CRIMINAL PROCEDURE

Q: How about jurisdiction of Shari’ah Courts?

JURISDICTION
In civil cases, jurisdiction as to nature is of two kinds:
original and appellate. Another classification is as to
object: subject matter, parties, res, issues and territory.
Will these classifications apply also in criminal cases?
Yes, but with certain qualifications. As to original
jurisdiction, it may be exclusive or concurrent. As a rule,
there is no concurrent jurisdiction in criminal cases. It may
be a criminal case but what is filed relative to a criminal
case is a special civil action of certiorari, prohibition, or
mandamus. Therefore, that is the concept of concurrent
jurisdiction in criminal cases. The SC and CA has no
original jurisdiction over criminal cases only appellate,
unlike the RTC, Sandiganbayan and the CTA which have
both original and appellate jurisdiction.
A: The District Court has no jurisdiction over criminal
cases. Circuit Courts only.
Q: How about the military courts?
A: They are under the Executive Department so they
exercise the so called quasi-judicial function.
Q: How about jurisdiction of the CTA?
A: The threshold of the claim is at least P1,000,000. If it is
less, you file it with the regular courts but the appeal
should be with the CTA by division. Kaya yung appeal to
the SC is by CTA en banc.

Q: How do you determine the jurisdiction of

Sandiganbayan?
A: 3 questions:
1. What offense was committed?
2. Who committed the offense?
3. How was the offense committed? (Serana vs.
Sadiganbayan)

Q: Over what cases do the Sandiganbayan has

jurisdiction?
A: 6 cases:
1. Violation of RA 3019
2. Ill-gotten wealth law
3. PCGG cases
4. Bribery
5. Estafa (Serana vs. Sadiganbayan)
6. Falsification (Ramiscal vs Sandiganbayan)

Unlike in civil cases where jurisdiction over the subject

matter is conferred by law, that applies as well in criminal
cases, it is also conferred by law but the determinant is
the penalty of imprisonment so imposable (not imposed),
not fine. So if prision correctional (maximum is 6 years),
jurisdiction is with the MTC, if it prision mayor (minimum is
6 years and 1 day), RTC. As a matter of exception, there
are certain crimes which, irrespective of the penalty
imposable, can only be taken cognizance of by the RTC,
e.g., violations of Omnibus Election Code, written
defamation (libel), violations of IPL, Anti-money
laundering, RA 9165 (drugs), Cybercrime Law.

Q: How is jurisdiction over the parties in criminal cases

acquired?
A:
1. Plaintiff (Republic): by filing the
Complaint/Information.
2. Accused:
a. by lawful arrest or
b. voluntary submission.

Q: How about jurisdiction over the res?

A: It is not applicable in criminal cases because the res is
the crime itself.

Q: How about jurisdiction over the issues?

A: Upon arraignment and plea (Rule 116).

Q: How about jurisdiction over the territory?

