Criminal Procedure: San Beda College of Law

San Beda College of Law 135
MEMORY AID IN REMEDIAL LAW
CRIMINAL PROCEDURE
Criminal Jurisdiction – power of the 2. Determined by the law in force

State to try and punish a person for a at the time of the institution of
violation of its penal laws. the criminal action. ONCE
VESTED, IT CANNOT BE
REQUISITES FOR A VALID EXERCISE OF WITHDRAWN BY:
CRIMINAL JURISDICTION: a) subsequent valid amendment
1. The offense, by virtue of the of the information; or
imposable penalty OR its nature, b) a subsequent statutory
is one which the court is by law amendment of the rules of
authorized to take cognizance jurisdiction, UNLESS the
of, (jurisdiction over the amendatory law provides
SUBJECT MATTER). otherwise.
2. The offense must have been
committed within its territorial
jurisdiction, (jurisdiction over RULE 110
the TERRITORY). PROSECUTION OF OFFENSES
3. The person charged with the
offense must have been brought Section 1. Institution of criminal
to its presence for trial, forcibly actions.
by warrant of arrest or upon his
voluntary submission to the For offenses where a preliminary
court, (jurisdiction over the investigation is required - by filing the
PERSON OF THE ACCUSED). complaint with the proper officer for the
purpose of conducting the requisite
JURISDICTION JURISDICTION preliminary investigation.
OVER THE OVER THE PERSON
SUBJECT MATTER OF THE ACCUSED Preliminary investigation is REQUIRED for
Derived from the M ay be acquired by offenses where the penalty prescribed
law. It can never be consent of the by law is at least 4 years, 2 months and
acquired solely by accused or by waiver 1day without regard to fine (Rule 112,
consent of the of objections. Sec. 1 Par.2).
accused.
Objection that the If he fails to make his For all other offenses - by filing the
court has no objection in time, he complaint or information directly with
jurisdiction of the will be deemed to the Municipal Trial Courts and Municipal
subject matter may have waived it. Circuit Trial Courts, or the complaint
be made at any stage with the office of the prosecutor.
of the proc eeding,
and the right to DOES NOT APPLY to offenses which are
make such objection subject to summary procedure.
is never waived.
Effect of institution of the criminal
DETERMINATION OF CRIMINAL action:
JURISDICTION: It interrupts the running of the period of
1. Determined by the allegations in prescription of the offense charged
the complaint or information not unless otherwise provided by special
by the results of proof or by the laws.
trial court’s appreciation of the
evidence presented.
REMEDIAL LAW C OMMITTEE

 CHAIRPERSON : Jinky Ann Uy  A SST . CHAIRPERSONS : Allen Fariñas, Maricris Oronea  EDPS : Martessa Nuylan, Charissimae
Ventura, Jocelyn Zabala  S UBJECT HEADS : Jona Obiña (Civil Procedure); Alnaiza Hasiman (Special Civil Actions and Special
Proceedings); Jeenice de Sagun (Criminal Procedure); Elaine Masukat (Evidence)
Remedies of the offended party if the motion to quash on that ground has
prosecutor refuses to file an been denied.
information:
1. file an action for mandamus, in Section 2. Form of the complaint or
case of grave abuse of information.
discretion;
2. lodge a new complaint before FORM
the court having jurisdiction over 1. In writing;
the offense; 2. In the name of the People of the
3. take up the matter with the Philippines; and
Secretary of Justice in 3. Against all persons who appear
accordance with the Rev. to be responsible for the offense
Administrative Code; involved.
4. institute an administrative Section 3. Complaint defined.
charges against the erring
prosecutor; and A Complaint is:
5. file criminal action against the 1. a sworn written statement;
prosecutor with the 2. charging a person with an
corresponding civil action for offense;
damages. 3. subscribed by the offended
party, any peace officer or other
May Injunction Issue to Restrain public officer charged with the
Criminal Prosecution? enforcement of the law violated.
GENERAL RULE: Criminal prosecutions
may NOT be restrained or stayed by The complaint mentioned in this section
injunction, preliminary or final. The refers to one filed in court for the
reason being, public interest requires commencement of a criminal
that criminal acts be immediately prosecution for violation of a crime,
investigated and prosecuted for the usually cognizable by municipal trial
protection of the society (Domingo vs. courts as well as to a complaint filed by
Sandiganbayan, 322 SCRA 655). an offended party in private crimes or
EXCEPTIONS: those which cannot be prosecuted de
1. To afford adequate protection to the officio.
constitutional rights of the accused;
2. When necessary for the orderly REQUISITES OF A COMPLAINT:
administration of justice or to avoid 1. it must be in writing and under
oppression or multiplicity of actions; oath;
3. When there is a prejudicial question 2. it must be in the name of the
which is subjudice; People of the Philippines;
4. When the acts of the officer are 3. it must charge a person with an
without or in excess of authority; offense; and
5. When the prosecution is under an 4. it must be subscribed by the
invalid law, ordinance or regulation; offended party, by any peace
6. When double jeopardy is clearly officer or public officer charged
apparent; with the enforcement of the law
7. When the court had no jurisdiction violated.
over the offense;
8. When it is a case of persecution PERSONS WHO CAN FILE A COMPLAINT
rather than prosecution; 1. Offended party
9. When the charges are manifestly 2. Any peace officer
false and motivated by lust for 3. Other public officer charged
vengeance; and with the enforcement of the law
10. When there is clearly no prima facie violated
case against the accused and a

ex. Internal Revenue Officer for prosecuted under the direction and
violation of the NIRC, custom control of the prosecutor.
agents with respect to violations
of the Tariff and Customs Code A PRIVATE PROSECUTOR may be
authorized to prosecute a criminal
Section 4. Information defined. action subject to the following
conditions:
An Information is: 1. the public prosecutor has a
1. an accusation in writing; heavy work schedule, or there is
2. charging a person with an no public prosecutor assigned in
offense; the province or city;
3. subscribed by the prosecutor and 2. the private prosecutor is
filed with the court. authorized IN WRITING by the
Regional State Prosecutor (RSP),
REQUISITES OF AN INFORMATION Provincial or City Prosecutor;
1. it must be in writing; 3. the authority of the private
2. it must charge a person with an prosecutor must be approved by
offense; the court;
3. it must be subscribed by the 4. the private prosecutor shall
fiscal; and continue to prosecute the case
4. it must be filed in court. until the end of the trial unless
the authority is withdrawn or
COMPLAINT INFORMATION otherwise revoked by the RSP,
Subscribed by the Subscribed by the Provincial or City Prosecutor;
offended party, any fiscal and
peace officer or other (indispensable 5. In case of the withdrawal or
officer charged with requirement) revocation of the authority of
the enforcement of the private prosecutor, the same
the law violated must be approved by court.
it may be filed either it is filed with the (Memo Circ. No. 25, April 26,
in court or in the court 2002, Regarding Amendment to
prosecutor’s office Sec. 5, Rule 110)
must be made under need not be under
oath oath In appeals before the CA and the SC, it is
only the Solicitor General that is
 Prosecution in the RTC are always authorized to bring and defend actions in
commenced by information, EXCEPT: behalf of the People of the Philippines
1. in certain crimes against chastity (People vs. Nano, 205 SCRA 155).
(concubinage, adultery,
seduction, abduction, acts of In all cases elevated to the
lasciviousness); and Sandiganbayan and from the
2. defamations imputing any of the Sandiganbayan to the SC, the Office of
aforesaid offenses wherein a the Ombudsman, through its Special
sworn written complaint is Prosecutor shall represent the People of
required in accordance with the Philippines, EXCEPT in cases filed
section 5 of this Rule. pursuant to E.O. Nos. 1, 2, 14 and 14-A,
issued in 1986 (Sec. 4, RA 8249).
Section 5. Who must prosecute
criminal actions. PROSECUTION OF CRIMES AGAINST
FULL DISCRETION AND CONTROL OF CHASTITY
THE PROSECUTOR
All criminal actions commenced by a WHO MAY PROSECUTE
complaint or information shall be 1. Concubinage and adultery – only by
the offended spouse who should

have the status, capacity, and legal c) if the offended woman is of age
representation at the time of filing and not otherwise incapacitated,
of the complaint, regardless of age; only she can extend a valid
2. Seduction, Abduction and Acts of pardon.
Lasciviousness – prosecuted
exclusively and successively by the The pardon refers to pardon BEFORE
following persons in this order: filing of the criminal complaint in court.
a) by the offended woman Pardon effected after the filing of the
b) by the parents, grandparents or complaint in court does NOT prohibit the
legal/judicial guardians in that continuance of the prosecution of the
successive order offense EXCEPT in case of marriage
c) by the State in the exercise of between the offender and the offended
the right of parens patriae, party.
when the offended party dies or
becomes incapacitated before PARDON vs. CONSENT
she could file the complaint and Consent refers to future acts, while
she has no known parents, pardon refers to past acts of adultery.
grandparents or guardian. The importance of this distinction is that
3. A defamation imputing to a person consent, in order to absolve the accused
any of the foregoing crimes of from liability, is sufficient even if
concubinage, adultery, seduction, granted only to the offending spouse,
abduction, rape or acts of whereas pardon must be extended to
lasciviousness can be prosecuted both offenders
only by the party or parties defamed
(Article 360, last par., Revised Penal The SUBSEQUENT MARRIAGE between the
Code). offended party and the accused
extinguishes the criminal liability of the
If the offended party is of legal age AND latter, together with that of the co-
does not suffer from physical or mental principals, accomplices and accessories.
disability, she alone can file the EXCEPT:
complaint to the exclusion of all others. 1. where the marriage was invalid
or contracted in bad faith in
WHO CAN GIVE PARDON order to escape criminal
1. Concubinage and adultery - only liability,
the offended spouse, not otherwise 2. in “private libel”
incapacitated, can validly extend the 3. in multiple rape, insofar as the
pardon or consent contemplated other accused in the other acts
therein. of rape respectively committed
2. Seduction, abduction, and acts of by them are concerned.
lasciviousness –
a) the offended minor, if with  The ACQUITTAL OR DEATH of one of
sufficient discretion, can validly the accused in the crime of adultery
pardon the accused by herself if does not bar the prosecution of the
she has no parents or where the other accused (People vs. Topiño, et al.,
accused is her own father and 35 Phil. 901). HOWEVER, the death of
her mother is dead; the offended spouse before the filing of
b) the parents, grandparents or the complaint for adultery bars further
guardian of the offended minor, prosecution, BUT if the offended spouse
in that order, CANNOT extend a died after the filing of the corresponding
valid pardon in said crimes complaint, his death will NOT prevent
WITHOUT the conformity of the the proceeding from continuing to its
offended party, even if the ultimate conclusion.
latter is a minor;

 DESISTANCE of complainant does not Section 8. Designation of the offense.

bar criminal prosecution but it operates
as waiver of the right to pursue civil The information or complaint must state
indemnity. or designate the following whenever
possible:
Section 6. Sufficiency of complaint or 1. The designation of the offense
information. given by the statute.
2. The statement of the acts or
CONTENTS OF A VALID COMPLAINT OR omissions constituting the
INFORMATION offense, in ordinary, concise and
1. Name of the accused, including particular words.
any appellation or nickname 3. The specific qualifying and
An error in the name of the aggravating circumstances must
accused is not reversible as long be stated in ordinary and concise
as his identity is sufficiently language.
established and this defect is
curable at any stage of the The qualifying and aggravating
proceedings as the insertion of circumstances cannot be appreciated
the real name of the accused is even if proved UNLESS alleged in the
merely a matter of form. information.
2. The designation of the offense
3. The acts or omissions In case of allegation of aggravating
complained of as constituting circumstance of HABITUAL
the offense DELINQUENCY, it should not be generally
4. The name of the offended party averred. The information must specify
5. The approximate time of the the requisite data regarding:
commission of the offense 1. the commission of the crimes;
6. The place wherein the offense 2. the last conviction or release;
was committed 3. the other previous conviction or
release of the accused.
PURPOSE OF THE RULE
1. To inform the accused of the ALLEGATIONS PREVAIL OVER
nature and cause of accusation DESIGNATION OF THE OFFENSE IN THE
against him. INFORMATION
2. To notify the defendant of the
criminal acts imputed to him so It is not the designation of the offense in
that he can duly prepare his the complaint or information that is
defense. controlling (People vs. Samillano, 56
SCRA 573); the facts alleged therein and
Substantial defect in the information not its title determine the nature of the
cannot be cured by evidence that would crime (People vs. Magdowa, 73 Phil.
jeopardize the accused’s right to be 512).
informed of the true nature of the
offense he is being charged with The accused may be convicted of a
crime more serious than that named in
Section 7. Name of the accused. the title or preliminary part if such
crime is covered by the facts alleged in
PURPOSE the body of the information and its
The manifest intent of the provision is to commission is established by evidence
make a specific identification of the (Buhat vs. Court of Appeals, 265 SCRA
person to whom the commission of an 701).
offense is being imputed.

Limitation on the rule that an accused Section 10. Place of commission of the
may be convicted of a crime which is offense
more serious than that named in the
title so long as the facts alleged the PURPOSE
more serious offense: To show territorial jurisdiction.
An accused could not be convicted under Section 11. Date of commission of the
one act when he is charged with a offense
violation of another if the change from
one statute to the other involves: GENERAL RULE:
a) a change in the theory of the It is NOT required that the complaint or
trial; information state with particularity the
b) requires of the defendant a PLACE where the crime was committed
different defense; or and the DATE of the commission of the
c) surprises the accused in any way crime.
(U.S. vs. Panlilio, 28 Phil. 603) EXCEPTION:
. If the PLACE/DATE of the commission of
Section 9. Cause of the accusation. the offense constitutes an essential
element of the offense.
PURPOSE
1. to enable the court to pronounce Section 12. Name of the offended party
proper judgment;
2. to furnish the accused with such GENERAL RULE: The offended party
a description of the charge as to must be designated by name, nickname,
enable him to make a defense; any other appellation or by fictitious
3. as a protection against further name.
prosecution for the same cause. EXCEPTION: In crimes against property,
the description of the property must
RULE ON NEGATIVE AVERMENTS supplement the allegation that the
GENERAL RULE: Where the statute owner is unknown.
penalizes generally the acts therein
defined and is intended to apply to all Section 13. Duplicity of offense.
persons indiscriminately, the information
is sufficient even if does not allege that There is duplicity when the complaint or
the accused falls within the excepted information charges 2 or more DISTINCT
situation, for then the complete or DIFFERENT offenses.
definition of the offense is entirely
separable from the exceptions and can GENERAL RULE:
be made without reference to the latter. A complaint or information must charge
In this case, the exception is a matter of only one offense.
defense which the accused has to prove. EXCEPTIONS:
1. Complex crimes
EXCEPTION: Where the statute alleged 2. Special Complex crimes
to have been violated applies only to a 3. Continuous crimes or delicto
specific class of persons and to special continuado
conditions, the information must allege 4. Crimes of which another offense
facts establishing that the accused falls is an ingredient
within the specific class affected and not
those affected from the coverage of law. Should there be duplicity of offense in
Where negative averment is an essential the information, the accused must move
element of the crime, it must be proved. for the quashal of the same BEFORE
arraignment

arraignment, otherwise, he is deemed to AMENDMENT SUBSTITUTION OF

have waived the objection and maybe INFORMATION OR
found guilty of as many offenses as those COMPLAINT
charged and proved during the trial. M ay involve either Involves substantial
formal or substantial change from the
Section. 14. Amendment or changes original charge
substitution. Amendment before Substitution of
the plea has been information must be
KINDS OF AMENDMENT entered can be with leave of court
1. BEFORE THE PLEA – covers both effected without as the original
substantial and formal leave of court. information has to be
amendment, WITHOUT leave of dismissed.
court. Amendment is only Another preliminary
2. AFTER THE PLEA – covers only as to form, there is investigation is
formal amendment provided: no need for another entailed and the
a) leave of court is obtained preliminary accused has to plead
b) such amendment is not investigation and the anew to the new
prejudicial to the rights of retaking of the plea information
the accused. of the accused.
EXCEPT when a fact supervenes
which changes the nature of the An amended Requires or
crime charged in the information information refers to presupposes that the
or upgrades it to a higher crime, the same offense new information
in which case, there is a need charged in the involves a different
for another arraignment of the original information offense which does
accused under the amended or to an offense not include or is not
information. which necessarily necessarily included
includes or is in the original
An amendment is only in form where it necessarily included charge, hence the
neither affects nor alters the nature of in the original accused cannot claim
the offense charged OR where the charge, hence double jeopardy.
charge does not deprive the accused of a substantial
fair opportunity to present his defense amendments to the
OR where it does not involve a change in information after the
the basic theory of the prosecution. plea has been taken
cannot be made over
Substitution – If it appears at anytime the objection of the
before judgment that a mistake has been accused, for if the
made in charging the proper offense, the original information
court shall dismiss the original complaint would be withdrawn,
or information upon the filing of a new the accused could
one charging the proper offense, invoke double
provided the accused shall not be placed jeopardy.
in double jeopardy.
VARIANCE BETWEEN INDICTMENT AND
Limitation to the rule on substitution: PROOF (Situations Contemplated)
1. No judgment has yet been 1. When the offense proved is less
rendered. serious than, and is necessarily
2. The accused cannot be convicted included in, the offense charged,
of the offense charged or of any in which case the defendant
other offense necessarily shall be convicted of the offense
included therein. proved.
3. The accused would not be placed 2. When the offense proved is more
in double jeopardy. serious than and includes the

