1
Senator Trillanes
PRE-BAR NOTES ON CRIMINAL PROCEDURE (2019)
BY ATTY. CAESAR S. EUROPA
JURISDICTION
- Comes from the words juris (authority) and dico (speak)
- When you say that someone has jurisdiction, it means that he speaks
with authority.
- He can act in a manner that would be binding.
- In the middle ages the authority was the King or whoever the Lord was
in any place. “I speak in the name of the king”. Whoever that person
speaking is speaks by the authority of the king
- Jurisdiction of courts, the Court has to have jurisdiction over the case.
All the elements of jurisdiction must be present for the Court to be able
to act in a binding manner.
- When the Court does not have jurisdiction then whatever it does will not
be binding. It acts without authority. In many cases, whatever it does
will be void because it acts without authority, without jurisdiction.
Jurisdiction in criminal cases, there will always be elements (Territorial Jurisdiction,
Jurisdiction over the subject matter, Jurisdiction over the person of the accused).
The absence of any of the elements, then the court does not have jurisdiction.
ELEMENTS OF JURISDICTION IN CRIMINAL CASES:
a) Territorial Jurisdiction (Sec. 2, Interim Rules) : In criminal cases, venue or
where the case is filed is jurisdictional.
- The limits of the geographical boundaries of a place within which a
court has jurisdiction to act judicially and outside of which its judicial
acts are null and void. Actual geographical boundaries.
Example: The courts of Davao City, has jurisdiction over the geographical
boundaries of the city.
In provinces such as Davao del Sur, there are many towns and cities under dds -
The RTC of Davao del Sur is a portion between and among these RTCs.
How would you know what municipalities fall within the jurisdiction? You will be
able to see it in the particular issuance creating the courts.
- Jurisdiction of a court in criminal cases is determined by (a) the
geographical area over which the court presides and (b) the fact that
the crime was committed or any of its essential elements took place
within said area.
It is also determined by the fact that the elements of a crime, any or all, where
committed within that area. (For example murder na binaril sa Davao City.
Kidnapping happened in Davao but brought to Gensan, then lahat ng dinaanan
may nangyari na element of deprivation of liberty. So, you can file the case in any
RTC between Davao City to GenSan)
The difficulty comes when for example in Davao City, when you try to go to Buda,
the road passes through Cotabato (Arakan) and then back to Davao City. Some
parts of that road is actually part of Cotabato. They follow the contour of the
mountains (part of Magpet and Arakan). Left side: Davao City, Right side:
Bukidnon
Example: Friends in a car stopped in Marilog but the one is in Magpet and the
other is still under territory of Davao, then the person in Davao killed the other (in
Mapet). The suspect was inside the territory of Davao City but the victim was
inside the territory of Magpet.
The case was filed in Davao but an important element happened in Magpet, so the
RTC of Cotabato also has jurisdiction. Therefore, the material elements of the
crime happened in different places.
It is therefore important to know the actual place where the elements of the crime
are committed because it determines which court can exercise territorial
jurisdiction over the case.
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
Atty. Europa: He should consult first with his lawyer. The venue or the place
where the criminal case is filed is jurisdiction in criminal cases. It is not a matter of
choice. In libel, you have choices.
Again, the venue is jurisdictional in criminal cases. It is determined by the place
where the court sits and where the important elements of the crime are committed.
CRISOLOGO DOCTRINE:
Before he became a religious leader, especially when elections were pretty violent
in Ilocos, there were 2 barrios where he lost. The barrios were burnt down. Since
the complainants were afraid of the accused, they filed for a change of venue
based on the power of the Supreme Court to change the venue to avoid a
miscarraige of justice. depending on the case. The petition for change of venue
is an important remedy. It was moved to Baguio and then to Crame. (Paragraph
4, Section V Article VIII of the Constitution)
For example, you filed a case against a powerful family, you cannot just simply
trust that they will not harm the lawyers or the witnesses. You may file a petition for
change of venue.
There are courts though which have a larger jurisdiction like the Sandiganbayan
which has jurisdiction all over the country wherever the violation of anti-graft and
corruption act was made. If it falls within the Sandiganbayan jurisdiction, then you
can file the case there.
Note: SC can Order a change of venue or place of trial to avoid a miscarriage of
justice. (Par. 4, Section 5, Article VIII of the 1987 Constitution
PURPOSE:
People v. Pablo Sola, G.R. No. 56158-64,
March 17, 1981.
The constitution is quite explicit. The Supreme Court could order "a change of
venue or place of trial to avoid a miscarriage of justice." The Constitutional
Convention of 1971 wisely incorporated the ruling in the landmark decision of
People v. Gutierrez, where Justice J.B.L. Reyes as ponente vigorously and
categorically affirmed: "In the particular case before Us, to compel the prosecution
to proceed to trial in a locality where its witnesses will not be at liberty to reveal
what they know is to make a mockery of the judicial process, and to betray the very
purpose for which courts have been established."
“It may be added that there may be cases where the fear, objectively viewed, may,
to some individuals, be less than terrifying, but the question must always be the
effect it has on the witnesses who will testify. The primordial aim and intent of the
Constitution must ever be kept in mind. In case of doubt, it should be resolved in
favor of a change of venue” ‘
Example:
People of the Philippines v. Camilo Pilotin, et al.,
G.R. Nos. L-35377-78, July 31, 1975.
Defendant-appellant Vincent Crisologo sought the transfer of Criminal Case No.
3949 of the municipal court of Vigan, Ilocos Sur to the New Bilibid Prison or,
alternatively, to Camps Crame, Aguinaldo or Olivas on the ground that if he were
to be confined in the Vigan municipal jail during the trial, his life would be in
jeopardy.
Finding the motion meritorious and applying Sec. 5(4), Article X of the
Constitution, the Supreme Court directed the transfer of the record of the
case to the City Court of Quezon City and the holding of the trial at Camp
Crame.
b) Jurisdiction over the subject matter:
This means that the court has jurisdiction over the particular crime that was filed.

Determined by the allegations of the criminal complaint or information in
accordance with the law in force at the time of the institution of the criminal action,
not at the time of the commission of the offense. You cannot go beyond the
information or complaint filed against the accused.
1. What was the crime alleged in the information? It is the allegations in
the body of the information that will matter and not the designation.
Even if you designate the crime as murder but did not allege even one
qualifying circumstance, then the charge is for homicide.
2. What do you measure it against? Substantive laws or penal laws define
crimes. Measure it against the laws in force at the time of the
institution of the criminal action. Not the law at the time of the
commission of the offense.
Atty. Europa: Why? Because you cannot go back in time. The structure of the
courts can change. BP 129 changed the structure of the judiciary.
For example, a crime involving domestic violence. At the time of the commission it
falls within the jurisdiction of the juvenile and domestic relations court. By the time
that the information was ready for filing, BP 129 has already taken effect. You can
no longer file the case with juvenile and domestic relations court because it was
abolished when BP 129 was passed.
Subject matter jurisdiction is therefore determined by the law at the time the
criminal action was instituted. Threshold of jurisdictions of courts.
Essentially it is determined by the penalty provided by law for the offense as that
offense is charged in the complaint or information.
c) Jurisdiction over the person of the accused.
Q: Can a Court act on a Motion of the Accused asking for positive relief when
the court has not yet acquired jurisdiction over his person?
A: concept of voluntary surrender
Conferred upon the court either by the voluntary surrender of the accused or by his
arrest to answer for the crime charged.
It is not lost once acquired.
Constitutional Law and the authority of the court to issue a warrant of arrest. It is
very important because the validity of the arrest also determines whether or not the
Court acquires jurisdiction over the person of the accused (Ilagan v. Enrile Case).
The court acquires jurisdiction over the person of the accused through voluntary
surrender or forcibly through arrest via a valid warrant of arrest.
Voluntary Surrender
Voluntary Submission
Important to remember: The court has to have jurisdiction over the person of the
accused in order to issue a valid and binding judgment against the accused and
the court normally acquires jurisdiction over the person of the accused either
through arrest or voluntary surrender. And most importantly, the court does not
lose jurisdiction over the person of the accused once acquired.
For example the accused was arrested but jumped bail. May the court continue
trial? Yes. This is called Trial in Absentia. Section 2, Article III of the Bill of Rights
1. Arrest
2. Voluntary Surrender
Once jurisdiction is acquired, it is never lost. For example, he was arrested and
then jumped bail, he violated the undertakings in his bail bond. The Court can
continue trial or trial in absentia.
If an accused has not been arrested, he cannot seek positive relief from the Court.
He cannot ask the Court, ganito ganyan like for the judge to dismiss his case,
because he has no personality since the court has no jurisdiction over his person.
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
2
May a court act on a motion to quash the Information without the surrender
or arrest of the accused?
What about a petition to be allowed to post bail in non-bailable offenses?
Jose C. Miranda, et al., v. Virgilio M. Tuliao,
G.R. No. 158763, March 31, 2006.
- Cited the old case of Santiago
- Jurisdiction of the court is not necessary in all actions of the court. Like
what? Ede sabihin mong hindi pwedeng nag act totally ang court in a
criminal case unless the accused has been arrested. Eh papaano siya
magi-issue ng warrant of arrest? Nag-issue nga siya ng warrant para
mahuli ang akusado at maka-acquire siya ng jurisdiction.
- The court has actions even if it has NOT YET acquired jurisdiction over
the person of the accused.
Wrong notion: That the court has absolutely no power to do anything in
relation to a criminal case unless he has jurisdiction over the person of the
accused.
- SC : The fact that he filed the motion to quash the information is already
sufficient voluntary submission to the jurisdiction of the Court. Even if he
has not surrendered or been arrested, once he filed a motion, then the
Court has ACQUIRED jurisdiction over the person of the accused.
Example (Atty. Europa’s client):
A foreigner (in his late 60s) who used to work for a Belgian Agency (NGO), among
the beneficiaries were the Lumad schools. There was a conflict between the
Lumad schools and the military. There was an encounter in Agusan (between NPA
and the military) and when the case was filed, the foreigner was included in the
complaint The allegation involving him was that there were victims, without specific
allegations, who claimed that they were captives of the foreigner. There were 400
names.
The foreigner does not know that there was a case since his address was not
indicated. A Motion for Consideration was filed and also a Counter-Affidavit. He
just retired from his work and he was flying from Manila to Davao City. His
neighbors also saw him at his home. They all executed affidavits that he was seen
at his home. During the alleged period of captivity, he also went to Bukidnon to
attend a wedding. Therefore, he was 400 kilometers away from the commission of
the offense.
A warrant of arrest was issued. Supposedly the entire records are included when
filing an information (such as counter-affidavit). So the judge was not able to see
the evidences in favor of the accused. Atty. Europa filed an Omnibus Motion to
quash not just information but also the warrant of arrest. He denied the opportunity
to examine the entire records to determine probable cause. They purposely
omitted the evidence filed by the foreigner. Atty. Europa also filed a Motion for
Reconsideration on the finding of probable cause and Motion to quash the warrant.
After ECQ, the Resolution was released wherein the Judge dismissed the case.
The court could still take into consideration and still act on it even if there was no
arrest or surrender. That is how important it is that you remember the case of
Miranda v. Tuliao and its reiterations.
“Our pronouncement in Santiago shows a distinction between custody of the law
and jurisdiction over the person. Custody of the law is required before the court
can act upon the application for bail, but is not required for the adjudication of other
reliefs sought by the defendant where the mere application therefore constitutes a
waiver of the defense of lack of jurisdiction over the person of the accused.
Custody of the law is accomplished either by arrest or voluntary surrender, while
jurisdiction over the person of the accused is acquired upon his arrest or voluntary
appearance. 10 One can be under the custody of the law but not yet subject to the
jurisdiction of the court over his person, such as when a person arrested by virtue
of a warrant files a motion before arraignment to quash the warrant.
On the other hand, one can be subject to the jurisdiction of the court over his
person, and yet not be in the custody of the law, such as when an accused
escapes custody after his trial has commenced. Being in the custody of the law
signifies restraint on the person, who is thereby deprived of his own will and liberty,

binding him to become obedient to the will of the law. Custody of the law is literally
custody over the body of the accused. It includes, but is not limited to, detention.
The statement in Pico v. Judge Combong, Jr., cited by the Court of Appeals should
not have been separated from the issue in that case, which is the application for
admission to bail of someone not yet in the custody of the law. The entire
paragraph of our pronouncement in Pico reads:
A person applying for admission to bail must be in the custody of the law or
otherwise deprived of his liberty. A person who has not submitted himself to the
jurisdiction of the court has no right to invoke the processes of that court.
Respondent Judge should have diligently ascertained the whereabouts of the
applicant and that he indeed had jurisdiction over the body of the accused before
considering the application for bail.
While we stand by our above pronouncement in Pico insofar as it concerns bail, we
clarify that, as a general rule, one who seeks an affirmative relief is deemed to
have submitted to the jurisdiction of the court. As we held in the aforecited case of
Santiago, seeking an affirmative relief in court, whether in civil or criminal
proceedings, constitutes voluntary appearance.
Pico deals with an application for bail, where there is the special requirement of the
applicant being in the custody of the law. In Feliciano v. Pasicolan, we held that
"[t]he purpose of bail is to secure one's release and it would be incongruous to
grant bail to one who is free. Thus, 'bail is the security required and given for the
release of a person who is in the custody of law.'" The rationale behind this special
rule on bail is that it discourages and prevents resort to the former pernicious
practice wherein the accused could just send another in his stead to post his bail,
without recognizing the jurisdiction of the court by his personal appearance therein
and compliance with the requirements therefor.
There is, however, an exception to the rule that filing pleadings seeking affirmative
relief constitutes voluntary appearance, and the consequent submission of one's
person to the jurisdiction of the court. This is in the case of pleadings whose prayer
is precisely for the avoidance of the jurisdiction of the court, which only leads to a
special appearance. These pleadings are: (1) in civil cases, motions to dismiss on
the ground of lack of jurisdiction over the person of the defendant, whether or not
other grounds for dismissal are included; (2) in criminal cases, motions to quash a
complaint on the ground of lack of jurisdiction over the person of the accused; and
(3) motions to quash a warrant of arrest. The first two are consequences of the fact
that failure to file them would constitute a waiver of the defense of lack of
jurisdiction over the person. The third is a consequence of the fact that it is the very
legality of the court process forcing the submission of the person of the accused
that is the very issue in a motion to quash a warrant of arrest.
To recapitulate what we have discussed so far, in criminal cases, jurisdiction over
the person of the accused is deemed waived by the accused when he files any
pleading seeking an affirmative relief, except in cases when he invokes the special
jurisdiction of the court by impugning such jurisdiction over his person. Therefore,
in narrow cases involving special appearances, an accused can invoke the
processes of the court even though there is neither jurisdiction over the person nor
custody of the law. However, if a person invoking the special jurisdiction of the
court applies for bail, he must first submit himself to the custody of the law.
In cases not involving the so-called special appearance, the general rule applies,
i.e., the accused is deemed to have submitted himself to the jurisdiction of the
court upon seeking affirmative relief. Notwithstanding this, there is no requirement
for him to be in the custody of the law. x x x”
Reiterated in Maca-Angcosa A. Alawiya, et al. v. Court of Appeals,
G.R. No. 164170, April 16, 2009
(also in Dante La. Jimenez v. Hon. Edwin Sorongon, et al., G.R. No. 178607,
December 5, 2012)
“[t]here is nothing in the Rules governing a motion to quash which requires that the
accused should be under the custody of the law prior to the rule 111 filing of a
motion to quash on the ground that the officer filing the information had no
authority to do so. Custody of the law is not required for the adjudication of reliefs
other than an application for bail. However, while the accused are not yet under the
custody of the law, any question on the jurisdiction over the person of the accused
is deemed waived by the accused when he files any pleading seeking an
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
3
affirmative relief, except in cases when the accused invokes the special jurisdiction
of the court by impugning such jurisdiction over his person.”
SUMMARY
Renato M. David vs. Editha A. Agbay, Et Al
G.R. No. 199113, March 18, 2015
“To recapitulate what we have discussed so far, in criminal cases,
jurisdiction over the person of the accused is deemed waived by the accused
when he files any pleading seeking an affirmative relief, except in cases
when he invokes the special jurisdiction of the court by impugning such
jurisdiction over his person.
Therefore, in narrow cases involving special appearances, an accused can
invoke the processes of the court even though there is neither jurisdiction
over the person nor custody of the law. However, if a person invoking the
special jurisdiction of the court applies for bail, he must first submit himself
to the custody of the law.”
Note: All the three elements must exist otherwise the court has no jurisdiction to
try and decide a criminal case.
CONCEPT OF BAIL
An exception to the general rule. When it comes to bail, the accused has to be in
the custody of the law for the accused to file for bail. When you are asking for bail,
you are asking for your provisional liberty. He must first submit himself to the
custody of the law.
General Rule: The filing motion for positive relief is allowed even if the accused
has not surrendered or has not been arrested because the mere filing of the
motion is sufficient voluntary submission.
Exception: When the application is one to be admitted to bail.
Classify jurisdiction: APPELLATE jurisdiction and ORIGINAL jurisdiction
OUTLINE OF THE JURISDICTION OF PHILIPPINE COURTS IN CRIMINAL
CASES APPELLATE JURISDICTION
Original: The power and authority to take cognizance of the case, to try it, rule,
and render judgment at the first instance
Appellate: The power and authority of the court to review, revise, modify the
judgments or rulings of lower courts
Problem of appellate jurisdiction: If you are going to appeal, what court you are
going to appeal and how you are going to appeal
Basic Premises:
1. ALL appeals from the CA go to the Supreme Court.
2. ALL appeals from the Sandiganbayan go to the Supreme Court
3. ALL appeals from the MTC, MTCC, MCTC, go to the RTC
regardless of the ISSUE
Conclusion: The ONLY PROBLEM in appeals is WHERE DO YOU APPEAL
FROM A DECISION OF THE RTC?
General Rule: Appeals, by notice of appeal or petition for review, from
Decisions of the Regional Trial Court are appealable to the COURT OF
APPEALS.
Exceptions:
1. To the Supreme Court directly
All cases in which only an error or question of law is involved.