A: Venue is jurisdictional.
________________________________
REMEDIAL LAW 1 | 1
hendelson
RULE 110 – PROSECUTION OF OFFENSES
Sec. 1. Institution of criminal actions. — Criminal actions shall
be instituted as follows:
(a) For offenses where a preliminary investigation is
required pursuant to section 1 of Rule 112, by filing
the complaint with the proper officer for the purpose
of conducting the requisite preliminary investigation.
(b) For all other offenses, by filing the complaint or
information directly with the Municipal Trial Courts
and Municipal Circuit Trial Courts, or the complaint
with the office of the prosecutor. In Manila and other
chartered cities, the complaint shall be filed with the
office of the prosecutor unless otherwise provided in
their charters.
The institution of the criminal action shall interrupt the running
period of prescription of the offense charged unless otherwise
provided in special laws.
Q: How do you institute a criminal case?
A: Criminal actions shall be instituted as follows:
1. For offenses where a preliminary investigation is
required, by filing the Complaint with Prosecutor.
2. For all other offenses:
a. by filing the Complaint or Information
directly with the court, or the Complaint
with the Prosecutor;
b. in Manila and other chartered cities, the
Complaint shall be filed with the
Prosecutor unless otherwise provided in
their charters.
E.g., Murder: RTC yan, no brainer. Violation of
municipal/city ordinances: if committed within Metro
Manila, file it with the fiscal; if outside, file it directly with
the court or with the fiscal (optional).
4 years, 2 months and 1 day is the starting point of prision
correctional maximum (up to 6 years). If this is the penalty
imposable, then you commence the criminal action by
filing it with the DOJ or the Office of the Public Prosecutor
for preliminary investigation, otherwise (if it is lower), you
have an option, to either go to the fiscal or directly to the
court, except in Metro Manila (or other cities when
provided for in their respective charters), where there is no
direct filing with the court; you have to pass it through the
fiscal.
Q: If you file directly with the court, what do you file?
A: Complaint, because only the prosecutor can file an
Information.
Q: When is prescription suspended?
A:
1. Old rule: when the action if already filed in court.
2. New Rule: the institution of the criminal action
(with the prosecutor or with the court) shall
interrupt the running period of prescription of the
offense charged.
Q: What is a Complaint?
A: 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.
Q: What is an Information?
A: An information is an accusation in writing charging a
person with an offense, subscribed by the prosecutor and
filed with the court.
Sec. 5. Who must prosecute criminal action. — All criminal
actions either commenced by complaint or by information shall
be prosecuted under the direction and control of a public
prosecutor. In case of heavy work schedule of the public
prosecutor or in the event of lack of public prosecutors, the
private prosecutor may be authorized in writing by the Chief of
the Prosecution Office or the Regional State Prosecutor to
prosecute the case subject to the approval of the court. Once so
authorized to prosecute the criminal action, the private
prosecutor shall continue to prosecute the case up to end of the
trial even in the absence of a public prosecutor, unless the
authority is revoked or otherwise withdrawn.
The crimes of adultery and concubinage shall not be prosecuted
except upon a complaint filed by the offended spouse. The
offended party cannot institute criminal prosecution without
including the guilty parties, if both are alive, nor, in any case, if
the offended party has consented to the offense or pardoned the
offenders.
The offenses of seduction, abduction and acts of lasciviousness
shall not be prosecuted upon a complaint filed by the offended
party of her parents, grandparents or guardian, nor, in any case,
if the offender has been expressly pardoned by any of them. If
the offended party dies or becomes incapacitated before she can
file the complaint, and she has no known parents, grandparents
or guardian, the State shall initiate the criminal action in her
behalf. chan robles virtual law library
The offended party, even if a minor, has the right to initiate the
prosecution of the offenses of seduction, abduction and acts of
lasciviousness independently of her parents, grandparents, or
guardian, unless she is incompetent or incapable of doing so.
Where the offended party, who is a minor, fails to file the
complaint, her parents, grandparents, or guardian may file the
same. The right to file the action granted to parents,
grandparents, or guardian shall be exclusive of all other persons
and shall be exercised successively in the order herein provided,
except as stated in the preceding paragraph.
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.
The prosecution for violation of special laws shall be governed
by the provision thereof.
Q: There are two modes of filing aside from by complaint
or Information. Yung de parte or de officio. What do you
mean by theses?
A:
1. De Parte: may be filed only by the offended party.
(adultery, concubinage, seduction, abduction,
acts of lasciviousness, libel) Now under that rule,
wala na yung rape kaya nga it can already be
filed de officio or de parte.
2. De Officio: can be instituted by the offended party
or by the State, on its own.
Q: Can you charge a man with the crime of adultery?
A: RPC defines adultery as a crime that can be committed
only by a woman. In remedial law, you charge a man with
________________________________
REMEDIAL LAW 1 | 2
hendelson
the crime of adultery. Why? Because the woman must be
charged together with the other man, if still alive.
Q: Albert married to Beatrice. Beatrice committed adultery