offense charged, in which case 2. Complex Crimes

the defendant shall be convicted  Where the crime charged is a
of the offense charged. complex crime, the RTC of
3. When the offense proved is any province in which any
neither included in, nor does it one of the essential
include, the offense charged and elements of such complex
is different therefrom, in which crime had been committed
case the court should dismiss the has jurisdiction to take
action and order the filing of a cognizance of the offense.
new information charging the 3. Continuing Offense - is one
proper offense. where the elements of which
occur in several places, (unlike a
The third situation set forth above is LOCAL OFFENSE - one which is
substitution of information under Section fully consummated in one place)
14, Rule 110.  The venue is in the place
where one of its essential
Section 15. Place where action is to be elements was consummated.
instituted. 4. Piracy – The venue of piracy,
unlike all other crimes, has no
PURPOSE territorial limits.
The purpose being not to compel the 5. Libel – The action may be
defendant to move to, and appear in a instituted at the election of the
different court from that of the territory offended or suing party in the
where the crime was committed, as it province or city:
would cause him great inconvenience in a) where the libelous article is
looking for his witnesses and other printed and first published;
evidence in another place (Beltran vs. b) if one of the offended
Ramos, 96 Phil. 149). parties is a private
individual, where said
VENUE IS JURISDICTIONAL private individual actually
Venue is jurisdictional as the court has resides at the time of the
no jurisdiction to try an offense commission of the offense;
committed outside its territorial c) if the offended party is a
jurisdiction. It cannot be waived, or public official, where the
changed by agreement of the parties, or latter holds office at the
by the consent of the defendant. time of the commission of
the offense.
GENERAL RULE: Subject to existing 6. In exceptional circumstances – to
laws, in all criminal prosecutions, the ensure a fair trial and impartial
action must be instituted and tried in inquiry. The SC shall have the
the courts of the municipality or power to order a change of
territory where the offense was venue or place of trial to avoid
committed or any of its essential miscarriage of justice (Section
ingredients occurred. 5[4], Article VIII, 1987
Constitution).
EXCEPTIONS TO THE RULE OF VENUE:
1. Felonies under Art. 2 of the Section 16. Intervention of the
Revised Penal Code offended party in criminal action.
 Shall be cognizable by the
proper court where the GENERAL RULE: Offended party has the
criminal action was first right to intervene by counsel in the
filed. prosecution of the criminal action,
where the civil action for recovery of

civil liability is instituted in the criminal Civil Code which can be prosecuted even
action pursuant to Rule 111. without reservation.
 In BP 22 cases, no reservation to file
EXCEPTIONS: the civil action separately shall be
1. Where from the nature of the allowed.
crime and the law defining and
punishing it, NO civil liability RULES ON FILING FEES OF CIVIL ACTION
arises in favor of the offended DEEMED INSTITUTED WITH THE
party; and CRIMINAL ACTION
2. Where the offended party has 1. NO filing fees are required for
waived his right to civil amounts of ACTUAL DAMAGES,
indemnity OR has expressly EXCEPT with respect to criminal
reserved his right to institute a actions for violation of BP 22, in
civil action OR has already which case, the offended party
instituted said action. shall pay in full the filing fees
based on the face value of the
check as the actual damages;
RULE 111 2. Damages other than actual
PROSECUTION OF CIVIL ACTIONS (moral, exemplary and other
damages) if specified in the
Section 1. Institution of criminal and complaint or information, the
civil actions. corresponding filing fees shall be
paid, otherwise the court will
GENERAL RULE: not acquire jurisdiction over
When a criminal action is instituted, the such damages;
civil action for the recovery of civil 3. Where moral, exemplary and
liability arising from the offense shall be other damages are NOT specified
deemed instituted with the criminal in the complaint or information,
action. the grant and amount thereof
EXCEPTIONS: are left to the sound discretion
1. when the offended party WAIVES of the trial court, the
the civil action corresponding filing fees need
2. when the offended party not be paid and shall simply
RESERVES his right to institute a constitute a first lien on the
separate civil action judgment.
3. when offended party INSTITUTES
A CIVIL ACTION PRIOR to the  Counterclaims, cross-claims, third
criminal action. party complaints are no longer allowed
in a criminal proceeding. Any claim
WHEN RESERVATION SHALL BE MADE which could have been the subject
1. before the prosecution starts to thereof may be litigated in a separate
present its evidence and civil action.
2. under circumstances affording
the offended party to a Section 2. When separate civil action is
reasonable opportunity to make suspended.
such reservation.
PRIMACY OF CRIMINAL ACTION OVER
 ONLY the civil liability arising from CIVIL ACTION
the crime charged as a felony is now 1. After the filing of the criminal
deemed instituted. Civil liability arising action, the civil action which has
from other sources of obligations are no been reserved CANNOT be
longer deemed instituted like those instituted until final judgment
under Article 32, 33, 34 and 2176 of the has been rendered in the
criminal action.

2. If the civil action is instituted  Where the criminal case was

BEFORE the filing of the criminal dismissed before trial because the
action and the criminal action is offended party executed an affidavit of
subsequently commenced, the desistance, the civil action thereof is
pending civil action shall be similarly dismissed.
suspended until final judgment
in the criminal action has been Section 3. When civil action may
rendered. proceed independently.
EXCEPTIONS:
a) In cases of independent civil  The institution of an independent
actions based upon Arts. 32, 33, civil action against the offender under
34 and 2176 of the Civil Code; Articles 32, 33, 34 and 2176 of the Civil
b) In cases where the civil action Code may proceed independently of the
presents a prejudicial question; criminal case and at the same time
c) In cases where the civil action is without suspension of either proceeding.
consolidated with the criminal
action; and  Recovery of civil liability under
d) Where the civil action is not one Articles 32, 33, 34 and 2176 of the Civil
intended to enforce the civil Code arising from the same act or
liability arising from the offense. omission may be prosecuted separately
even without a reservation. The
ACQUITTAL IN A CRIMINAL CASE DOES reservation and waiver herein refers only
NOT BAR THE FILING OF THE CIVIL to the civil action for the recovery of
CASE WHERE: civil liability arising from the offense
1. the acquittal is based on charged (DMPI Employees Credit Coop
reasonable doubt, if the civil vs. Velez, G.R. No. 129282, Nov. 29,
case has been reserved 2001).
2. the decision contains a
declaration that the liability of PURPOSE
the accused is not criminal but To prevent the offended party from
only civil in nature and recovering damages twice for the same
3. the civil liability is not derived act or omission.
from or based on the criminal
act of which the accused is Section 4. Effect of death on civil
acquitted (Sapiera vs. Court of actions.
Appeals, 314 SCRA 370).
AFTER arraignment and during the
 Extinction of the penal action does pendency of the criminal action -
not carry with it the extinction of the extinguishes the civil liability arising
civil action, UNLESS the extinction from the delict.
proceeds from a declaration in a final
judgment that the fact from which the BEFORE arraignment - the case shall be
civil liability might arise did not exist. DSMISSED without prejudice to any civil
action the offended party may file
 The extinction of the civil liability against the estate of the deceased.
refers exclusively to civil liability arising
from crime; whereas, the civil liability  However, the independent civil
for the same act considered as a quasi- action instituted under Section 3 of this
delict is not extinguished even by a Rule or which thereafter is instituted to
declaration in the criminal case that the enforce liability arising from other
criminal act charged has not happened sources of obligation may be continued
or has not been committed by the against the estate or legal
accused. representative of the accused after

proper substitution or against said crime has been committed and that the
estate, as the case may be. respondent is probably guilty thereof,
and should be held for trial. (Sec. 1,
Section 7. Elements of prejudicial Rule 112)
question.
Preliminary Investigation is required to
Prejudicial Question - that which arises be conducted BEFORE the filing of a
in a case, the resolution of which is the complaint or information for an offense
logical antecedent of the issue involved where the penalty prescribed by law is
therein, and the cognizance of which at least 4 years, 2 months and 1 day
pertains to another tribunal. It must be without regard to the fine.
determinative of the case before the
court but the jurisdiction to try and There is NO right of preliminary
resolve the question must be lodged in investigation under Section 7, Rule 112
another court or tribunal. when a person is LAWFULLY arrested
unless there is a waiver of the provisions
Rationale: to avoid two conflicting of Article 125 of the Revised Penal Code.
decisions.
HOWEVER, the accused can ask for
ELEMENTS OF A PREJUDICIAL Preliminary Investigation in the following
QUESTION cases:
1. The civil action must be 1. if a person is arrested, he can
instituted prior to the criminal ask for preliminary investigation
action. BEFORE the filing of the
2. The civil action involves an issue complaint/information BUT he
similar or intimately related to must sign a waiver in accordance
the issue raised in the criminal with Article 125, RPC.
action. 2. AFTER the filing of the
3. The resolution of such issue information/complaint, the
determines whether or not the accused may, within 5 days from
criminal action may proceed. the time he learns of its filing
ask for preliminary investigation.
WHERE TO FILE PETITION FOR
SUSPENSION BY REASON OF PURPOSES
PREJUDICIAL QUESTION 1. to determine whether a crime
1. Office of the prosecutor; or has been committed and
2. court conducting the preliminary whether there is probable cause
investigation; or to believe that the accused is
3. court where the criminal action guilty thereof;
has been filed for trial at any 2. to preserve evidence and keep
time before the prosecution the witnesses within the control
rests. of the State;
3. to determine the amount of bail,
if the offense is bailable.
RULE 112
PRELIMINARY INVESTIGATION PRELIMINARY INVESTIGATION:
PERSONAL STATUTORY RIGHT
Section 1. Preliminary Investigation The right to preliminary investigation is
defined; when required. a personal right covered by statute and
may be waived expressly or by
Preliminary Investigation - is an inquiry implication.
or proceeding to determine whether
there exists sufficient ground to Absence of preliminary investigation
engender a well-founded belief that a does not affect the jurisdiction of the

court or invalidate the information if no Section 3. Procedure

objection was raised by the accused.
REMEDIES OF THE ACCUSED IF THERE Filing of the complaint

WAS NO PRELIMINARY INVESTIGATION accompanied by the affidavits
and supporting documents.
1. Refuse to enter a plea upon
arraignment and object to
further proceedings upon such
ground Within 10 days after the filing, the
2. Insist on a preliminary investigating officer shall either
investigation dismiss or issue subpoena.
3. File a certiorari, if refused
4. Raise lack of preliminary
If subpoena is issued,
investigation as error on appeal respondent shall submit a
5. File for prohibition counter-affidavit and other
supporting documents within
As preliminary investigation is NOT a 10 days from receipt thereof.
part of the trial, the dismissal of the
case by the investigator will not
constitute double jeopardy and will not Hearing (optional). It shall be held
bar the filing of another complaint for within 10 days from submission of
the same offense, but if re-filed, the counter-affidavits or from the
accused is entitled to another expiration of the period of their
preliminary investigation (U.S. vs. submission.
Marfori, 35 Phil. 666).
Section 2. Officers authorized to Resolution of

conduct preliminary investigation. investigating prosecutor
(Sec. 4 & 5).
PERSONS AUTHORIZED TO CONDUCT A If respondent cannot be subpoenaed, or
PRELIMINARY INVESTIGATION if subpoenaed but does not submit his
1. Provincial or city fiscal and their counter-affidavit within 10 days,
assistants investigating officer shall resolve the
2. Judges of the MTC and MCTC complaint based on the evidence
3. National and regional state presented by the complainant.
prosecutors
4. Such other officers as may be RIGHTS OF RESPONDENT IN A
authorized by law such as: the PRELIMINARY INVESTIGATION
COMELEC, Ombudsman and 1. to submit counter-affidavits
PCGG 2. to examine evidence submitted
by the complainant
3. to be present in the clarificatory
hearing.

The Rules do not require the presence of  In either situation, the MTC is
the respondent in the Preliminary authorized to issue a warrant of arrest if
Investigation, what is required is that he there is necessity of placing the
be given the opportunity to controvert respondent under immediate custody, in
the evidence of the complainant by order not to frustrate the ends of
submitting counter-affidavits. justice.
Section 6. When warrant of arrest may CONDITIONS BEFORE THE

issue INVESTIGATING MUNICIPAL TRIAL
Probable Cause - presupposes a JUDGE CAN ISSUE A WARRANT OF
reasonable ground for belief in the ARREST (Herrera, p. 282)
existence of facts warranting the 1. Have examined in writing and
proceedings complained of; under oath the complainant and
- an apparent his witnesses by searching
state of facts found to exist upon questions and answers; searching
reasonable inquiry which would induce a questions and answers – such
reasonably intelligent and prudent man questions as may have the
to believe that the accused person had tendency to show the
committed the crime charged. commission of the crime and the
perpetrator thereof;
If the judge finds probable cause, he 2. Be satisfied that a probable
shall issue a warrant of arrest, or a cause exists; and
commitment order if the accused had 3. That there is a need to place the
already been arrested and hold him for respondent under immediate
trial. If the judge is satisfied that there custody in order not to frustrate
is no necessity for placing the accused the ends of justice.
under custody, he may issue summons
instead of warrant of arrest.  If the MTC judge found probable
cause but did not believe that the
The RTC judge need NOT personally aforesaid conditions were met, he
examine the complaint and witnesses in cannot be compelled by mandamus to
the determination of probable cause for issue the same.
the issuance of the warrant of arrest. He
is only required to: REMEDY: The provincial fiscal, if he
1. Personally evaluate the report believes that the accused should be
and the supporting documents immediately placed in custody, may file
submitted during the preliminary the corresponding information so that
investigation by the fiscal; and the RTC may issue the necessary warrant
2. On the basis thereof he may: of arrest (Samulde vs. Salvani, Jr., G.R.
a) Dismiss; No. 78606, Sept. 26, 1988).
b) Issue warrant; or
c) Require further affidavits. While the judge may rely on the fiscal’s
certification thereof, the same is NOT
INSTANCES WHEN MTC MAY CONDUCT conclusive on him as the issuance of said
PRELIMINARY INVESTIGATION: warrant calls for the exercise of judicial
1. cases cognizable by the RTC may discretion and, for that purpose, the
be filed with the MTC for judge may require the submission of
preliminary investigation; affidavits of witnesses to aid him in
2. cases cognizable by the MTC arriving at the proper conclusion, OR he
because it is an offense where may require the fiscal to conduct further
the penalty prescribed by law is preliminary investigation or
at least four (4) years, two (2) reinvestigation.
months and one (1) day without
regard to the fine.