NOTE: in cases where the jurisdiction of a court or the constitutionality of a law is
in issue, it must be THE ONLY issue left otherwise the appeal will be a mixed
question of fact and law and must be appealed to the CA.
PROCEDURE IN CASES WHERE PENALTY IMPOSED IS DEATH (as amended
DUE TO PEOPLE v. EFREN G. MATEO (G.R. No. 147678-87, July 7, 2004)
(Note: The Death Penalty was abolished by R.A. No. 9346 signed into law on
June 24, 2006.)
1. If Death, appeal is AUTOMATIC to the Court of Appeals;
2. If Reclusion Perpetua or life imprisonment, appeal is to the Court of
Appeals but is NOT AUTOMATIC, a Notice of Appeal must be filed.
AMENDED RULES TO GOVERN REVIEW OF DEATH PENALTY CASES
FROM THE RTC
a) If P=Death= Automatic Appeal to CA If CA affirms it will render judgment but will
not enter judgment and will transmit the case to the SC; Note: If other accused are
imposed lesser penalties for offenses committed on the same occasion or which
arose out of the same occurrence, all will be transmitted to the SC.
If CA finds penalty should be reclusion perpetua or lesser, it will render judgment
and enter judgment. CA’s decision can be appealed to the SC via the filing of a
notice of appeal with the CA.
b) If P=Reclusion Perpetua or Life Imprisonment= Appeal by Notice of Appeal If
CA affirms or imposes lesser penalty then it will render judgment and enter
judgment. CA’s decision can be appealed to the SC via the filing of a notice of
appeal with the CA.
FROM THE SANDIGANBAYAN (2018 Revised Internal Rules of the
Sandiganbayan)
A.M. 13-7-05-SB
General Rule: Appeals from SB to SC via NOTICE OF APPEAL
Exception:
a) If Penalty imposed by SB is DEATH appeal to SC is AUTOMATIC
(including appeal of accused imposed lesser penalties for offenses
committed on the same occasion or which arose out of the same
occurrence)
b) Whenever the Sandiganbayan, in the exercise of its appellate
jurisdiction, finds that the penalty of death, reclusion perpetua or life
imprisonment should be imposed,it shall render judgment accordingly.
However,it shall refrain from entering the judgment and forthwith certify
the case and elevate its entire record to the Supreme Court for review.
2. To the Sandiganbayan:
All cases decided by the RTC, whether in its original or appellate jurisdiction which
would have been within the jurisdiction of the Sandiganbayan if any of the accused
had been occupying positions corresponding to Salary Grade “27” or higher, as
prescribed in the said R.A. No. 6758, or military and PNP officer mentioned in the
Sandiganbayan law.
As applicable to the CA and explained in
People v. Nelson Abon,
G.R. No. 169245, February 15, 2008.
Preliminary Matter: Rules on Appeal An appeal is a proceeding undertaken to
have a decision reconsidered by bringing it to a higher court authority.1 It is not a
right but a mere statutory privilege2 to be exercised only in the manner and in
accordance with the provisions of law.
Recent developments in criminal law and jurisprudence have brought about
changes in the rules on appeal, specifically in cases where the penalty imposed is
death, reclusion perpetua or life imprisonment. To clarify the present rules, we
shall discuss these developments.
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
4
Section 3 of Rule 122 of the 2000 Rules on Criminal Procedure states:
SEC. 3. How appeal taken.—
(a) The appeal to the Regional Trial Court, or to the Court of Appeals in cases
decided by the Regional Trial Court in the exercise of its original jurisdiction, shall
be taken by filing a notice of appeal with the court which rendered the judgment or
final order appealed from and by serving a copy thereof upon the adverse party.
(b) The appeal to the Court of Appeals in cases decided by the Regional Trial
Court in the exercise of its appellate jurisdiction shall be by petition for review
under Rule 42.
(c) The appeal to the Supreme Court in cases where the penalty imposed by the
Regional Trial Court is death, reclusion perpetua, or life imprisonment, or where a
lesser penalty is imposed but for offenses committed on the same occasion or
which arose out of the same occurrence that gave rise to the more serious offense
for which the penalty of death, reclusion perpetua, or life imprisonment is imposed,
shall be by filing a notice of appeal in accordance with paragraph (a) of this
section.
(d) No notice of appeal is necessary in cases where the death penalty is imposed
by the Regional Trial Court. The same shall be automatically reviewed by the
Supreme Court as provided in section 10 of this Rule.
(e) Except as provided in the last paragraph of section 13, Rule 124, all other
appeals to the Supreme Court shall be by petition for review on certiorari under
Rule 45. The provision provides that where the penalty imposed by the RTC is
reclusion perpetua or life imprisonment, an appeal is made directly to this Court by
filing a notice of appeal with the court which rendered the judgment or final order
appealed from and by serving a copy thereof upon the adverse party. On the other
hand, a case where the penalty imposed is death will be automatically reviewed by
the Court without a need for filing a notice of appeal.
However, Mateo4 modified these rules by providing an intermediate review of the
cases by the CA where the penalty imposed is reclusion perpetua, life
imprisonment, or death. Pursuant to Mateo’s ruling, the Court issued A.M. No. 00-
5-03-SC 2004-10-12, amending the pertinent rules governing review of death
penalty cases, thus:
Rule 122 Sec. 3. How appeal taken. —
(a) The appeal to the Regional Trial Court, or to the Court of Appeals in cases
decided by the Regional Trial Court in the exercise of its original jurisdiction, shall
be by notice of appeal filed with the court which rendered the judgment or final
order appealed from and by serving a copy thereof upon the adverse party.
(b) The appeal to the Court of Appeals in cases decided by the Regional Trial
Court in the exercise of its appellate jurisdiction shall be by petition for review
under Rule 42.
(c) The appeal in cases where the penalty imposed by the Regional Trial Court is
reclusion perpetua, life imprisonment or where a lesser penalty is imposed for
offenses committed on the same occasion or which arose out of the same
occurrence that gave rise to the more, serious offense for which the penalty of
death, reclusion perpetua, or life imprisonment is imposed, shall be by notice of
appeal to the Court of Appeals in accordance with paragraph (a) of this Rule. (d)
No notice of appeal is necessary in cases where the Regional Trial Court imposed
the death penalty. The Court of Appeals shall automatically review the judgment as
provided in Section 10 of this Rule.
xxx
Sec. 10. Transmission of records in case of death penalty. — In all cases where
the death penalty is imposed by the trial court, the records shall be forwarded to
the Court of Appeals for automatic review and judgment within twenty days but not
earlier than fifteen days from the promulgation of the judgment or notice of denial
of a motion for new trial or reconsideration. The transcript shall also be forwarded
within ten days after the filing thereof by the stenographic reporter. (Emphasis
supplied.)

xxx
Rule 124 Sec. 12. Power to receive evidence. — The Court of Appeals shall
have the power to try cases and conduct hearings, receive evidence and perform
all acts necessary to resolve factual issues raised in cases falling within its original
and appellate jurisdiction, including the power to grant and conduct new trials or
further proceedings. Trials or hearings in the Court of Appeals must be continuous
and must be completed within three months, unless extended by the Chief Justice.
12(a)
Sec. 13. Certification or appeal of case to the Supreme Court. — (a) Whenever the
Court of Appeals finds that the penalty of death should be imposed, the court shall
render judgment but refrain from making an entry of judgment and forthwith certify
the case and elevate its entire record to the Supreme Court for review.
(b) Where the judgment also imposes a lesser penalty for offenses committed on
the same occasion or which arose out of the same occurrence that gave rise to the
more severe offense for which the penalty of death is imposed, and the accused
appeals, the appeal shall be included in the case certified for review to, the
Supreme Court.
(c) In cases where the Court of Appeals imposes reclusion perpetua, life
imprisonment or a lesser penalty, it shall render and enter judgment imposing such
penalty. The judgment may be appealed to the Supreme Court by notice of appeal
filed with the Court of Appeals. (Emphasis supplied.)
Also affecting the rules on appeal is the enactment of R.A. No. 9346 or An Act
Prohibiting the Imposition of the Death Penalty in the Philippines, which took effect
on June 29, 2006. Under Section 2 of R.A. No. 9346, the imposition of the death
penalty is prohibited, and in lieu thereof, it imposes the penalty of reclusion
perpetua, when the law violated makes use of the nomenclature of the penalties of
the Revised Penal Code (RPC); or life imprisonment, when the law violated does
not make use of the nomenclature of the penalties of the RPC. Consequently, in
the provisions of the Rules of Court on appeals, death penalty cases are no longer
operational.
2. To the Sandiganbayan:
All cases decided by the RTC, whether in its original or appellate jurisdiction which
would have been within the jurisdiction of the Sandiganbayan if any of the accused
had been occupying positions corresponding to Salary Grade “27” or higher, as
prescribed in the said R.A. No. 6758, or military and PNP officer mentioned in the
Sandiganbayan law.
This is stated in R.A. No. 8249, amending P.D. No. 1606 thus:
The Sandiganbayan shall exercise exclusive appellate jurisdiction over final
judgments, resolutions or orders or regional trial courts whether in the exercise of
their own original jurisdiction or of their appellate jurisdiction as herein provided.
"The Sandiganbayan shall have exclusive original jurisdiction over petitions for the
issuance of the writs of mandamus, prohibition, certiorari, habeas corpus,
injunctions, and other ancillary writs and processes in aid of its appellate
jurisdiction and over petitions of similar nature, including quo warranto, arising or
that may arise in cases filed or which may be filed under Executive Order Nos.
1,2,14 and 14-A, issued in 1986: Provided, That the jurisdiction over these
petitions shall not be exclusive of the Supreme Court.
Interesting case on the appellate jurisdiction of the Sandiganbayan
In a case where the Information was filed by the Office of the Ombudsman with the
Regional Trial Court, a private lawyer “Atty. Sitoy” appeared as private prosecutor
and, upon motion of the accused, the RTC disqualified Atty. Sitoy. The Office of
the Ombudsman for Visayas and Atty. Sitoy raised this ruling on certiorari under
Rule 65 to the Court of Appeals and the CA reversed the ruling of the RTC.
Issue: Was the Court of Appeals correct in assuming jurisdiction over the petition
for certiorari?
Held: The Sandiganbayan, not the CA, has appellate jurisdiction over the RTC’s
decision not to allow Atty. Sitoy to prosecute the case on behalf of the
Ombudsman.
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
5
The Sandiganbayan shall exercise exclusive appellate jurisdiction over final
judgments, resolutions or orders or regional trial courts whether in the exercise of
their own original jurisdiction or of their appellate jurisdiction as herein provided.
"The Sandiganbayan shall have exclusive original jurisdiction over petitions for the
issuance of the writs of mandamus, prohibition, certiorari, habeas corpus,
injunctions, and other ancillary writs and processes in aid of its appellate
jurisdiction x x x”
xxx “In the present case, the CA erred when it took cognizance of the petition for
certiorari filed by Magno. While it is true that the interlocutory order issued by the
RTC is reviewable by certiorari, the same was incorrectly filed with the CA. Magno
should have filed the petition for certiorari with the Sandiganbayan, which has
exclusive appellate jurisdiction over the RTC since the accused are public officials
charged of committing crimes in their capacity as Investigators of the National
Bureau of Investigation.
The CA should have dismissed the petition outright. Since it acted without
authority, we overrule the September 26, 2005 Amended Decision of the CA and
the subsequent denial of Magno’s motions for reconsideration.
Nota Bene:
The SC nullified the ruling of the CA but did not rule on whether or not Atty. Sitoy
could prosecute the case but gave the petitioners 15 days to seek relief from the
Sandiganbayan.
ORIGINAL JURISDICTION
RULE OF THUMB IN DETERMINING WHICH COURT HAS ORIGINAL
JURISDICTION OVER A CRIMINAL CASE:
1. Sandiganbayan
2. Special Courts:
a. Family Courts
b. Dangerous Drugs Court (NOTE: PerA.M. NO. 16-07-06-
SC, July 19, 2016...)
WHEREAS, with 715 RTCs out of 955 RTCs already handling drugs cases, the
remaining 240 other RTCs may be mobilized and directed to also hear, try and
decide all newly-filed drugs cases to help decongest the dockets of specially-
designated drugs courts and expedite the resolution of drugs cases.
c. Intellectual Property Courts
Note: These special courts are all Regional Trial Courts
designated by the Supreme Court to take cognizance of
special cases.
3. Regular Court in the Following order:
a. MTC Municipal Trial Courts, MTCC Municipal Trial Courts in
Cities , MCTC Municipal Circuit Trial Courts (BP 129 from
City Courts),
b. RTC Regional Trial Courts (both original and appellate
jurisdiction) It is the catch basin of the Philippine judicial
system
Note: In the process of elimination, the MTC, MTCC, MCTC comes
before
the RTC because the RTC is the catch all court meaning if a case does
not
fall within the original jurisdiction of any other court, then it is the RTC
that
will have jurisdiction over it.
How to apply? You have to know the law or the specific provisions that
determines the jurisdiction of each and every one of these courts.
JURISDICTION OF THE SANDIGANBAYAN

RA 8249 is not a well-crafted piece of legislation. Section 4 of RA 8249 provides
for who are the persons liable and what are the crimes covered and the special
things to take into consideration.
1 + 1 = 2 METHOD
6
(5) All other national and local officials classified as Grade ’27’ and higher under
the Compensation and Position Classification Act of 1989.
b. Other offenses or felonies whether simple or complexed with other crimes
committed by the public officials and employees mentioned in subsection a. of this
section in relation to their office.

A very good exercise to have familiarity with the jurisdiction of the Sandiganbayan c. Civil and criminal cases filed pursuant to and in connection with Executive Order
is to prepare TWO COLUMNS, THUS: Nos. 1, 2, 14 and 14-A, issued in 1986.

Provided, That the Regional Trial Court shall have exclusive original
1+ 1 =2 jurisdiction where the information: (a) does not allege any damage to the
government or any bribery; or (b) alleges damage to the government or
IN THE FIRST IN THE SECOND IF BOTH THE CRIME bribery arising from the same or closely related transactions or acts in an
COLUMN LIST DOWN COLUMN LIST DOWN AND THE PERSON amount not exceeding One million pesos (P1,000,000.00).
ALL THE CRIMES ALL THE PERSONS ARE COVERED BY
COVERED BY THE COVERED BY THE THE SANDIGANBAYAN Subject to the rules promulgated by the Supreme Court, the cases falling
SANDIGANBAYAN SANDIGANBAYAN LAW THEN under the jurisdiction of the Regional Trial Court under this section shall be
LAW LAW SANDIGANBA- YAN tried in a judicial region other than where the official holds office.
WILL HAVE ORIGINAL
JURISDIC- TION OVER In cases where none of the accused are occupying positions corresponding to
THE CASE IF NOT Salary Grade ’27’ or higher, as prescribed in the said Republic Act No. 6758, or
THEN THE REGULAR military and PNP officers mentioned above, exclusive original jurisdiction thereof
COURTS WILL shall be vested in the proper regional trial court, metropolitan trial court, municipal
JURISDICTION trial court, and municipal circuit trial court, as the case may be, pursuant to their
respective jurisdictions as provided in Batas Pambansa Blg. 129, as amended.
Section 4 of Republic Act No. 8249 as amended by RA 10660
The Sandiganbayan shall exercise exclusive appellate jurisdiction over final
SEC. 4. Jurisdiction. – The Sandiganbayan shall exercise exclusive original judgments, resolutions or orders of regional trial courts whether in the exercise of
jurisdiction in all cases involving: their own original jurisdiction or of their appellate jurisdiction as herein provided.

a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-
Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2,
Title VII, Book II of the Revised Penal Code, where one or more of the accused are
officials occupying the following positions in the government, whether in a
permanent, acting or interim capacity, at the time of the commission of the offense:
(1) Officials of the executive branch occupying the positions of regional director
and higher, otherwise classified as Grade ’27’ and higher, of the Compensation
and Position Classification Act of 1989 (Republic Act No. 6758), specifically
including:
(a) Provincial governors, vice-governors, members of the sangguniang
panlalawigan, and provincial treasurers, assessors, engineers, and other provincial
department heads:
(b) City mayors, vice-mayors, members of the sangguniang panlungsod, city
treasurers, assessors, engineers, and other city department heads;
(c) Officials of the diplomatic service occupying the position of consul and higher;
(d) Philippine army and air force colonels, naval captains, and all officers of higher
rank;
The Sandiganbayan shall have exclusive original jurisdiction over petitions for the
issuance of the writs of mandamus, prohibition, certiorari, habeas corpus,
injunctions, and other ancillary writs and processes in aid of its appellate
jurisdiction and over petitions of similar nature, including quo warranto, arising or
that may arise in cases filed or which may be filed under Executive Order Nos. 1,
2, 14 and 14-A, issued in 1986: Provided, That the jurisdiction over these petitions
shall not be exclusive of the Supreme Court.
The procedure prescribed in Batas Pambansa Blg. 129, as well as the
implementing rules that the Supreme Court has promulgated and may hereafter
promulgate, relative to appeals/petitions for review to the Court of Appeals, shall
apply to appeals and petitions for review filed with the Sandiganbayan. In all cases
elevated to the Sandiganbayan and from the Sandiganbayan to the Supreme
Court, the Office of the Ombudsman, through its special prosecutor, shall
represent the People of the Philippines, except in cases filed pursuant to Executive
Order Nos. 1, 2, 14 and 14-A, issued in 1986.
In case private individuals are charged as co-principals, accomplices or
accessories with the public officers or employees, including those employed in
government-owned or controlled corporations, they shall be tried jointly with said
public officers and employees in the proper courts which shall exercise exclusive
jurisdiction over them.

(e) Officers of the Philippine National Police while occupying the position of
provincial director and those holding the rank of senior superintendent and higher;
(f) City and provincial prosecutors and their assistants, and officials and
prosecutors in the Office of the Ombudsman and special prosecutor;
(g) Presidents, directors or trustees, or managers of government-owned or
controlled corporations, state universities or educational institutions or foundations.
(2) Members of Congress and officials thereof classified as Grade ’27’ and higher
under the Compensation and Position Classification Act of 1989;
(3) Members of the judiciary without prejudice to the provisions of the Constitution;
(4) Chairmen and members of the Constitutional Commissions, without prejudice
to the provisions of the Constitution; and
Any provisions of law or Rules of Court to the contrary notwithstanding, the
criminal action and the corresponding civil action for the recovery of civil liability
shall at all times be simultaneously instituted with, and jointly determined in, the
same proceeding by the Sandiganbayan or the appropriate courts, the filing of the
criminal action being deemed to necessarily carry with it the filing of the civil action,
and no right to reserve the filing of such civil action separately from the criminal
action shall be recognized: Provided, however, That where the civil action had
heretofore been filed separately but judgment therein has not yet been rendered,
and the criminal case is hereafter filed with the Sandiganbayan or the appropriate
court, said civil action shall be transferred to the Sandiganbayan or the appropriate
court, as the case may be, for consolidation and joint determination with the
criminal action, otherwise the separate civil action shall be deemed abandoned.
Does the Sandiganbayan have jurisdiction over a case where the accused is
a City Councilor (member of the Sangguniang Panlungsod) and the offense
is for violation of P.D. No. 1445 or the Auditing Code of the Philippines
whose salary grade is Salary Grade 25?