with Carlos who is married to Danica. Who should file the
case for adultery?
A: Only Albert, the offended party. And in so filing, it is
mandated that Carlos be impleaded. Kaya nga the man,
Carlos, may be convicted of adultery.
Q: How about Danica?
A: No, because Carlos cannot have committed adultery
(under substantive law).
Q: Who can file cases of adultery, concubinage,
seduction, abduction, and acts of lasciviousness?
A: The enumeration must be invoked successively:
1. Offended party;
2. Parents;
3. Grandparents;
4. Guardians;
5. State.
Q: Albert married to Beatrice (residing in Pampanga).
They have a daughter (studying in Manila; accompanied
by her grandmother). Her Uncle committed acts of
lasciviousness against her. The grandparent filed the case
before the fiscal. If you were the counsel of the accused,
what will be your remedy?
A: The most that you can do is to simply oppose the
Complaint on the ground of improper party, so that if
notwithstanding the fact that you made the valid
opposition, still, the fiscal filed it, appeal the Resolution to
the DOJ, and if sustained, you can go up with certiorari.
Motion to quash is only upon filing of the case to the court.
You don’t file a Motion to Quash with the fiscal.
Sec. 6. Sufficiency of complaint or information. — A complaint
or information is sufficient if it states the name of the accused;
the designation of the offense given by the statute; the acts or
omissions complained of as constituting the offense; the name of
the offended party; the approximate date of the commission of
the offense; and the place where the offense was committed.
When an offense is committed by more than one person, all of
them shall be included in the complaint or information.
Sec. 7. Name of the accused. — The complaint or information
must state the name and surname of the accused or any
appellation or nickname by which he has been or is known. If
his name cannot be ascertained, he must be described under a
fictitious name with a statement that his true name is unknown.
If the true name of the accused is thereafter disclosed by him or
appears in some other manner to the court, such true name shall
be inserted in the complaint or information and record.
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.
Sec. 9. Cause of the accusation. — The acts or omissions
complained of as constituting the offense and the qualifying and
aggravating circumstances must be stated in ordinary and
concise language and not necessarily in the language used in the
statute but in terms sufficient to enable a person of common
understanding to know what offense is being charged as well as
its qualifying and aggravating circumstances and for the court to
pronounce judgment.
Sec. 10. Place of commission of the offense. — The complaint or
information is sufficient if it can be understood from its
allegations that the offense was committed or some of the
essential ingredients occurred at some place within the
jurisdiction of the court, unless the particular place where it was
committed constitutes an essential element of the offense or is
necessary for its identification.
Sec. 11. Date of commission of the offense. — It is not necessary
to state in the complaint or information the precise date the
offense was committed except when it is a material ingredient of
the offense. The offense may be alleged to have been committed
on a date as near as possible to the actual date of its commission.
Sec. 12. Name of the offended party. — 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. If there is no better way of
identifying him, he must be described under a fictitious name.
(a) 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.
(b) If the true name of the of the person against whom or
against whose properly the offense was committed is
thereafter disclosed or ascertained, the court must
cause the true name to be inserted in the complaint or
information and the record.
(c) If the offended party is a juridical person, it is
sufficient to state its name, or any name or designation
by which it is known or by which it may be identified,
without need of averring that it is a juridical person or
that it is organized in accordance with law.
Q: When is a Complaint sufficient?
A: A Complaint or Information is sufficient if it states the:
1. name of the accused;
2. designation of the offense given by the statute;
3. acts or omissions complained of as constituting
the offense;
4. name of the offended party;
5. approximate date of the commission of the
offense; and
6. place where the offense was committed.
Q: May any of them be dispensed with?
A: No. (See Secs. 6-12: the contents must be sufficient
although not entirely precise, subject to exceptions)
Q: What does the phrase “acts or omissions complained
of as constituting the offense” mean?
A: The elements of the crime including the qualifying and
aggravating circumstances
Q: What are the examples to the phrase “unless the
particular place where it was committed constitutes an
essential element of the offense or is necessary for its
identification”?
A: theft in the national library; highway robbery; carrying
guns at the polling place during election; etc.
________________________________
REMEDIAL LAW 1 | 3
hendelson
Q: suppose the Information alleges “sometime between
January 1991 to December 1992,” is that valid?
A: No. The timeframe should not exceed 1 year.
Sec. 13. Duplicity of the offense. — A complaint or information
must charge but one offense, except when the law prescribes a
single punishment for various offenses.
Q: Distinguish the concept of amendment in criminal
cases from that in civil cases.
A: In criminal cases, it may be a matter of right, i.e., before
arraignment and plea, or a matter of discretion, i.e., after
arraignment and plea. In civil cases, amendment may be a
matter of right, i.e., before Answer is served, or a matter of
discretion, i.e., after Answer is served.