INSTANCES WHEN WARRANT OF ARREST the accused until the prosecutor shall
NOT NECESSARY have conducted and made a report on
1. if the accused is already under the result of such reinvestigation.
detention;
2. if the complaint or information The right to bail pending Preliminary
was filed after the accused was Investigation under Section 7, Rule 112,
lawfully arrested without a person lawfully arrested may post bail
warrant; before the filing of the information or
3. if the offense is punishable by even after its filing without waiving his
fine only. right to preliminary investigation,
provided that he asks for a preliminary
Section 7. When accused lawfully investigation by the proper officer within
arrested without warrant. the period fixed in the said rule (People
vs. Court of Appeals, May 29, 1995).
TWO SITUATIONS CONTEMPLATED
UNDER THIS RULE: Section 8. Records
1. When a person is lawfully
arrested without a warrant for Records of the preliminary investigation
an offense requiring a shall NOT automatically form part of the
preliminary investigation (sec. 1, records of the case. Courts are not
Rule 112) and no complaint or compelled to take judicial notice
information has yet been filed, thereof. It must be introduced as an
he may ask for a preliminary evidence.
investigation by signing a waiver
of the provisions of Art. 125 of Section 9. Cases not requiring a
the RPC in the presence of his preliminary investigation nor covered
counsel. by the Rule on Summary Procedure.
2. When the complaint or
information was filed without PROCEDURE TO BE FOLLOWED IN CASES
preliminary investigation, the WHICH DO NOT REQUIRE PRELIMINARY
accused may, within 5 days from INVESTIGATION
the time he learns of the filing
of the information, ask for a 1. Evaluate the evidence presented
preliminary investigation with 2. Conduct searching questions or
the same right to adduce answers
evidence in his favor in the 3. Require the submission of
manner prescribed in this Rule. additional evidence
The 5-day period is MANDATORY, failure  For cases under the Revised Rules on
to file the motion within the said period Summary Procedure, no warrant shall be
amounts to waiver of the right to ask for issued except where the accused fails to
preliminary investigation. appear after being summoned.
Where the information was amended If the complaint is filed with the
without a new preliminary investigation prosecutor involving an offense
having been conducted, the 5-day period punishable by imprisonment of less than
is computed from the time the accused 4 years, 2 months and 1 day, the
learns of the filing of said amended procedure in Rule 112, Section 3 (a) shall
information. be observed.
Where the trial court has granted a If the complaint is filed with the MTC,
motion for reinvestigation, it must hold the same procedure under Rule 112,
in abeyance the arraignment and trial of Section 3 (a) shall be observed.
the

RULE 113 2. By his submission to the custody

ARREST of the person making the arrest.
Section 1. Definition of arrest. Upon arrest, the following may be

confiscated from the person arrested:
Arrest – the taking of a person into 1. Objects subject of the offense or
custody in order that he may be bound used or intended to be used in
to answer for the commission of an the commission of the crime;
offense (Sec. 1 Rule 113). 2. Objects which are the fruits of
the crime;
Modes of Arrest 3. Those which might be used by
1. arrest by virtue of a warrant the arrested person to commit
2. arrest without a warrant under violence or to escape;
exceptional circumstances as 4. Dangerous weapons and those
may be provided by statute (Sec. which may be used as evidence
5, Rule 113). in the case.
ESSENTIAL REQUISITES OF A VALID Section 5. Arrest without warrant;

WARRANT OF ARREST when lawful
1. It must be issued upon probable
cause which must be determined LAWFUL WARRANTLESS ARREST
personally by a judge after 1. When, IN HIS PRESENCE, the
examination under oath or person to be arrested has
affirmation of the complainant committed, is actually
and the witnesses he may committing, or is attempting to
produce commit an offense (in flagrante
2. The warrant must particularly delicto arrests);
describe the person to be seized 2. When an offense has in fact just
been committed, and he has
A warrant of arrest has NO expiry date. probable cause to believe based
It remains valid until arrest is effected on PERSONAL KNOWLEDGE of
or warrant is lifted. fact and circumstance that the
person to be arrested has
REMEDY FOR WARRANTS IMPROPERLY committed it; (Doctrine of Hot
ISSUED Pursuit)
Where a warrant of arrest was 3. When the person to be arrested
improperly issued, the proper remedy is is a prisoner who has escaped
a petition to quash it, NOT a petition for from a penal establishment or
habeas corpus, since the court in the place where he is serving final
latter case may only order his release judgment or temporarily
but not enjoin the further prosecution or confined while his case is
the preliminary examination of the pending, or has escaped while
accused (Alimpoos vs. Court of Appeals, being transferred from one
106 SCRA 159). confinement to another.
4. Where a person who has been
Posting of bail does not bar one from lawfully arrested escapes or is
questioning illegal arrest (Section 26, rescued (Sec. 13, Rule 113);
Rule 114, Rules of Court). 5. By the bondsman for the purpose
of surrendering the accused
Section 2. Arrest; how made. (Sec. 23, Rule 114); and
6. Where the accused attempts to
MODES OF EFFECTING ARREST leave the country without
1. By an actual restraint of the permission of the court (Sec. 23,
person to be arrested. Rule 114).

If the arrest was effected without Section 8. Method of arrest by officer

warrant, the arresting officer must without warrant.
comply with the provisions of Art. 125 of
the RPC, otherwise, he may be held Section 9. Method of arrest by private
criminally liable for arbitrary detention person.
under Article 124 of the RPC.
Citizen’s arrest - arrest effected by a
RULES ON ILLEGALITY OF ARREST private person.
1. An accused who enters his plea
of NOT guilty and participates in Method of Exception to
the trial waives the illegality of arrest the rule on
the arrest. Objection to the giving
illegality must be raised before information
arraignment, otherwise it is
deemed waived, as the accused, Sec. 7 The officer 1. when
in this case, has voluntarily shall inform the person to
submitted himself to the the person to be arrested
jurisdiction of the court. be arrested flees;
2. Illegality of warrantless arrest the cause of 2. when
maybe cured by filing of an the arrest and he forcibly
information in court and the the fact that resists before
subsequent issuance by the the warrant the officer has
judge of a warrant of arrest. has been an opportunity
3. Once a person has been duly issued for his to inform him;
charged in court, he may no arrest. and
longer question his detention by
petition for habeas corpus, his Note: The 3. when
remedy is to quash the officer need the giving of
information and/or the warrant not have the such
of arrest. warrant in his information
possession at will imperil
Section 6. Time of making arrest. the time of the arrest.
the arrest BUT
Unlike a search warrant which must be must show the
served only in daytime, an arrest may be same after the
made on any day and at any time of the arrest, if the
day or night, even on a Sunday. This is person
justified by the necessity of preserving arrested so
the public peace. requires.
Section 7. Method of arrest of officer Sec. 8 The officer 1. when

by virtue of warrant. shall inform the person to
the person to be arrested is
Under this rule, an arrest may be made be arrested of engaged in the
even if the police officer is not in his authority commission of
possession of the warrant of arrest and the cause an offense or
(Mallari vs. Court of Appeals, 265 SCRA of the arrest is pursued
456). Exhibition of the warrant prior to w/out a immediately
the arrest is not necessary. However, if warrant its
after the arrest, the person arrested so commission;
requires, the warrant shall be shown to 2. when
him as soon as practicable. he has
escaped, flees,
or forcibly

resists before 2. That he has announced his

the officer has authority and purpose for
an opportunity entering therein;
to so inform 3. That he has requested and been
him; and denied admittance.
3. when
the giving of Generally, a lawful arrest may be made
such anywhere, even on private property or in
information a house. This rule is applicable both
will imperil the where the arrest is under a warrant, and
arrest. where there is valid warrantless arrest.
Sec. 9 The private 1. when Section 12. Right to break out of the
person shall the person to building or enclosure to effect release.
inform the be arrested is
person to be engaged in the A private person making an arrest
arrested of commission of CANNOT break in or out of a building or
the intention an offense or enclosure because only officers are
to arrest him is pursued allowed by law to do so.
and the cause immediately
of the arrest. its Section 13. Arrest after escape or
commission; rescue.
Note: Private 2. when
person must he has Where a person lawfully arrested
deliver the escaped, flees, escapes or is rescued, any person may
arrested or forcibly immediately pursue or retake him
person to the resists before without a warrant at any time and in any
nearest police the officer has place within the country. The pursuit
station or jail, an opportunity must be immediate.
otherwise, he to so inform
may be held him; and Section 14. Right of Attorney or
criminally 3. when relative to visit person arrested.
liable for the giving of
illegal such RA 7438 defined certain rights of persons
detention. information arrested, detained, or under custodial
will imperil the investigation, with the penalties for
arrest. violations thereof.
Section 10. Officer may summon

assistance. RULE 114
BAIL
Only an officer making the arrest is
governed by the rule. It does not cover a Section 1. Bail defined.
private individual making an arrest.
Bail -- the security given for the release
Section 11. Right of officer to break of a person in custody of the law,
into building or enclosure. furnished by him or a bondsman,
conditioned upon his appearance before
Requisites before an officer can break any court as required under the
into a building or enclosure to make an conditions specified by the rule (Sec. 1,
arrest: Rule 114).
1. That the person to be arrested is
or is reasonably believed to be in
said building;

 A person is in the custody of law unless cancelled, shall remain in

when he has been either arrested or force at all stages of the case
otherwise deprived of his freedom or until promulgation of the
when he has voluntarily submitted judgment of the RTC,
himself to the jurisdiction of the court irrespective of whether the case
by surrendering to the proper was originally filed in or
authorities. appealed to it;
2. The accused shall appear before
All persons, except those charged with the proper courts whenever so
offenses punishable by reclusion required by the court or these
perpetua when evidence of guilt is Rules;
strong, shall, before conviction, be 3. The failure of the accused to
bailable by sufficient sureties, or be appear at the trial without
released on recognizance as may be justification despite due notice
provided by law (Section 13, Article III, shall be deemed a waiver of his
1987 Constitution). right to be present thereat. In
such case, the trial may proceed
Forms of bail: in absentia;
1. corporate surety 4. The bondsman shall surrender
2. property bond the accused to court for
3. cash deposit execution of the final judgment.
4. recognizance
No additional conditions can be imposed.
BAILBOND RECOGNIZANCE
An obligation under an obligation of A detention prisoner who escaped waives
seal given by the record, entered into his right to cross-examination (Jimenez
accused with one or before some court or v. Nazareno).
more sureties, and magistrate duly
made payable to the authorized to take it, By filing a fake bail bond, an appellant is
proper officer with with the condition to deemed to have escaped from
the condition to be do some particular confinement during the pendency of his
void upon act; appeal and in the normal course of
performance by the things, his appeal should be dismissed.
accused of such acts
as he may legally be No release or transfer except on court
required to perform order or bail.
No person under detention by legal
Prosecution witnesses may also be process shall be released or transferred
required to post bail to ensure their except upon order of the court or when
appearance at the trial of the case he is admitted to bail (Sec. 3).
where:
1. there is a substitution of Section 4. Bail, a matter of right;
information (Sec. 4, Rule110), exception.
and
2. where the court believes that a When a matter of right:
material witness may not appear 1. before or after conviction in the
at the trial (Sec. 14, Rule 119). lower courts; AND
2. before conviction by the RTC,
Section 2. Conditions of the bail; EXCEPT when the imposable
requirements. penalty is death, reclusion
perpetua or life imprisonment
CONDITIONS OF BAIL and evidence of guilt is strong.
1. The undertaking shall be
effective upon approval, and,

In instances where bail is a matter of original or appellate jurisdiction,

right and the bail to be granted is based bail is a matter of right. (Sec.4)
on the recommendation of the 4. Upon conviction by the RTC of an
prosecution as stated in the information offense not punishable by death,
or complaint, a hearing is NOT reclusion perpetua or life
necessary. imprisonment, admission to bail
is discretionary (Sec. 5);
But where, however, there is a reduction 5. After conviction by the RTC
of bail as recommended or after wherein a penalty of
conviction by the RTC of an offense not imprisonment exceeding 6 but
punishable by death, reclusion perpetua, not more than 20 years is
or life imprisonment wherein the grant imposed, and not one of the
of bail is discretionary, there must be a circumstances below is present
hearing before a bail is granted in order and proved, bail is a matter of
to afford the prosecution the chance to discretion (Sec.5).
oppose it (Bangayan vs. Butacan, 345 a) Recidivism, quasi-recidivism
SCRA 301). or habitual delinquency or
commission of crime
The prosecution cannot adduce evidence aggravated by the
for the denial of bail where it is a matter circumstances of reiteration.
of right. However, where the grant of b) Previous escape from legal
bail is discretionary, the prosecution confinement, evasion of
may show proof to deny the bail. sentence or violation of the
conditions of bail without
An extraditee is not entitled to bail. The valid justification.
Constitutional provision on Bail as well c) Commission of the offense
as Sec. 4 of Rule 114 applies only when a while on probation, parole or
person has been arrested and detained under conditional pardon
for violation of Philippine Criminal laws. d) Circumstance of the accused
It does not apply to extradition or his case indicates the
proceedings because extradition courts probability of flight if
do not render judgments of conviction or released on bail
acquittal (Govt. of US vs. Judge e) Undue risk of commission of
Purganan, Sept. 24, 2002). another crime by the
accused during pendency of
Section 5. Bail, when appeal.
discretionary. – 6. After conviction by the RTC
imposing a penalty of
RULES ON AVAILABILITY OF BAIL imprisonment exceeding 6 years
1. Regardless of stage of the but not more than 20 years and
criminal prosecution, no bail any of the circumstance
shall be allowed if the accused is enumerated above and other
charged with a capital offense or similar circumstance is present
an offense punishable by and proved, no bail shall be
reclusion perpetua AND the granted (Sec.5);
evidence of guilt is strong (Sec. 7. After judgment has become final
7); unless accused applied for
2. Before and after conviction by probation before commencing to
the MTC, Municipal Trial Court or serve sentence of penalty and
MCTC, bail is a matter of right offense within purview of
(Sec.4). probation law (Sec. 24).
3. Before conviction by the RTC
whether in the exercise of its Section 6. Capital Offense, defined.

Capital Offense – is an offense which,

under the law existing at the time of its
commission AND at the time of the shows evident guilt or a great
application to be admitted to bail, may presumption of guilt.
be punished with death.
Section 9. Amount of bail; guidelines.
If the law at the time of commission FACTORS TO BE CONSIDERED IN FIXING
does not impose the death penalty, the THE REASONABLE AMOUNT OF BAIL
subsequent amendment of the law (NOT EXCLUSIVE)
increasing the penalty cannot apply to 1. Financial ability of the accused
the case, otherwise it would be ex post to give bail;
facto, and penalties are determined by 2. Nature and circumstances of the
the law at the time of the commission of offense;
the offense. 3. Penalty for the offense charged;
4. Character and reputation of the
If the law at the time of the application accused;
for bail has amended the prior law which 5. Age and health of the accused;
imposed the death penalty by reducing 6. Weight of evidence against the
such penalty, such favorable law accused;
generally has a retroactive effect. 7. Probability of the accused
appearing at the trial;
Section 7. Capital Offense not bailable. 8. Forfeiture of other bail;
9. The fact that the accused was a
Capital offense or those punishable by fugitive from justice when
reclusion perpetua, life imprisonment or arrested; and
death are NOT BAILABLE when evidence 10. Pendency of other cases when
of guilt is strong. the accused is on bail
EXCEPTION: If the accused charged with Bail must not be in a prohibitory
a capital offense is a minor. amount. Excessive bail is not to be
required for the purpose of preventing
Section 8. Burden of proof in bail the accused from being admitted to bail.
application.
Section 11. Property, how posted.
The hearing should be summary or
otherwise in the discretion of the court Property Bond – is an undertaking
but the right of the prosecution to constituted as a lien on the real property
control the quantum of evidence and the given as security for the amount of the
order of presentation of witnesses must bail (sec11);
be equated with the purpose of the
hearing – to determine the bailability of It is required that the annotation of a
the accused. lien on the land records of the property
posted as bail, otherwise the property
The burden of proving that the evidence bail bond shall be cancelled.
of guilt is strong lies within the fence of
the prosecution. (Comia vs. Antona, 337 Section 12. Qualifications of sureties in
SCRA 656) property bond.
Philippine residency is required of a
Evidence of guilt is strong when proof is property bondsman. The reason for this
evident or the presumption of guilt is is that bondsmen in criminal cases,
strong. The test is NOT whether the residing outside of the Philippines, are
evidence establishes guilt beyond not within the reach of the processes of
reasonable doubt but rather whether it its courts (Villaseñor vs. Abano, 21 SCRA
shows 312).

before the same

has been resolved
Section 13. Justification of sureties. but no bail was filed
or the accused is
The purpose of the rule requiring the incapable of filing
affidavit of qualification by the surety one, in which case
before the judge, is to enable the latter he may be released
to determine whether or not the surety on recognizance
possesses the qualification to act as
such, especially his financial worth. 3. In case of a
youthful offender
The justification being under oath, any held for physical or
falsity introduced thereto by the surety mental examination,
upon a matter of significance would trial or appeal, if
render him liable for perjury. unable to furnish bail
and under the
Section 14. Deposit of cash as bail. circumstances under
PD 603, as amended
EFFECT OF DEPOSITING CASH AS BAIL
Accused shall be discharged from ON REDUCED A person in custody for a
custody as it is considered as bail. BAIL OR ON HIS period equal to or more
OWN than the minimum of the
Section 15. Recognizance RECOGNIZANCE principal penalty
prescribed for the
Recognizance - an obligation of record, offense charged, without
entered into before some court or application of the
officer authorized to take it with a indeterminate sentence
condition to do some particular act and law or any modifying
the accused is often allowed to obligate circumstance shall be
himself to answer the charge. released on reduced bail
or on his own
Section 16. Bail when not required; recognizance.
reduced bail on recognizance. General Rule: no bail
UNDER THE Exception:
Instances wherein the accused may be REVISED RULES 1. When a warrant of
released on recognizance, without ON SUMMARY arrest is issued for
putting bail or on reduced bail: PROCEDURE failure to appear when
required by the court
2. When the accused
CAN BE 1. Offense charged is - is a recidivist;
RELEASED violation of an - is a fugitive from
WITHOUT BAIL ordinance, light justice;
felony or a criminal - is charged with
offense, the physical injuries
imposable penalty - does not reside in
wherefore does not the place where the
exceed 6 months of violation of the law or
imprisonment and/or ordinance is
fine of P 2,000 under committed; or
R.A.6036. -has not reside in the
place where the
2. Where the ac cused violation of the law or
has applied for ordinance is
probation and committed; or