_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL

People v. Sandiganbayan,
G.R. No. 169004, September 15, 2010.
The above law is clear as to the composition of the original jurisdiction of the
Sandiganbayan. Under Section 4 (a), the following offenses are specifically
enumerated: violations of R.A. No. 3019, as amended, R.A. No. 1379, and Chapter
II, Section 2, Title VII of the Revised Penal Code. In order for the Sandiganbayan
to acquire jurisdiction over the said offenses, the latter must be committed by,
among others, officials of the executive branch occupying positions of regional
director and higher, otherwise classified as Grade 27 and higher, of the
Compensation and Position Classification Act of 1989. However, the law is not
devoid of exceptions. Those that are classified as Grade 26 and below may still fall
within the jurisdiction of the Sandiganbayan provided that they hold the positions
thus enumerated by the same law. Particularly and exclusively enumerated are
provincial governors, vice-govenors, members of the sangguniang panlalawigan,
and provincial treasurers, assessors, engineers, and other provincial department
heads; city mayors, vice-mayors, members of the sangguniang panlungsod, city
treasurers, assessors, engineers, and other city department heads; officials of the
diplomatic service occupying
You have to be very specific with the persons covered (SG 27 and higher).
However, that is not accurate since there is also a specific list where the people
are not SG 27. For example, the prosecutors are not SG 27 but are still covered.
New prosecutors do not fall under SG 27 but they are still covered because of the
express provision of the law. All fiscals in a prosecution office are designated as
assistant prosecutors. Even if you are prosecutor I and do not have a salary grade
of SG 27 or higher but you are still covered by the Sandiganbayan Law.
Captain in Army is not included but the Captain in navy is included.
‘without prejudice to the provisions of the constitution’ (for members of judiciary) -
because of the provision that discourages filing cases against court judges
RA 10660 : Amendment as to the amount of the transaction is now relevant. RTC
other than where the official holds office. But they did not indicate where you can
file the case.
“In relation to their office”
Even a crime that is not listed in RA 8249 but if it is committed by a public officer
covered by RA 8249 in relation to his office, the Sandiganbayan will still have the
jurisdiction over the case.
The tricky part of the jurisdiction of the Sandiganbayan is determining whether or
not common crimes and felonies committed by public officials and employees were
done “in relation to their office”.
Guidelines as laid down in People v. Demosthenes Magallanes,
October 11, 1995. VERY IMPORTANT
An offense may be considered as committed in relation to the office if
a. it cannot exist without the office; or
b. if the office is a constituent element of the crime as defined in the
statute, such as, for instance, the crimes defined and punished in
Chapter Two to Six, Title Seven, of the Revised Penal Code;
c. the offense must be intimately connected with the office of the offender;
and
d. the fact that the offense was committed in relation to the office must be
alleged in the information.
As explained in Sanchez v. Demetriou, 227 SCRA 627, Cited in People v.
Sandiganbayan, G.R. No. 169004, September 15, 2010.
In Sanchez v. Demetriou [227 SCRA 627 (1993)], the Court elaborated on the
scope and reach of the term “offense committed in relation to [an accused’s] office”
by referring to the principle laid down in Montilla v. Hilario [90 Phil 49 (1951)], and
to an exception to that principle which was recognized in People v. Montejo [108
Phil 613 (1960)]. The principle set out in Montilla v. Hilario is that an offense may
be considered as committed in relation to the accused’s office if “the offense
cannot exist without the office” such that “the office [is] a constituent element of the
crime x x x.”
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
7
In People v. Montejo, the Court, through Chief Justice Concepcion, said that
“although public office is not an element of the crime of murder in [the] abstract,”
the facts in a particular case may show that x x x the offense therein charged is
intimately connected with [the accused’s] respective offices and was perpetrated
while they were in the performance, though improper or irregular, of their official
functions. Indeed, [the accused] had no personal motive to commit the crime and
they would not have committed it had they not held their aforesaid offices. x x x”
- Perfect example of a crime committed in relation to public office.
- In rural areas or less-urbanized municipalities, the tax collector. Yung
gago he invented bago na tax then he goes around to collect. Hoy
pedro may mga kambing ka na pala. May bago tayong bagong buwis
na bawat kambing mag bayad ng 5 peso buwis.
- This is considered to have been considered in relation to public office.
He would not have committed it if he was not the tax collector
If basurero sya, hindi maniwala ang tao na magcollect siya ng tax.
Some Cases:
Rogelio M. Esteban v. Sandiganbayan,
G.R. Nos. 146646-49, March 11, 2005.
- Judge na file-an ng Sexual Harassment
- A bookbinder was applying, the judge said that he will recommend the
appointment if the woman agrees to be his girlfriend.
- gago yung judge halik halikan nya
- It is committed in relation to public office it can therefore be filed with
the sandigan
The SB has jurisdiction over cases for violation of the Anti-Sexual Harassment Law
of 1995 against an MTC Judge where the body of the amended Information reads:
“That on or about the 5th day of August 1997 in Cabanatuan City, Nueva Ecija,
Philippines and within the jurisdiction of this Honorable Court, the above- named
accused, JUDGE ROGELIO M. ESTEBAN, a public officer, being then the
Presiding Judge of Branch 1 of the Municipal Trial Court in Cabanatuan City, who
after having been rejected by the private complainant, Ana May V. Simbajon, of his
sexual demands or solicitations to be his girlfriend and to enter his room daily for a
kiss as a condition for the signing of complainant’s permanent appointment as a
bookbinder in his Court, thus in relation to his office or position as such, with lewd
design and malicious desire, did then and there willfully, unlawfully and feloniously
grab private complainant, kiss her all over her face and touch her right breast
against her will and consent, to her damage and detriment.
Because “he could not have committed the crimes charged were it not for the fact
that as the Presiding Judge of the MTCC, Branch I, Cabanatuan City, he has the
authority to recommend the appointment of Ana May as bookbinder. In other
words, the crimes allegedly committed are intimately connected with his office”
Azarcon v. SB, 268 SCRA 747, February 26, 1997.
The SB does not have jurisdiction over a private individual charged with
malversation of public funds simply because he was designated by the BIR as a
custodian of distrained property. He did not become a public officer thereby.
- Levy and Distraint Remedy by BIR
- BIR hired a warehouse as a custodian of distrained properties. Some
properties got lost and so the private individual owning the warehouse
was charged with malversation. Is he considered a public officer? No,
he did not become a public officer so sb does not have jurisdiction.
Those who appointed him do not have the authority to appoint him as a
public officer.
People v. Magallanes 249 SCRA 298, October 11, 1995.
The allegation “taking advantage of his position” by itself is insufficient to bring the
offense within the purview of “offenses committed in relation to public office.”
Lacson v. The Executive Secretary, 301 SCRA 298, January 20, 1999.
How to allege an offense committed by the accused “in relation to his office.

“The stringent requirement that the charge be set forth with such particularity as
will reasonably indicate the exact offense which the accused is alleged to have
committed in relation to his office was, sad to say, not satisfied. We believe that the
mere allegation in the amended information that the offense was committed by the
accused public officer "in relation to his office" is not sufficient. That phrase is
merely a conclusion of law, not a factual averment that would show the close
intimacy between the offense charged and the discharge of the accused's official
duties.”
“In the aforecited case of People vs. Montejo, it is noteworthy that the phrase
"committed in relation to public office" does not appear in the information, which
only signifies that the said phrase is not what determines the jurisdiction of the
Sandiganbayan. What is controlling is the specific factual allegations in the
information that would indicate the close intimacy between the discharge of the
accused's official duties and the commission of the offense charged, in order to
qualify the crime as having been committed in relation to public office.”
Soller v. Sandiganbayan,
G.R. No. 144261-62, May 9, 2001.
Even if the Information described the accused as being “all public officers, then
being the Municipal Mayor, Municipal Health Officer, SPO II, PO I, Sanitary
Inspector and Midwife” if there was no allegation that the offense of altering and
suppressing the gunshot wound of the victim with intent to impair the veracity,
authenticity and availability as evidence in the investigation of the criminal case for
murder (Criminal Case No. 25521) or of giving false and fabricated information in
the autopsy report and police report to mislead the law enforcement agency and
prevent the apprehension of the offender (Criminal Case No. 25522) was done in
the performance of official function, then the SB has no jurisdiction.
In a case where the Municipal Treasurer was charged together with the Municipal
Mayor for Malversation, can the Sandiganbayan have jurisdiction over the
Municipal Treasurer when her Salary Grade is 24, it was the Mayor, not her who
was the accountable officer for the funds, and the Information does not state the
intimate relationship between her office and the crime charged?
Dinah C. Barriga v. Sandiganbayan
G.R. Nos. 161784-86, April 26, 2005.
Held:
There are two classes of public office-related crimes under subparagraph (b) of
Section 4 of R.A. No. 8249: first, those crimes or felonies in which the public office
is a constituent element as defined by statute and the relation between the crime
and the offense is such that, in a legal sense, the offense committed cannot exist
without the office; second, such offenses or felonies which are intimately
connected with the public office and are perpetrated by the public officer or
employee while in the performance of his official functions, through improper or
irregular conduct.
Since the position of the Mayor, as the accountable officer is a CONSTITUENT
ELEMENT of the crime of malversation and there is an allegation of conspiracy
between them, this falls within the FIRST category of crimes cognizable by the
Sandiganbayan.
According to the SC: We agree with the ruling of the Sandiganbayan that the
public office of the accused Municipal Mayor Virginio E. Villamor is a constituent
element of malversation and illegal use of public funds or property. Accused
mayor’s position is classified as SG 27. Since the Amended Informations
alleged that the petitioner conspired with her co-accused, the municipal
mayor, in committing the said felonies, the fact that her position as
municipal accountant is classified as SG 24 and as such is not an
accountable officer is of no moment; the Sandiganbayan still has exclusive
original jurisdiction over the cases lodged against her. It must be stressed that
a public officer who is not in charge of public funds or property by virtue of her
official position, or even a private individual, may be liable for malversation or
illegal use of public funds or property if such public officer or private individual
conspires with an accountable public officer to commit malversation or illegal use
of public funds or property.
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
8
The Supreme Court explained the importance of the fact that when a common
crime was committed by the accused in relation to the performance of his office,
such must be emphasized in the information it is not enough that x x x It is
important for the information to allege the fact that show how the offense was
committed in relation to his public office.
The information designated the positions of the accused, but the information did
not say how their office was used to commit the crime.
The information is therefore lacking in showing that the office was related to the
commission of the crime. RA 8249 also only requires that only one of the accused
is covered.
Things to remember:
1. RA 8249 only requires that one of the accused must be covered. If
there are many accused and only one occupies a salary grade of 27 or
higher, it is enough for Sandiganbayan to have jurisdiction.
2. The SB will also have jurisdiction when a private individual is accused
with public officers over whom the sandigan has jurisdiction.
Other notable matters to remember:
1. The Sandiganbayan will have jurisdiction over a case if it has
jurisdiction over ANY ONE OF THE ACCUSED. Example: Janitor
charged with Anti-Graft together with a Regional Director. Example:
Director of DEPED with a janitor jowa = under Sandiganbayan
jurisdiction.
2. The Sandiganbayan will also have jurisdiction over PRIVATE
INDIVIDUALS who are accused together with public officers over whom
and in cases where the Sandiganbayan has jurisdiction. Many of the
cases with the Sandiganbayan involve private individuals (procurement
process)
Where one or several are private individuals = YES, Sandiganbayan still has
jurisdiction if anyone of them are those covered under RA 8249. What is important
is that just one of the accused must be cognizable by the Sandiganbayan.
Amendment to the Sandiganbayan Law
RTC was given jurisdiction over cases that would have been under the jurisdiction
of the Sandiganbayan but if the Information does not allege any damage to the
government or any bribery exceeding One Million Pesos (Php 1,000,00.00),
the case will be tried before the Regional Trial Court and not the Sandiganbayan.
Problem: subject to the rules promulgated by the Supreme Court, the cases falling
under the jurisdiction of the RTC under this section, shall be tried in a judicial
region other than where the official holds office. SC has not issued any rules yet.
For example, the accused is from DECS 12, then the RTCs in the 12th judicial
region cannot try the case.
FAMILY COURT (RA No. 8369)
Section 5. Jurisdiction of Family Courts. - The Family Courts shall have
exclusive original jurisdiction to hear and decide the following cases:
a) Criminal cases where one or more of the accused is below eighteen (18)
years of age but not less than nine (9) years of age but not less than nine (9)
years of age or where one or more of the victims is a minor at the time of the
commission of the offense: Provided, That if the minor is found guilty, the court
shall promulgate sentence and ascertain any civil liability which the accused
may have incurred.
The sentence, however, shall be suspended without need of application
pursuant to Presidential Decree No. 603, otherwise known as the "Child and
Youth Welfare Code";
b) Petitions for guardianship, custody of children, habeas corpus in relation to
 9

Now SC authorized most Regional Trial Courts to accept dangerous drugs cases.
the latter;

c) Petitions for adoption of children and the revocation thereof; INTELLECTUAL PROPERTIES COURT

d) Complaints for annulment of marriage, declaration of nullity of marriage and
those relating to marital status and property relations of husband and wife or
those living together under different status and agreements, and petitions for
dissolution of conjugal partnership of gains;
e) Petitions for support and/or acknowledgment;
The Regional Trial Courts designated by the Supreme Court as Intellectual
Properties Courts will have jurisdiction over all criminal violations of the Intellectual
Property Code and related laws.
Involves criminal violations of the RA 8293 or the Intellectual Property Code of
the Philippines.

f) Summary judicial proceedings brought under the provisions of Executive Special Agrarian Court : violations of the RA 6657 or the Comprehensive
Order No. 209, otherwise known as the "Family Code of the Philippines"; Agrarian Reform Law of 1988

g) Petitions for declaration of status of children as abandoned, dependent o

neglected children, petitions for voluntary or involuntary commitment of children; REGULAR COURTS
the suspension, termination, or restoration of parental authority and other cases
cognizable under Presidential Decree No. 603, Executive Order No. 56, (Series FROM B.P. Blg. 129 and R.A. No. 7691, the jurisdiction of regular courts, the RTC
of 1986), and other related laws; and the MTC may be outlined as follows:
h) Petitions for the constitution of the family home;

i) Cases against minors cognizable under the Dangerous Drugs Act, as RTC MTC, MTC, MCTC
amended;
IF PENALTY IS PENALTY > 6 years PENALTY < 6 years
j) Violations of Republic Act No. 7610, otherwise known as the "Special IMPRISONMENT OR
Protection of Children Against Child Abuse, Exploitation and Discrimination IMPRISONMENT AND
Act," as amended by Republic Act No. 7658; and FINE

k) Cases of domestic violence against: IF PENALTY IS FINE is > P4,000 FINE is < P4,000
PURELY FINE
1) Women - which are acts of gender based violence that results, or are likely to
result in physical, sexual or psychological harm or suffering to women; and Important: ALL cases of reckless imprudence resulting to DAMAGE TO
other forms of physical abuse such as battering or threats and coercion which PROPERTY are cognizable by the MTCC MCTC MTC, REGARDLESS of the
violate a woman's personhood, integrity and freedom movement; and amount of the fine (cf., R.A. No. 7691)
2) Children - which include the commission of all forms of abuse, neglect, Note: JURISDICTION IS BASED ON THE MAXIMUM IMPOSABLE PENALTY
cruelty, exploitation, violence, and discrimination and all other conditions
prejudicial to their development. NOTE 2: The General Rules do not apply if the law specifies the court that will
have jurisdiction over the case, e.g., Libel (Art. 360, RPC)
If an act constitutes a criminal offense, the accused or batterer shall be subject Intellectual property court
to criminal proceedings and the corresponding penalties. - violation of IPO law (unless minor)

If any question involving any of the above matters should arise as an incident in GENERAL RULE: (You just look at the maximum imposable penalty of
any case pending in the regular courts, said incident shall be determined in that imprisonment)
court.
If the penalty is imprisonment more than 6 years = RTC jurisdiction
If penalty is imprisonment is equal to or less than 6 years = MTC jurisdiction
Family cours are regional trial courts specially designated by the Supreme Court to
Penalty for BP 22 is just one year but the fine can be large depending on the
act as family courts (Davaco City: Branches 8, 12 , 33 of rtc of davao)
amount of the check. Before RA 7691, there are cases that are triable by the RTC.
Now, just look at the imposabe period of imprisonment.
RULE OF THUMB: If anyone of the accused is a minor or anyone of the
victims is a minor, it will fall under the jurisdiction of the Family Court.
If penalty is purely fine: BP 129 provisions that are not in conflict with RA
7691 could still be imposed
Even if the case would be normally under the jurisdiction of the Dangerous Drugs
If the fine is more than 4,000.00 = RTC jurisdiction
Court because it involves violation of the Dangerous Drugs Act, as amended, it
If the fine is equal to or less than 4,000.00 = MTC jurisdiction
would still fall under the jurisdiction of the Family Court if anyone of the accused is
a minor.
There are instances where the law itself indicates which Court has
jurisdiction of the case.
Criminal or Civil Violations of RA 7610 "Special Protection of Children
Example is libel where RPC provides that the Court of First Instance has
Against Abuse, Exploitation and Discrimination Act."
jurisdiction. Therefore, only the RTC has jurisdiction regardless of the penalty
imposed.
DANGEROUS DRUGS COURT
THE REVISED RULES ON CRIMINAL PROCEDURE
The Regional Trial Courts designated by the Supreme Court as Dangerous Drugs AS AMENDED (RULES 110-127, RULES OF COURT) EFFECTIVE
Courts have jurisdiction over ALL VIOLATIONS of the Dangerous Drugs Act (R.A. DECEMBER 1, 2000
No. 9165) except cases against minors cognizable under the Dangerous
Drugs Act, as amended.
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL

RULE 110 - PROSECUTION OF OFFENSES
WHERE WILL THE CASE BE FILED (Section 1 pars. [a] and [b])
General Rule:
Penalty > 4 yrs., 2 mos. -Preliminary Investigation is required
-file with the Prosecutor’s Office for PI
(MTC NO LONGER ALLOWED TO
CONDUCT PI under NEW RULE 112,
as amended by A.M. No. 05-8-26-SC)
Penalty < 4 yrs., 2 mos. -NO PI is required -file directly with
MTC for trial, except in chartered
cities where it should be filed with the
prosecutor's office unless otherwise
provided in the city’s charter
Cognizable by Sandiganbayan - OMBUDSMAN or Prosecutor’s
Office but in case of the latter, the
Resolution will be approved by the
Ombudsman
Section 1. Institution of criminal actions.—Criminal actions shall be instituted
as follows:
(a) For offenses where a preliminary investigation is required pursuant to
section 1 of Rule 112, by filing the complaint with the proper officer for the
purpose of conducting the requisite preliminary investigation.
- You have to know what are the cases that require preliminary
investigation.
- Under the 1985 Rules, if the case is cognizable by the RTC, then PI
is required. The problem arose under RA 7691 expanding the
jurisdiction of the MTC. Under BP 129, the threshold of the MTC’s
jurisdiction was 4 years.
- RA 7691 took effect and the threshold of MTC’s jurisdiction was
expanded to 6 years. How about cases where the imposable penalty
is 4 years, 2 months and 1 day to 6 years. Is a preliminary
investigation required? SC clarified that you just use the penalty
before. The determining factor whether the preliminary investigation
is required is still the imposable penalty.
- If the penalty is more than 4 years and 2 months, where will you file
the complaint? If PI is needed, file it before the prosecutor’s office.
(b) For all other offenses, by filing the complaint or information directly with the
Municipal Trial Courts and Municipal Circuit Trial Courts, or the complaint with
the office of the prosecutor. In Manila and other chartered cities, the complaint
shall be filed with the office of the prosecutor unless otherwise provided in their
charters.
The institution of the criminal action shall interrupt the running of the period of
prescription of the offense charged unless otherwise provided in special laws.
(1a)
The Rules use the word INSTITUTE.
If a preliminary investigation is needed, you must file it before the
prosecutor’s office whether the crime was committed in a city, municipality
or independent city.
If a preliminary investigation is not required : (there was a time when MTCs
were authorized to conduct preliminary investigation) if the complaint was
committed in a municipality, the complaint may be filed directly with the
municipal trial court or file it with the provincial prosecutor’s office and they will file
it in court (called an information).
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
10
For example: The crime was committed in Bansalan. Choices: 1) File directly with
MTC Bansalan 2) File with the office of the provincial prosecutor of Davao del Sur
who will make the information and file it with the Trial Court.
What if the case was filed in Davao City, Manila or any chartered cities? All
cities have charters. You cannot file it directly with the MTC. It shall be filed with
the proper prosecutor’s office.
Caveat: If the charter or law creating the city specifically authorizes the direct filing
of criminal cases with MTCs, then even if committed in cities, the complaint can be
filed directly with the MTC. The charter of General Santos City actually allows this.
Last paragraph of Section 1
Issue: Will the filing of a complaint for preliminary investigation interrupt the
running of the period of the prescription of the offense charged?
Rule: Prescription will be interrupted unless the special law provides otherwise.
Meaning: If covered by the Revised Penal Code, prescription is interrupted. If
under a Special Law then the provisions of that law on prescription will apply (If the
law requires “institution of judicial proceedings” then prescription will not be
interrupted). Finally, if the Special Law does not have provisions on prescription,
Section 2 of Act No. 3326 (December 4, 1926) will apply and prescription will not
be interrupted until the information or complaint is filed in court for trial.
Based on:
REODICA v. CA, 292 SCRA 87.
LLENES v. DICDICAN, 260 SCRA 207 (1996).
Interesting Case:
Citibank N.A., et al. v. Ester H. Tanco-Gabaldon, et al.,
September 4, 2013, G.R. Nos. 198469-70.
This case involved a criminal prosecution for Violation of the Securities Regulation
Code (SRC) where the accused asserted that the offenses had already prescribed
because the said law provided for a two-year prescriptive period for “any liability”
created under Section 62 of the SRC.
Held: Section 62 provides for two different prescriptive periods.
Section 62.1 specifically sets out the prescriptive period for the liabilities created
under Sections 56, 57, 57.1(a) and 57.1(b). Section 56 refers to Civil Liabilities on
Account of False Registration Statement while Section 57 pertains to Civil
Liabilities on Arising in Connection with Prospectus, Communications and Reports.
Under these provisions, enforcement of the civil liability must be brought within two
(2) years or five (5) years, as the case may be.
On the other hand, Section 62.2 provides for the prescriptive period to enforce any
liability created under the SRC. It is the interpretation of the phrase "any liability"
that creates the uncertainty. Does it include both civil and criminal liability? Or does
it pertain solely to civil liability?
In order to put said phrase in its proper perspective, reference must be made to the
rule of statutory construction that every part of the statute must be interpreted with
reference to the context, i.e., that every part of the statute must be considered
together with the other parts, and kept subservient to the general intent of the
whole enactment.
Section 62.2 should not be read in isolation of the other provision included in
Section 62, particularly Section62.1, which provides for the prescriptive period for
the enforcement of civil liability in cases of violations of Sections 56, 57, 57.1(a)
and 57.1(b).
Moreover, it should be noted that the civil liabilities provided in the SRC are not
limited to Sections 56 and 57. Section 58 provides for Civil Liability For Fraud in
Connection With Securities Transactions; Section 59 – Civil Liability For
Manipulation of Security Prices; Section 60 – Civil Liability With Respect to
Commodity Future Contracts and Pre-need Plans; and Section 61 – Civil Liability
on Account of Insider Trading. Thus, bearing in mind that Section 62.1 merely
addressed the prescriptive period for the civil liability provided in Sections 56, 57,