Q: What is the remedy against an Information charging
more than one offense?
A: Motion to Quash. (Equivalent in MTD is litis
pendentia/that there is another action pending between
the same parties for the same cause.
Q: If you failed to file a MTQ, what will happen?
A: The accused may be convicted of as many offenses as
were charged.
Q: What are the exceptions to this rule?
A: When the law prescribes a single punishment for
various:
1. Special complex crime – complex or compound
crimes specifically designated by law.
2. Complex crime proper – when an offense is
necessary for committing another.
3. Compound crimes – when a single act produces
two or more grave or less grave felonies.
Sec. 14. Amendment or substitution. — A complaint or
information may be amended, in form or in substance, without
leave of court, at any time before the accused enters his 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.
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.
Q: What are the exceptions to the rule that amendment is
a matter of right before arraignment and plea?
A: (through a litigated motion: applicable in criminal
cases, but pro forma is not) Any amendment which:
1. Downgrades the nature of the offense charged;
or
2. Excludes any accused.
Sec. 16. Intervention of the offended party in criminal action. —
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.
Q: Distinguish intervention in Sec. 16 of Rule 110 from
that in Rule 19.
A: Sec. 16 of Rule 110 is applied when the civil action
arising from the crime is instituted with the criminal action,
in which case the offended party may intervene by counsel
in the prosecution of the offense; while in Rule 19 there is
already a pending case then a third-party comes in
because he has a legal interest in the subject matter.
Q: A private prosecutor appeared. The judge asked: what
is your pleasure? He said “I would like to manifest before
this court that we are reserving the prosecution of the civil
aspect of this case.” As judge, how will you respond?
A: The judge should tell the lawyer that with that
manifestation, you have just disqualified yourself in
appearing in this case because whenever a private
prosecutor appears, he is only there for the civil aspect.

