the issuance of a warrant.

Paper Industries Corp. of the Phil. v. Asuncion

G.R. No. 122092. May 19, 1999
May 19, 1999 Commented [u154]: QUERY: incomplete citation

“The examining Judge has to take depositions in writing of the complainant

and the witnesses he may produce and attach them to the record. Such written
deposition is necessary in order that Judge may be able to properly determine the
existence or non-existence of the probable cause, to hold liable for perjury the
person giving it if it will be found later that his declarations are false.”

SEC. 7. Right to break door or window to effect search. – The

officer, if refused admittance to the place of directed search after
giving notice of his purpose and authority, may break open any outer
or inner door or window of a house or any part of a house or anything
therein to execute the warrant to liberate himself or any person
lawfully aiding him when unlawfully detained therein.

SEC. 8. Search of house, room, or premises to be made in

presence of two witnesses. – No search of a house, room, or any other
premises shall be made except in the presence of the lawful occupant
thereof or any member of his family or in the absence of the latter, two
witnesses of sufficient age and discretion residing in the same
locality. (7a)

Quintero v. NBI,
162 SCRA 467.

NBI agents, armed with a search warrant, raided a house. There was a
witness but the NBI agents searched different rooms simultaneously.

This cannot be allowed because it defeats the purpose of having a witness.

The witness cannot be in all the places being searched at the same time.

People vs. Court of Appeals

G.R. No. 117412. December 8, 2000
 178

Dec. 8, 2000 Commented [u155]: QUERY: incomplete case citation

But was the witness-to-search rule violated by the police officers who
conducted the search notwithstanding the absence of private respondent and
despite the refusal of the members of his household to act as witnesses to the
search?
The witness-to-search rule is embodied in Section 7 of Rule 126, which
reads:

"SECTION 7. Search of house, room, or premise, to be made

in presence of two witnesses. — No search of a house, room, or any
other premise shall be made except in the presence of the lawful
occupant thereof or any member of his family or in the absence of
the latter, in the presence of two witnesses of sufficient age and
discretion residing in the same locality."

Petitioner submits that there was no violation of the aforementioned rule

since the searchers were justified in availing of two witnesses of sufficient age and
discretion, after respondent's wife and maid refused. The regularity of the search
is best evidenced by the "Certification of Orderly Search" and the receipt of the
property seized signed by respondent's wife.

We find merit in the petitioner's argument that private respondent's wife had
no justifiable reason to refuse to be a witness to the search and that her refusal to
be a witness cannot hamper the performance of official duty. In the absence of the
lawful occupant of the premises or any member of his family, the witness-to-search
rule allows the search to be made "in the presence of two witnesses of sufficient
age and discretion residing in the same locality." There was no irregularity when
the PNP-CISC team asked the bailiff of the Parañaque court and the barangay
security officer to act as witnesses to the search. To hold otherwise would allow
lawful searches to be frustrated by the mere refusal of those required by law to be
witnesses.

SEC. 9. Time of making search. – The warrant must direct that it

be served in the day time, unless the affidavit asserts that the property
is on the person or in the place ordered to be searched, in which case
a direction may be inserted that it be served at any time of the day or
night. (8)

People vs. Court of Appeals

G.R. No. 117412. December 8, 2000
Dec. 8, 2000 Commented [u156]: QUERY: incomplete case title

The general rule is that search warrants must be served during the daytime.
However, the rule allows an exception, namely, a search at any reasonable hour
of the day or night, when the application asserts that the property is on the person
or place ordered to be searched. In the instant case, the judge issuing the warrant
relied on the positive assertion of the applicant and his witnesses that the firearms
and ammunition were kept at private respondent's residence. Evidently, the court
issuing the warrant was satisfied that the affidavits of the applicants clearly
satisfied the requirements of Section 8, Rule 126 of the Rules of Court. The rule
on issuance of a search warrant allows for the exercise of judicial discretion in
fixing the time within which the warrant may be served, subject to the statutory
requirement fixing the maximum time for the execution of a warrant. We have
examined the application for search warrant, and the deposition of the witnesses
supporting said application, and find that both satisfactorily comply with the
requirements of Section 8, Rule 126. The inescapable conclusion is that the judge
 179

who issued the questioned warrant did not abuse his discretion in allowing a
search "at any reasonable hour of the day or night." Absent such abuse of
discretion, a search conducted at night where so allowed, is not improper.”