57.1(a) and 57.1(b), then it reasonably follows that the other sub-provision, Section
62.2, deals with the other civil liabilities that were not covered by Section 62.1,
namely Sections 59, 60 and 61. This conclusion is further supported by the fact
that the subsequent provision, Section 63, explicitly pertains to the amount of
damages recoverable under Sections 56, 57, 58, 59, 60 and 61,22 the trial court
having jurisdiction over such actions, the persons liable and the extent of their
liability.
Clearly, the intent is to encompass in Section 62the prescriptive periods only of the
civil liability in cases of violations of the SRC.
The CA, therefore, did not commit any error when it ruled that "the phrase ‘any
liability’ in subsection 62.2 can only refer to other liabilities that are also civil in
nature. The phrase could not have suddenly intended to mean criminal liability for
this would go beyond the context of the other provisions among which it is found."
Given the absence of a prescriptive period for the enforcement of the criminal
liability in violations of the SRC, Act No. 3326 now comes into play. Panaguiton, Jr.
v. Department of Justice expressly ruled that Act No. 3326 is the law applicable to
offenses under special laws which do not provide their own prescriptive periods.
People v. Pangilinan 687 Phil. 95 (2012)
-case involved was Violation of B.P. 22
RULING: "(t)here is no more distinction between cases under the RPC (Revised
Penal Code) and those covered by special laws with respect to the interruption of
the period of prescription" and reiterated that the period of prescription is
interrupted by the filing of the complaint before the fiscal's office for purposes of
preliminary investigation against the accused.
Jadewell Parking Systems Corp. v. Lidua, Sr.,
G.R. No. 169588, [October 7, 2013]
-case involved was a violation of a parking ordinance:
RULING: “As provided in the Revised Rules on Summary Procedure, only the filing
of an Information tolls the prescriptive period where the crime charged is involved
in an ordinance”
People v. Mateo A. Lee, Jr.,
G.R. No. 234618, [September 16, 2019]
-case involved was Violation of RA 7877 (Anti-Sexual Harassment Act of 1995) Per
the SC- “Jadewell did not abandon the doctrine in Pangilinan”
RULING: The issue of when prescription of a special law starts to run and when it
is tolled was settled in the case of Panaguiton, Jr. v. Department of Justice, et al.,
wherein the Court had the occasion to discuss the set-up of our judicial system
during the passage of Act 3326 and the prevailing jurisprudence at that time which
considered the filing of the complaint before the justice of peace for preliminary
investigation as sufficient to toll period of prescription. Panaguiton also cited cases
subsequently decided by this Court involving prescription of special laws where We
categorically ruled that the prescriptive period is interrupted by the institution of
proceedings for preliminary investigation against the accused. The doctrine in the
Panaguiton case was subsequently affirmed in People v. Pangilinan
WHAT IS THE RULE STATED SIMPLY!!!!??? Based on Pp. vs. Mateo Lee,
thus:
RPC- filing with the prosecutor’s office interrupts the period
SPECIAL LAW- following Pangilinan SAME AS RPC CITY OR MUNICIPAL
ORDINANCE- following Jadewell, only the filing of the Information in court will toll
the period of prescription I
MPT REMINDER ON THE LAW ON APPEALS IN CRIMINAL CASES : Per the
2018 Revised Internal Rules of the Sandiganbayan, appeals from the SB to the SC
will be via NOTICE OF APPEAL and NOT Petition for Review on Certiorari or
Appeal by Certiorari under Rule 45
If covered by the provisions of the Revised Penal Code, the mere filing will
already interrupt the running of the prescription period.
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
11
If covered by Special laws, they can have their own provisions on how the
offense charged is tried. There are some special laws which do not have
provisions on prescription.
Act No. 3326 “An Act to Establish Periods of Prescription for Violations
Penalized by Special Acts and Municipal Ordinances and to Provide When
Prescription Shall Begin to Run”. Provides for periods of prescription for special
laws that do not provide for their prescription.
If covered by the revised penal code, prescription is interrupted, if under a special
law the provisions of law on prescription will apply .
If the special law does not have provisions on prescription, Act 3326 will apply
and prescription will not be interrupted until the information or complaint is filed in
court
Citibank v. Ester Tanco-Gabaldon GR 198469-70 READ CASE
- How to determine that wala talagang prescriptive period for the
enforcement of the criminal liability.
If BP 22? People v. Pangilinan 687 P 95
BP 22 is an example of a special law that does not provide for a period of
prescription. You would assume that Act No. 3326 would be applicable. The
Supreme Court said that there is no distinction between RPC and Special laws
with respect to the interruption of the prescriptive period. Period of prescription is
interrupted by the filing of the complaint before the fiscal’s office for purposes of
preliminary investigation against the accused. Once it is filed at the prosecutor’s
office then the running of the prescription period is interrupted.
Jadewell Parking Systems Corp. v. Hon. Lidua (2013) GR 169588
- Involves a violation of a parking ordinance (city)
- Only the filing of an information tolls the prescriptive period because of
the revised rules of summary procedure.
- Remember that Jadewell involved a violation of a parking ordinance
- Mentioned the Panaguiton v. DOJ case
BP 22 - use pangilinan
ORDINANCE - use Jadewell
People v. Lee GR no. 234618 (2019)
Special law - sexual harassment act of 1995
- There is no conflict between Jadewell and Pangilinan rulings.
- Jadewell did not abandon the doctrine in Pangilinan.
- Panaguiton v. DOJ : the reason why even if act 3326 is applicable, the
filing with the prosecutor’s office will still interrupt the period of
prescription. The reason is because when Act no. 3326 was enacted,
the set-up of our judicial system was that when a criminal complaint
was filed before the justice of the peace to conduct the preliminary
investigation, it was sufficient to toll the period of prescription. The
Supreme Court said that there was no intention even under Act No,
3326 not to toll the period of prescription even as cases were filed for
the purpose of preliminary investigation.
- Even if 3326 is applicable, the filing at the prosecutor’s office will still
interrupt the prescriptive period.
In Jadewell - IT IS ORDINANCE - covered by the Revised Rules on Summary
Procedure. And since under the Revised Rules on Summary Procedure, the filing
of information tolls the prescriptive period where the crime charged is involved is
an ordinance.
If it is a criminal violation of a national law, whether special law or RPC, we
apply Pangilinan (prescriptive period is interrupted by mere filing of
information at the prosecutor’s office for the purpose of preliminary
investigation)
If it involves a violation of a local ordinance, we apply Jadewell (Revised
Rules on Summary Procedure). All criminal cases for violation of local

ordinances will fall under the Revised Rules on Summary Procedure. Only
the filing of the information in court will toll the prescriptive period.
COMPLAINT (filed in Court on not those filed before the Prosecutor’s Office) OR
INFORMATION SECTION 2
Section 2. The complaint or information.—The complaint or information shall
be in writing, in the name of the People of the Philippines and against all
persons who appear to be responsible for the offense involved. (2a)
1. Must be in writing
No such thing as an oral charge in the Philippines. The complaint is one
filed in court and not one filed before the prosecutor’s office for
purposes of preliminary investigation.
2. In the name of the people of the Philippines
A mistake in the complaint or information where it is made in the name
of the offended party (e.g., Maria Dimapasok v. Juan Dimakatusok for
Rape) is only a formal defect. Though, if raised, the complaint or
information can be quashed, it will not invalidate the Complaint or
Information and it is curable by a formal amendment.
Do not forget that any criminal case primarily between the State and the
accused is in essence only a witness for the state. Although by reason
of the fact that the private complainant suffered damages, the private
complainant is also given the privilege of intervening in the case for
purposes of the civil aspect. RPC ARTICLE 100. Civil Liability of
Person Guilty of Felony. — Every person criminally liable for a felony is
also civilly liable.
On mistakes: does not nullify and is only a formal defect, will not
invalidate the complaint or information. It is curable. This will not result
to the dismissal of the case.
3. Against all persons (who appear) responsible for the offense-
The determination of who should be included is not entirely based on
the wils of the prosecutors. This should be based on the evidence.
Whoever is shown by the evidence to be involved or responsible for the
offense charged must be included in the complaint or information.
The public prosecutor has no authority to exclude anybody if there is a
showing that such person appears to be guilty of the offense. He is
duty-bound to file the case against all those who appear to be
responsible. (Note: exception is if a person has been administratively
declared a state witness prior to the filing of the information under R.A.
No. 6981 or the Witness Protection Act)
Exception: Republic Act No. 6981 "The Witness Protection, Security and
Benefit Act"
It gives the Department of Justice the right to make a recommendation for a person
to be covered by witness protection.
How is it applied?
For example, there is a criminal case. No case is filed yet. One of the respondents
wanted to testify for the complainant, meaning he would testify against his co-
respondents. This is a usual practice all over the world because sometimes it is
hard to prosecute a case simply because you do not have reliable witnesses.
Act no. 6981 authorizes the Department of Justice to grant immunity to a person
who turns into a witness. That grant of immunity authorizes the exclusion of that
particular accused from the complaint or information even if the evidence shows
him to be among the persons who appear to be guilty of the offense charged.
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
12
Will the failure of the Information to include other persons who also appear
to be responsible be a ground to dismiss the case against those who were
included?
No. The remedy is to add them or file a separate complaint against them. It
does not authorize a dismissal.
Betty Bagionza, et al. v. Court of Appeals, et al.,
G.R. No. 161057, September 12, 2008.
“It appears that the Court of Appeals was, without saying so, applying the rule in
civil cases that all indispensable parties must be impleaded in a civil action. There
is no equivalent rule in criminal procedure, and certainly the Court of Appeals'
decision failed to cite any statute, procedural rule or jurisprudence to support its
position that the failure to implead the traders who directly dealt with petitioners is
indeed fatal to the complaint.
Assuming that the traders could be tagged as principals by direct participation in
tandem with Roxas and Nolasco — the principals by inducement — does it make
sense to compel that they be jointly charged in the same complaint to the extent
that the exclusion of one leads to the dismissal of the complaint? It does not.
Unlike in civil cases, where indispensable parties are required to be impleaded in
order to allow for complete relief once the case is adjudicated, the determination of
criminal liability is individual to each of the defendants. Even if the criminal court
fails to acquire jurisdiction over one or some participants to a crime, it still is able to
try those accused over whom it acquired jurisdiction. The criminal court will still be
able to ascertain the individual liability of those accused whom it could try, and
hand down penalties based on the degree of their participation in the crime. The
absence of one or some of the accused may bear impact on the available evidence
for the prosecution or defense, but it does not deprive the trial court to accordingly
try the case based on the evidence that is actually available.”
Section 3. Complaint defined.—A complaint is a sworn written statement
charging a person with an offense, subscribed by the offended party, any peace
officer, or other public officer charged with the enforcement of the law violated.
(3)
It is not the prosecutor who files the complaint. This refers to the complaint filed in
court for trial in cases where direct filing is allowed.
How do we know that? Because it is subscribed by the offended party, any peace
officer, or other public officer (fiscal) charged with the enforcement of the law
violated.
Who can file a complaint?
a) the offended party
b) peace officer : police or any law enforcement officer
c) other public officer charged with the enforcement of the law violated :
DENR, BIR, BOC, DENR (forest rangers), SS (SSS officers may file the
charges), MARINA (illegal boat), BFAR (illegal fishing)
Information can only be filed by a public prosecutor.
What if the complaint is not sworn or signed? No.
This is a formal defect that can be cured by having the complaint signed and sworn
to by the person who filed it.
- When you subscribe to something, you are warranting its veracity by
your heart.
- Now, whatever you signed is sworn to.
- according to decided cases this is just a formal defect - if the complaint
is not sworn or signed
“other public officer charged with the enforcement of the law violated”
Examples of these persons are Customs Officials in cases involving violations of
the Customs and Tariff Code, BIR officials in violations of the NIRC, DENR

Officials for violations of the Forestry Code or environmental laws, SSS officials for
violations of the SSS law, etc.
Section 4. Information defined.—An information is an accusation in writing
charging a person with an offense, subscribed by the prosecutor and filed with
the court. (4a)
“subscribed by the prosecutor and filed with the court”
An information can be filed only by a public prosecutor and only in court.
DISTINCTIONS BETWEEN A COMPLAINT AND AN INFORMATION
1. A Complaint may be signed or subscribed by the offended party, a
peace officer, or any other public officer charged with the enforcement
of the law violated while an Information can only be subscribed by the
public prosecutor.
2. A complaint may be filed with the public prosecutor (loose definition,
include complaint-affidavits) or it can be filed with the proper MTC or
MCTC, for trial in the cases where direct filing is allowed by law. An
Information, on the other hand, can only be filed with the proper court
for trial of the accused.
Note:
Only a complaint filed in court for TRIAL not PI must be subscribed by the offended
party, peace officer or other public officer charged with enforcing the law violated.
Evarle v. Sucaldito, 156 SCRA 808.
A complaint filed for purposes of preliminary investigation with the public
prosecutor need not be filed by the offended party. Such a complaint may be filed
by any complainant. The complaint referred to in Section 3 of Rule 110 is one filed
in court and not with the public prosecutors office in which case it has to be
initiated by the aggrieved party.
Note: This is because the public prosecutor is authorized by law to investigate any
complaint. If such an investigation leads to a finding of probable cause to hold a
respondent for trial, the public prosecutor can file the proper information in court.
Section 5. Who must prosecute criminal actions. — All criminal actions
commenced by a complaint or information shall be prosecuted under the
direction and control of the prosecutor. However, in Municipal Trial Courts or
Municipal Circuit Trial Courts when the prosecutor assigned thereto or to the
case is not available, the offended party, any peace officer, or public officer
charged with the enforcement of the law violated may prosecute the case. This
authority shall cease upon actual intervention of the prosecutor or upon
elevation of the case to the Regional Trial Court.
The crimes of adultery and concubinage shall not be prosecuted except upon a
complaint filed by the offended spouse. The offended party cannot institute
criminal prosecution without including the guilty parties, if both are alive, nor, in
any case, if the offended party has consented to the offense or pardoned the
offenders.
The offenses of seduction, abduction and acts of lasciviousness shall not be
prosecuted except upon a complaint filed by the offended party or her parents,
grandparents or guardian, nor, in any case, if the offender has been expressly
pardoned by any of them. If the offended party dies or becomes incapacitated
before she can file the complaint, and she has no known parents, grandparents
or guardian, the State shall initiate the criminal action in her behalf.
The offended party, even if a minor, has the right to initiate the prosecution of
the offenses of seduction, abduction and acts of lasciviousness independently
of her parents, grandparents, or guardian, unless she is incompetent or
incapable of doing so. Where the offended party, who is a minor, fails to file the
complaint, her parents, grandparents, or guardian may file the same. The right
to file the action granted to parents, grandparents, or guardian shall be
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
13
exclusive of all other persons and shall be exercised successively in the order
herein provided, except as stated in the preceding paragraph.
No criminal action for defamation which consists in the imputation of any of the
offenses mentioned above shall be brought except at the instance of and upon
complaint filed by the offended party. (5a)
The prosecution for violation of special laws shall be governed by the provisions
thereof, (n)
Fiscal is an old term for Public prosecutor
General Rule: All criminal actions commenced by a complaint or information
shall be prosecuted under the direction and control of the prosecutor.
Criminal cases are the concern of the state. The concern of the primary
complainant is only with regards to the civil aspect. On the criminal aspect, the
complainant is only a witness for the state. It is important because the rules also
allow a private complainant to intervene in a criminal case through a private
prosecutor.
However, if there is, at any time, a contest between the position taken by public
prosecutor and that taken by the private prosecutor, it will be the decision of the
public prosecutor that will prevail. Basis: First sentence under Section 5.
EXCEPTION: Section 5 was amended by En Banc Resolution dated 10 April 2002
AM No. 02-2-07-SC
In case of heavy work schedule of a public prosecutor or in the event of lack of
public prosecutors, the private prosecutor may be authorized in writing by the Chief
of the Prosecution Office or the Regional State Prosecutor to prosecute the case
subject to the approval of the court. Once so authorized to prosecute the criminal
action, the private prosecutor shall continue to prosecute the case up to the end of
the trial even in the absence of a public prosecutor, unless the authority is revoked
or otherwise withdrawn.
Previously, there were cases in MTCs that were allowed to be prosecuted, if there
is no available public prosecutor, by the police prosecutor. Even an offended party
or the peace officer was allowed to prosecute.
It is always more desirable for a case to really be prosecuted by a public
prosecutor. The problem is that we do not have enough public prosecutors. In
Davao City, we have enough. In many places, kulang na kulang.
Before: A private prosecutor is not allowed to prosecute a criminal case in the
absence of the public prosecutor. His authority to prosecute the case emanates
from the public prosecutor since a private prosecutor is under the control of the
former.
AM No. 02-2-07-SC allowed the private prosecutor to prosecute the criminal case
even in the absence of the public prosecutor through the authorization in writing of
the head of the prosecution office.
This is subject to the approval of the court. After the granting of the authority, there
will be a motion to approve the authority filed in court. Once the court approves the
authority, the private prosecutor shall continue to prosecute the case upto the end
of the trial even in the absence of the public prosecutor.
This was a very good amendment because it got rid of the problem where all of the
criminal cases would have to be reset simply because the public prosecutor was
absent.
Who is the lawyer of the Republic of the Philippines? Solicitor General
In Trial Court level, the public prosecutor is the lawyer of the State
In Appellate Proceedings, the Office of the Solicitor General serves as the lawyer
of the State
BEFORE THE AMENDMENT THE EXCEPTION WAS:

IN CASES BEFORE MTCs or MCTCs where the prosecutor assigned is NOT
available, the following may prosecute:
a) the offended party;
b) peace officer;
c) other public officer charged with the enforcement of the law violated.
What if the prosecution loses at the trial court level? The party wants to file a
Review for Certiorari on the criminal aspect. May the offended party file a Petition
for Certiorari without the participation of the Office of the Solicitor General?
Can the offended party elevate the criminal aspect of a case to the CA or SC
without the participation of the Office of the Solicitor General?
General Rule: Only the OSG can bring or defend actions on behalf of the Republic
or represent the People or the State in criminal proceedings pending in this court
and the CA.
Elvira O. Ong v. Jose Casim Genio,
G.R. No. 182336, December 23, 2009.
This doctrine is laid down in our ruling in Heirs of Federico C.
Delgado and Annalisa Pesico v. Luisito Q. Gonzalez and Antonio T.
Buenaflor, Cariño v. de Castro, Mobilia Products, Inc. v. Umezawa,
Narciso v. Sta. Romana-Cruz, Perez v. Hagonoy Rural Bank, Inc.,
and People v. Santiago, where we held that only the OSG can bring
or defend actions on behalf of the Republic or represent the People
or the State in criminal proceedings pending in this Court and the
CA.
Exception: When there is DENIAL of due process
“there may be rare occasions when the offended party may be allowed to pursue
the criminal action on his own behalf, as when there is a denial of due process.”
(Merciales v. Court of Appeals, 429 Phil. 70 [2002])
PRIVATE CRIMES. Based on Article 344 of the Revised Penal Code.
“Crimes which cannot be prosecuted de oficio” These are the crimes that
cannot be prosecuted by the public prosecutor without the complaint or information
signed by the offended party.
Adultery and Concubinage
The complaint or information must be signed by the offended spouse and must be
against BOTH guilty parties unless one is already dead.
Consent and pardon are valid defenses in adultery or concubinage.
Note:
PEOPLE OF THE PHILIPPINES v. ILARDE 125 SCRA 11
The affidavit complaint began with this statement:
“I’m formally charging my wife and ‘X’ and would request this affidavit be
considered a formal complaint against them.”
The prosecutor phrased the Information, filed after the death of the complainant, in
this manner:
“the undersigned city fiscal upon sworn statement originally filed by the offended
husband, Xerox copies of which are hereto attached as annexes ‘A’ AND ‘B’.
Held:
The Information sufficiently complies with the requirement that the complaint or
information be signed by the offended party.
Without signature? It may be dismissed because the public prosecutor is not
authorized to file the case without the signature of the offended party.
People v. Ilarde 125 scra 11
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
14
- Offended party was a lawyer. Case of adultery.
- By the time the information was supposed to be filed, the complainant
died
- The affidavit complaint included: “I formally charging my wife and the
paramour and would request this affidavit be considered a formal
complaint”. The prosecutor attached the affidavit complaint in the
information.
- This is considered as a substantial compliance with the requirement of
Section 5.
In adultery and concubinage, it is not allowed to file against only one person.
- Pag nahuli na may kalaguyo, magalit sa husband pero mas galit sa
kabit. There are instances when the first person attacked is the third
party, not the husband.
- You cannot commit concubinage or adultery alone unless one of the
parties dies. It has to be against both.
- Do not forget that under the criminal law, if there is consent (express or
implied) and pardon (express or implied), it erases the crime of
concubinage or adultery.
Example: When the offended party has consensual intercourse with erring
husband or wife after knowing about the indiscretion. It erases the crime.
Seduction, Abduction and Acts of Lasciviousness
If the complaint involves a minor, all of these no longer apply because it is already
a crime related to Republic Act No. 7610 or the Child Abuse Law.
The right to file the action granted to parents, grandparents, or guardian shall be
exclusive of all other persons and shall be exercised successively in the order
herein provided, except as stated in the preceding paragraph.
- If the offended party, even if he or she is a minor, for as long as he or
she is incompetent or incapable of filing, her decision will prevail over
that of his or her parents, grandparents, or guardians.
- Why? There are instances wherein the parents of the child who force
the child to withdraw the case.
Atty. Europa: I encountered many cases that would destroy your faith in people.
For example:
● The minor was made a sex slave by her mother’s boyfriend. She was literally
tied down so she cannot leave the home. The health worker helped her
escape to her mother’s brother. However, her uncle also raped her. Her
mother visits her to convince the child to withdraw the case.
This is why it is very important. Once the child decides to file the case, the parents,
grandparents, or guardians of the victim cannot do anything about it. The problem
is when the child is incapable or mentally-challenged.
There are many instances that children are left with the care of the grandparents.
● The case filed was acts of lasciviousness. The child was brought to DSWD.
The parents wanted to withdraw the case and the child was mentally-
challenged. Atty. Europa: What’s the problem? The victim is a minor and
mentally-challenged. Let us file child abuse instead of acts of lasciviousness.
Therefore, your statement is inapplicable.
Note:
Rape has been removed from the coverage of private crimes because under the
new Anti-Rape Law, rape is now a crime against persons rather than chastity. It is
no longer a private crime.
Section 5 provides a list of the people who can file the complaint in cases of
seduction, abduction and acts of lasciviousness. These are the following:
a) The Offended Party, EVEN IF SHE IS A MINOR;

b) The offended party’s parents;
c) The offended party’s grandparents;
d) The offended party’s guardian; or
e) The State;
Section 5 will not apply in special complex crimes.
As stated in Section 5, from the parents to the State, the list is exclusive and
followed in the order given.
In practical terms this means that if the offended party, EVEN IF SHE IS A MINOR,
unless she is incompetent or incapable of filing the complaint for reasons other
than minority, if she wants to file the case, her decision is to be followed regardless
of the decision of her parents or of other people.
As probably discussed in the study of the Revised Penal Code, the reason for this
is the fact that the offended party may choose to suffer in silence rather than suffer
the scandal of a public trial.
In these cases, even if there is clear evidence that a crime has been committed the
public prosecutor is helpless to do anything unless there is a complaint signed by
the offended party.
Note: Section 5 DOES NOT APPLY to SPECIAL COMPLEX CRIMES marker
If an Information in the crimes under Section 5 is filed without a complaint, is
the defect jurisdictional or not?
People of the Philippines v. Elmer Yparraguire y Sepe
G.R. No. 124391, July 5, 2000.
- You can cure the defect prior to arraignment
“Once the violation of the law becomes known through a direct original
participation initiated by the victim, the requirements of Article 344 of the Revised
Penal Code (RPC), to the effect that the offense of rape "shall not be prosecuted
except upon a complaint filed by the offended party or her parents," are satisfied.
Said provision is not determinative of the jurisdiction of courts over the
private offenses because the same is governed by the Judiciary law, not the
Revised Penal Code which deals with the definition of felonies and their
punishment. Stated differently, the complaint required in Article 344 is but a
condition precedent to the exercise by the proper authorities of the power to
prosecute the guilty parties.”
“No criminal action for defamation which consists in the imputation of any of
the offenses mentioned above shall be brought except at the instance of and
upon complaint filed by the offended party.”
DEFAMATION:
SLANDER OR LIBEL IS NOT A PRIVATE CRIME EXCEPT IF THE
DEFAMATION IMPUTES THE COMMISSION OF adultery, concubinage,
seduction, abduction, or acts of lasciviousness.
Is slander or libel a private crime or a crime that cannot be prosecuted de officio?
No, they are not. They only become a crime that cannot be prosecuted de officio if
they impute the commission of adultery, concubinage, seduction, abduction, or
acts of lasciviousness.
Notable case:
Gonzales v. Arcilla, 203 SCRA 629.
“MANG-AAGAW NG ASAWA NG MAY ASAWA” is not an imputation of adultery as
the elements are not imputed. The defamatory statement must impute all the
elements of adultery.
What must a complaint or information contain? (Sec. 6, Rule 110)
Section 6. Sufficiency of complaint or information.—A complaint or
information is sufficient if it states the name of the accused; the designation of
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
15
the offense given by the statute; the acts or omissions complained of as
constituting the offense; the name of the offended party; the approximate date
of the commission of the offense; and the place where the offense was
committed. When an offense is committed by more than one person, all of them
shall be included in the complaint or information. (6a)
a. name of the accused;
b. designation of the offense given by the statute; For example an
information charging estafa under Article 315, RPC.
c. acts or omissions complained of as constituting the offense; It is
not really the designation that determines what crimes was committed.
It is the acts or the commission alleged in the body of the information.
For example, the crime designated was murder but no qualifying
circumstance was indicated in the body of the complaint.
d. name of the offended party;
e. approximate date of the commission of the offense;
f. place where the offense was committed.
Why are these things required? The complaint or information along with the
process of arraignment is the mode by which we comply with the constitutional
requirement that the accused must be apprised of the charges.
Right of the Accused to be Informed of the charges against him is premised
on the presumption of innocence. He is likewise presumed not to know any of the
details of the offense charged. In this way, he can properly defend himself. You
cannot defend yourself properly if you do not know what is the charge against you.
If you are already convicted or acquitted of such offense, the information will allow
you to raise the defense of double jeopardy.
The courts should also know of the facts alleged so that the courts can make
determination that the allegations in the information are sufficient. If the information
does not charge an offense, meaning to say that the allegations in the information
will not fall within the definition of any crime under our statutes, then the courts
shall dismiss the case. nullum crimen nulla poena sine lege
Purpose:
People of the Philippines v. Rosalindo Cutamora, et al.,
G.R. Nos. 133448-53, October 6, 2000.
The purpose of the above-quoted rule is to inform the accused of the nature and
cause of the accusation against him, a right guaranteed by no less than the
fundamental law of the land. Elaborating on the accused's right to be informed, this
Court held in Pecho v. People, 262 SCRA 518 that the objectives of this right are:
1. To furnish the accused with such a description of the charge against
him as will enable him to make the defense;
2. To avail himself of his conviction or acquittal for protection against
further prosecution for the same cause; and
3. To inform the court of the facts alleged, so that it may decide whether
they are sufficient in law to support a conviction if one should be had.
On the Name of the Accused (Sec. 7, Rule 110)
Section 7. Name of the accused.—The complaint or information must state
the name and surname of the accused or any appellation or nickname by which
he has been or is known.
If his name cannot be ascertained, he must be described under a fictitious
name with a statement that his true name is unknown. If the true name of the
accused is thereafter disclosed by him or appears in some other manner to the
court, such true name shall be inserted in the complaint or information and
record. (7a)
General rule: The complaint or information must really state the complete name of
the accused.

Exception: When the name of the accused is unknown and what is known is his
nickname or appellation or how he is known in the community. Boy berdugo or
Boy tirador
If his name cannot be ascertained, he must be described under a fictitious name
with a statement that his true name is unknown. Are we required to use John/Jane
Doe? No. It is just a matter of practice that has been adopted from the Americans.
If a fictitious name was used and in the course of the case his true name was
known, then there should be formal amendment of the complaint or information
and his true name shall be inserted in the complaint or information.
How material is it that we know the name of the accused? What is important is
the IDENTITY of the accused.
An erroneous name is not material it can be cured by amendment for as long as
the identity of the accused is established.
If there is an error in the name it is not material but can be included later by
amending the information. What is enough is that the accused is identified, or that
his identity is established.
On the Designation of the Offense (Sec. 8., Rule 110) ONE OF THE MOST
IMPORTANT AMENDMENTS
Section 8. Designation of the offense.—The complaint or information shall state
the designation of the offense given by the statute, aver the acts or omissions
constituting the offense, and specify its qualifying and aggravating
circumstances. If there is no designation of the offense, reference shall be
made to the section or subsection of the statute punishing it. (8a)
The rule is that the designation of the offense is not material. What is material are
the averments in the body of the Information. This is what defines or what says
what the accused is charged with. The purpose of an information being to comply
with the constitutional requirement that the accused must be informed of the
charges against him. Thus, an error in the designation of the offense will not
invalidate the Information.
How important is the designation? The designation is not that material. What is
important is the allegations in the body of the information. It is what defines or says
what the accused is charged with.
The purpose of an information being to comply with the Constitutional right of the
accused to be informed of the accusation against him.
You cannot convict him of murder when he was never informed of any qualifying
circumstance. He cannot be convicted when the elements are not stated in the
information. There would be a violation of the right of the accused to be informed of
the charges against him.
Exception to the Rule: When the facts appearing in the body of the complaint or
information are AMBIGUOUS as to permit two or more interpretations, the
designation appearing in the caption controls.
Example:
U.S. v. TICSON, 25 PHIL 67.
Early in the morning of October 6, 1911, and on an occasion when Braulio Calang,
the husband of Epifania Cupo, was absent from home and she was asleep with her
young child in her arms, the defendant entered their house, situated in Surigao, by
cutting the fastenings of the door, approached the sleeping woman and raised her
skirt.
CRIME DESIGNATED WAS TRESPASS TO DWELLING BUT THE FACTS
COULD ALSO CONSTITUTE ACTS OF LASCIVIOUSNESS.
Rule: FOLLOW THE DESIGNATION.
- Because of the confusion, they relied on the designation.
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
16
- Atty. Europa: Why did the fiscal include the lifting of the skirt incident? It has
nothing to do with the crime charged which was trespass to dwelling.
On the Cause of the accusation (Sec. 9, Rule 110) ONE OF THE MOST
IMPORTANT AMENDMENTS
Section 9. Cause of the accusation.—The acts or omissions complained of as
constituting the offense and the qualifying and aggravating circumstances must
be stated in ordinary and concise language and not necessarily in the language
used in the statute, but in terms sufficient to enable a person of common
understanding to know what offense is being charged as well as its qualifying
and aggravating circumstances and for the court to pronounce judgment. (9a)
Other words can be used for as long as the same idea is conveyed.
- Under the 1985 rules, only qualifying circumstances are required to be
included in the information. Ordinary aggravating circumstances were not
required to be included.
- Prior to 2000 rules, even if not alleged but proven = will still be taken into
consideration, Now, it is required that both qualifying and aggravating
circumstances must be alleged. Even if an aggravating circumstance is not
alleged but is proven, it will not be taken into consideration because Sections
8 and 9 require it.
- It is very important that it was given a retroactive application. It is
considered a change in procedural rules which is beneficial to the accused.
For example you are already undergoing trial and an aggravating circumstance
was proven but was not included in the information. Prior to the 2000 rules, that
does not matter.
Question: Are the elements alleged in the Information? Do you need to copy
what is written in the law? No, it is not essential. What is important is that based
on the allegations, all elements of the crime were written. There are elements that
you can presume based on certain allegations.
Penal laws are stated in a certain way wherein the acts of the accused that would
amount to an offense are stated.
Example:
Intent to kill in homicide can be inferred from the other allegations (acts alleged) in
the Information.
Intent to gain in theft can be presumed from the very act of taking itself. It is the act
of appropriating a thing belonging to another.
Even if the information does not state, but the allegation includes that he stabbed
the person 10 times, it can be presumed that he has intent to kill.
How do we know that the allegations are sufficient? Basic Rule In
Determining the Sufficiency of the Allegations in the Information.
People v. Robert P. Balao, et al.,
G.R. No. 176819, January 26, 2011.
“In Cabrera v. Sandiganbayan, the Court held that the fundamental test in
determining the adequacy of the averments in an information is whether the facts
alleged, if hypothetically admitted, would establish the essential elements of
the crime. Matters extrinsic or evidence aliunde should not be considered.”
Must conspiracy be expressly alleged or may it be inferred from the other
allegations in the Information?
- Remember that the importance of conspiracy makes the co-
conspirators co-principals (the act of one is the act of all)
- How should it be alleged?
- Example: Colluding and confederation and in conspiracy
with each other (usual practice)
- It need not be detailed though it is enough that the
statements of facts constitute ordinary language

- Use of the words conspire, and its derivatives (confederate,
connive, collude) or by allegation of facts that would
constitute conspiracy
People v. Ronnie Quitlong, 292 SCRA 360.
“A conspiracy indictment need not, of course, aver all the components of
conspiracy or allege all the details thereof, like the part that each of the parties
therein have performed, the evidence proving the common design or the facts
connecting all the accused with one another in the web of the conspiracy. Neither
is it necessary to describe conspiracy with the same degree of particularity
required in describing a substantive offense. It is enough that the indictment
contains a statement of the facts relied upon to be constitutive of the offense in
ordinary and concise language, with as much certainty as the nature of the case
will admit, in a manner that can enable a person of common understanding to
know what is intended, and with such precision that the accused may plead his
acquittal or conviction to a subsequent indictment based on the same facts.
It is said, generally, that an indictment may be held sufficient ‘if it follows the
words of the statute and reasonably informs the accused of the character of
the offense he is charged with conspiring to commit, or, following the
language of the statute, contains a sufficient statement of an overt act to
effect the object of the conspiracy, or alleges both the conspiracy and the
contemplated crime in the language of the respective statutes defining
them.’"
- Enough for a common person to understand what accusations are
being charged.
How should conspiracy be alleged as a mode of committing an offense?
Rene M. Francisco v. People of the Philippines,
G.R. No. 177430, July 14, 2009.
“it is sufficient to allege conspiracy as a mode of the commission of an offense in
either of the following manners: (1) by the use of the word ‘conspire,’ or its
derivatives or synonyms, such as confederate, connive, collude, etc.; or (2) by
allegations of basic facts constituting the conspiracy in a manner that a person of
common understanding would know what is intended, and with such precision as
would enable the accused to competently enter a plea to a subsequent indictment
based on the same facts.”
In the same case, is it sufficient to alleged that the accused “did then and there,
willfully, unlawfully and knowingly participate in and facilitate the transportation,
concealment, and possession of dutiable electronic equipment and accessories
with a domestic market value of P20,000,000.00 contained in container van no.
TTNU9201241, but which were declared in Formal Entry and Revenue Declaration
No. 118302 as assorted men's and ladies' accessories . . ."?
On this issue the Supreme Court ruled “We find the phrase ‘participate in and
facilitate’ to be a clear and definite allegation of conspiracy sufficient for those
being accused to competently enter a plea and to make a proper defense.”
Issue: No words such as CONSPIRE, CONFEDERATE, CONNIVE.
Supreme Court: The words “participate in and facilitate” used were enough.
Very Important:
Sections 8 and 9 of the Rules have been amended by the Revised Rules on
Criminal Procedure. The said provisions now require that BOTH QUALIFYING
AND ORDINARY AGGRAVATING CIRCUMSTANCES MUST be stated in the
Information.
This requirement is MANDATORY and, being favorable to the accused,
should be given retroactive effect. Thus it affects cases filed prior to the
effectivity of the Revised Rules on December 1, 2000.
People of the Philippines v. Daniel Mauricio,
G.R. No. 133695, February 28, 2001.
“The use of the word ‘must’ indicates that the requirement is mandatory, therefore
failure to comply with Sec. 4, Rule 110, means that generic aggravating
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
17
circumstances, although proven at the trial, cannot be appreciated against the
accused if such circumstances are not stated in the information. It is a cardinal rule
that rules of criminal procedure are given retroactive application insofar as they
benefit the accused.”
- Rules took effect 1 December 2000. This is the case where the
Supreme Court ordered that it be given a retroactive effect.
Example:
People of the Philippines v. Rogelio R. Moreno,
G.R. No. 140033, January 25, 2002.
Nocturnity was not alleged in the Information filed prior to December 1, 2000 but it
cannot be appreciated EVEN IF PROVEN because the new rule is MANDATORY
and is to be given retroactive effect.
People v. Miguelito Malana,
G.R. No. 185716, September 29, 2010.
The twin circumstances of minority of the victim and her relationship to the offender
must concur to qualify the crime of rape. In the instant case, only relationship was
duly alleged and proved.
Sections 8 and 9, Rule 110 of the Revised Rules on Criminal Procedure now
provide that aggravating as well as qualifying circumstances must be alleged in the
information and proven during trial, otherwise they cannot be considered against
the accused. Thus, the same cannot be used to impose the higher penalty of
capital punishment on accused-appellant.
Thus, accused-appellant should be convicted of simple rape only and sentenced
accordingly to reclusion perpetua in each case.
People vs. Renato Dadulla
G. R. No. 172321, February 9, 2011
A rapacious father who vented his lust on his own daughter without any qualms is
allowed to suffer the lesser penalty because of the failure of the criminal
information to aver his relationship with the victim. Even so, the Court condemns
his most despicable crime.”
“The term aggravating circumstance is strictly construed when the appreciation of
the modifying circumstance can lead to the imposition of the maximum penalty of
death. Consequently, the qualifying circumstance of relationship, even if
established during trial, could not affect the criminal penalty of the accused
by virtue of its non- allegation in the information. The accused could not be
convicted of the graver offense of qualified rape, although proven, because
relationship was neither alleged nor necessarily included in the information.
Accordingly, the accused was properly convicted by the CA for simple rape
and justly punished with reclusion perpetua.”
May an aggravating circumstance which was not alleged in the Information
be appreciated in determining CIVIL liability? YES. It can be the basis of
awarding exemplary damages.
EXEMPLARY DAMAGES may be awarded when the commission of a criminal
offense was committed with an aggravating circumstance. It shows that a greater
amount of evil is present. The greater degree of depravity or greater amount of
malice means that he should be punished more by awarding exemplary damages
in favor of the victim.
People v. Suela,
373 SCRA 163, January 15, 2002.
citing People v. Catubig,
363 SCRA 621.
While, under the new rules, an aggravating circumstance that is NOT alleged in the
information CANNOT be appreciated in determining the criminal liability of the
accused, the rules do not prevent its appreciation for the purpose of determining
CIVIL liability.