If it appears at any time before judgment that a mistake has been

made in charging the proper offense, the court shall dismiss the
original complaint or information upon the filing of a new one
charging the proper offense in accordance with 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.

Q: Distinguish amendment from substitution.

A:
1. Amendment may be formal or substantial; while
substitution is always substantial.
2. Amendment may be with or without leave of court
depending on the nature and time of amendment;
while substitution is always with leave of court.
3. The subject of amendment is the allegations in
the Complaint or Information; while the subject of
substitution of the Information.

Q: Distinguish the concept of substitution in criminal cases

from that in civil cases.
A: Substitution in criminal cases relates to the Complaint
or Information; while substitution in civil cases relates to
the parties.

________________________________
REMEDIAL LAW 1 | 4
hendelson
RULE 111 – PROSECUTION OF CIVIL ACTION
When a criminal action is instituted, the civil action arising
from the offense charged is deemed instituted with the
criminal action unless it is waived, reserved or is instituted
prior to the criminal action. However, the criminal action for
violation of BP22 shall be deemed to include the
corresponding civil action. No reservation to file such civil
action separately shall be allowed.
Q: Suppose you file a civil case based on bounced check.
While the civil case is pending, an Information for BP22
was filed. What happened to the civil case?
A: It may be suspended or consolidated.
A: That which arises in a case, the resolution of which is a
logical antecedent of the issue involved therein, and the
cognizance of which, pertains to another tribunal.
Q: What are the elements of a prejudicial question?
A:
1. There must two cases: one criminal, one civil.
2. The issues in the civil case are so intimately
related with the issues in the criminal case such
that the determination of the issues in the civil
case if determinative of the guilt or innocence of
the accused in the criminal case.
3. The civil case was instituted ahead of the criminal
case.

Sec. 3. When civil action may proceeded independently. — In
the cases provided for in Arts. 32, 33, 34 and 2176 of the Civil
Code, the independent civil action may be brought by the
offended party. It shall proceed independently of the criminal
action and shall require only a preponderance of evidence. In no
case, however, may the offended party recover damages twice
for the same act or omission charged in the criminal action.
Pimentel vs. Pimentel. Frustrated parricide. Declaration of
nullity of marriage. No prejudicial question.
JM Domiguez vs. Liclican. Administrative case: whether
there was valid election of officers. Sued for falsification in
their capacity as such officers. There is a prejudicial
question.

Q: What are independent civil actions?

A: Those under Arts. 32 (violation of rights or liberties), 33
(defamation, fraud and physical injuries), 34 (failure or
refusal of police force) and 2176 (quasi-delict) of the Civil
Code.

Q: What is the effect of the death of the accused?

A: The death of the accused after arraignment and during
the pendency of the criminal action shall extinguish the
criminal liability and the civil liability arising from the delict.
However, the liability arising from other sources of
obligation may be continued against the estate or legal
representative of the accused after proper substitution or
against said estate, as the case may be.

Q: What are the civil liabilities that arise from a crime?

A: Medical expenses, funeral expenses, moral damages,
exemplary damages, attorney’s fees, expenses.

Q: A and are friends. B borrowed money from A. B was

not able to pay. B killed A. B was charged with homicide.
During the pendency of the cases, B also died. What are
the civil liabilities that die with B?
A: The civil liability arising from the crime of homicide,
moral damages, exemplary damages, attorney’s fees,
expenses. However, the liability arising from the loan is not
because it arose from a contract, which may be claimed
against the estate (by the heirs, executor or administrator).