Mustang Lumber v. CA,

257 SCRA 430.

We also affirm the rulings of both the trial court and the Court of Appeals
that the search on 4 April 1990 was a continuation of the search on 3 April 1990
done under and by virtue of the search warrant issued on 3 April 1990 by Executive
Judge Osorio. Under Section 9, Rule 126 of the Rules of Court, a search warrant
has a lifetime of ten days. Hence, it could be served at any time within the said
period, and if its object or purpose cannot be accomplished in one day, the same
may be continued the following day or days until completed. Thus, when the search
under a warrant on one day was interrupted, it may be continued under the same
warrant the following day, provided it is still within the ten-day period.

Validity of search warrant

A search warrant shall be valid for ten (10) days from its date.
Thereafter, it shall be void. (Sec. 10, Rule 126)

Unlike a warrant of arrest, a search warrant has a DEFINITE LIFETIME.

Important questions:

1. How should an accused challenge the admissibility of evidence

derived from the implementation of a search warrant?

2. WHICH COURT should resolve the motion to quash search warrant in

a case where the court that issued it is not the court with which the
case is filed as a consequence of the service of the warrant?

A motion to quash a search warrant and/or to suppress evidence obtained

thereby may be filed in and acted upon only by the court where the action has been
instituted. If no criminal action has been instituted, the motion may be filed in and
resolved by the court that issued search warrant. However, if such court failed to
resolve the motion and a criminal case is subsequently filed in another court, the
motion shall be resolved by the latter court. (Sec. 14, Rule 126)

Can the court that issued the warrant entertain a motion to quash the warrant
if the case is still pending preliminary investigation?

Solid Triangle Sales Corp. The Sheriff of RTC QC, et al.

G.R. No. 144309 November 23, 2001 November 23, 2001 Commented [u157]: QUERY: incomplete case title

“Petitioners also argue that Section 14, Rule 126 of the Revised Rules of
Criminal Procedure, supra, while intended "to resolve conflicts of responsibility
between courts," "does not expressly cover the situation where the criminal
complaint is pending with the prosecutor." In such a case, petitioners submit, the
 180

public prosecutor should be allowed to resolve the question of whether or not

probable cause exists.

The Court finds this interpretation too contrived. Section 14, Rule 126
precisely covers situations like the one at bar. Section 14 expressly provides that
a motion to quash a search warrant and/or to suppress evidence obtained thereby
may be filed in and acted upon only by the court where the action has been
instituted. Under the same section, the court which issued the search warrant may
be prevented from resolving a motion to quash or suppress evidence only when a
criminal case is subsequently filed in another court, in which case, the motion is to
be resolved by the latter court. It is therefore puerile to argue that the court that
issued the warrant cannot entertain motions to suppress evidence while a
preliminary investigation is ongoing. Such erroneous interpretation would place a
person whose property has been seized by virtue of an invalid warrant without a
remedy while the goods procured by virtue thereof are subject of a preliminary
investigation”

RULE 127 – PROVISIONAL REMEDIES IN

CRIMINAL CASES
SECTION 1. Availability of provisional remedies. – The
provisional remedies in civil actions, insofar as they are applicable,
may be availed of in connection with the civil action deemed instituted
with the criminal action. (1a)

SEC. 2. Attachment.– When the civil action is properly instituted

in the criminal action as provided in Rule 111, the offended party may
have the property of the accused attached as security for the
satisfaction of any judgment that may be recovered from the accused
in the following cases:

(a) When the accused is about to abscond from the Philippines;

(b) When the criminal action is based on a claim for money or
property embezzled or fraudulently misapplied or converted to
the use of the accused who is a public officer, officer of a
corporation, attorney, factor, broker, agent or clerk, in the
course of his employment as such, or by any other person in a
fiduciary capacity, or for a willful violation of duty;
(c) When the accused has concealed, removed, or disposed of his
property, or is about to do so; and
(d) When the accused resides outside the Philippines.Philippines
(2a)

What are the provisional remedies?

1. Preliminary Attachment Rule 57

2. Preliminary Injunction Rule 58
3. Receivership Rule 59
4. Replevin Rule 60
5. Support Pendente Lite Rule 61

Grounds for attachment in civil cases:

 181

(a) In an action for the recovery of a specified amount of money or

damages, other than moral and exemplary, on a cause of action
arising from law, contract, quasi-contract, delict or quasi-delict
against a party who is about to depart from the Philippines with intent
to defraud his creditors;

(b) In an action for money or property embezzled or fraudulently

misapplied or converted to his own use by a public officer, or an
officer of a corporation, or an attorney, factor, broker, agent, or clerk,
in the course of his employment as such, or by any other person in
a fiduciary capacity, or for a willful violation of duty;