-has no known also applicable in reducing or increasing

residence the bail previously fixed.
Section 17. Bail, where filed.
Where the offense is bailable as a matter
1. May be filed with the court of right, the mere probability that the
where the case is pending, or in accused will escape, or even if he had
the absence or unavailability of previously escaped while under
the judge thereof, with another detention, does not deprive him of his
branch of the same court within right to bail. The remedy is to increase
the province or city. the amount of the bail, provided such
2. Whenever the grant of bail is a amount would not be excessive. (Sy
matter of discretion, or the Guan vs. Amparo, 79 Phil. 670)
accused seeks to be released on
recognizance, Section 21. Forfeiture of bail.
3. the application therefor may be
filed only in the particular court Within 30 days from the failure of the
where the case is pending, accused to appear in person as required,
whether for preliminary the bondsmen must:
investigation, trial or appeal. a. PRODUCE the body of their
4. Any person in custody who is not principal or give the reason for
yet charged in court may apply his non-production; AND
for bail with any court in the b. EXPLAIN why the accused did not
province, city or municipality appear before the court when
where he is held. first required to do so.
Section 18. Notice of application to The 30-day period granted to the

prosecutor. bondsmen to comply with the two
Such notice is necessary because the requisites for the lifting of the order of
burden of proving that the evidence of forfeiture cannot be shortened by the
guilt is strong is on the prosecution and court but may be extended for good
that the discretion of the court in cause shown.
admitting the accused to bail can only .
be exercised after the fiscal has been ORDER OF FORFEITURE VS. ORDER OF
heard regarding the nature of the CONFISCATION
evidence in his possession. (People vs. 1. an ORDER OF FORFEITURE is
Raba, 130 Phil. 384) conditional and interlocutory,
there being something more to
Section 19. Release on bail. be done such as the production
of the accused within 30 days as
Once the accused has been admitted to provided by the rules an order of
bail, h is entitled to immediate release forfeiture is not appealable
from custody. An officer who fails or 2. an ORDER OF CONFISCATION is
refuses to release him from detention not independent of the order of
notwithstanding the approval by the the order of forfeiture. It is a
proper court of his bailbond, may be judgment ultimately determining
held liable under Article 126 of the the liability of the surety
Revised Penal Code for delaying release. thereunder, and therefore final
and execution may issue at once.
Section 20. Increase or reduction of
bail. Section 22. Cancellation of bailbond.
The guidelines provided for in Section 9, INSTANCES WHEN BAIL BOND CAN BE
Rule 114, in fixing the amount of bail are CANCELLED

1. upon application by the him to medical treatment or

bondsman with notice to the hospitalization.
fiscal and upon surrender of the
accused; and
2. upon proof that the accused
died. EXCEPTION: If the accused applies for
probation he may be allowed temporary
The bail bond is automatically cancelled liberty under his existing bail bond, or if
upon the acquittal of the accused or no bail was filed, or is incapable of filing
dismissal of the case or execution of the one, he may be released on
final order of conviction, without recognizance to the custody of a
prejudice to any liability on the bond responsible member of the community
incurred prior to their discharge.
The application for probation must be
METHODS BY WHICH SURETIES MAY filed within the period of perfecting an
RELIEVE THEMSELVES FROM appeal. Such filing operates as a waiver
RESPONSIBILITIES of the right to appeal. The accused in
a. Arrest the principal and deliver the meantime, is entitled to be released
him to the proper authorities; on bail or recognizance. (Sec. 4, PD 968,
b. They may cause his arrest to be as amended)
made by any police officer or
other person of suitable age or Section 25. Court supervision of
discretion; or detainees.
c. By endorsing the authority to
arrest upon a certified copy of The employment of physical,
the undertaking and delivering it psychological or degrading punishment
to such officer or person against any prisoner or detainee or the
use of substandard or inadequate penal
Section 23. Arrest of accused out on facilities under subhuman conditions
bail. shall be dealt with by law (Section 19(2),
Article III, 1987 Constitution).
An accused released on bail may be re-
arrested without a warrant if he Section 26. Bail not a bar to objection
attempts to depart from the Philippines on illegal arrest, lack of or irregular
without prior permission of the court preliminary investigation.
where the case is pending.
AN APPLICATION FOR OR ADMISSION TO
Section 24. No bail after final BAIL SHALL NOT BAR THE ACCUSED
judgment; exception. a. from challenging the validity of
his arrest OR
GENERAL RULE: The finality of the b. legality of the warrant issued
judgment terminates the criminal therefore, OR
proceeding. Bail becomes of no avail. c. from assailing the regularity or
The judgment contemplated is a questioning the absence of
judgment of conviction. The judgment is preliminary investigation of the
final if the accused does not appeal the charge against him, PROVIDED,
conviction. he raises them before entering
his plea.
No bail shall be granted after judgment,
if the case has become final even if RULE 115
continued confinement of the accused RIGHTS OF THE ACCUSED
would be detrimental or dangerous to his
health. The remedy would be to submit This rule enumerates the rights of a
person accused of an offense, which are

both constitutional as well as statutory, C. TO BE PRESENT AND DEFEND IN

save the right to appeal, which is purely PERSON AND BY COUNSEL AT EVERY
statutory in character. STAGE OF THE PROCEEDING
Section 1. Rights of the accused at the

trial.
THE PRESENCE OF THE ACCUSED IS
A. TO BE PRESUMED INNOCENT REQUIRED ONLY
In all criminal prosecutions, the accused 1. During arraignment (Sec. 1b,
is presumed innocent until the contrary rule 116)
is proved beyond reasonable doubt. 2. Promulgation of judgment
EXCEPT when the conviction is
Reasonable Doubt is that doubt for a light offense, in which
engendered by an investigation of the case, it may be pronounced in
whole proof and an inability, after such the presence of his counsel or a
investigation, to let the mind rest easy representative
upon the certainty of guilt. Absolute 3. When ordered by the court for
certainty of guilt is not demanded by the purposes of identification
law to convict of any criminal charge but
moral certainty is required, and this Not applicable in SC and CA - The law
certainty is required as to every securing to an accused person the right
proposition of proof requisite to to be present at every stage of the
constitute the offense. proceedings has no application to the
proceedings before the Court of Appeals
 Equipoise rule – where the evidence and the Supreme Court nor to the entry
of the parties in a criminal case are and promulgation of their judgments The
evenly balanced, the constitutional defendant need not be present in court
presumption of innocence should tilt in during the hearing of the appeal. (Sec. 9
favor of the accused and must be Rule 124)
acquitted.
Accused may waive his right to be
B. TO BE INFORMED OF THE NATURE present during the trial. HOWEVER, his
AND THE CAUSE OF THE ACCUSATION presence may be compelled when he is
AGAINST HIM. to be identified. (Aquino, Jr. vs. Military
An accused cannot be convicted of an Commission, 63 SCRA 546)
offense unless it is clearly charged in the
complaint or information. To convict him EFFECTS OF WAIVER OF THE RIGHT TO
of an offense other than that charged in APPEAR BY THE ACCUSED
the complaint or information would be a 1. waiver of the right to present
violation of this constitutional right evidence;
(People vs. Ortega, 276 SCRA 166). 2. prosecution can present
evidence if accused fails to
When a person is charged in a complaint appear;
with a crime and the evidence does not 3. the court can decide without
show that he is guilty thereof, but does accused’s evidence.
show that he is guilty of some other
crime or a lesser offense, the court may TRIAL IN ABSENTIA
sentence e him for the lesser offense, It is important to state that the provision
PROVIDED the lesser offense is a cognate of the Constitution authorizing the trial
offense and is included in the complaint in absentia of the accused in case of his
with the court. non-appearance AFTER ARRAIGNMENT
despite due notice simply means that he
thereby waives his right to meet the
witnesses face to face among others.

E. TO TESTIFY AS WITNESS IN HIS OWN

Such waiver of a right of the accused BEHALF
does not mean a release of the accused A denial of the defendant’s right to
from his obligation under the bond to testify in his behalf would constitute an
appear in court whenever so required. unjustifiable violation of his
The accused may waive his right but not constitutional right. (People vs.
his duty or obligation to the court. Santiago, 46 Phil. 734)
REQUIREMENTS FOR TRIAL IN ABSENTIA If the accused testifies, he may be cross-

1. accused has been arraigned examined but ONLY on matters covered
2. he has been duly notified of the by his direct examination, unlike an
trial ordinary witness who can be cross-
3. his failure to appear is examined as to any matter stated in the
unjustified direct examination or connected
therewith (Section 6, Rule 132). His
An escapee who has been duly tried in failure to testify is not taken against him
absentia waives his right to present but failure to produce evidence in his
evidence on his own behalf and to behalf is considered against him (U.S. vs.
confront and cross-examine witnesses Bay, 97 Phil. 495).
who testified against him. (Gimenez vs.
Nazareno, 160 SCRA 1) F. RIGHT AGAINST SELF-
INCRIMINATION
D. RIGHT TO COUNSEL The accused is protected under this rule
The right covers the period beginning from questions which tend to incriminate
from custodial investigation, well into him, that is, which may subject him to
the rendition of the judgment and even penal liability.
on appeal. (People vs. Serzo, Jr., 274
SCRA 553) The right may be waived by the failure
of the accused to invoke the privilege at
If during the investigation the assisting the proper time, that is, AFTER the
lawyer left, or come and go, the incriminating question is asked and
statement signed by the accused is still before his answer;
inadmissible because the lawyer should
assist his client from the time the The privilege of the accused to be
confessant answers the first question exempt from testifying as a witness
asked by the investigating officer until involves a prohibition against testimonial
the signing of the extrajudicial compulsion only and the production by
confession. (People vs. Morial, 363 SCRA the accused of incriminating documents,
96) and articles demanded from him. (U.S.
vs. Tan Teng, 23 Phil. 145)
 The right to counsel and the right to
remain silent do not cease even after a EXCEPTIONS: immunity statutes such as:
criminal complaint/information has 1. RA 1379 – Forfeiture of Illegally
already been filed against the accused, obtained wealth
AS LONG AS he is still in custody. 2. RA 749 – Bribery and Graft cases
The duty of the court to appoint a RIGHT OF THE ACCUSED AGAINST SELF-
counsel de oficio when the accused has INCRIMINATION VS. RIGHT OF THAT OF
no legal counsel of choice and desires to AN ORDINARY WITNESS
employ the services of one is The ordinary witness may be compelled
MANDATORY only at the time of to take the witness stand and claim the
arraignment. (Sec. 6 Rule 116) privilege as each question requiring an
incriminating answer is shot at him, an
accused may altogether refuse to take

the witness stand and refuse to answer 2. Unreasonable delay of the trial
any and all questions. of a criminal case as to make the
detention of defendant illegal
G. RIGHT TO CONFRONT AND CROSS- gives ground for habeas corpus
EXAMINE THE WITNESSES AGAINST HIM as a remedy for obtaining
AT TRIAL release so as to avoid detention
for a reasonable period of time
Confrontation is the act of setting a 3. Accused would be entitled to
witness face-to-face with the accused so relief in a mandamus proceeding
that the latter may make any objection to compel the dismissal of the
he has to the witness, and the witness information.
may identify the accused, and this must
take place in the presence of the court IMPARTIAL TRIAL
having jurisdiction to permit the Due process of law requires a hearing
privilege of cross-examination. before an impartial and disinterested
tribunal, and that every litigant is
The main purpose of the right to entitled to nothing less than the cold
confrontation is to secure the neutrality of an impartial judge. (Mateo,
opportunity of cross-examination and the Jr. vs. Villaluz, 50 SCRA 180)
secondary purpose is to enable the judge
to observe the demeanor of witnesses. Public trial – one held openly or
publicly; it is sufficient that the relatives
In any criminal proceeding, the and friends who want to watch the
defendant enjoys the right to have proceedings are given the opportunity to
compulsory process to secure the witness the proceedings.
attendance of witnesses and the
production of evidence in his behalf. EXCLUSION OF THE PUBLIC IS VALID
WHEN:
H. RIGHT TO SPEEDY, IMPARTIAL AND 1. evidence to be produced is
PUBLIC TRIAL offensive to decency or public
The right to a speedy trial is intended to morals;
avoid oppression and to prevent delay by 2. upon motion of the accused;
imposing on the courts and on the (Sec. 21, Rule 119)
prosecution an obligation to proceed
with reasonable dispatch. RULE ON TRIAL BY PUBLICITY
The right of the accused to a fair trial is
The courts, in determining whether the not incompatible to a free press.
right of the accused to a speedy trial has Pervasive publicity is not per se as
been denied, should consider such facts prejudicial to the right to a fair trial. To
as the length of the delay, the accused’s warrant a finding of prejudicial
assertion or non-assertion of his right, publicity, there must be allegations and
and the prejudice to the accused proof that the judges have been unduly
resulting from the delay. influenced, not simply that they might
be, by the barrage of publicity. (People
There is NO violation of the right where vs. Teehankee, 249 SCRA 54)
the delay is imputable to the accused.
(Solis vs. Agloro, 64 SCRA 370) I. RIGHT TO APPEAL ON ALL
CASES ALLOWED BY LAW AND IN THE
REMEDIES AVAILABLE TO THE ACCUSED MANNER PRESCRIBED BY LAW.
WHEN HIS RIGHT TO A SPEEDY TRIAL IS The right to appeal from a judgment of
VIOLATED conviction is fundamentally of statutory
1. He should ask for the trial of the origin. It is not a matter of absolute
case not for the dismissal; right, independently of constitutional or

statutory provisions allowing such

appeal.
WAIVER OF THE RIGHT TO APPEAL WHEN SHALL TRIAL COMMENCE AFTER

The right to appeal is personal to the ARRAIGNMENT
accused and similarly to other rights of Within 30 days from arraignment,
kindred nature, it may be waived either HOWEVER, it may be extended BUT only:
expressly or by implication. HOWEVER, 1. for 180 days for the first 12
where death penalty is imposed, such calendar month period from the
right cannot be waived as the review of effectivity of the law;
the judgment by the COURT OF APPEALS 2. 120 days for the second 12
is automatic and mandatory (A.M. NO. month period; and
00-5-03-SC). 3. 80 days for the third 12 month
period.
THE SPEEDY TRIAL ACT OF 1998

(RA 8493) RULE 116
ARRAIGNMENT AND PLEA
DUTY OF THE COURT AFTER
ARRAIGNMENT OF AN ACCUSED Section 1. Arraignment and plea; how
Court SHALL order a pre-trial conference made.
to consider the following:
1. plea bargaining; Arraignment – the formal mode of
2. stipulation of facts; implementing the constitutional right of
3. marking for identification of the accused to be informed of the nature
evidence of parties; of the accusation against him.
4. waiver of objections to
admissibility of evidence; and WHERE AND HOW MADE:
5. such other matter as will 1. Before the court where the
promote a fair and expeditious complaint or information has
trial; been filed or assigned for trial;
2. in open court, by the judge or
TIME LIMIT FOR THE TRIAL OF CRIMINAL clerk by furnishing the accused a
CASES: SHALL NOT EXCEED 180 days copy of the complaint or
from the first day of trial, HOWEVER, information with the list of the
this rule is NOT ABSOLUTE, for the law witnesses, reading it in a
provides for the following EXCEPTIONS: language or dialect known to him
1. those governed by the Rules on and asking him of his plea;
Summary Procedure; or
2. where the penalty prescribed by RULES:
law DOES NOT EXCEED 6 months 1. Trial in absentia is allowed only
imprisonment or a fine of P1,000 AFTER arraignment;
or both; 2. Judgment is generally void if the
3. those authorized by the Chief accused has not been arraigned;
Justice of the SC; 3. There can be no arraignment in
absentia (accused must
PERIOD FOR ARRAIGNMENT OF THE personally enter his plea);
ACCUSED 4. if the accused went to trial
Within 30 days from the filing of the without arraignment, but his
information, or from the date the counsel had the opportunity to
accused appealed before the cross-examine the witness of the
justice/judge/court in which the charge prosecution and after the
is pending, whichever date last occurs. prosecution he was arraigned the
defect was cured;

An unconditional plea of guilt admits of

the crime and all the attendant
circumstances alleged in the information
If an information is amended including the allegations of conspiracy
MATERIALLY, arraignment on the and warrants of judgment of conviction
amended information is MANDATORY, without need of further evidence
except if the amendment is only as to EXCEPT: (CAI DN)
form; 1. Where the plea of guilty was
compelled by violence or
Plea – the matter which the accused, on intimidation.
his arraignment, alleges in answer to the 2. When the accused did not fully
charge against him. understand the meaning and
consequences of his plea.
PERIOD TO PLEA 3. Where the information is
When the accused is under preventive insufficient to sustain conviction
detention: his case shall be raffled and of the offense charged.
its records transmitted to the judge to 4. Where the information does not
whom the case was raffled within 3 days charge an offense, any
from the filing of the information or conviction thereunder being
complaint and the accused arraigned void.
within 10 days from the date of the 5. Where the court has no
raffle. The pre-trial conference of his jurisdiction.
case shall be held within 10 days after
arraignment. Section 2. Plea of Guilty to a lesser
offense.
When the accused is NOT under
preventive detention: unless a shorter An accused may enter a plea of guilty to
period is provided by special law or a lesser offense PROVIDED that there is
Supreme Court circular, the arraignment consent of the offended party and the
shall be held within 30 days from the prosecutor to the plea of guilty to a
date the court acquires jurisdiction over lesser offense which is necessarily
the person of the accused. The time of included in the offense charged.
the pendency of a motion to quash, or
for bill of particulars, or other causes After arraignment but BEFORE trial, the
justifying suspension of the arraignment, accused may still be allowed to plead
shall be excluded in computing the guilty to a lesser offense after
period. withdrawing his plea of not guilty. In this
plea of guilty to a lesser offense, no
WHEN SHOULD A PLEA OF NOT GUILTY amendment of the complaint or
BE ENTERED information is necessary.
1. when the accused so pleaded
2. when he refuses to plead If the accused entered a plea to a lesser
3. where in admitting the act offense WITHOUT the consent of the
charged, he sets up matters of offended party and the prosecutor AND
defense or with lawful he was convicted, his subsequent
justification conviction of the crime charged would
4. when he enters a conditional NOT place him in Double Jeopardy.
plea of guilt
5. where, after a plea of guilt, he Section 3. Plea of guilty to capital
introduces evidence of self- offense; reception of evidence.
defense or other exculpatory
circumstances When the accused pleads guilty to a
6. when the plea is indefinite or capital offense, the court shall:
ambiguous