Sec. 6. Suspension by reason of prejudicial question. — A

petition for suspension of the criminal action based upon the
pendency of a prejudicial question in a civil action may be filed
in the office of the prosecutor or the court conducting the
preliminary investigation. When the criminal action has been
filed in court for trial, the petition to suspend shall be filed in the
same criminal action at any time before the prosecution rests.

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.

Q: What is a prejudicial question?

________________________________
REMEDIAL LAW 1 | 5
hendelson
RULE 112 – PRELIMINARY INVESTIGATION
Sec. 1. Preliminary investigation defined; when required. —
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.
Except as provided in section 7 of this Rule, a preliminary
investigation is required to be conducted before the filing of a
complaint or information for an offense where the penalty
prescribed by law is at least four (4) years, two (2) months and
one (1) day without regard to the fine.
Q: What is preliminary investigation?
A: Preliminary investigation is an inquiry or proceeding
(executive) 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.
Q: What is the purpose of preliminary examination?
A: It for the purpose of issuing a search warrant or warrant
of arrest (judicial).
Q: Distinguish preliminary investigation from preliminary
examination.
A:
1. PI is an executive proceeding; while PE is
judicial.
2. PI is for filing or not to file a complaint or
information; while PE is for the issuance of non-
issuance of a search warrant or warrant of arrest.
3. PI is conducted by a prosecutor or the
Ombudsman; while PE is conducted solely by the
judge.
4. PI is conducted before an Information is filed;
while PE is conducted after an Information was
filed.
Q: What is the similarity between them?
A: The quantum of evidence is the same: probable cause.
Hierarchy of quantum of evidence:
1. Overwhelming evidence
2. Proof beyond reasonable doubt
3. Clear and convincing evidence
4. Preponderance of evidence
5. Substantial evidence
6. Prima facie evidence
7. Probable cause
8. Iota of evidence
Q: Estafa, assuming penalty is more than 4 years, 2
months and 1 day, therefore, preliminary investigation is
mandatory. What’s the procedure?
A:
1. The offended party will file a Complaint-Affidavit
with the prosecutor.
2. The Prosecutor will issue a subpoena to the
alleged offender to submit his Counter-Affidavit,
copy-furnish the complainant; the latter may
submit a Reply-Affidavit, copy-furnish the alleged
offender; the latter may submit a Rejoinder-
Affidavit, copy-furnish the complainant; the latter
may submit Sur-Rejoinder-Affidavit.
The Fiscal issues a Resolution, not a Judgment. If the
same is against you, the remedy is MR to the Reviewing
Prosecutor as practiced in Metro Manila or with the same
Prosecutor if in the provinces (not found under the Rules).
Then, the remedy against the denial of the MR is Petition
for Review with the DOJ, which Petition becomes a
ground for the Suspension of Arraignment but in case
more than 60 days from filing.
Sec. 7. When accused lawfully arrested without warrant. —
When a person is lawfully arrested without a warrant involving
an offense which requires a preliminary investigation, the
complaint or information may be filed by a prosecutor without
need of such investigation provided an inquest has been
conducted in accordance with existing rules. In the absence or
unavailability of an inquest prosecutor, the complaint may be
filed by the offended party or a peace officer directly with the
proper court on the basis of the affidavit of the offended party or
arresting officer or person.
Before the complaint or information is filed, the person arrested
may ask for a preliminary investigation in accordance with this
Rule, but he must sign a waiver of the provision of Article 125
of the Revised Penal Code, as amended, in the presence of his
counsel. Notwithstanding the waiver, he may apply for bail and
the investigation must be terminated within fifteen (15) days
from its inception.
After the filing of the complaint or information in court without
a preliminary investigation, the accused may, within five (5)
days from the time he learns of its filing, ask for a preliminary
investigation with the same right to adduce evidence in his
defense as provided in this Rule.
Sec. 7, Rule 112 is the process in lieu of preliminary
investigation, otherwise known as an inquest proceeding.
Relate this with Sec. 5, Rule 113
Q: What is an inquest proceeding?
A: It is a summary investigation conducted by an inquest
prosecutor in a criminal case involving persons arrested
and detained without the benefit of a warrant of arrest for
the purpose of determining whether said persons should
remain under custody and correspondingly charged in
court.
Q: What is the purpose of this Rule?
A: To address the possibility of arbitrary detention (Art.
125, RPC – delay in the delivery of detained persons to
the proper judicial authorities: filing of Information with the
court within 12, 18, or 36 hours).
In cases of warrantless arrest, the accused must be
brought to the nearest police precinct. If preliminary
investigation is required, and the person charged has
been inquested, it is not a waiver of the right to PI. Such
person may still ask for it on the condition that he signs a
waiver of the provision of Art. 125, RPC, in the presence of
his counsel. But after the filing of the complaint or
information in court without a PI, the accused may, within
5 days from the time he learns of its filing, ask for a PI.
So, as a rule, PI ends up with the DOJ under the principle
of doctrine of qualified agency (alter-ego). The exception
to this is the case of Heirs of Nestor Tria vs. Obias:
Preliminary investigation is executive in character. It does
not contemplate a judicial function. It is essentially an
inquisitorial proceeding, and often, the only means of
________________________________
REMEDIAL LAW 1 | 6
hendelson
ascertaining who may be reasonably charged with a crime.
Prosecutors control and direct the prosecution of criminal
offenses, including the conduct of preliminary
investigation, subject to review by the Secretary of Justice.
The duty of the Court in appropriate cases is merely to
determine whether the executive determination was done
without or in excess of jurisdiction or with grave abuse of
discretion. Resolutions of the Secretary of Justice are not
subject to review unless made with grave abuse. Here,
the Office of the President in reversing the DOJ
Secretary’s ruling, and the CA in affirming the same, both
committed grave abuse of discretion. The OP and CA
arbitrarily disregarded facts on record which established
probable cause against the respondent.