(c) In an action to recover the possession of property unjustly or

fraudulently taken, detained or converted, when the property, or any
part thereof, has been concealed, removed, or disposed of to prevent
its being found or taken by the applicant or an authorized person;

(d) In an action against a party who has been guilty of a fraud in

contracting the debt or incurring the obligation upon which the action
is brought, or in the performance thereof;

(e) In an action against a party who has removed or disposed of his

property, or is about to do so, with intent to defraud his creditors; or

(f) In an action against a party who does not reside and is not found in
the Philippines, or on whom summons may be served by publication.
(1a)

Very Important:

Court MUST have jurisdiction over the person of the accused

for it to act on applications for provisional remedies.

Section 5 of Rule 57 provides, in part thus:

“x x x No levy on attachment pursuant to the writ issued under section 2

hereof shall be enforced unless it is preceded, or contemporaneously
accompanied, by service of summons, together with a copy of the
complaint, the application for attachment, the applicant's affidavit and bond,
and the order and writ of attachment, on the defendant within the
Philippines.Philippines

The requirement of prior or contemporaneous service of summons

shall not apply where the summons could not be served personally or by
substituted service despite diligent efforts, or the defendant is a resident of
the Philippines temporarily absent therefrom, or the defendant is a non-
resident of the Philippines, or the action is one in rem or quasi in rem. (5a)”

KATARUNGANG PAMBARANGAY

History
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Originally covered by P.D. 1508 “Katarungang Pambarangay Law” replaced

by Secs. 399-422, Chapter VII, Title I, Book III, and Sec. 515, Title I, Book IV, R.A.
7160 “The Local Government Code”

Guidelines:

Guidelines in the implementation of the Katarungang Pambarangay system

were given by the Supreme Court in Administrative Circular No. 14-93, dated July
15, 1993.

Applicability to Criminal Cases:

Applicable to all Criminal Cases Except:

1. Any complaint by or against corporations, partnerships or juridical entities,

since only individuals shall be parties to Barangay conciliation proceedings
either as complainants or respondents (Sec. 1, Rule VI, Katarungang
Pambarangay Rules);

2. Disputes involving parties who actually reside in barangays of different cities

or municipalities, except where such barangay units adjoin each other and
the parties thereto agree to submit their differences to amicable settlement
by an appropriate Lupon;

3. Offenses for which the law prescribes a maximum penalty of imprisonment

exceeding one (1) year or a fine over five thousand pesos (P5,000.00);

4. Offenses where there is no private offended party;

5. Criminal cases where accused is under police custody or detention (See

Sec. 412 (b)(1), Revised Katarungang Pambarangay Law);

Venue:

(a) Disputes between persons actually residing in the same barangay shall be
brought for amicable settlement before the lupon of said barangay.

(b) Those involving actual residents of different barangays within the same city or
municipality shall be brought in the barangay where the respondent or any of
the respondents actually resides, at the election of the complaint.

(c) All disputes involving real property or any interest therein shall be brought in
the barangay where the real property or the larger portion thereof is situated.

(d) Those arising at the workplace where the contending parties are employed or
at the institution where such parties are enrolled for study, shall be brought in
the barangay where such workplace or institution is located.

Objections to venue shall be raised in the mediation proceedings before the

punong barangay; otherwise, the same shall be deemed waived. Any legal
question which may confront the punong barangay in resolving objections to venue
herein referred to may be submitted to the Secretary of Justice, or his duly
designated representative, whose ruling thereon shall be binding. (Section 409,
R.A. No. 7160)

Procedure:
 183

(a) Who may initiate proceeding — Upon payment of the appropriate filing
fee, any individual who has a cause of action against another individual involving
any matter within the authority of the lupon may complain, orally or in writing, to
the lupon chairman of the barangay.

(b) Mediation by lupon chairman — Upon receipt of the complaint, the

lupon chairman shall within the next working day summon the respondent(s), with
notice to the complainant(s) for them and their witnesses to appear before him for
a mediation of their conflicting interests. If he fails in his mediation effort within
fifteen (15) days from the first meeting of the parties before him, he shall forthwith
set a date for the constitution of the pangkat in accordance with the provisions of
this Chapter.

(c) Suspension of prescriptive period of offenses — 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 the
complaint with the punong barangay. The prescriptive periods shall resume upon
receipt by the complainant of the complainant or the certificate of 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.