Are the Suela and Catubig ruling still applicable to cases where the
Information was filed AFTER the effectivity of the 2000 Rules of Criminal
Procedure?
People v. Antonio Dalisay,
G.R. No. 188106, November 25, 2009.
In the instant case, the information for rape was filed in 2003 or after the effectivity
of the Revised Rules. Following the doctrine in the second set of cases, the Court
can very well deny the award of exemplary damages based on Article 2230
because the special qualifying circumstances of minority and relationship, as
mentioned above, were not sufficiently alleged.
Nevertheless, by focusing only on Article 2230 as the legal basis for the grant of
exemplary damages — taking into account simply the attendance of an
aggravating circumstance in the commission of a crime, courts have lost sight of
the very reason why exemplary damages are awarded. Catubig is enlightening on
this point, thus —
Also known as "punitive" or "vindictive" damages, exemplary or corrective
damages are intended to serve as a deterrent to serious wrong doings, and as a
vindication of undue sufferings and wanton invasion of the rights of an injured or a
punishment for those guilty of outrageous conduct. These terms are generally, but
not always, used interchangeably. In common law, there is preference in the use of
exemplary damages when the award is to account for injury to feelings and for the
sense of indignity and humiliation suffered by a person as a result of an injury that
has been maliciously and wantonly inflicted, the theory being that there should be
compensation for the hurt caused by the highly reprehensible conduct of the
defendant — associated with such circumstances as willfulness, wantonness,
malice, gross negligence or recklessness, oppression, insult or fraud or gross fraud
— that intensifies the injury. The terms punitive or vindictive damages are often
used to refer to those species of damages that may be awarded against a person
to punish him for his outrageous conduct. In either case, these damages are
intended in good measure to deter the wrongdoer and others like him from similar
conduct in the future.
Being corrective in nature, exemplary damages, therefore, can be awarded, not
only in the presence of an aggravating circumstance, but also where the
circumstances of the case show the highly reprehensible or outrageous conduct of
the offender. In much the same way as Article 2230 prescribes an instance when
exemplary damages may be awarded, Article 2229, the main provision, lays down
the very basis of the award.
Thus, in People v. Matrimonio, the Court imposed exemplary
damages to deter other fathers with perverse tendencies or
aberrant sexual behavior from sexually abusing their own
daughters. Also, in People v. Cristobal, the Court awarded
exemplary damages on account of the moral corruption, perversity
and wickedness of the accused in sexually assaulting a pregnant
married woman. Recently, in People of the Philippines v. Cristino
Cañada, 47 People of the Philippines v. Pepito Neverio and The
People of the Philippines v. Lorenzo Layco, Sr., the Court awarded
exemplary damages to set a public example, to serve as deterrent
to elders who abuse and corrupt the youth, and to protect the latter
from sexual abuse.
It must be noted that, in the said cases, the Court used as basis Article 2229,
rather than Article 2230, to justify the award of exemplary damages. Indeed, to
borrow Justice Carpio Morales' words in her separate opinion in People of the
Philippines v. Dante Gragasin y Par, "[t]he application of Article 2230 of the Civil
Code strictissimi juris in such cases, as in the present one, defeats the underlying
public policy behind the award of exemplary damages — to set a public example or
correction for the public good."
In this case, finding that appellant, the father figure of the victim, has shown such
an outrageous conduct in sexually abusing his ward, a minor at that, the Court
sustains the award of exemplary damages to discourage and deter such aberrant
behavior. However, the same is increased to P30,000.00 in line with prevailing
jurisprudence.
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
18
- Suela and Catubig were prepared in the 1985 Rules and the
prosecutors were not required to allege the ordinary aggravating
circumstances.
- But if he knew that he must allege the aggravating circumstances, then
the Suela and Catubig cases should no longer apply. In other words,
the aggravating circumstance that is proven but not alleged can no
longer be utilized nor be the basis in awarding exemplary damages.
- But the Justices were smarter. Let us look at the definition of what
exemplary damages are, going back to Article 2229. Took into
consideration the corrective nature of exemplary damages. Even if
what would have amounted to an aggravating circumstance was not
alleged in the information but was proven during trial, it still shows the
highly reprehensible conduct or outrageous conduct of the offender.
Therefore, it can still be the basis for awarding exemplary damages.
Article 2229 Civil Code. Exemplary or corrective damages are imposed, by way
of example or correction for the public good, in addition to the moral, temperate,
liquidated or compensatory damages.
Article 2230 Civil Code. In criminal offenses, exemplary damages as a part of the
civil liability may be imposed when the crime was committed with one or more
aggravating circumstances. Such damages are separate and distinct from fines
and shall be paid to the offended party.
Important Issue:
Since both qualifying and aggravating circumstances must now be stated in
the Information, is it necessary to specify which circumstances are alleged
as qualifying and which are alleged as ordinary aggravating circumstances?
- Should they be distinct in the information?
- Case of Lab-eo: Supreme Court: It does not really matter.
- People v. Alba: It should be strictly construed.
People v. Rodelio R. Aquino,
G.R. Nos. 144340-42, August 6, 2002 reiterated in
People v. Rommel Dela Cruz,
G.R. No. 175929, December 16, 2008.
- There is no conflict between the rulings in People v. Lab-eo and People
v. Alba.
- They followed the logic in Lab-eo. What is important is to comply with
the constitutional right of the accused to be informed of the charges
against him. That is enough. You do not need to specify which is being
alleged as an ordinary circumstance or qualifying circumstance.
“x x x, the Court has repeatedly held, even after the recent amendments to the
Rules of Criminal Procedure, that qualifying circumstances need not be preceded
by descriptive words such as ‘qualifying’ or ‘qualified by’ to properly qualify an
offense. The Court has repeatedly qualified cases of rape where the twin
circumstances of minority and relationship have been specifically alleged in the
Information even without the use of the descriptive words ‘qualifying’ or ‘qualified
by.’ "
"The fact that the circumstances were described as ‘aggravating’ instead of
‘qualifying’ does not take the Information out of the purview of Article 248 of the
Revised Penal Code. Article 248 does not use the word ‘qualifying’ or ‘aggravating’
in enumerating the circumstances that raise a killing to the category of murder.
Article 248 merely refers to the enumerated circumstances as the ‘attendant
circumstances.’"
“We therefore reiterate that Sections 8 and 9 of Rule 110 merely require that the
Information allege, specify or enumerate the attendant circumstances mentioned in
the law to qualify the offense. These circumstances need not be preceded by the
words ‘aggravating/qualifying,’ ‘qualifying,’ or ‘qualified by’ to be considered as
qualifying circumstances. It is sufficient that these circumstances be specified in
the Information to apprise the accused of the charges against him to enable him to
prepare fully for his defense, thus precluding surprises during the trial. When the
prosecution specifically alleges in the Information the circumstances mentioned in
the law as qualifying the crime, and succeeds in proving them beyond reasonable
doubt, the Court is constrained to impose the higher penalty mandated by law. This
includes the death penalty in proper cases.”

You can allege as many circumstances as you can. If there are three of four
qualifying circumstances that were alleged. One of them was already utilized to
change the nature of the offense (from homicide to murder). What will happen to
the rest? All the rest will be utilized as ordinary aggravating circumstance.
If you become a prosecutor, it is better to allege everything that you can allege as
qualifying circumstances.
In cases of rape, is the allegation in the Information that the accused is the
“uncle” of the victim or that the latter is his “niece” sufficient to qualify the
offense?
- The law states: relative within the third degree of affinity or
consanguinity, as the case may be within the third civil degree.
- It would be different if the accused is a relative in the direct line (father,
grandfather) - walang degree, degree
- If collateral, nakalagay if by affinity or consanguinity within the 3rd civil
degree
- If the accused is a relative in the collateral line, there should be an
allegation that the relationship is within the 3rd civil degree. Absent
that, the Information is insufficient.
People v. Marcial L. Llanto,
G.R. No. 146458, January 20, 2003.
The information:
"That on or about (the) twelfth day of November, 1999 at Pasay City and within the
jurisdiction of this Honorable Court, the above-named accused, actuated by lust,
with use of a knife, through force, violence and intimidation, and by taking
advantage of his moral ascendancy over his twelve (12) year old minor niece
MARIA CRISTY T. BALISI, did then and there willfully, unlawfully and feloniously
have carnal knowledge of Ma. Cristy T. Balisi against her will and consent, to her
damage and prejudice in whatever amounts may be awarded to her under
provisions of the Civil Code."
Issue: Was there a sufficient charge of rape qualified by relation? No.
Held:
“In a catena of cases, we have ruled that the allegation that the accused is the
"uncle" of the victim and the latter is his "niece" is not specific enough to satisfy the
special qualifying circumstance of relationship under Art. 266-B, supra. In People
v. Lachica, we held:
"If the offender is merely a relation — not a parent, ascendant, step-parent, or
guardian or common law spouse of the mother of the victim — it must be alleged in
the Information that he is 'a relative by consanguinity or affinity [as the case may
be] within the third civil degree.'" (People v. Libo-on, G.R. No. 136737, May 23,
2001, per Gonzaga-Reyes, J.; People v. Banihit, 339 SCRA 86, 96, August 25,
2000, per Ynares-Santiago, J. — both citing People v. Ferolino, 329 SCRA 719,
735, April 5, 2000, per Davide, CJ.) Moreover, even if the relationship by
consanguinity or affinity is alleged in the Information, it is still necessary to allege
further that such relationship is within the third civil degree. . ." (Emphasis
supplied.)
Consequently, because of the defect in the information, the accused can only be
held liable for simple rape.
As applied:
The failure to allege the accused’s lack of a license for a gun in the
Information negates the appreciation of the special aggravating
circumstance against him.
- Law on Illegal possession of firearms.
- The information must state that the accused did not have a license for
that gun.
People v. Jessielito Badajos, et. al.,
G.R. No. 139692, January 15, 2004.
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
19
“Under Republic Act No. 8294, the use of an unlicensed gun to commit homicide is
a special aggravating circumstance. The culprit's lack of a license for the gun is an
essential element of such circumstance, which must be alleged in the Information
as mandated by Section 8, Rule 110 of the Revised Rules of Criminal Procedure.
However, there is no allegation in the Information that the appellant had no license
to possess the firearm he used to kill Donque. Thus, the appellant's use of an
unlicensed firearm cannot be considered against him.”
- The information must not only state that a gun was used but also that
the accused did not have a license for that gun. Otherwise, it is
insufficient.
ON SECTION 5(b) OF R.A. 7610
Acts of Lasciviousness in relation to Section 5(b) of R.A. 7610
Eduardo Quimvel vs. People G.R.No. 214497, April 18, 2017 READ CASE it
discusses section 5. (B) of RA 7610
- Important: How to apply Section 5 (b) of RA 7610
The Information:
AMENDED INFORMATION
The Undersigned Assistant City Prosecutor of Ligao City hereby
accuses EDUARDO QUIMVEL y BRAGA also known as
EDWARD/EDUARDO QUIMUEL y BRAGA of the crime of Acts of
Lasciviousness in relation to Section 5(b) of R.A. No. 7610, committed
as follows:
That on or about 8 o'clock in the evening of July 18, 2007 at Palapas,
Ligao City, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, with lewd and unchaste design,
through force and intimidation, did then and there, willfully, unlawfully
and feloniously, insert his hand inside the panty of [AAA], 7 a minor of 7
years old and mash her vagina, against her will and consent, to her
damage and prejudice.
ACTS CONTRARY TO LAW.
ISSUE: Can the allegations in this Information be sufficient to justify a
conviction for Acts of Lasciviousness IN RELATION TO Section 5 (b) of RA
7610? INCLUDED IN EXAM
Section 5. Child Prostitution and Other Sexual Abuse. – Children, whether male or
female, who for money, profit, or any other consideration or due to the coercion or
influence of any adult, syndicate or group, indulge in sexual intercourse or
lascivious conduct, are deemed to be children exploited in prostitution and other
sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall
be imposed upon the following:
(a)xxxxxxxxx
(b) Those who commit the act of sexual intercourse of lascivious conduct with a
child exploited in prostitution or subject to other sexual abuse; Provided, That when
the victims is under twelve (12) years of age, the perpetrators shall be prosecuted
under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as
amended, the Revised Penal Code, for rape or lascivious conduct, as the case
may be: Provided, That the penalty for lascivious conduct when the victim is under
twelve (12) years of age shall be reclusion temporal in its medium period; and
Contention of the Accused:
Petitioner contends that, granting without admitting that he is guilty of Acts of
Lasciviousness, he should only be held liable for the crime as penalized under the
RPC and not under RA 7610. According to him, to be held liable under the latter
law, it is necessary that the victim is involved in or subjected to prostitution or other
sexual abuse, and that the failure to allege such element constituted a violation of

his constitutional right to be informed of the nature and the cause of accusation
against him.
RULING OF THE SUPREME COURT:
To the mind of the Court, the allegations are sufficient to classify the victim as one
"exploited in prostitution or subject to other sexual abuse." This is anchored on the
very definition of the phrase in Sec. 5 of RA 7610, which encompasses children
who indulge in sexual intercourse or lascivious conduct (a) for money, profit, or any
other consideration; or (b) under the coercion or influence of any adult, syndicate
or group.23
Correlatively, Sec. 5(a) of RA 7610 punishes acts pertaining to or connected with
child prostitution wherein the child is abused primarily for profit. On the other hand,
paragraph (b) punishes sexual intercourse or lascivious conduct committed on a
child subjected to other sexual abuse. It covers not only a situation where a child is
abused for profit but also one in which a child, through coercion, intimidation or
influence, engages in sexual intercourse or lascivious conduct. 24 Hence, the law
punishes not only child prostitution but also other forms of sexual abuse against
children. This is even made clearer by the deliberations of the Senate, as cited in
the landmark ruling of People v. Larin:
Clear from the records of the deliberation is that the original wording of Sec. 5 of
RA 7610 has been expanded so as to cover abuses that are not characterized by
gain, monetary or otherwise. In the case at bar, the abuse suffered by AAA
squarely falls under this expanded scope as there was no allegation of
consideration or profit in exchange for sexual favor. As stated in the Information,
petitioner committed lascivious conduct through the use of ''force" and
"intimidation."
On the place of commission of the offense (Sec. 10, Rule 110)
Section 10. Place of commission of the offense. —The complaint or
information is sufficient if it can be understood from its allegations that the
offense was committed or some of its essential ingredients occurred at some
place within the jurisdiction of the court, unless the particular place where it was
committed constitutes an essential element of the offense charged or is
necessary for its identification. (10a)
The place need not be specific for as long as it is clear that the offense was
committed within the jurisdiction of the court where it was filed.
General Rule: You only need to indicate the place of commission sufficient for the
court to know or be able to determine that it has territorial jurisdiction over the
offense charged.
Exception: The place must be specific only in cases where it is an essential
element of the offense or necessary for the identification of the offense.
Example: Some Violations of the Omnibus Election Code such as entering a
polling place where the accused is not a voter therein nor an authorized watcher of
a candidate or party.
- Sufficient for the Court to know that they have territorial jurisdiction.
What is important is that it becomes known to the Court that it is within
the Court’s territorial jurisdiction.
- Safe samin, gusto mo mag paralegal?
- If you enter a polling precinct without authority: example of an election
offense
- The allegation must specifically put where the offense happened.
Because the offense cannot be committed in a place that is not a
specific precinct. (Municipality, barangay, precint number)
- Unless the BEI call upon police and army officers, they cannot also
enter.
On the date of the commission of the offense (Sec. 11, Rule 110)
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
20
Section 11. Date of commission of the offense. —It is not necessary to state
in the complaint or information the precise date the offense was committed
except when it is a material ingredient of the offense. The offense may be
alleged to have been committed on a date as near as possible to the actual
date of its commission. (11a)
General Rule: The date or the time of commission need not be specific. The
phrase “on or about” is sufficient to cover a span of a few months.
Exception: When the date or time is an essential element of the offense. In this
case, the information has to be specific.
Example: Violation of the liquor ban on the day prior to or on the day of the
elections. Also in the crime of “infanticide” which must be committed within 72
hours (three days) from the birth of the child otherwise it would be murder.
- The words on or about are sufficient
- If the victim does not remember accurately, it is not sufficient to acquit
the accused.
- In rape cases: unless shown by a series of questions that he is lying
Exception: when the date or time is an essential element, the Information has
to be specific
Liquor Ban during Elections
- Liquor ban hahahha, sarap mag inum before election
- Liquor Ban ni Syed na sige violate
- Election offenses na si Bapa Pike nagavote for Syed HAHAHA hindi uy
Infanticide
- If not within three days from birth of child then it is already murder
(qualified by abuse of superior strength if child of tender years)
- On or about covers a few days or few months
People v. Meliton T. Jalbuena, G.R. No. 171163, July 4, 2007.
Is an allegation that the offense of statutory rape was committed “on or
about the month of August 1996” sufficient?
“In rape, the gravamen of the offense, being the carnal knowledge of a woman, the
date is not an essential element, hence, the specification of the exact date or time
of its commission is not important.
In statutory rape, like in this case, what matters most is that the information alleges
that the victim is a minor under twelve years of age and that the accused had
carnal knowledge of her.”
- What is important is that it was alleged in the Information that the victim
was under 12 years of age.
People v. Nelson Arraz,
G.R. No. 163695, October 24, 2008.
Information for Rape alleges the date of commission as “on or about the 20th day
of April, 2003 but the testimony showed that the offense was committed in the
early morning of April 21, 2003.
“[T]he Court sustains the lower courts in holding that the date of the commission of
the rape is not an essential element of the crime. Even a variance of a few months
between the time in the Information and that established by the evidence during
the trial has been held not to constitute a serious error warranting the reversal of a
conviction on that ground.” (reiterated in People v. Gualberto s. Cinco, G.R. No.
186460, December 4, 2009)
On the Name of the Offended Party (Sec. 12, Rule 110)
Section 12. Name of the offended party.—The complaint or information must
state the name and surname of the person against whom or against whose
property the offense was committed, or any appellation or nickname by which