1. conduct a searching inquiry into sound discretion to the trial court.

the voluntariness and full (People vs. Lambrino, 103 Phil. 504)
comprehension of the
consequences of his plea;
2. require the prosecution to prove
his guilt and the precise degree Section 6. Duty of the court to inform
of his culpability; accused of his right to counsel.
3. ask the accused if he desires to
present evidence in his behalf DUTIES OF THE COURT WHEN THE
and allow him to do so if he ACCUSED APPEARS BEFORE IT WITHOUT
desires. COUNSEL
1. It must inform the defendant
To constitute searching inquiry, the that it is his right to have an
questioning must focus on: attorney before being arraigned;
1. the voluntariness of the plea; 2. After giving him such
and information, the court must ask
2. Whether the accused understood him if he desires the aid of an
fully the consequence of his attorney;
plea. 3. If he desires and is unable to
employ one, the court must
Section 5. Withdrawal of improvident assign an attorney de oficio to
plea of guilty. defend him; and
4. If the accused desires to procure
Plea of Guilty – an unconditional an attorney of his own, the court
admission of guilt, freely, voluntarily must grant him reasonable time
and made with full knowledge of the therefor.
consequences and meaning of his act and
with a clear understanding of the precise
nature of the crime charged in the Section 7. Appointment of counsel de
complaint or information; oficio.
INSTANCES OF IMPROVIDENT PLEA PURPOSE

1. plea of guilty was compelled by To secure to the accused, who is unable
violence or intimidation to engage the services of an attorney of
2. the accused did not fully his own choice, effective representation
understand the meaning and by making it imperative on the part of
consequences of his plea the court to consider in the appointment
3. insufficient information to of counsel de oficio, the gravity of the
sustain conviction of the offense offense and the difficulty of the
charged questions likely to arise in the case vis-à-
4. information does not charge an vis the ability and experience of the
offense, any conviction prospective appointee.
thereunder being void
5. court has no jurisdiction
Section 8. Time for counsel de oficio to
At any time before the judgment of prepare for arraignment.
conviction becomes final, the court may
permit an improvident plea of guilty to As to what is reasonable time, it
be withdrawn and be substituted by a depends upon the circumstances
plea of not guilty. surrounding the case like the gravity of
the offense, complexity of the
The withdrawal of a plea of guilty is not allegations in the complaint or
a matter of right to the accused but of information, whether a motion to quash

or a bill of particulars has to be filed, RULE 117

and other similar considerations. MOTION TO QUASH
Section 1. Time to move to quash.
Motion to Quash - this presupposes that

Section 9. Bill of particulars. the accused hypothetically admits the
facts alleged, hence the court in
Accused may, AT or BEFORE resolving the motion cannot consider
arraignment, move for a bill of facts contrary to those alleged in the
particulars to enable him properly to information or which do not appear on
plead and to prepare for trial. the face of the information, except
those admitted by the prosecution.
Just in civil cases, the bill of particulars
here should be considered an integral GENERAL RULE: The accused may move
part of the complaint or information to quash the complaint or information at
which it supplements. any time BEFORE entering his plea.
The remedy against an indictment EXCEPTION - Instances where a motion
that fails to allege the time of to quash may be filed AFTER plea:
commission of the offense with 1. failure to charge an offense
sufficient definiteness is a motion 2. lack of jurisdiction over the
for a bill of particulars, not a offense charged
motion to quash. 3. extinction of the offense or
penalty
The failure to ask for Bill of Particulars 4. the defendant has been in
amounts to a waiver of such right. former jeopardy.
Section 10. Production or inspection of Motion to Quash Demurrer to

material evidence in possession of Evidence
prosecution. filed before the filed after the
defendant enters his prosecution has
Section 11. Suspension of arraignment plea rested its case
Does not go into the based upon the
GROUNDS FOR SUSPENSION merits of the case inadequacy of the
1. the accused appears to be but is anchored on evidence adduced by
suffering from an unsound matters not directly the prosecution in
mental condition which related to the support of the
effectively renders him unable question of guilt or accusation
to fully understand the charge innocence of the
against him and to plead accused
intelligently thereto; Governed by Rule governed by Rule 119
2. there exists a valid prejudicial 117 of the Rules of of the Rules of
question; and Criminal Procedure Criminal Procedure
3. a petition for review of the
resolution of the prosecutor is
pending at the Department of Section 2. Form and contents.
Justice or the Office of the
President; provided that the FORM AND CONTENTS OF A MOTION TO
period of suspension shall not QUASH
exceed 60 days counted from the 1. in writing
filing of the petition. 2. signed by the accused or his
counsel

3. shall specify distinctly the 8. That it contains averments

factual and legal grounds which, if true would constitute a
therefor. legal excuse or justification; and
9. That the accused has been
The court shall consider no grounds previously convicted or
other than those stated in the motion, acquitted of the offense
EXCEPT lack of jurisdiction over the charged, or the case against him
offense charged and when the was dismissed or otherwise
information does not charge an offense. terminated without his express
A motion to suspend the issuance of a consent.
warrant of arrest should be considered Section 4. Amendment of complaint or
as a motion to quash if the allegations information
therein are to the effect that the facts
charged in the information do not If an alleged defect in the complaint or
constitute an offense. information, which is the basis of a
motion to quash, can be cured by
RESOLUTION OF A MOTION TO QUASH amendment, the court shall order the
A motion to quash must be resolved amendment instead of quashing the
BEFORE trial and cannot defer the complaint or information. If, after the
hearing and determination of said amendment, the defect is still not
motion until trial on the merits as it cured, the motion to quash should be
would impair the right of the accused to granted.
speedy trial.
Section 5. Effect of sustaining the
It may also be resolved at the motion to quash.
preliminary investigation since the
investigating officer or judge has the EFFECTS IF COURT SUSTAINS THE
power to either dismiss the case or bind MOTION TO QUASH
the accused over for trial by the proper 1. If the ground of the motion is
court, depending on its determination of either:
lack or presence of probable cause. a) that the facts charged do not
constitute an offense; or
Section 3. Grounds. b) that the officer who filed
1. That the facts charged do not the information had no
constitute an offense; authority to do so, or
2. That the court trying the case c) that it does not conform
has no jurisdiction over the substantially to the
offense charged; prescribed form; or
3. That the court trying the case d) that more than one offense
has no jurisdiction over the is charged,
person of the accused; the court may order that another
4. That the officer who filed the information be filed or an
information had no authority to amendment thereof as the case
do so; may be within a definite period.
5. That it does not conform If such order is NOT MADE, or if
substantially to the prescribed having been made, another
form; information is NOT FILED within
6. That more that one offense is a time to be specified in the
charged except when a single order, or within such time as the
punishment for various offenses court may allow, the accused, if
is prescribed by law; in custody, shall be discharged
7. That the criminal action or therefrom, unless he is also in
liability has been extinguished; custody on some other charge.

2. If the motion to quash is sustained The denial by the trial court of a motion
upon any of the following grounds: to quash CANNOT be the subject of a
a) that a criminal action or petition for certiorari, prohibition or
liability has been mandamus in another court of
extinguished; coordinate rank.
b) that it contains averments
which, if true, would
constitute a legal excuse or
justification; or
c) that the accused has been
previously convicted or Section 6. Order sustaining the motion
acquitted of the offense to quash not a bar to another
charged, prosecution.
the court must state, in its order
granting the motion, the release A motion SUSTAINING the motion to
of the accused if he is in custody quash is NOT a bar to another
or the cancellation of his bond if prosecution for the same offense
he is on bail. UNLESS:
1. the motion was based on the
3. If the ground upon which the ground that the criminal action
motion to quash was sustained is or liability has been
that the court has NO extinguished, AND
jurisdiction over the offense, the 2. that the accused has been
better practice is for the court previously convicted or in
to remand or forward the case to jeopardy of being convicted or
the proper court, not to quash acquitted of the offense
the complaint or information. charged.
 The prosecution may elevate to the Section 7. Former conviction or

Higher Courts an order granting a motion acquittal; double jeopardy.
to quash.
Double Jeopardy means that when a
PROCEDURE IF MOTION TO QUASH IS person is charged with an offense and
DENIED the case is terminated either by
1. accused should plead; acquittal or conviction or in any other
2. accused should go to trial manner without the consent of the
without prejudice to the special accused, the latter cannot again be
defenses he invoked in the charged with the same or identical
motion; offense.
3. appeal from the judgment of
conviction, if any, and interpose REQUISITES FOR DOUBLE JEOPARDY
the denial of the motion as an UNDER SECTION 7
error. It is necessary that in the first case that-
1. the complaint or information or
An order denying a motion to quash is other formal charge was
INTERLOCUTORY and NOT APPEALABLE. sufficient in form and substance
Appeal in due time, as the proper to sustain a conviction;
remedy, implies a previous conviction as 2. the court had jurisdiction;
a result of a trial on the merits of the 3. the accused had been arraigned
case and does not apply to an and had pleaded; and
interlocutory order denying a motion to 4. he was convicted or acquitted or
quash. the case was dismissed without
his express consent;

When all these circumstances are TESTS FOR DETERMINING WHETHER

present, they constitute a BAR to a THE TWO OFFENSES ARE IDENTICAL:
second prosecution for –
1. the same offense, or A. SAME OFFENSE TEST - There is
2. an attempt to commit the said IDENTITY between two offenses not
offense, or only when the second offense is
exactly the same as the first, but
ALSO when the second offense is an
attempt to or frustration of, OR is
necessarily included in the offense
3. a frustration of the said offense, charged in the first information.
or EXCEPTIONS TO THE IDENTITY RULE:
4. any offense which necessarily 1. The graver offense developed
includes or is necessarily due to supervening facts arising
included in the first offense from the same act or omission
charged. constituting the former charge.
2. The facts constituting the graver
 The discharge of a defendant on a charge became known or were
preliminary investigation is NOT such an discovered only after a plea was
adjudication in his favor as will bar entered in the former complaint
subsequent prosecution for the offense. or information.
This is because, a preliminary 3. The plea of guilty to the lesser
investigation is not a trial and does not offense was made without the
have for its object that of determining consent of the prosecutor and of
definitely the guilt of the accused. the offended party; except when
Further, the accused ha snot yet been the offended party failed to
arraigned. appear during the arraignment.
DISMISSAL vs. ACQUITTAL In any of these instances, such period of

Acquittal is always based on the merits, the sentence as may have been served
that is, the defendant is acquitted by the accused under the former
because the evidence does not show conviction shall be credited against and
defendant’s guilt beyond reasonable deducted from the sentence he has to
doubt; but Dismissal does not decide the serve should he be convicted under the
case on the merits or that the defendant subsequent prosecution.
is not guilty.
B. SAME EVIDENCE TEST - whether the
If an act is punished by a law and an facts as alleged in the second
ordinance, even if they are considered information, if proved, would have
as different offenses, conviction or been sufficient to sustain the former
acquittal under either shall constitute a information, or from which the
bar to another prosecution for the same accused may have been acquitted or
act. convicted.
If a single act is punished by two Section 8. Provisional dismissal.

different provisions of law or statutes,
but each provision requires proof of an GENERAL RULE: Where the case was
additional fact which the other does not dismissed “provisionally” with the
so require, neither conviction nor consent of the accused, he CANNOT
acquittal in one will bar a prosecution invoke double jeopardy in another
for the other. (Perez vs. Court of prosecution therefor OR where the case
Appeals, 163 SCRA 236) was reinstated on a motion for
reconsideration by the prosecution.

EXCEPTIONS: Where the dismissal was

actually an acquittal based on: Pre-trial is MANDATORY in all criminal
a) lack or insufficiency of the cases.
evidence; or
b) denial of the right to speedy The court shall after arraignment and
trial, hence, even if the accused within 30 days from the time the court
gave his express consent to such acquires jurisdiction over the person of
dismissal or moved for such the accused, unless a shorter period is
dismissal, such consent would be provided for by special laws or circular
immaterial as such dismissal is of the Supreme Court, order a pre-trial.
actually an acquittal.
REQUISITES MATTERS CONSIDERED IN PRE-TRIAL

1. consent of the prosecutor CONFERENCE
2. consent of the accused a) plea bargaining;
3. notice to the offended party b) stipulation of facts;
c) marking for identification of
If a case is provisionally dismissed with evidence of the parties;
the consent of the prosecutor and the d) waiver of objections to
offended party, the failure to reinstate admissibility of evidence;
it within the given period will make the e) modification of the order of trial
dismissal permanent. if the accused admits the charge
but interposes a lawful defense;
PERIOD FOR REINSTATEMENT: f) such matters as will promote a
a. offenses punishable by fair and expeditious trial of the
imprisonment not exceeding 6 criminal and civil aspects of the
years = ONE YEAR case. (Sections. 2 & 3, Circ. 38-
b. offenses punishable by 98).
imprisonment of more than 6
years = TWO YEARS Plea bargaining – the process whereby
the accused, the offended party and the
Otherwise the dismissal shall be removed prosecution work out a mutually
from being provisional and becomes satisfactory disposition of the case
permanent. subject to court approval. It usually
involves the defendant’s pleading guilty
Section 9. Failure to move to quash or to a lesser offense or to only one or
to allege any ground therefor. some of the counts of a multi-count
indictment in return for a lighter
All grounds for a motion to quash are sentence than that for the graver
WAIVED if NOT seasonably raised, charge.
EXCEPT:
a) when the information does not Section 2. Pre-trial agreement.
charge an offense;
b) lack of jurisdiction of the court; Requisites before the pre-trial
c) extinction of the offense or agreement can be used as evidence:
penalty; and 1. they are reduced to writing
d) double jeopardy. 2. the pre-trial agreement is signed
by the accused and his counsel.
RULE 118 The requirement in section 2 is intended

PRE-TRIAL to safeguard the right of the accused
against improvident or unauthorized
Section 1. Pre-trial; mandatory in agreements or admissions which his
criminal cases. counsel may have entered into, or which

any person may ascribe to the accused RULE 119

without his knowledge, as he may have TRIAL
waived his presence at the pre-trial
conference. Section 1. Time to prepare for trial.
The omission of the signature of the Trial - the examination before a

accused and his counsel, as mandatorily competent tribunal according to the
required by the rules, renders the laws of the land, of the facts put in issue
stipulation of facts inadmissible in in a case for the purpose of determining
evidence. such issue.
Section 3. Non-appearance at pre-trial The trial shall commence within 30 days

conference. from receipt of the pre-trial order.
The court may impose proper sanctions Section 2. Continuous trial until
and penalties for non-appearance at pre- terminated; postponements.
trial conference by the counsel for the
accused or the prosecutor without CONTINUOUS TRIAL SYSTEM
acceptable excuse. Trial once commenced shall continue
from day to day as far as practicable
The sanctions or penalty may be in the until terminated; but it may be
form of reprimand, fine or postponed for a reasonable period of
imprisonment. Inasmuch as this is similar time for good cause.
to indirect contempt of court, the
penalty for indirect contempt may be LIMITATION OF THE TRIAL PERIOD
imposed. It shall in no case exceed 180 days from
the first day of the trial, except as
PURPOSE otherwise provided by the Supreme
To enforce the mandatory requirement Court.
of pre-trial in criminal cases.
Requisites before a trial can be put-off
The accused is not the one compelled to on account of the absence of a witness:
appear, but only the counsel for the 1. that the witness is material and
accused or the prosecutor. The principal appears to the court to be so
reason why accused is not included in 2. that the party who applies has
the mandatory appearance is the fear been guilty of no neglect
that to include him is to violate his 3. that the witnesses can be had at
constitutional right to remain silent. the time to which the trial is
deferred and incidentally that no
Section 4. Pre-trial order. similar evidence could be
obtained
After the pre-trial, the court issues an 4. that an affidavit showing the
order reciting actions taken, facts existence of the above
stipulated and evidence marked, and circumstances must be filed.
thereafter the trial on the merits will
proceed on matters not disposed of Remedies of accused where a
during the pre-trial. prosecuting officer without good cause
secures postponements of the trial of a
To prevent manifest injustice, however, defendant against his protest beyond a
the pre-trial order may be modified by reasonable period of time:
the court, upon its own initiative or at 1. mandamus to compel a dismissal
the instance of any party. of the information
2. if he is restrained of his liberty,
by habeas corpus to obtain his