________________________________
REMEDIAL LAW 1 | 7
hendelson
RULE 113 – ARREST

Relate Sec. 7, Rule 112 with Sec. 5, Rule 113 (memorize

verbatim):

Rule 113, Sec. 5. Arrest without warrant; when lawful. — A

peace officer or a private person may, without a warrant, arrest a
person:
(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.

In cases falling under paragraphs (a) and (b) above, the person
arrested without a warrant shall be forthwith delivered to the
nearest police station or jail and shall be proceeded against in
accordance with Section 7 of Rule 112.

Q: What are the kinds of warrantless arrest?

A:
1. In Flagrante Delicto Rule: par. (a)
2. Hot Pursuit Rule: par. (b)
3. Escapees Rule: par. (c)
4. Sec. 23, Rule 114: one who is out of bail attempts
to leave the country.

Par. (a): When, in his presence, the person to be arrested

has committed, is actually committing, or is attempting
to commit an offense. Take note of “attempting to
commit” it is not “about to commit.” That’s why there must
be overt act.

Par. (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.

________________________________
REMEDIAL LAW 1 | 8
hendelson
RULE 114 – BAIL
Q: What is bail?
A: 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 specified conditions. In short, it is a security for
provisional liberty.
One cannot avail of bail if his liberty is not deprived or if he
is not under the custody of the law.
Sec. 4. Bail, a matter of right; exception. — All persons in
custody shall be admitted to bail as a matter of right, with
sufficient sureties, or released on recognizance as prescribed by
law or this Rule (a) before or after conviction by the
Metropolitan Trial Court, Municipal Trial Court, Municipal
Trial Court in Cities, or Municipal Circuit Trial Court, and (b)
before conviction by the Regional Trial court of an offense not
punishable by death, reclusion perpetua, or life imprisonment.
Sec. 5. Bail, when discretionary. — Upon conviction by the
Regional Trial Court of an offense not punishable by death,
reclusion perpetua, or life imprisonment, admission to bail is
discretionary. The application for bail may be filed and acted
upon by the trial court despite the filing of a notice of appeal,
provided it has not transmitted the original record to the
appellate court. However, if the decision of the trial court
conviction 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.
Should the court grant the application, the accused may be
allowed to continue on provisional liberty during the pendency
of the appeal under the same bail subject to the consent of the
bondsman.
If the penalty imposed by the trial court is imprisonment
exceeding six (6) years, the accused shall be denied bail, or his
bail shall be cancelled upon a showing by the prosecution, with
notice to the accuse, of the following or other similar
circumstances:
(a) That he is a recidivist, quasi-recidivist, or habitual
delinquent, or has committed the crime aggravated by
the circumstance of reiteration;
(b) That he has previously escaped from legal
confinement, evaded sentence, or violated the
conditions of his bail without valid justification;
(c) That he committed the offense while under probation,
parole, or conditional pardon;
(d) That the circumstances of his case indicate the
probability of flight if released on bail; or
(e) That there is undue risk that he may commit another
crime during the pendency of the appeal.
The appellate court may, motu proprio or on motion of any
party, review the resolution of the Regional Trial Court after
notice to the adverse party in either case.
Q: When is bail a matter of right and a matter of
discretion?
A: Under the Constitution, in all cases, it is a matter of
right when the evidence of guilt is not strong. Statutorily:
1. It is a matter of right:
a. before or after conviction by the MTC;
and
b. before conviction by the RTC of an
offense not punishable by death,
reclusion perpetua, or life imprisonment.
2. It is a matter of discretion: upon conviction by the
RTC of an offense not punishable by death,
reclusion perpetua, or life imprisonment.
Sec. 10. Corporate surety. — Any domestic or foreign
corporation, licensed as a surety in accordance with law and
currently authorized to act as such, may provide bail by a bond
subscribed jointly by the accused and an officer of the
corporation duly authorized by its board of directors.
Sec. 11. Property bond, how posted. — A property bond is an
undertaking constituted as lien on the real property given as
security for the amount of the bail. Within ten (10) days after the
approval of the bond, the accused shall cause the annotation of
the lien on the certificate of title on file with the Registry of
Deeds if the land is registered, or if unregistered, in the
Registration Book on the space provided therefore, in the
Registry of Deeds for the province or city where the land lies,
and on the corresponding tax declaration in the office of the
provincial, city and municipal assessor concerned.
Within the same period, the accused shall submit to the court his
compliance and his failure to do so shall be sufficient cause for
the cancellation of the property bond and his re-arrest and
detention.
Sec. 14. Deposit of cash as bail. — The accused or any person
acting in his behalf may deposit in cash with the nearest
collector of internal revenue or provincial, city, or municipal
treasurer the amount of bail fixed by the court, or recommended
by the prosecutor who investigated or filed the case. Upon
submission of a proper certificate of deposit and a written
undertaking showing compliance with the requirements of
section 2 of this Rule, the accused shall be discharged from
custody. The money deposited shall be considered as bail and
applied to the payment of fine and costs while the excess, if any,
shall be returned to the accused or to whoever made the deposit.
Q: What are the kinds of bail?
A: Bail may be given in the form of corporate surety,
property bond, cash deposit, or recognizance.
1. Corporate surety: bail furnished by a corporation.
2. Property bond: is an undertaking constituted as
lien on the real property given as security for the
amount of the bail.
3. Cash deposit: bail in the form of cash.
4. Recognizance: an obligation of record entered
into before some court or magistrate duly
authorized to take it, with the condition to appear
when so required.
________________________________
REMEDIAL LAW 1 | 9
hendelson
RULE 120 – JUDGMENT

A 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 personally and directly
prepared by the judge (incumbent or presiding judge in a
permanent or temporary capacity). Once the judge has
retired, he can no longer write the decision. Once he has
already transferred to another sala, he can still write the
decision if he want to. But once the judge is promoted, he
can no longer write the decision.

If there is discrepancy between the dispositive portion and

the body of the judgment, what prevails is the dispositive
portion.

A judgment of acquittal is not appealable, but a judgment

of conviction is appealable. If the judgment is rendered by
the RTC, it must be brought to the CA at the instance of
the accused. But if it is appeal by the prosecution to the
CA for one reason or the other, it neither be brought by the
private prosecutor nor the public prosecutor; it must be
always be by the OSG. This refers to appeal, not the
special civil action of certiorari. If the remedy is the latter,
then it can be brought by the private complainant.

________________________________
REMEDIAL LAW 1 | 10
hendelson
RULE 121 – NEW TRIAL OR RECONSIDERATION

Remedies. Just go back to what we have studied under

Rule 37. They are the same except for the grounds.

Grounds for a new trial:

1. Errors of law or irregularities prejudicial to the
substantial rights of the accused committed
during the trial;
2. New and material evidence has been discovered
which the accused could not with reasonable
diligence have discovered and produced at the
trial and which if introduced and admitted would
probably change the judgment.

Ground for reconsideration: errors of law or fact in the

judgment, which requires no further proceedings.

Q: What is the effect when a MNT is granted?

A: The judgment is set aside but the evidence taken need
not be re-taken.