(d) Issuance of summons; hearing; grounds for disqualification — The

pangkat shall convene not later than three (3) days from its constitution, on the day
and hour set by the lupon chairman, to hear both parties and their witnesses,
simplify issues, and explore all possibilities for amicable settlement. For this
purpose, the pangkat may issue summons for the personal appearance of parties
and witnesses before it. In the event that a party moves to disqualify any member
of the pangkat by reason of relationship, bias, interest, or any other similar grounds
discovered after the constitution of the pangkat, the matter shall be resolved by the
affirmative vote of the majority of the pangkat whose decision shall be final. Should
disqualification be decided upon, the resulting vacancy shall be filled as herein
provided for.

e) Period to arrive at a settlement — The pangkat shall arrive at a

settlement or resolution of the dispute within fifteen (15) days from the day it
convenes in accordance with this section. This period shall, at the discretion of the
pangkat, be extendible for another period which shall not exceed fifteen (15) days,
except in clearly meritorious cases. (Section 410, R.A. No. 7160)

Can the absence of a prior referral to Barangay Conciliation be raised after

arraignment? Is it jurisdictional?

Bañares II v. Balising,
G.R. No. 132624, March 13, 2000.

The Court also finds it necessary to correct the mistaken impression of

petitioners and the municipal trial court that the non-referral of a case for barangay
conciliation as required under the Local Government Code of 1991 51 may be
raised in a motion to dismiss even after the accused has been arraigned.

It is well-settled that the non-referral of a case for barangay conciliation

when so required under the law is not jurisdictional in nature and may therefore be
deemed waived if not raised seasonably in a motion to dismiss. The Court notes
that although petitioners could have invoked the ground of prematurity of the
causes of action against them due to the failure to submit the dispute to Lupon
 184

prior to the filing of the cases as soon as they received the complaints against
them, petitioners raised the said ground only after their arraignment.

However, while the trial court committed an error in dismissing the criminal
cases against petitioners on the ground that the same were not referred to the
Lupon prior to the filing thereof in court although said ground was raised by them
belatedly, the said order may no longer be revoked at present considering that the
same had already become final and executory, and as earlier stated, may no
longer be annulled by the Municipal Trial Court, nor by the Regional Trial Court or
this Court.

SOME INTERESTING CASES

People of the Philippines, et al. v. Rafael Bitanga,

G.R. No. 159222, June 26, 2007.

A petition for annulment of judgment under Rule 47 is NOT APPLICABLE

against criminal cases.

Section 1 of Rule 47 provides thus “This Rule shall govern the annulment
by the Court of Appeals of judgments or final orders and resolutions in CIVIL
ACTIONS of Regional Trial Courts for which the ordinary remedies of new trial,
appeal, petition for relief or other appropriate remedies are no longer available
through no fault of the petitioner.

Moreover, Section 18 of Rule 124 excludes Rule 47 from the rules on civil
procedure that are suppletorily applicable to criminal cases, to wit:

“Sec. 18. Application of certain rules in civil procedure to criminal cases. –

The provisions of Rules 42, 44 to 46 and 48 to 56 relating to procedure in the Court
of Appeals and in the Supreme Court in original and appealed civil cases shall be
applied to criminal cases insofar as they are applicable and not inconsistent with
the provisions of this Rule.”

Is the failure to file an appellants’ brief a ground to dismiss the appeal of an

accused?

General Rule: YES

However, take note of:

Niño Masas y Milan v. People of the Philippines,

G.R. No. 177313, December 19, 2007.

“Section 8 of Rule 124 of the Revised Rules of Criminal Procedure provides:

SEC. 8. Dismissal of appeal for abandonment or failure to prosecute. - The

Court of Appeals may, upon motion of the appellee or motu proprio and with notice
to the appellant in either case, dismiss the appeal if the appellant fails to file his
brief within the time prescribed by this Rule, except where the appellant is
represented by a counsel de oficio.
 185

The Court of Appeals may also, upon motion of the appellee or motu
proprio, dismiss the appeal if the appellant escapes from prison or confinement,
jumps bail or flees to a foreign country during the pendency of the appeal.
(Emphasis supplied.)

The provision is clear and unambiguous. Section 8 provides for an exception

in the dismissal of appeal for failure to file the appellant’s brief, that is, where the
appellant is represented by a counsel de oficio.

FINAL IMPORTANT REMINDER

DO NOT FORGET TO REVIEW THE CODAL PROVISIONS. A LOT OF

THESE PROVISIONS WERE NO LONGER REPRODUCED IN THESE NOTES
NOT BECAUSE THEY ARE UNIMPORTANT BUT BECAUSE NO FURTHER
EXPLANATION IS NEEDED.