freedom. upon being appointed as counsel de

oficio by the court.
The SC adopted the continuous trial
system as a mode of judicial fact-finding Section 8. Sanctions.
and adjudication conducted with speed
and dispatch so that trials are held on Kinds:
the scheduled dates without a. criminal
postponement, the factual issues for b. administrative
trial well-defined at pre-trial and the c. contempt of court
whole proceedings terminated and ready
for judgment within 90 days from the
date of initial hearing, unless for
meritorious reasons an extension is Section 11. Order of Trial
permitted.
ORDER OF TRIAL:
The system requires that the Presiding 1. The prosecution shall present
Judge: evidence to prove the charge
1. adhere faithfully to the and, in the proper case, the civil
session hours prescribed by liability
laws; 2. The accused may present
2. maintain full control of the evidence to prove his defense
proceedings; and and damages, if any, arising
3. effectively allocate and use time from the issuance of a
and court resources to avoid provisional remedy in the case.
court delays. 3. The prosecution and the defense
may, in that order, present
The non-appearance of the prosecution rebuttal and sur-rebuttal
at the trial, despite due notice, justified evidence unless the court, in
a provisional dismissal or an absolute furtherance of justice, permits
dismissal depending upon the them to present additional
circumstances. evidence bearing upon the main
issue
Section 4. Factors for granting 4. Upon admission of the evidence
continuance. of the parties, the case shall be
deemed submitted for decision
PURPOSE: To control the discretion of unless the court directs them to
the judge in the grant of continuance on argue orally or to submit written
his instance or on motion of any party memoranda.
litigant. 5. When the accused admits the act
or omission charged in the
Section 5. Time limit following an complaint or information but
order for new trial. interposes a lawful defense, the
order of trial may be modified.
The trial shall commence within 30 days
from the date the order for a new trial GENERAL RULE:
becomes final. The order in the presentation of
evidence must be followed. The accused
Section 7. Public Attorney’s duties may not be required to present his
where accused is imprisoned. evidence first before the prosecution
adduces its own proof.
These public attorneys enter their EXCEPTION:
appearance in behalf of the accused Where a reverse procedure was adopted
upon his request or that of his relative or without the objection of the defendant
and such procedure did not prejudice his

substantial rights, the defect is not a

reversible error. Section 14. Bail to secure appearance
of material witness.
A departure from the order of the trial is
not reversible error as where it was If the court is satisfied, upon proof or
agreed upon or not seasonably objected oath, that a material witness will not
to, but not where the change in the testify when so required, it may on
order of the trial was timely objected by motion of either party order the witness
the defense. to post bail in such sum as may be
deemed proper. Should the witness
refuse to post such bail as required, the
Where the order of the trial set forth court may commit him to prison until he
under this section was not followed by complies or is legally discharged after his
the court to the extent of denying the testimony has been taken.
prosecution an opportunity to present its
evidence, the judgment is a nullity. Section 15. Examination of witness for
(People vs. Balisacan) the prosecution.
Section 12. Application for The conditional examination of

examination of witness for accused prosecution witnesses shall be conducted
before trial. before the judge or the court where the
case is pending and in the presence of
Accused may have his witness examined the accused, unless he waived his right
conditionally in his behalf BEFORE trial after reasonable notice. The accused
upon motion with notice to all other will have the right to cross-examine such
parties. prosecution witness, hence such
The motion must state: statements of the prosecution witnesses
1. name and residence of witness may thereafter be admissible in behalf
2. substance of testimony of or against the accused (Regalado, p.
3. witness is so sick to afford 460).
reasonable ground to believe
that he will not be able to Section 16. Trial of several accused
attend the trial or resides more
that 100 km and has no means to GENERAL RULE:
attend the same, or other similar When two or more persons are jointly
circumstances exist that would charged with an offense, they shall be
make him unavailable or prevent tried jointly. This rule is so designed as
him from attending trial. to preclude a wasteful expenditure of
judicial resources and to promote an
Section 13. Examination of defense orderly and expeditious disposition of
witness; how made. criminal prosecutions.
EXCEPTION:
If the court is satisfied that the The court, upon motion of the fiscal or
examination of witness is necessary as of any of the defendants, may order a
provided in SECTION 4, order shall be separate trial for one or more accused.
made and a copy served on the fiscal. The granting of a separate trial when
two or more defendants are jointly
The examination shall be taken before charged with an offense is purely
any judge or if not practicable any discretionary with the trial court.
member of the Bar in good standing
designated by the trial court, or by a The motion for separate trial must be filed
lower court designated by a court of BEFORE the commencement of the trial
superior jurisdiction which issue the and cannot be raised for the first time on
order. appeal. If a separate trial is granted, the

testimony of one accused imputing the fails to keep his part of the
crime to his co-accused is not admissible agreement, his confession of his
against the latter. In joint trial, it would be participation in the commission
admissible if the latter had the opportunity of the crime is admissible as
for cross-examination. evidence against him.
Section 17. Discharge of accused to be Section 19. When mistake has been
state witness. made in charging the proper offense.
Motion to discharge should be made by When the offense proved is neither

the prosecution BEFORE resting its case. included in, nor does it include, the
REQUISITES FOR DISCHARGE offense charged and is different
1. absolute necessity for the therefrom, the court should dismiss the
testimony action and order the filing of a new
2. no other direct evidence information charging the proper offense.
available for the prosecution
3. testimony can be substantially This rule is predicated on the fact that
corroborated in its material an accused person has the right to be
points informed of the nature and cause of the
4. accused not the most guilty accusation against him, and to convict
5. accused has never been him of an offense different from that
convicted of an offense involving charged in the complaint or information
moral turpitude would be an unauthorized denial of that
right. (U.S. vs. Campo, 23 Phil. 369)
Absence of any of the requisites for the
discharge of a particeps criminis is a Section 20. Appointment of acting
ground for objection to the motion for prosecutor.
his discharge, BUT such objection must See Section 5, Rule 110.
be raised BEFORE the discharge is
ordered. Section 21. Exclusion of the public.
EFFECTS OF DISCHARGE GENERAL RULE:

1. Evidence adduced in support of the The accused has the right to a public
discharge shall automatically form trial and under ordinary circumstances,
part of the trial; the court may not close the door of the
2. If the court denies the motion to courtroom to the general public.
discharge the accused as state EXCEPTION:
witness, his sworn statement shall Where the evidence to be produced
be inadmissible in evidence; during the trial is of such character as to
3. Discharge of accused operates as an be offensive to decency or public
acquittal and bar to further morals, the court may motu propio
prosecution for the same offense. excludes the public from the courtroom.
EXCEPTIONS:
1. If the accused fails or refuses to Section 22. Consolidation of trials of
testify against his co-accused in related offenses.
accordance with his sworn
statement constituting the basis This contemplates a situation where
of the discharge separate informations are filed:
2. Failure to testify refers 1. for offenses founded on the
exclusively to defendant’s will or same facts;
fault 2. for offenses which form part of a
3. Where an accused who turns series of offenses of similar
state’s evidence on a promise of character
immunity but later retracts and

Section 23. Demurrer to evidence. imposition of the proper penalty and

civil liability provided for by the law.
After the prosecution rests its case, the
court may dismiss the action on the It is not necessary that the judge who
ground of insufficiency of evidence: tried the case be the same judicial
1. on its own initiative after giving officer to decide it. It is sufficient if he
the prosecution the opportunity be apprised of the evidence already
to be heard; or presented by a reading of the transcript
2. upon demurrer to evidence filed of the testimonies already introduced, in
by the accused with or without the same manner as appellate courts
leave of court. review evidence on appeal.
The arrest rule allows the accused in a Section 2. Contents of the judgment.
criminal case to present evidence even
after a motion to dismiss PROVIDED the Judgment must be
demurrer was made with the express 1. in writing;
consent of the court. 2. in the official language,
3. personally and directly prepared
The filing of the motion to dismiss and signed by the judge,
WITHOUT leave of court results in the 4. with a concise statement of the
submission of the case for decision on fact and the law on which it is
the basis of the evidence on record and based.
does not lie from such order denying the
motion to dismiss. REMEDY IF JUDGMENT IS NOT PUT IN
WRITING: file a petition for mandamus
If said motion to dismiss is sustained, to compel the judge to put in writing the
such dismissal being on the merits is decision of the court.
equivalent to an acquittal, hence the
prosecution cannot appeal as it would If the judgment is one of CONVICTION,
place the accused in double jeopardy. judgment must state:
1. Legal ratification of the offense
An order denying a demurrer to evidence constituted by the admissions of
being interlocutory is NOT APPEALABLE. the accused and the aggravating
and mitigating circumstances
Section 24. Reopening. attending its commission
2. Participation of the accused,
At any time BEFORE finality of the whether as principal, accomplice
judgment of conviction, the judge may, or accessory
motu propio or upon motion, with 3. Penalty imposed upon the
hearing in either case, reopen the accused
proceedings to avoid miscarriage of 4. Civil liability or damages caused
justice. The proceedings shall be by the wrongful act, unless
terminated within 30 days from the separate civil action has been
order granting it. reserved or waived
If the judgment is one of ACQUITTAL, it

RULE 120 must make a finding on the civil liability
JUDGMENT of the accused, unless there is clear
showing that the act from which the civil
Section 1. Judgment; definition and liability might arise did not exist.
form.
Reasonable doubt - state of the case
Judgment - the adjudication by the which, after full consideration of all
court that the accused is guilty or not evidence, leaves the mind of the judge
guilty of the offense charged and the in such a condition that he cannot say

that he feels an abiding conviction, to a GENERAL RULE: If what is proved by the

moral certainty, of the truth of the prosecution evidence is an offense which
charge. is included in the offense charged in the
information, the accused may validly be
Acquittal – a finding of not guilty based convicted of the offense proved.
on the merits, that is, the accused is EXECEPTION: Where facts supervened
acquitted because the evidence does not after the filing of information which
show that his guilt is beyond reasonable change the nature of the offense.
doubt, or a dismissal of the case after
the prosecution has rested its case upon An offense charged necessarily includes
motion of the accused on the ground another when some essential elements
that the evidence fails to show beyond or ingredients of the offense charged
reasonable doubt that the accused is constitute the offense proved, or when
guilty. the essential elements or ingredients of
the offense charged constitute or form
It is well-settled that acquittal, in a part of those constituting the offense
criminal case is immediately final and proved, then one offense is included in
executory upon its promulgation, and the other.
that accordingly, the State may not seek
its review without placing the accused in Section 6. Promulgation of judgment.
double jeopardy. (Barbers vs. Laguio,
Jr., 351 SCRA 606) Promulgation of judgment - official
proclamation or announcement of
An acquittal of an accused based on judgment. It consists of reading the
reasonable doubt DOES NOT bar the judgment or sentence in the presence of
offended party from filing a separate the accused and any judge of the court
civil action based on other sources of rendering the judgment.
obligation.
RULES ON THE VALIDITY OF
Section 3. Judgment for two or more PROMULGATION OF JUDGMENT:
offenses. 1. The judgment must have been
rendered and promulgated
When two or more offenses charged in during the incumbency of the
the complaint or information, and the judge who signed it.
accused fails to object to it before trial, 2. The presence of counsel during
the court may convict the accused of as the promulgation of judgment is
many offenses as charged and proved. not necessary.
An accused can be convicted of an Effect of Promulgation of Judgment in

offense only when it is both charged and Absentia – he shall lose all remedies
proved. If it is not charged although available in these Rules against the
proved, OR if it is not proved although judgment and the court shall order his
charged, the accused CANNOT be arrest.
convicted thereof.
Section 7. Modification of judgment.
Variance between the allegation and the
proof cannot justify a conviction for Upon motion of the accused, a judgment
either the offense charged or the of conviction may be modified or set
offense proved unless either is included aside by the court BEFORE it has become
in the other (Section 4). final or BEFORE an appeal has been
perfected.
Section 5. When an offense includes or
is included in another. A judgment becomes final:

a. when the period for perfecting judgment, such as commanding a prison

appeal an appeal has lapsed; warden to hold the accused in
b. when the sentence is partially or accordance with the terms of the
totally satisfied or served; judgment.
c. when the accused expressly
waives in writing his right to Section 9. Existing provisions governing
appeal; and suspension of sentence, probation and
d. when the accused applies for parole not affected by this Rule.
probation.
A judgment of acquittal becomes final RULE 121

immediately after promulgation and NEW TRIAL OR RECONSIDERATION
cannot be recalled for correction or
amendment. Section 1. New trial or reconsideration.
The prosecutor cannot ask for the New trial - the rehearing of a case
modification or setting aside of a already decided but before the judgment
judgment of conviction because the rules of conviction therein rendered has
clearly provide that a judgment of become final, whereby errors of law or
conviction may be modified or set aside irregularities are expunged from the
by the court rendering upon motion of record or new evidence is introduced, or
the accused. both steps are taken.
The trial court can validly amend the A motion for new trial or reconsideration
civil portion of its decision within 15 should be filed with the trial court
days from promulgation thereof even within 15 days from the promulgation of
though the appeal had in the meantime the judgment and interrupts the period
already been perfected by the accused for perfecting an appeal from the time
from judgment of conviction. of its filing until notice of the order
overruling the motion shall have been
The trial court may lose jurisdiction over served upon the accused or his counsel.
the judgment even BEFORE the lapse of A motion for the reconsideration of the
15 days: judgment may be filed in order to
1. when the defendant voluntarily correct errors of law or fact in the
submits to the execution of the judgment. It does not require any
judgment; further proceeding.
2. when the defendant perfects his
appeal; A new trial be granted at any time
3. when the accused withdraws his before the judgment of conviction
appeal; becomes final:
4. when the accused expressly 1. on motion of the accused
waives in writing his right to 2. on motion of the court but with the
appeal; consent of the accused
5. when the accused files a petition
for probation. The award of new trial or taking of
additional evidence rests upon the sound
Section 8. Entry of judgment. discretion of the court. (People vs.
Acosta, 98 Phil. 642)
The final judgment of the court is
carried into effect by a process called Once the appeal is perfected, the trial
“mittimus”. court steps out of the case and the
appellate court steps in. Should it come
Mittimus - A process issued by the court to pass then that during the pendency of
after conviction to carry out the final the appeal, new and material evidence,

for example, have been discovered, the 3. that it is material not merely
accused may file a motion for new trial cumulative, corroborative or
with the appellate court. impeaching; and
4. the evidence is of such a weight
Cases when the trial court lose that it would probably change
jurisdiction over its sentence even the judgment if admitted.
before the lapse of 15 days:
Mistakes or errors of counsel in the
1. When the defendant voluntarily conduct of his case are not grounds for
submits to the execution of the new trial. This rule is the same whether
sentence the mistakes are the result of ignorance,
2. When the defendant perfects his inexperience, or incompetence. (U.S. vs.
appeal. The moment the appeal Umali, 15 Phil. 37)
is perfected the court a quo
loses jurisdiction over it, except If the incompetence, ignorance or
for the purpose of correcting inexperience of counsel is so great and
clerical errors. the error committed as a result thereof
is so serious that the client, who
New Trial Reopening of the otherwise has a good cause, is
case prejudiced and denied his day in court,
Filed after judgment made by the court the litigation may be reopened to give
is rendered but before the judgment the client another chance to present his
before the finality is rendered in the case.
thereof exercise of sound
discretion Section 3. Grounds for reconsideration.
At the instance or does not require the
with the consent of consent of the Grounds of motion for reconsideration
the accused accused; may be at 1. errors of law;
the instance of either 2. errors of fact in the judgment,
party who can which require no further
thereafter present proceedings.
additional evidence
The principle underlying this rule is to
Section 2. Grounds for new trial. afford the trial court the opportunity to
correct its own mistakes and to avoid
GROUNDS FOR A NEW TRIAL IN unnecessary appeals from being taken.
CRIMINAL CASES: The grant by the court of
1. errors of law or irregularities reconsideration should require no further
committed during the trial proceedings, such as the taking of
prejudicial to the substantial additional proof.
rights of the accused.
2. new and material evidence Section 4. Form of motion and notice
discovered. to the prosecutor.
REQUISITES BEFORE A NEW TRIAL MAY Requisites for a motion for new trial or
BE GRANTED ON THE GROUND OF reconsideration: The motion for a new
NEWLY DISCOVERED EVIDENCE: trial or reconsideration shall be:
1. that the evidence was 1. in writing
discovered after trial; 2. filed with the court
2. that such evidence could not 3. State grounds on which it is
have been discovered and based
produced at the trial even with 4. If the motion for new trial is
the exercise of reasonable based on a newly discovered
diligence; evidence, it must be supported

by the affidavits of the witness as the court may, in the interest of

by whom such evidence is justice, allow to be introduced, shall
expected to be given, or duly be taken and considered together
authenticated copies of with the evidence already in the
documents which it is proposed record.
to introduce in evidence. 3. In all cases, when the court grants
5. Notice of the motion for new new trial or reconsideration, the
trial or reconsideration shall be original judgment shall be set aside
given to the fiscal. and a new judgment rendered
accordingly.
While the rule requires that an affidavit
of merits be attached to support a The effect of the granting of a new trial
motion for new trial based on newly is not to acquit the accused of the crime
discovered evidence, yet the defect of of which the judgment finds him guilty,
lack of it may be cured by testimony but precisely to set aside said judgment
under oath of the defendant at the so that the case may be tried de novo as
hearing of the motion. (Paredes vs. if no trial had been before.
Borja, 3 SCRA 495)
Unlike the rule in Civil Cases, the
Section 5. Hearing on motion. remedy of the aggrieved party being
appeal in due time, an order granting a
Where a motion for new trial calls for new trial rendered in Criminal Cases is
resolution of any question of fact, the also interlocutory BUT is controllable by
court may hear evidence thereon by certiorari or prohibition at the instance
affidavits or otherwise. of the prosecution.
PURPOSE
To determine whether the new trial RULE 122
requested should be granted or not. It is APPEAL
not the new trial proper where newly
discovered evidence, for example will be Section 1. Who may appeal.
received by the court. (Pamaran, p. 608)
Any party may appeal from a judgment
Section 6. Effects of granting a new or final order, UNLESS the accused will
trial or reconsideration. be placed in double jeopardy.
EFFECTS OF GRANTING A NEW TRIAL Appeal - a proceeding for review by