Q: Here is an accused because the crime for which he

was charged is non-bailable. After he was convicted, his
counsel files a MNT, which was granted. Then the counsel
moved for the release from detention of the accused
saying that: considering that the effect of the grant of MNT
is to set aside the judgment, therefore, the judgment of
conviction was set aside and his client’s continuous
detention has no basis; release him.” As a judge, what will
you do?
A: Deny the motion. He cannot be released by an order
setting aside the judgment of conviction because that
order pursuant to the grant of MNT does not amount to
acquittal, because it is only a second chance to be heard.

________________________________
REMEDIAL LAW 1 | 11
hendelson
RULE 122 – APPEAL

Q: Is Rule 45 applicable in criminal cases?

A: Yes, but it is not limited to questions of law because of
the principle that in criminal cases, once appeal is
recognized, it opens the entire case for review of both
questions of fact and law.

Kaya apat ang exception don: amparo, kalikasan, habeas

data and criminal cases. In civil cases, the appellate court
cannot deal, discuss, or alter unassigned errors.

There is a new kind of appeal which applies only in

criminal cases, i.e., intermediate appeal. It remains
despite the abolition of death penalty. In one case, the SC
held that there should no longer be automatic appeal to
the SC from a judgment of conviction imposing the death
penalty by the RTC or Sandiganbayan. Kasi yung rule
kapag na-convict and the imposed penalty is death,
automatic yan to the SC. In one case, sabi ng SC, hindi,
before we take cognizance of the case it must pass
through intermediate appeal by the CA. Once the appeal is
taken cognizance of and decided by the CA, it goes up on
automatic appeal. Kaya nga that decision created what we
now call as intermediate appeal. Now, tinanggal yung
death penalty, yung intermediate appeal hindi tinanggal.
Kaya hanggang ngayon, you cannot appeal directly to the
SC. Wala na ngayon automatic appeal. You are supposed
appeal to the CA. How do you appeal from the CA? By
Notice of Appeal. So that intermediate appeal gives us a
new doctrine which says that: appeal to the SC is not
always by Petition for Review.

________________________________
REMEDIAL LAW 1 | 12
hendelson
RULE 126 – SEARCH AND SEIZURE

Q: Distinguish search warrant from a warrant of arrest.

A:
1. In WA, the purpose is to detain a person who has
committed a crime; in SW, it is to seize object or
property which is related to the commission of an
offense.
2. WA, no time frame; SW, 10 days from issuance.
3. WA, person named may not be described
specifically, he may even be called John Doe; in
SW, in place to be searched and the things to be
seized must be specifically described.
4. WA can be implemented at any time of the day or
night; SW can only be implemented at day time
unless the SW itself says that it may be
implemented night time for compelling reasons.

Q: What are the similarities?

A:
1. The quantum of evidence required is probable
cause (circumstances personally known to the
investigator or examiner that a crime has been
committed and the person sought to arrested is
probably guilty thereof).

Lubas sa bar yang warrant of arrest. Pagdating dito, may

preliminary investigation, may warrant of arrest.
Pagkatapos yung accused nasa abroad, pagdating dito,
can a warrant of arrest be implemented against him even if
he did not undergo preliminary investigation because he
was absent? Yes. That warrant has no time frame. But
once it was implemented, it becomes functus de officio,
wala na, it ceased to exist.

________________________________
REMEDIAL LAW 1 | 13
hendelson
RULE 127 – PROVISIONAL REMEDIES IN CRIMINAL
CASES

Q: What are the Provisional Remedies?

A:
1. Preliminary Attachment (Rule 57)
2. Preliminary Injunction (Rule 58)
3. Receivership (Rule 59)
4. Replevin (Rule 60)
5. Support Pendente Lite (Rule 61)

That rule on criminal procedure says that 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. So when are
they applicable? Jurisprudence answers this.

Attachment may be availed of as long as there is

fraud/deceit. So when you are charged with estafa, you
can apply the writ of preliminary attachment. But if you are
charged violation of BP 22, walang deceit dun, you cannot
apply for writ of preliminary attachment.

Injunction is not allowed. Proscribed yan. You cannot

enjoin prosecution of criminal cases.

Receivership, applicable. In cases like robbery, once you

have re-taken what has been taken and there is no
certainty yet as to the real owner of that, then you can
apply for the appointment of a receiver.

Replevin, not applicable. This is immediate recovery of

possession of personal property.

Support Pendente Lite, applicable. Seduction with a prayer

for support and support pendente lite, then it can be
granted.

________________________________
REMEDIAL LAW 1 | 14
hendelson