OR RECONSIDERATION which the whole case is transferred to
1. when a new trial is granted on the the higher court for a final
ground of errors of law or determination
irregularities committed during the
trial, all proceedings and evidence Appeal is not an inherent right of
not affected by the commission of convicted person. The right of appeal is
such errors and irregularities shall and always has been statutory.
stand, BUT those affected thereby
shall be set aside and taken anew. Only final judgments and orders are
The court may, in the interest of appealable.
justice, allow the introduction of
additional evidence. EFFECT OF AN APPEAL
2. When a new trial is granted on the An appeal in a criminal case opens the
ground of newly discovered whole case for review and this includes
evidence, the evidence already the review of the penalty, indemnity,
taken shall stand, and the newly and the damages involved.
discovered and such other evidence Consequently, on appeal, the appellate

court may increase the penalty, appealed from and serving a

indemnity, or the damages awarded by copy to the adverse party
the trial court, although the offended
party had not appealed from said award, 2. Appeal to the Court of Appeals
and the party who sought a review of the from decision of the Regional
decision was the accused. Trial Court in the exercise of its
original jurisdiction: by filing a
Final judgment Final Order notice of appeal with the court
a judgment which disposes of the whole which rendered the judgment or
would become final subject matter or order appealed from and serving
if no appeal is taken terminates a a copy to the adverse party
particular issue 3. Appeal to the Court of Appeals in
leaving nothing to be cases decided by Regional Trial
done but to enforce Court in the exercise of its
by execution what appellate jurisdiction: by
has been determined petition for review
4. Appeal to the Court of Appeals in
From a judgment convicting the accused, cases where penalty imposed is
two appeals may accordingly be taken: life imprisonment or where a
1. The accused may seek a review lesser penalty is imposed but
of said judgment, as regards involving offenses committed on
both actions; or the same occasion or arising out
2. The complainant may appeal of the same occurrence that
with respect only to the civil gave rise to the more serious
action, either because the lower offense for which the penalty of
court has refused or failed to death or life imprisonment is
award damages, or because the imposed: by filing a notice of
award made is unsatisfactory to appeal with the Court of
him. Appeals.
5. Death penalty: automatic review
GENERAL RULE: A private prosecutor in by the Court of Appeals. (A.M.
a criminal case has NO authority to act No. 00-5-03-SC, October 15,
for the People of the Philippines before 2004)
a court on appeal. It is the government’s 6. Other appeals to the Supreme
counsel, the Solicitor General, who Court: by petition for review on
appears in criminal cases or their certiorari.
incidents before the Supreme Court. At
the very least, the Provincial Fiscal Error of Judgment Error of
himself, with the conformity of the Jurisdiction
Solicitor General. the court may renders an order of
EXCEPTION: The civil award in a commit in the judgment void or
criminal case may be appealed by the exercise of voidable
private prosecutor on behalf of the jurisdiction
offended party or his successors. reviewable by appeal reviewable by
certiorari
Section 2. Where to appeal.
Modes of review
Section 3. How appeal taken. The Rules of Court recognize 4 modes by
which the decision or final order of the
HOW APPEAL IS TAKEN court may be reviewed by a higher
1. Appeal to the Regional Trial tribunal, viz.:
Court: by filing a notice of 1. ordinary appeal
appeal with the court that 2. petition for review
rendered the judgment or order 3. petition for review on certiorari

4. automatic appeal than 15 days after the promulgation of

the h e
Section 4. Service of notice of appeal.
the judgment or notice of denial of any
PUBLICATION OF NOTICE OF APPEAL motion for new trial or reconsideration.
If copy of the notice of appeal cannot be The transcript shall also be forwarded
served on the adverse party or his within 10 days after the filing thereof by
counsel, it may be done by publication. the stenographic reporter (A.M. No. 00-
Service by publication is made in a 5-03-SC, Oct. 15, 2004).
newspaper of general circulation in the
vicinity once a week for a period not Section 12. Withdrawal of appeal.
exceeding 30 days.
An appellant may withdraw his appeal
Section 5. Waiver of notice. BEFORE the record has been forwarded
by the clerk of court to the proper
The appellee may waive his right to a appellate court as provided by Section 8,
notice that an appeal has been taken. in which case the judgment shall become
HOWEVER, the appellate court may, in final.
its discretion, entertain an appeal
notwithstanding failure to give such The court may also, in its discretion,
notice if the interests of justice so allow the appellant to withdraw his
require. (Llamas vs. Moscoso, 95 Phil. appeal, PROVIDED a motion to that
735) effect is filed BEFORE the rendition of
the judgment in the case on appeal.
Section 6. When appeal to be taken.
Once appeal is withdrawn, the decision
An appeal must be filed within 15 days or judgment appealed from becomes at
counted from the promulgation or notice once final and executory. (People vs.
of the judgment or order appealed from. Dueño, 90 SCRA 23)
The period for appeal is interrupted
from the time the motion for new trial is Section 13. Appointment of counsel de
filed up to the receipt by the accused of oficio for accused on appeal.
the notice of the order “overruling the
motion”. The right to counsel de oficio does not
cease upon the conviction of an accused
Section 8. Transmission of papers to by a trial court but continues, even
appellate court upon appeal. during appeal.
Within 5 days from the filing of the Duties of the clerk of the trial court to
notice of appeal, the clerk of the court the appellant who is confined in prison
with whom the notice of appeal was upon the presentation of notice of
filed must transmit to the clerk of court appeal:
of the appellate court the complete 1. he shall ascertain from the
record of the case, together with said appellant, whether he desires
notice. the Court of Appeals or the
Supreme Court to appoint an
Section 10. Transmission of records in attorney to defend him de
case of death penalty. oficio;
2. he shall transmit with the
In case of death penalty, the records record, upon a form to be
shall be forwarded to the Court of prepared by the clerk of the
Appeals for automatic review and appellate court, a certificate of
judgment, within 20 days but not earlier compliance with this duty of the

response of the appellant to his 7 copies of the brief shall be filed within
inquiry. 30 days from receipt by the appellant or
RULE 123 his counsel of the notice from the clerk

PROCEDURE IN THE MUNICIPAL TRIAL of court of the Court of Appeals that the
COURTS evidence, oral and documentary, is
already attached to the record.
Section 1. Uniform Procedure.
Brief - literally means a short or
Procedure to be observed in condensed statement. The purpose of
Metropolitan Trial Courts, Municipal the brief is to present to the court in
Trial Courts and Municipal Circuit Trial concise form the points and questions in
Courts: They shall observe the same controversy, and by fair argument on the
procedure as in the Regional Trial Courts facts and law of the case, to assist the
EXCEPT: court in arriving at a just and proper
1. where a particular provision conclusion.
expressly or impliedly applies
only to the Metropolitan Trial PURPOSE
Courts, Municipal Trial Courts To present to the court in concise form
and Municipal Circuit Trial the points and questions in controversy
Courts or Regional Trial Courts and, by fair argument on the facts and
2. In criminal cases governed by the law of the case, to assist the court in
Rules on Summary Procedure in arriving at a just and proper conclusion.
Special Cases adopted on August
1, 1983 and revised on November Section 4. When brief for appellee to
15, 1991. be filed; reply brief of the appellant.
The appellee shall file 7 copies of the

RULE 124 brief with the clerk of court within 30
PROCEDURE IN THE COURT OF APPEALS days from receipt of the brief of the
appellant accompanied by proof of
Section 2. Appointment of counsel de service of 2 copies thereof upon the
oficio for the accused. appellant
REQUISITES BEFORE AN ACCUSED CAN Section 5. Extension of time for filing

BE GIVEN A COUNSEL DE OFICIO ON briefs.
APPEAL
1. that he is confined in prison Not allowed EXCEPT for good and
2. without counsel de parte on sufficient cause and only if the motion
appeal for extension is filed before the
3. signed the notice of appeal expiration of the time sought to be
himself extended.
EXCEPTIONS: An accused-appellant not Section 7. Contents of briefs.

confined to prison can have a counsel de
oficio if requested by him in the Unlike the procedure in civil cases, it has
appellate court within 10 days from been held that it is not essential for the
receipt of the notice to file brief and the accused to make assignment of errors in
right thereto is established by affidavit. his brief, as on appeal, the whole record
of the case is submitted to and
Section 3. When brief for the appellant reviewable by the appellate court.
to be filed.

Issues that were never raised in the It is discretionary for the appellate court
proceedings before the trial court cannot whether to order a hearing of the case
be considered and passed upon on before it or decide the appeal solely on
appeal. the evidence submitted to the trial
court.
Section 8. Dismissal of appeal for
abandonment or failure to prosecute. If the Court of Appeals chose not to hear
the case, the Justices composing the
GROUNDS FOR DISMISSAL OF APPEALS division may just deliberate on the case,
1. Failure on the part of the evaluate the recorded evidence on hand
appellant to file brief within the and then decide it.
reglementary period, except
when he is represented by a Section 10. Judgment not to be
counsel de oficio; reversed or modified except for
2. Escape of the appellant from substantial error.
prison or confinement;
3. When the appellant jumps bail; GENERAL RULE:
and The findings of the judge who tried the
4. Flight of the appellant to a case and heard the witnesses are not
foreign country during the disturbed on appeal.
pendency of the appeal. EXCEPTION:
When it is shown that the trial court has
DISMISSAL OF APPEAL; NEED OF NOTICE overlooked certain facts of substance
TO APPELLANT and value that, if considered, might
The Court of Appeals may dismiss motu affect the result of the case. (People vs.
propio or on motion by appellee an Cabiling, 74 SCRA 285)
appeal for failure on the part of the
appellant to file his brief on time, BUT it The reversal of judgments entered in the
must have a notice served upon the court below is prohibited, EXCEPT for
appellant of the action to be taken by prejudicial error – that which tends to
said court before dismissing motu propio prejudice a substantial right of a party
the appeal. to the proceedings.
Effect of Escape of Accused; Section 11. Scope of Judgment.

Abandonment of Appeals The appeal confers upon the appellate
1. If the convict escapes from court full jurisdiction and renders it
prison or confinement or refuses competent to examine the records,
to surrender to the proper revise the judgment appealed from,
authorities, jumps bail or flees increase the penalty and cite the proper
to a foreign country he is provision of the law.
deemed to have abandoned his
appeal AND the judgment of the An invocation of the constitutional
court below becomes final. immunity from double jeopardy will not
2. In that case, the accused cannot lie in case of appeal by the accused. The
be afforded the right to appeal reason being that when the accused
UNLESS (a) he voluntarily appeals from the sentence of the trial
submits to the jurisdiction of the court, he waives the constitutional
court or (b) is otherwise arrested safeguard against double jeopardy and
within 15 days from notice of the throws the whole case open to the
judgment against him. review of the appellate court.
Section 9. Prompt disposition of cases. Section 12. Power to receive evidence.
PURPOSE

To speed up the disposition of court Once an appeal is perfected, the trial

cases. court steps out and the appellate court
steps in. A motion for new trial must
then be filed with the appellate court,
not with the court from whose judgment
the appeal is taken.
Other powers of the Court of Appeals: Section 16. Rehearing or
1. to try cases and conduct reconsideration.
hearings;
2. receive evidence; A motion for reconsideration shall be
3. perform any and all acts filed within 15 days from notice of the
necessary to resolve factual decision or final order of the Court of
issues raised in cases: Appeals.
a. falling under its original and
appellate jurisdiction; A re-hearing is NOT a matter of right but
b. including the power to grant a privilege to be granted or not, as the
and conduct new trials or court sees fit, the matter being solely
further proceedings. within its discretion.
Section 13. Quorum of the court; New questions CANNOT be presented for
certtification or appeal of case to the the first time on a motion for rehearing,
SC. especially where they are inconsistent
with positions taken on the original
a. Whenever the Court of hearing, or waived on the original
Appeals finds that the submission of the case.
penalty of death should be
imposed, the court shall A second motion for rehearing or
render judgment bur reconsideration of a final judgment or
REFRAIN from making an order is NOT allowed because if parties
entry of judgment and are allowed to file as many motions for
forthwith certify the case rehearing or reconsideration as their
and elevate its entire record discretion or caprice suits, the
to the SC for review. proceedings would become
b. In cases where the Court of undeterminable and unnecessarily
Appeals imposes reclusion voluminous.
perpetua, life imprisonment
or a lesser penalty, it shall The MITTIMUS is the final process of
render and enter judgment carrying into effect the decision of the
imposing such penalty. The appellate court and the transmittal
judgment may be appealed thereof to the court of origin is
to the SC by notice of appeal predicated upon the finality of the
filed with the Court of judgment. It shall be stayed during the
Appeals. (A.M. No. 00-5-03- pendency of the motion for rehearing or
SC, Oct. 15, 2004) reconsideration.
Section 14. Motion for new trial. A motion for reconsideration of its
judgment or final resolution shall be
Motion for new trial based on Newly resolved by the Court of Appeals within
Discovered Evidence may be filed at any 90 days from the time it is submitted for
time AFTER the appeal from the lower resolution, and no 2 nd motion for
court has been perfected AND BEFORE reconsideration for the same party shall
the judgment of the appellate court be entertained.
convicting the accused becomes final.

The only-one-motion-for-reconsideration 2. ordinary appeal

rule does not apply where the first 3. petitioner for review on
motion for reconsideration resulted in a certiorari
reversal or substantial modification of
the original decision or final resolution.
The party adversely affected thereby
may file a motion for reconsideration.
Section 17. Judgment transmitted and EFFECT OF DIRECT APPEAL TO THE
filed in trial court. SUPREME COURT ON QUESTION OF LAW
IN CRIMINAL CASES
Transmittal of judgment to court a quo A direct appeal to the Supreme Court on
After the judgment has been entered, a questions of law – in criminal cases in
certified copy of the entry should be which the penalty imposed is not death
transmitted to the clerk of the court of or life imprisonment – precludes a review
origin. of the facts.
The copy of the entry serves as the Cases involving both questions of law
formal notice to the court from which and fact come within the jurisdiction of
the appeal was taken of the disposition the Court of Appeals.
of the case in the appellate court, so
that the judgment may be executed Appeal to the SC is NOT A MATTER OF
and/or placed or noted in the proper RIGHT, but a matter of sound judicial
file. discretion. The prescribed mode of
appeal is by certiorari.
Sec. 18. Application of certain rules in
civil to criminal cases. Section 2. Review of decisions of the
Court of Appeals.
The corresponding amendment was
made pursuant to the changes GENERAL RULE: Findings of fact in the
introduced under the 1997 Rules of CA is conclusive upon the SC
Procedure. EXCEPTIONS:
1. when the conclusion is a finding
Rule 47 (Annulment of Judgments of grounded entirely on
Final Judgment and Resolutions) DOES speculation, surmises or
NOT APPLY TO CRIMINAL CASES. The conjectures
appropriate remedy for lack of 2. when the inference made is
jurisdiction or extrinsic fraud is manifestly absurd, mistaken or
CERTIORARI (Rule 65) or HABEAS impossible
CORPUS (Rule 102). 3. when there is grave abuse of
discretion in the appreciation of
facts
RULE 125 4. when the judgment is
PROCEDURE IN THE SUPREME COURT premised on a misapprehension
of facts
Section 1. Uniform Procedure. 5. when the findings of fact are
The procedure in the Supreme Court in conflicting
original, as well as in appealed cases, is 6. when the Court of Appeals in
the same as in the Court of appeals, making its findings went beyond
EXCEPT when otherwise provided by the the issues of the case and the
Constitution or the law. same is contrary to the
admissions of both appellant and
A case may reach the Supreme Court in appellee
the following manner: 7. when certain material facts
1. automatic review and circumstances had been

overlooked which, if taken into described therein and bring it before the
account would after the result as court.
it would give rise to reasonable
doubt to acquit the accused. ELEMENTS OF SEARCH WARRANT:
1. order in writing
2. signed by the judge in the name
of the People of the Philippines
Question of law - when the doubt or 3. commanding a peace officer to
difference arises as to what the law is on search personal property
a certain state of facts. It must not 4. bring the property before the
involve an examination of the probative court
value of the evidence presented by the
litigants or any of them. NATURE OF SEARCH WARRANTS
Search warrants are in the nature of
Question of fact - when the doubt or criminal process and may be invoked
difference arises as to the truth or the only in furtherance of public
falsehood of alleged facts. prosecutions. Search warrants have no
relation to civil process or trials and are
Section 3. Decision if opinion is equally not available to individuals in the course
divided. of civil proceedings, nor for the
maintenance of any mere private right.
The Supreme Court, the Constitution
ordains, shall be composed of a Chief SEARCH vs. SEIZURE
Justice and 14 associate justices. It mat The term search as applied to searches
sit en banc or in its discretion, in and seizures is an examination of a
divisions of 3, 5, or 7 members (Section man’s house or other buildings or
4(1), Article VIII, 1987 Constitution). premises or of his person with a view to
the discovery of contraband or illicit or
A criminal case shall be reheard by the stolen property or some evidence of guilt
Supreme Court when the Court en banc to be used in the prosecution of a
is equally divided in opinion or the criminal action for some offense with
necessary majority cannot be had, if no which he is charged.
decision is reached the conviction of the
lower court shall be reversed and the A seizure is the physical taking of a thing
accused acquitted. into custody.
According to the Constitution, only the General Warrant – a search warrant

Supreme Court en banc may modify or which vaguely describes and DOES NOT
reverse a doctrine or principle of law or particularize the personal properties to
ruling laid down by the Court in a be seized without a definite guideline to
decision rendered en banc or in division. the searching team as to what items
might be lawfully seized, thus giving the
officers of the law discretion regarding
RULE 126 what articles they should seize.
SEARCH AND SEIZURE
A general warrant is NOT VALID as it
Section 1. Search warrant defined. infringes on the constitutional mandate
requiring particular description of the
Search Warrant – an order in writing things to be seized.
issued in the name of the People of the
Philippines, signed by a judge and WARRANT OF SEARCH WARRANT
directed to a peace officer commanding ARREST
him to search for personal property Order directed to the Order in writing in
peace officer to the name of the RP

execute the warrant signed by the judge judicial region where the
by taking the person and directed to the warrant shall be enforced;
stated therein into peace officer to
3. HOWEVER, if the criminal action
custody that he may search personal
be bound to answer property described has been filed, the application
for the commission therein and to bring shall only be made in the court
of the offense. it to court. where the criminal action is
(sec. 1) pending.
Does not become validity is for 10 days Section 3. Personal property to be
stale only (sec. 9) seized.
M ay be served on any to be served only in Kinds of property to be seized by virtue

day and at any time daytime unless the of a warrant:
of day or night. affidavit alleges that 1. subject of the offense;
(sec. 6, rule 113). the property is on 2. proceeds or fruits of the offense;
the person or in the 3. the means used or intended to
place to be searched. be used for committing an
(sec. 8) offense.
upon probable cause to be determined The rule does not require that the
personally by the judge after examination property to be seized should be owned
in writing and under oath in the form of by the person against whom the search
searching answers and questions. warrant is directed. It may or may not
Only issued if there sworn statements be owned by him.
is a necessity of and affidavits of
placing accused complainant and
under immediate witnesses must be In a search incidental to an arrest even
custody submitted to court. WITHOUT a warrant the person arrested
may be searched for:
1. dangerous weapons, and
Test to determine Particularity 2. anything which may be used as
1. When the description therein as proof of the commission of an
specific as the circumstances offense.
will ordinarily allow
2. When the description express a
conclusion of fact- not of law Section 4. Requisites for issuing Search
which the warrant officer may warrant.
be guided in making the search
and seizure. REQUISITES
3. When the things described are 1. must be issued upon probable
limited to those which bear cause;
direct relation to the offense for 2. probable cause must be
which the warrant is being determined by the issuing judge
issued. personally;
3. the judge must have personally
EXCEPTION: examined, in the form of
AN APPLICATION FOR SEARCH WARRANT searching questions and answers,
SHALL BE FILED WITH THE FF: the applicant and his witnesses
1. any court within whose and taken down their written
territorial jurisdiction a crime depositions;
was committed; 4. the search warrant must
2. any court within the judicial particularly describe or identify
region where the crime was the property to be seized as far
committed if the place of the as the circumstances will
commission of the crime is ordinarily allow;
known, or any court within the

5. the warrant issued must

particularly describe the place Any evidence obtained in violation of the
to be searched and the persons constitutional immunity against
or things to be seized; unreasonable searches and seizures are
6. it shall issue only for one specific inadmissible for any purpose in any
purpose; and proceeding (Section 2, Article III, 1987
7. it must not have been issued Constitution).
more than 10 days prior to the
search made pursuant thereto. When may a search warrant be said to
particularly describe the thing to be
A search warrant shall not issue but upon seized:
probable cause in connection with one 1. the description therein is as
specific offense. specific as the circumstances
will allow;
Party who may question validity of 2. when it expresses a conclusion of
search and seizure: fact by which the warrant may
Well settled is the rule that the legality be guided; or
of a seizure can be contested only by the 3. when the things described are
party whose rights have been impaired limited to those which bear a
thereby, and that the objection to an direct relation to the offense for
unlawful search and seizure is purely which the warrant is issued.
personal and cannot be availed of by
third parties. PROBABLE CAUSE - facts and
circumstances which could lead a
REMEDIES FROM AN UNLAWFUL SEARCH reasonable, discreet and prudent man to
1. a motion to quash the search believe that the property subject of an
warrant, and offense is in the place sought to be
2. a motion to suppress as evidence searched.
the objects illegally taken.
(EXCLUSIONARY RULE – any ”MULTI FACTOR BALANCING TEST” in
evidence obtained through determining Probable Cause:
unreasonable searches and One which requires the officer to weigh
seizures shall be inadmissible for the manner and intensity of the
any purpose in any proceeding) interference on the right of the people,
3. Replevin, if the objects are the gravity of the crime committed, and
legally possessed. the circumstances attending the
incident.
The remedies are alternative; if a
motion to quash is denied, a motion to Section 5. Examination of complainant;
suppress cannot be availed of record.
subsequently.
Manner on how a judge should examine a
Where the search warrant is a PATENT witness to determine the existence of
NULLITY, certiorari lies to nullify the probable cause:
same. 1. the judge must examine the
The illegality of the search warrant does witnesses personally
not call for the return of the things 2. the examination must be under
seized, the possession of which is oath
prohibited by law. HOWEVER, those 3. the examination must be
personalities seized in violation of the reduced to writing in the form of
constitutional immunity whose searching questions and answers
possession is not of itself illegal or
unlawful ought to be returned to their Such personal examination is necessary
rightful owner or possessor. in order to enable the judge to

determine the existence or non- A search warrant must be served in the

existence of a probable cause. day time.
Section 6. Issuance and form or search EXCEPTION:

warrant. A search warrant may be made at night
when it is positively asserted in the
ISSUANCE OF SEARCH WARRANT affidavit that the property is on the
The Constitution ordains that no warrant person or in the place ordered to be
shall issue but upon probable cause searched (Alvares vs. CFI of Tayabas, 64
supported by oath or affirmation. Phil. 33). The affidavit making such
assertion must itself be sufficient as to
FORM OF SEARCH WARRANT the fact so asserted, for if the same is
The search warrant must be in writing based upon hearsay, the general rule
and must contain such particulars as the shall apply.
name of the person against whom it is
directed, the offense for which it was A search warrant conducted at night
issued, the place to be searched and the without direction to that effect is an
specific things to be seized. unlawful search. The same rule applies
where the warrant left blank the “time”
An application for a search warrant is for making the search.
heard ex-parte. It is neither a trial nor a
part of the trial. The examination or A public officer or employee who
investigation, which must be under oath exceeds his authority or uses
may not be in public. It may be even unnecessary severity in executing the
held in the secrecy of the chambers. It warrant is liable under Article 129 of the
must be under oath and must be in Revised Penal Code.
writing.
Section 10. Validity of search warrant.
Section 8. Search of house, room, or
premises to be made in presence of 10 days from its date, thereafter, it shall
two witnesses. be void. A search warrant can be used
only once, thereafter it becomes functus
In order to insure that the execution of oficio.
the warrant will be fair and reasonable,
and in order to insure that the officer While, under section 10, a search
conducting the search shall NOT exceed warrant has a validity of 10 days,
his authority or use unnecessary severity NEVERTHELESS, it CANNOT be used every
in executing the search warrant, as well day of said period and once articles have
as for the officer’s own protection already been seized under said warrant,
against unjust accusations, it is required it CANNOT be used again for another
that the search be conducted in the search and seizure, EXCEPT when the
presence of the: search conducted on one day was
1. lawful occupant of the place to interrupted, in which case the same may
be searched, be continued under the same warrant
2. or any member of his family, the following day if not beyond 10 day
3. or in their absence, in the period. (Uy Kheytin vs. Villareal, 42
presence of two witnesses of Phil. 886)
sufficient age and discretion
residing in the same locality. Section 12. Delivery of [property and
This requirement is mandatory. inventory thereof to court; return and
proceedings thereon.
Section 9. Time of making search.
The law imposes upon the person making
GENERAL RULE: the search the duty to issue a detailed

receipt for the property seized. The remedy for questioning the validity
Additionally, he is likewise required to of a search warrant can only be sought in
make a return of the warrant to the the court that issued it, not in the sala
court which issued it, together with an
inventory of the property seized.
of another judge of concurrent
Section 13. Search incident to lawful jurisdiction. Except where there is
arrest. already a case filed, the latter shall
acquire jurisdiction to the exclusion of
WHEN MAY THERE BE A SEARCH other courts.
WITHOUT WARRANT
1. in times of war within the area Waiver of legality and admissibility
of military operation; Objection to the legality of the search
2. as an incident of a lawful arrest, warrant as to the admissibility of the
subject to the following evidence obtained or deemed waived
requisites: where no objection of the search
a. arrest must be lawful; warrant was raised during the trial of the
b. search and seizure must be case nor to the admissibility of the
contemporaneous with evidence obtained through said warrant.
arrest;
c. search must be within Section 14. A motion to quash a search
permissible area; warrant or to suppress evidence;
(i.e. “STOP AND FRISK” search where to file.
which allows a limited protective
search of outer clothing for IN WHAT COURT MAY A MOTION TO
weapons) QUASH BE FILED:
3. when there are prohibited 1. before the court that issued the
articles open to eye and hand; warrant;
(PLAINVIEW DOCTRINE) 2. under the CRIMINAL CASE RULE,
4. when there is consent, subject all the incidents arising from the
to the following conditions: Search Warrant should be
(consented search) consolidated in the court where
a. there is a right; the criminal case is pending;
b. there must be knowledge of 3. under the ALTERNATIVE REMEDY
the existence of such right; RULE, with the court which
c. there must be intention to issued the search warrant. In this
waive; motion, all grounds for objection
5. when it is incident of inspection; existent or available and known
6. under the Tariff and Customs at the time MUST BE INVOKED,
Code for purposes of enforcing otherwise, they are deemed
customs and tariff laws; waived.
7. searches and seizures of vessels
and aircraft; this extends to the The legality of the search warrant should
warrantless search of a motor be addressed to the court issuing the
vehicle for contraband; search warrant and not to any other
court to foster judicial stability
Search and seizure of vessels and aircraft (Pagkalinawan vs. Gomez, 23 SCRA
may validly be made without a search 1275).
warrant because the vessel or aircraft
can quickly move out of the jurisdiction Filing of motion to quash is without
before such warrant could be secured. prejudice to any proper recourse to the
appropriate higher court by the party
aggrieved.

Section 2. Attachment
Who may apply for preliminary

attachment
The aggrieved party in whose behalf the
Rule 127 civil aspect of the criminal action is
PROVISIONAL REMEDIES IN CRIMINAL prosecuted may apply for the issuance of
CASES a writ of preliminary attachment, he
being the person primarily and directly
Section 1. Availability of provisional interested thereby. The prosecutor in
remedies. the criminal action may make such an
application in behalf of or for the
NATURE OF PROVISIONAL REMEDIES protection of the interest of the
1. Those to which parties litigant may offended party.
resort for the preservation or
protection of their rights or interests It was held by the Supreme Court that
and for no other purposes during the the public prosecutor has the authority
pendency of the action. to apply for preliminary attachment as
2. They are applied to a pending may be necessary to protect the interest
litigation for the purpose of securing of the offended party.
the judgment or preserving the
status quo, and in some cases after Notice to adverse party, not required
judgment, for the purpose of No notice to the adverse party, or
preserving or disposing of the hearing on the application is required
subject matter. before a writ of preliminary attachment
may issue as a hearing would defeat the
The requisites and procedure for availing purpose of the provisional remedy. The
of these provisional remedies shall be time which such a hearing would take,
the same as those for civil cases. could be enough to enable the defendant
to abscond or dispose of his property
The provisional remedies under this rule before a writ of attachment issue and
are proper only where the civil action for the only requisites from the issuance of
the recovery of civil liability ex delicto a writ of preliminary attachment are the
has not been expressly waived or the affidavit and bond of applicant.
right to institute such civil action (Mindanao Savings, etc. vs. Court of
separately is not reserved in those cases Appeals, 172 SCRA 480)
where reservation may be made.
Attachment may be availed of ONLY
Where the civil action arising from a when the civil action arising from the
criminal offense is suspended by the crime has not been expressly waived or
filing of the criminal action, the court not reserved and only in the following
wherein said civil case is pending can cases:
issue the aforesaid auxiliary writs since a. when the accused is about to
such orders do not involve a abscond from the Philippines;
determination of the merits of the case. b. when the criminal action is based on
(Babala vs. Abaño, 90 Phil. 827) a claim for money or property
embezzled or fraudulently
Kinds of provisional remedies misapplied or converted to the use
1. attachment of the accused who is a public
2. injunction officer or a corporate officer or an
3. receivers attorney, broker, or agent or clerk in
4. delivery of personal property the course of employment or by a
5. support pendente lite person in a fiduciary capacity;

c. when the accused has concealed, d. when the accused resides abroad.
removed or about to dispose of his
property;
CRIMINAL PROCEDURE: Information
REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
MANILA, BRANCH 911
PEOPLE OF THE PHILIPPINES

PLAINTIFF,
-VERSUS-
CRIM. CASE NO. ___________
HANNAH MAE VENTURA1

ACCUSED.
INFORMATION 2
The undersigned accuses HANNAH MAE VENTURA of the crime of MURDER 3,

committed as follows:
4
That on or about December 5, 2004 , in Batute, Manila 5, Philippines, within the jurisdiction
of this court, the said accused did, then and there, with malice aforethought and with
deliberate intent to take the life of RENEE JOI ZABALA 6, willfully, unlawfully, feloniously,
suddenly, unexpectedly, and treacherously attack the latter with a metal fork, first
wounding her in the back, and afterwards, when enfeebled and unable to defend herself,
again stabbed her in the neck, both wounds being necessarily mortal7, thereby causing the
direct and immediate death of said RENEE JOI ZABALA.
CONTRARY TO LAW.
April 28, 2005.
__Sgd. Fiscal Happy__
(City/Provincial Fiscal) 8
1
Name of the accused, Sec. 7, Rule 110.
2
Information, Sec. 4, Rule 110.
3
Designation of the offense, Sec. 8, Rule 110.
4
Date of commission of the offense, Sec. 11, Rule 110.
5
Place of commission of the offense, Sec. 10, Rule 110.
6
Name of the offended party, Sec. 12, Rule 110.
7
Cause of the accusation, Sec. 9, Rule 110.
8
Subscribed by the prosecutor, Sec. 4, Rule 110.

Criminal Procedure: San Beda College of Law

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San Beda College of Law 135

MEMORY AID IN REMEDIAL LAW

Criminal Jurisdiction – power of the 2. Determined by the law in force

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MEMORY AID IN REMEDIAL LAW

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 DESISTANCE of complainant does not Section 8. Designation of the offense.

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arraignment, otherwise, he is deemed to AMENDMENT SUBSTITUTION OF

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offense charged, in which case 2. Complex Crimes

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2. If the civil action is instituted  Where the criminal case was

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court or invalidate the information if no Section 3. Procedure

REMEDIES OF THE ACCUSED IF THERE Filing of the complaint

Section 2. Officers authorized to Resolution of

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Section 6. When warrant of arrest may CONDITIONS BEFORE THE

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MEMORY AID IN REMEDIAL LAW

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MEMORY AID IN REMEDIAL LAW

RULE 113 2. By his submission to the custody

Section 1. Definition of arrest. Upon arrest, the following may be

ESSENTIAL REQUISITES OF A VALID Section 5. Arrest without warrant;

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MEMORY AID IN REMEDIAL LAW

If the arrest was effected without Section 8. Method of arrest by officer

Section 7. Method of arrest of officer Sec. 8 The officer 1. when

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MEMORY AID IN REMEDIAL LAW

resists before 2. That he has announced his

Section 10. Officer may summon

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 A person is in the custody of law unless cancelled, shall remain in

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MEMORY AID IN REMEDIAL LAW

In instances where bail is a matter of original or appellate jurisdiction,

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Capital Offense – is an offense which,

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before the same

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