such person has been or is known. If there is no better way of identifying him,
he must be described under a fictitious name.
(a) In offenses against property, if the name of the offended party is unknown,
the property must be described with such particularity as to properly identify the
offense charged.
(b) If the true name of the person against whom or against whose property the
offense was committed is thereafter disclosed or ascertained, the court must
cause such true name to be inserted in the complaint or information and the
record.
(c) If the offended party is a juridical person, it is sufficient to state its name, or
any name or designation by which it is known or by which it may be identified,
without need of averring that it is a juridical person or that it is organized in
accordance with law. (12a)
General Rule: “The complaint or information must state the name and surname of
the person against whom or against whose property the offense was committed, or
any appellation or nickname by which such person has been or is known.”
- You have to property identify.
- But appellation or nickname is oki
- Why is it important?
- What is important is the identity - that the accused is identified during
trial as being the one who committed the offense.
If the accused: What if the name is unknown? For as long as there are
witnesses who testified
If offended party: How specific do you have to be? It depends on the offense.
General Rule: You have to be able to identify and be specific about the particular
person who is the victim.
- A crime against A is different from the same crime committed against B.
For example murder: A was charged of having killed B. During trial, it was proven
that it was C whom he killed. He cannot be convicted under that Information. The
crimes are different and distinct. But, he will not be scotch free.
Tumultuous affray : When it cannot be identified who committed what against
who.
“ARTICLE 251 RPC. Death Caused in a Tumultuous Affray. — When, while
several persons, not composing groups organized for the common purpose of
assaulting and attacking each other reciprocally, quarrel and assault each other in
a confused and tumultuous manner, and in the course of the affray someone is
killed, and it cannot be ascertained who actually killed the deceased, but the
person or persons who inflicted serious physical injuries can be identified, such
person or persons shall be punished by prisión mayor.
If it cannot be determined who inflicted the serious physical injuries on the
deceased, the penalty of prisión correccional in its medium and maximum periods
shall be imposed upon all those who shall have used violence upon the person of
the victim.”
Examples:
Slander
People of the Philippines v. Juliana Uba, 99 Phil 134.
“While it is probably true that the fiscal or his clerk made a clerical error in putting
in the information the name of Pastora Somod-ong instead of that of Demetria
Somod-ong, as the offended party, the mistake thus committed was on a very
material matter in the case, such that it necessarily affected the identification of the
act charged. The act of insulting X is distinct from a similar act of insult against Y,
even if the insult is preferred by the same person, in the same language and at
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
21
about the same time. Note that the pleading that give the court jurisdiction to try
the offense is not the complaint of the offended party, but the information by the
fiscal, because the charge is the utterance of insulting or defamatory language, not
the imputation of an offense which can be prosecuted only at the instance of the
offended party. (People v. Marquez, 68 Phil. 521; Blanco v. People, 70 Phil. 735)
Statutory Rape: It is not enough that you put the name, you must also allege that
the victim is below 12 years of age.
Qualified Seduction: the victim must be alleged to be a “virgin” - not virgin is
a woman of disrepute.
Arturo Borjal v. Court of Appeals,
G.R. No. 126466, January 14, 1999.
- If the article did not disclose the name, but you claim to be the victim.
- Rule: Third persons must be able to identify the victim.
In order to maintain a libel suit, it is essential that the victim be identifiable although
it is not necessary that he be named. It is also not sufficient that the offended party
recognized himself as the person attacked or defamed, but it must be shown that
at least a third person could identify him as the object of the libelous publication.
(citing Kunkle v. Cablenews-American, 42 Phil. 757 (1922). See also Corpus v.
Cuaderno, Sr., No. L-16969, 30 April 1966, 16 SCRA 807; People v. Monton, No.
L-16772, 30 November 1962, 6 SCRA 801)
Statutory Rape
“the victim must be described as being below 12 years of age”
People of the Philippines v. Renato Puzon G.R. Nos. 123156-59, August 29,
2000.
“Clearly, conviction of appellant for statutory rape (absent any allegation in the
information that the complainants were below 12 years of age at the time of the
rape), and not for rape through force or intimidation, which was the method alleged
— would violate the right of the appellant to be informed of the nature of the
accusation against him; which right is granted. by the Constitution to every
accused to the end that he could prepare an adequate defense for the offenses
charged against him. Convicting appellant of a crime not alleged while he is
concentrating his defense against the offense alleged would be unfair and
underhanded.”
What about crimes against property?
General Rule: You still have to identify the offended party. If you do not know who
the offended party is, then what is needed is a description of the property which is
the subject matter of the case. Not really true
Exception to the General Rule:
In offenses against property, if the name of the offended party is unknown, the
property must be described with such particularity as to properly identify the
offense charged.
Is this true? Not really.
2 Schools of Thought
1. US v. Lahoylahoy case - 39 phil 330 : In crimes against property, the
general rule is what is important is the description of the property, even
if there is a mistake in naming the offended party but the property is
properly described. Then, the accused can still be convicted.
Exception: robbery with violence and intimidation (against a particular
person)
Generally, identification of the victim is not that important, description of
property is needed except robbery with violence and intimidation.
2. Ramoncita Senador v. People (March 6, 2013) : There was a different
interpretation of the case of US v. Lahoylahoy. Even in crimes against
property that is not attended by violence or intimidation, the determining

factor is the question of whether or not the property subject of the case
is generic or unique.
- If generic: such as money, you have to specifically designate the
offended party. The error is fatal.
- If specific and identifiable: such as check, an error in the designation
of the offended party is immaterial. A description of the property is what
is important.
IN CRIMES AGAINST PROPERTY
People v. CFI of Quezon City,
G.R. No. L-41903, June 10, 1992.
We rule that it was an error for the lower court to dismiss the Information. The
Information was already sufficient in form and substance. The argument that it was
fatal for the prosecution not to have alleged the State as the offended party is
without merit for in the case of Sayson v. People, G.R. No. 51745, October 28,
1988, 166 SCRA 680, in construing Section 11 of Rule 110 (now Sec. 12, Rules of
Court of the 1985 Rules on Criminal Procedure), we have clearly held that in
offenses against property, the designation of the name of the offended party is not
absolutely indispensable as long as the criminal act charged in the complaint or
information can be properly identified.
Ramon F. Sayson v. People of the Phils.
G.R. No. L-51745, October 28, 1988.
“The petitioner vigorously maintains that he cannot be justifiably convicted under
the information charging him of attempting to defraud Ernesto Rufino, Sr. and/or
Bank of America because the totality of the evidence presented by the prosecution
show very clearly that the accused allegedly attempted to defraud Mever Films,
Inc., a corporate entity entirely separate and distinct from Ernesto Rufino, Sr. He
firmly asserts that his conviction was in gross violation of his right to be informed of
the nature and cause of the accusation against him.
Petitioner's claim is unavailing. The rule in this jurisdiction is that "variance
between the allegations of the [I]nformation and the evidence offered by the
prosecution in support thereof does not of itself entitle the accused to an acquittal."
(People v. Catli, G.R. No. L-11641, November 29, 1962, 6 SCRA 642) The rules
on criminal procedure require the complaint or information to state the name and
surname of the person against whom or against whose property the offense was
committed or any appellation or nickname by which such person has been or is
known and if there is no better way of identifying him, he must be described under
a fictitious name. (Rule 110, Section 11, Revised Rules of Court; now Rule 110,
Section 12 of the 1985 Rules on Criminal Procedure) In case of offenses against
property, the designation of the name of the offended party is not absolutely
indispensable for as long as the criminal act charged in the Complaint or
Information can be properly identified.
Exception To The Exception:
Robbery with violence or intimidation
The case of U.S. v. Lahoylahoy, 38 Phil., 330, appears to us to be in point and
decisive of the case. The reasons for the decision in that case were, first, because,
to convict a person of robbing X when the person robbed is Y is violative of the
principles of pleading and, second, because then the plea of double jeopardy
would be of no avail to an accused. To this same effect is our decision in People v.
Balboa, 90 Phil., 5. (quoted from the Uba case)
Another Way of Applying the Rule as Explained in
Ramoncita O. Senador v. People of the Philippines, et al.,
G.R. No. 201620, March 6, 2013.
We conclude that in offenses against property, if the subject matter of the offense
is generic and not identifiable, such as the money unlawfully taken as in
Lahoylahoy an error in the designation of the offended party is fatal and would
result in the acquittal of the accused. However, if the subject matter of the offense
is specific and identifiable, such as a warrant, as in Kepner, or a check, such as in
Sayson and Ricarze, an error in the designation of the offended party is immaterial.
DUPLICITOUS COMPLAINT OR INFORMATION (Sec.13, Rule 110)
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
22
Section 13. Duplicity of the offense.—A complaint or information must charge
only one offense, except when the law prescribes a single punishment for
various offenses. (13a)
Duplicitous Information
An Information charging more than one offense is called a duplicitous
Information.
General Rule: ONLY ONE OFFENSE PER INFORMATION
If the facts are the same? Like bp 22? And estafa? Pano yun?
- Like if there are 12 checks issued for installment, the only differences
are the dates and check numbers. The fiscal will be tempted to just
make a list of the checks.
- Is it defective? YES, Section 13 states so. In BP 22, each check is a
separate offense. If there are 12 checks, there should also be 12
separate Informations.
This defect is wavable. If the accused does not raise the defect before
arraignment, it will be waived. (Motion to Quash for duplicitous information)
Although, this is a good example of instances where the rules say that the accused
has the right for the quashal of the offense and on the other hand, you have the
question of SHOULD YOU?
- if you are defense - 20 cases of BP 22 issued by karen
- 20 ka cheke naka lista sa isang information
- Motion to quash?
- Brayt BRAAAYT CHILDREN OF GOD ka, nagfile ka ng motion to
quash. The prosecutor will be ordered to file a separate Information. So,
tama ka! The client will now tell you that, “Atty. diba isa lang man yung
kaso? Bat naging baynte?” You will present the same evidence. “Kung
gipabayaan?” Once case but you may still be convicted for 20 cases.
- TAMA KA BA HOTORNEY? It is a separate matter to decide whether
you should enforce it. It might end up not being beneficial to your client.
- You can only file for Probation only once. Pwede magprobation? Yes,
for as long as none of the the penalty exceeds 6 years. (People v. Lim)
GR: Each information/complaint must allege only one offense EXCEPT when
the law prescribes a single punishment for various offenses.
- When the law prescribes a single punishment for various offenses.
- Article 48 of the Revised Penal Code on complex crimes.
Rule:
People of the Philippines v. Manalili,
G.R. No. 121671, August 14, 1998.
Under the Constitution, an accused has the right to be informed, before trial, of the
nature of the offense with which he or she is charged. Regardless of how
conclusive and convincing the evidence of guilt may be, there can be no
conviction, unless the offense is charged (or is necessarily included) in the
Complaint or Information. On the other hand, an accused, who fails to object prior
to arraignment to a duplicitous information, may be found guilty of any or all of the
crimes alleged therein and duly proven during the trial, for the allegation of the
elements of such component crimes in the said information has satisfied the
constitutional guarantee that an accused be informed of the nature of the offense
with which he or she is being charged.
THE EXCEPTION:
Does not apply to complex crimes, compound crimes, continued crimes, and
special complex crimes and other instances where only one penalty will be
imposed on several crimes.
Complex Crimes in General
Article 48 of the Revised Penal Code

1. Delito Complejo (Complex Crimes Proper)
When an offense is a necessary means for committing the other.
Example: Estafa through falsification of documents
Note: Article 48 also applies to culpable felonies (criminal negligence)
People of the Philippines v. Glenn De Los Santos,
G.R. No. 131588, March 27, 2001.
In Reodica v. Court of Appeals, we ruled that if a reckless, imprudent, or negligent
act results in two or more grave or less grave felonies, a complex crime is
committed. Thus, in Lapuz v. Court of Appeals, the accused was convicted, in
conformity with Article 48 of the Revised Penal Code, of the complex crime of
"homicide with serious physical injuries and damage to property through reckless
imprudence," and was sentenced to a single penalty of imprisonment, instead of
the two penalties imposed by the trial court. Also, in Soriao v. Court of Appeals, the
accused was convicted of the complex crime of "multiple homicide with damage to
property through reckless imprudence" for causing a motorboat to capsize, thereby
drowning to death its 28 passengers.
- Complex crimes propper can also apply to culpa
2. Delito Compuesto (Compound Crimes)
A single act constitutes two or more grave or less grave felonies.
Example: one gunshot hitting and killing two people.
Interesting case: Is there such a crime as Murder with Abortion?
People of the Philippines. v. Bonifacio Lopez,
G.R. No. 136861, November 15, 2000.
It must be emphasized that accused-appellant was charged with the complex
crime of murder with abortion, not of two independent charges of murder and
unintentional abortion. In a complex crime, although two or more crimes are
actually committed, they constitute only one crime in the eyes of the law. The
stabbing and killing of the victim which caused likewise the death of the fetus arose
from the single criminal intent of killing the victim, as shown by accused-appellant's
pursuit of the victim after she was able to escape. (People v. Alacar, 211 SCRA
580 [1992])
Effect of Complex Crimes:
In a complex crime, the penalty for the more or the most serious crime shall be
imposed, the same to be applied in its maximum period. As between murder and
unintentional abortion, murder is the more serious crime and the penalty therefor is
reclusion perpetua to death. Death being the maximum or the greater penalty must
then be imposed, and since this is an indivisible penalty, the presence of mitigating
or aggravating circumstances is inconsequential.
- There is only one penalty but graver penalty is maximized
3. Delito Continuado (Continued Crimes)
Also known as “Single Larceny Doctrine”
A series of acts arising out of a single criminal intent not under Article 48 but is
applied by the Supreme Court in the case of 49 Phil. 437 [1926].
People v. De Leon: Theft of 2 fighting cocks. He was only convicted once
because the two acts arose from a single criminal intent.
Santiago v. Garchitorena : Miriam Santiago case on aliens
APPLIED IN THE FOLLOWING:
1) The theft of 13 cows belonging to two different owners committed by the
accused at the same place and at the same period of time. (People v.
Tumlos, 67 Phil. 320 [1939])
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
23
2) The theft of six roosters belonging to two different owners from the
same coop and at the same period of time. (People v. Jaranillo, 55
SCRA 563 [1974])
3) The theft of two roosters in the same place and on the same occasion.
(People v. De Leon, 49 Phil. 437 [1926])
4) The illegal charging of fees for services rendered by a lawyer every time
he collects veteran's benefits on behalf of a client, who agreed that the
attorney's fees shall be paid out of said benefits. (People v. Sabbun, 10
SCRA 156 [1964]) The collections of the legal fees were impelled by the
same motive, that of collecting fees for services rendered, and all acts
of collection were made under the same criminal impulse. (People v.
Lawas, 97 Phil. 975 [1955])
REMINDER: If there is a gap of a day, you cannot consider is as delito
continuado. - kada gising mo, hindi ka na tulog, that is a separate criminal
intent already
When you wake up, it’s a new day. CHAROT
NOT APPLIED IN THE FOLLOWING:
1) Two estafa cases, one of which was committed during the period from
January to December 1955 and the other from January 1956 to July
1956. (People v. Dichupa, 113 Phil. 306 [1961]) The said acts were
committed on two different occasions.
2) Several malversations committed in May, June, and July 1936, and
falsifications to conceal the said offenses committed in August and
October 1936. The malversations and falsifications "were not the result
of only one purpose or of only one resolution to embezzle and
falsify . . ." (People v. Cid, 66 Phil. 354 [1938])
3) Two estafa cases, one committed in December 1963 involving the
failure of the collector to turn over the installments for a radio and the
other in June 1964 involving the pocketing of the installments for a
sewing machine. (People v. Ledesma, 73 SCRA 77 [1976])
4) 75 estafa cases committed by the conversion by the agent of collections
from customers of the employer made on different dates. (Gamboa v.
Court of Appeals, 68 SCRA 308 [1975])
Explained in Santiago v. Garchitorena, 228 SCRA 214
and made to apply to special laws under Article 10 of the RPC.
In the case at bench, the original Information charged petitioner with performing a
single criminal act — that of her approving the application for legalization of aliens
not qualified under the law to enjoy such privilege. The 32 Amended Informations
reproduced verbatim the allegation of the original Information, except that instead
of the word "aliens" in the original Information each amended information states
the name of the individual whose stay was legalized.
- While she was accused of Mala Prohibita, the Single Larceny Doctrine
still applies due to Article 10 of the RPC. “ARTICLE 10. Offenses Not
Subject to the Provisions of this Code. — Offenses which are or in the
future may be punishable under special laws are not subject to the
provisions of this Code. This Code shall be supplementary to such laws,
unless the latter should specially provide the contrary.”
As Applied to Shooting Incidents
One shot three dead = one crime (People of the Philippines v. Hubilo 220 SCRA
389) – compound crime (delito complejo)
Three shots, three dead on one occasion = separate crimes (People v. Ducay, 225
SCRA 1)
Single pressing of the trigger of a machine gun resulting to multiple victims =
separate crimes (People of the Philippines v. Tabaco 270 SCRA 32) as many
crimes as there are victims.
- What if an automatic rifle was used?
- Semi-automatic:
- Full-automatic:

- Single act of pulling the trigger pero inubos ang magazine? 10 people
died. It was not a single-act. There is a conscious decision to keep
pressing the trigger, knowing well that there were 10 bullets
- the giving of 'unwarranted' benefits through gross inexcusable negligence" while in
4. Hernandez Doctrine
People of the Philippine vs. Amado Hernandez, 99 Phil 515 and Enrile v.
Salazar 186 SCRA 217
The felony of rebellion absorbs common crimes committed pursuant to the
rebellion.
- rebellion : absorption of all common crimes
Atty. Europa: Can Rape ever be absorbed in rebellion?
For example: A woman soldier was captured by NPA. She was raped in order to
make her admit where their camp is.
- Yes? OH REALLY?
- Pustahan. Or sguro kasi they can use it as means to achieve their
goal?
- Rape is already a crime against persons not crime against chastity
Remember the ratio behind the Hernandez Doctrine : crimes committed in
furtherance or in pursuant to rebellion will be absorbed.
- Atty. Europa would say he cannot - because for a man to fuck a woman
it has to be accompanied by purient interest, and lustful intent.
- It cannot be purely in furtherance of rebellion.
Feel ko gud pwede, mga isis man gani mang rape as right of conquest.
Kasi for him, prurient interest lagiii. Tas iba baya goal ng rebellion.
5. Special Complex Crimes specifically provided for in the RPC
Examples:
Robbery with Rape Article 335 of the RPC, as amended by R.A. No. 7659
Robbery with Homicide Article 294
Note:
An Information alleging more than one way the same crime was committed
IS NOT DUPLICITOUS.
- It just alleges multiple modes of commission but still charges one crime.
Example:
People v. Buenviaje, 47 Phil. 536,.
“[W]here the defendant was charged with violation of the Medical Law and the
[I]nformation charged both illegal practice of medicine and illegally advertising
oneself as a doctor, it was held that "the [I]nformation was not bad for duplicity
inasmuch as the acts charged were merely different means of committing the
same offense, notwithstanding the fact that they are prohibited by separate
sections of the statute.”
- Illegal practice of medicine without the license to do so
- Illegal advertising
Bernardo Gallego v. Sandiganbayan,
G.R. No. L-57841, July 30, 1982.
The chairman and three other members of the Board for Marine Deck Officers in
the May 1979 examinations, two of whom are petitioners, were charged in the
Sandiganbayan for violation of Section 3(e) of the Anti-Graft and Corrupt Practices
Act, for giving unwarranted benefits to particular examinees. In the motion to quash
the aforesaid Information, petitioners Gallego and Agoncillo claimed, among
others, that Section 3(e) of the Anti-Graft and Corrupt Practices Act is null and void
because it is unconstitutionally vague and therefore cannot be a basis of any
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
24
criminal prosecution and that the information charges the accused with three
distinct offenses, to wit: "(a) the giving of 'unwarranted' benefits through manifest
partiality; (b) the giving of 'unwarranted' benefits through evident bad faith; and (c)
the discharge of their official and/or administrative functions. The motion to quash
was denied by the Sandiganbayan. Hence this petition.
The Supreme Court held that Section 3(e) of the Anti-Graft and Corrupt Practices
Act does not suffer from the constitutional defect of vagueness since the phrases
"manifest partiality,'' "evident bad faith'' and "gross inexcusable negligence'' merely
describe the different modes by which the offense penalized in the said section of
the statute may be committed, and the use of all the phrases in the same
information does not mean that the indictment charges three distinct offenses.
AMENDMENT OR SUBSTITUTION (Sec. 14, Rule 110)
Section 14. Amendment or substitution.—A complaint or information may be
amended, in form or in substance, without leave of court, at any time before the
accused enters his plea.
After the plea and during the trial, a formal amendment may only be made with
leave of court and when it can be done without causing prejudice to the rights of
the accused.
However, any amendment before plea, which downgrades the nature of the
offense charged in or excludes any accused from the complaint or information,
can be made only upon motion by the prosecutor, with notice to the offended
party and with leave of court. The court shall state its reasons in resolving the
motion and copies of its order shall be furnished all parties, especially the
offended party. (n)
If it appears at any time before judgment that a mistake has been made in
charging the proper offense, the court shall dismiss the original complaint or
information upon the filing of a new one charging the proper offense in
accordance with section 19, Rule 119, provided the accused shall not be placed
in double jeopardy. The court may require the witnesses to give bail for their
appearance at the trial. (14a)
AMENDMENT : means to change, not to replace
SUBSTITUTION : it means to change it completely “substitution” or replacing one
for another
Remember when the amendment was done BEFORE or AFTER the
arraignment.
Why? DOUBLE JEOPARDY
If done prior to arraignment then there is absolutely no danger of double jeopardy.
Once there is arraignment, there is already that danger of double jeopardy.
RULES ON AMENDMENTS BEFORE PLEA
General Rule: Before the arraignment of the accused, the prosecution may amend
the Information whether in form or in substance. (minor or major changes are
allowed)
There is one limit: If the amendment will result in the Court not having jurisdiction
over the case anymore. (According to Atty. Europa)
- Reckless imprudence, premised on culpa. Then you amended it into
reckless imprudence resulting to homicide, then it became premised on
dolo because he knows the victim, so it is now murder because there is
a use of motor vehicle. No longer under MTC jurisdiction but now under
RTC jurisdiction.
Exception Introduced in the Revised Rules of Criminal Procedure:
However, any amendment before plea, which downgrades the nature of the
offense charged in or excludes any accused from the complaint or information, can

be made only upon motion by the prosecutor, with notice to the offended party and
with leave of court. The court shall state its reasons in resolving the motion and
copies of its order shall be furnished all parties, especially the offended party. (n)
Danger: The fiscal may be bribed to change the crime charged from murder to
homicide so that the accused can post bail.
There were questionable amendments.
There are also prosecutors, who are honest, who need to amend the information.
Leave of Court
- They need the permission or authority from the Court to amend the
Information.
- Motion to admit amended information, Motion for leave to amend
RULES ON AMENDMENTS AFTER PLEA (can only be FORMAL amendment)
“After the plea and during the trial, a formal amendment may only be made with
leave of court and when it can be done without causing prejudice to the rights of
the accused”
Requisites:
1. The amendment is merely formal; (cannot be substantial)
2. There must be leave of court;
3. It must not prejudice the rights of the accused;
Formal v. Substantial Amendments
Substantial amendments consists of major or material changes in the information,
such as a change in the manner of the commission of the offense, in the date of
the commission over a wide span of time, or change in the name of the victim or
offended party.
Formal amendments come in the form of correcting the spelling or clerical errors
or other minor changes in the Information which merely states with additional
precision something which is already contained in the original information, and
which, therefore, adds nothing essential for conviction for the crime charged.
Ortega Case (From murder through stabbing to murder through drowning)
- Substantial. You cannot say that it is the same offense.
- He drowned the victim. When the victim died, he stabbed him.
- What was proven was murder with drowning.
- The fiscal shall no longer be allowed to amend the Information.
Examples of Formal Amendments: Minor changes such as spelling. Adds
nothing essential to the crime charged.
In the case of Dennis T. Gabionza v. Court of Appeals, G.R. No. 140311, March
30, 2001, the Supreme court said that “Jurisprudence allows amendments to
information so long as:
1. it does not deprive the accused of the right to invoke prescription;
2. it does not affect or alter the nature of the offense originally charged;
3. it does not involve a change in the basic theory of the prosecution so as
to require the accused to undergo any material change or modification
in his defense;
4. it does not expose the accused to a charge which would call for a
higher penalty;
5. it does not cause surprise nor deprive the accused of an opportunity to
meet the new averment.
- An existing defense of the accused will no longer be applicable.
Cases:
Vega v. Panis, No. L-40842, September 30, 1982, 117 SCRA 269.
People v. Casey, No. L-30146, February 24, 1981, 103 SCRA 21.
Examples of Substantial Amendments:
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
25
1. An amendment which changes the manner of the commission of the
offense
People of the Philippines v. Zulueta, 89 Phil. 755
The allegation of conspiracy among all the private respondents-accused, which
was not previously included in the original information, is likewise a substantial
amendment saddling the respondents with the need of a new defense in order to
meet a different situation in the trial court.
2. An amendment which changes the name of the offended party
People of the Philippines vs. Juliana Uba, 99 Phil 134
An amendment to change the name of the offended party in the information to the
name of the true victim as established by evidence is substantial because
defamation against X is different from defamation against Y.
Do not confuse this with
Danilo Buhat v. CA, G.R. No. 119601, December 17, 1996.
“[T]he amendment to replace the name, "John Doe" with the name of Renato
Buhat who was found by the Secretary of Justice to be one of the two persons who
held the arms of the victim while petitioner was stabbing him, is only a formal
amendment and one that does not prejudice any of the accused's rights. Such
amendment to insert in the [I]nformation the real name of the accused involves
merely a matter of form as it does not, in any way, deprive any of the accused of a
fair opportunity to present a defense; neither is the nature of the offense charged
affected or altered since the revelation of accused's real name does not change
the theory of the prosecution nor does it introduce any new and material fact. In
fact, it is to be expected that the information has to be amended as the unknown
participants in the crime became known to the public prosecutor.”
3. An amendment to change the date of commission of the offense over a
wide span of time.
People v. Alfredo C. Reyes, G.R. No. L-32557, October 23, 1981.
In the present case, private respondent Francisco Estrella was investigated for an
offense allegedly committed in August 1964. Then, he was charged for an offense
allegedly committed in August 1969. He pleaded not guilty to the latter charge.
Now petitioner desires to put him on trial for the alleged 1964 offense. This cannot
legally be done.
While it has been held that except when time is a material ingredient of an offense,
the precise time of commission need not be stated in the Information, this Court
stated that this does not mean that the prosecuting officer may be careless about
fixing the date of the alleged crime, or that he may omit the date altogether, or that
he may make the allegation so indefinite as to amount to the same thing. The
prosecution is given the chance to allege an approximation of time of the
commission of the offense and the precise date need not be stated but it does not
mean that it can prove any date remote or far removed from the given approximate
date so as to surprise and prejudice the accused.
Note:
Dennis T. Gabionza v. Court of Appeals, G.R. No. 140311, March 30, 2001.
“The public prosecutor filed a Motion for Leave of Court to Amend Information, to
change the material dates stated in the Information from "January 1991 to May
1993" to "January 1991 to May 1992." Petitioner opposed the motion contending
that the proposed amendment was substantial in nature, hence to allow the same
would be a violation of his right to be informed of the cause and nature of the
accusation against him, and would negate or prejudice defenses that were
otherwise available to him.”
Held: In the case at bar, it is clear that the questioned amendment is one of form
and not of substance. The allegation of time when an offense is committed is a
matter of form, unless time is a material ingredient of the offense. It is not even
necessary to state in the Information the precise time the offense was committed
unless time is a material factor. It is sufficient that the act is alleged to have been

committed at any time as near to the actual date at which the offense was
committed as the Complaint or Information will permit.
Thus, petitioner's argument that the amendment prejudiced his rights is untenable.
We fail to see how his original defenses would be rendered inapplicable by the
amendment, nor the prosecution's theory in anyway altered by the same. Petitioner
failed to adduce any evidence in support of his allegation that the amendment
would adversely affect his rights.
Note: But if the change is only within a span of a few months such as from June
24, 1981 to August 28, 1981, the amendment is formal. (People of the Philippines
v. Borromeo, 123 SCRA 253) (See also People of the Philippines v. Molero 144
SCRA 397)
Diffe: Gabionza case alleged series of acts from January 1991 to May 1993, the
amendment they want was from 1991 to 1992. This is only formal because it
shortens the period. But if it is the other way, it is material or substantial
amendment.
4. An amendment for the purpose of making the Information charge an
offense when the original information does not charge any offense.
5. An amendment which changes the fact or ground of responsibility of the
accused. (For example one is charged from an accomplice to a principal)
People v. Hon. Eduardo Montenegro, et al., G.R. No. L-45772, March 25, 1988.
It will be observed that private respondents were accused as accessories- after-
the-fact of the minor Ricardo Cabaloza who had already been convicted of robbery
of the items listed in the original information. To charge them now as accessories-
after-the-fact for a crime different from that committed by the principal, would be
manifestly incongruous as to be allowed by the Court.
“when it can be done without causing prejudice to the rights of the accused”
- Ĭf it will prejudice the rights of the accused = not allowed
TEST TO DETERMINE WHETHER OR NOT THE ACCUSED WILL BE
PREJUDICED BY THE AMENDMENT
“The test as to when the rights of an accused are prejudiced by the amendment of
a complaint or information is when a defense under the Complaint or Information,
as it originally stood, would no longer be available after the amendment is made,
and when any evidence the accused might have, would be inapplicable to the
complaint or information as amended.”(People v. Hon. Eduardo Montenegro, et. al.
G.R. No. L-45772. March 25, 1988)
- You will damage the defense of the accused. Then the rights of the
accused will be prejudiced.
Interesting Case:
Susan Fronda-Baggao v. People, G.R. No. 151785, December 10, 2007.
Can four Informations for Simple Illegal Recruitment be amended into one
Information for Large Scale Illegal Recruitment before arraignment?
“Simply stated, before the accused enters his plea, a formal or substantial
amendment of the complaint or information may be made without leave of court.
After the entry of a plea, only a formal amendment may be made but with leave of
court and only if it does not prejudice the rights of the accused. After arraignment,
a substantial amendment is proscribed except if the same is beneficial to the
accused.
Following the above provisions and considering that petitioner has not yet entered
her plea, the four Informations could still be amended.
Petitioner also contends that the above Rule refers to an amendment of one
Information only, not four or multiple Informations which cannot be joined into only
one Information.
We disagree.
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
26
A careful scrutiny of the above Rule shows that although it uses the singular word
complaint or information, it does not mean that two or more complaints or
Informations cannot be amended into only one Information. Surely, such could not
have been intended by this Court. Otherwise, there can be an absurd situation
whereby two or more complaints or Informations could no longer be amended into
one or more Informations.”
Lawyer: Singular. The amendment of 4 informations to become one cannot be
allowed because the rule speaks of only one.
SC: bobo ka sa law, wala namang prohibition against several informations
becoming one.
IMPORTANT: Amendment prior to ARRAIGNMENT. There is no possibility of
DOUBLE JEOPARDY yet. It would expose the accused into graver penalty
than the separate Informations he already plead to.
Atty. Europa’s experience
- Weekly case raffles before. Now: E-Raffle of assigning cases to each
particular court in a manner that it is balanced.
- The cases for raffle were filed outside, he peeked into the cases.
- Illegal recruitment can be simple or large-scale (more than 3 accused in
conspiracy, more than 3 victims by the same accused)
- 4-5 cases against the same accused, Atty. Europa said that what
should be filed was Large-scale Illegal Recruitment. He then received a
message from Prosecutor Bendigo. Why? They filed the cases
separately and were assigned to different investigating prosecutors. If
you are only looking at one victim, then they are separate cases.
SUBSTITUTION
- Nearest synonym is replace.
- Only if there is a mistake in charging the proper offense.
- Information charges homicide but during the trial murder was proven.
This is not a mistake in charging the proper offense. Homicide is
necessarily included in murder.
- There is no identity of offenses. That the offense proven is entirely
different from the offense charged.
“If it appears at anytime before judgment that a mistake has been made in
charging the proper offense, the court shall dismiss the original complaint or
information upon the filing of a new one charging the proper offense in
accordance with section 19, Rule 119, provided the accused shall not be
placed in double jeopardy. The court may require the witnesses to give bail
for their appearance at the trial. (14a)”
Rule:
There can be substitution only if the offense charged is WHOLLY DIFFERENT
from the offense proven.
Test to determine identity of offenses:
There is identity between the two offenses when the evidence to support a
conviction for one offense would be sufficient to warrant a conviction for the other,
or when the second offense is exactly the same as the first, or when the second
offense is an attempt to commit or a frustration of, or when it necessarily includes
or is necessarily included in, the offense charged in the first Information. In this
connection, an offense may be said to necessarily include another when some of
the essential elements or ingredients of the former, as this is alleged in the
information, constitute the latter. And, vice versa, and offense may be said to be
necessarily included in another when the essential ingredients of the former
constitute or form a part of those constituting the latter. (Teehankee, Jr. v
Madayag, et al., G.R. No. 103102, March 6, 1992, 207 SCRA 134, 140)
- There is identity of offense when the evidence supports a conviction for
one offense would be sufficient to warrant a conviction for the other.
- When the second offense is an attempt to commit, or necessarily
included in the offense charged in the first offense.

- When some of the essential elements of one ARE ALL of the elements
of the other.
- Example: All of the elements of homicide constitute some of the
elements of murder. This means that homicide is necessarily included
in murder and murder necessarily includes homicide.
Example of Substitution
- A charged of killing B but it was proven that A killed C. This is an
entirely different offense. Dismiss the case charged against A for having
killed B. This will not be done immediately. The court will order the
prosecutor to file the proper information. Only upon the filing of the
proper information will the original case will be dismissed. Why? There
will be a period of time when the accused will not be charged with any
offense.
- Ortega case. An entirely different offense because the manner of
committing the crime was different.
Remember: When substitution applies, it is important to remember that he is being
charged with an entirely different offense. Every person has the Constitutional right
to due process. Then the entire procedure involved in filing a new offense will have
to be followed.
If it involves the conduct of preliminary investigation, the investigator will have to
conduct it.
Does not apply if the offense proven is necessarily included in or necessarily
includes the offense charged
Galvez v. CA, 237 SCRA 695.
The first paragraph provides the rule for amendment of the information or
complaint, while the second paragraph refers to the substitution of the information
or complaint. Under the second paragraph, the court can order the filing of another
information to charge the proper offense, provided the accused would not be
placed thereby in double jeopardy and that could only be true if the offense proved
does not necessarily include or is not necessarily included in the offense charged
in the original information.
DISTINCTIONS BETWEEN SUBSTITUTION AND AMENDMENT
Teehankee, Jr. v Madayag, et al., G.R. No. 103102, March 6, 1992
It may accordingly be posited that both amendment and substitution of the
information may be made before or after the defendant pleads, but they differ in
the following respects:
1. Amendment may involve either formal or substantial changes, while
substitution necessarily involves a substantial change from the original
charge;
2. Except for amendments which downgrade the offense or excludes any
of the accused (an addition), an amendment before plea has been
entered can be effected without leave of court, but substitution of
information must ALWAYS be with leave of court as the original
information has to be dismissed; (as amended by the Revised Rules
on Criminal Procedure)
3. Where the amendment is only as to form, there is no need for another
preliminary investigation and the retaking of the plea of the accused; in
substitution of information, another preliminary investigation is entailed
and the accused has to plead anew to the new Information; and
4. An amended Information refers to the same offense charged in the
original Information or to an offense which necessarily includes or is
necessarily included in the original charge, hence substantial
amendments to the Information after the plea has been taken cannot be
made over the objection of the accused, for if the original Information
would be withdrawn, the accused could invoke double jeopardy. On the
other hand, substitution requires or presupposes that the new
Information involves a different offense which does not include or is not
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
27
necessarily included in the original charge, hence the accused cannot
claim double jeopardy.
As a prosecutor, if there is any indication at all that there is a qualifying
circumstance to be alleged, then allege it.
In determining, therefore, whether there should be an amendment under the first
paragraph of Section 14, Rule 110, or a substitution of information under the
second paragraph thereof, the rule is that where the second information involves
the same offense, or an offense which necessarily includes or is necessarily
included in the first information, an amendment of the information is sufficient;
otherwise, where the new information charges an offense which is distinct and
different from that initially charged, a substitution is in order.""In determining,
therefore, whether there should be an amendment under the first paragraph of
Section 14, Rule 110, or a substitution of information under the second paragraph
thereof, the rule is that where the second information involves the same offense, or
an offense which necessarily includes or is necessarily included in the first
information, an amendment of the information is sufficient; otherwise, where the
new information charges an offense which is distinct and different from that initially
charged, a substitution is in order."
- Involved the son of former Justice Teehankee who shot two people
during a road rage.
- Maureen did not die immediately. During the entire preliminary
investigation and start of trial, the charge was only frustrated murder.
During the trial = Maureen died. Can the charge be upgraded?
- SC allowed the amendment
WHERE SHOULD A CRIMINAL CASE BE INSTITUTED? (Sec. 15, R110)
Section 15. Place where action is to be instituted. —
(a) Subject to existing laws, the criminal action shall be instituted and tried in
the court of the municipality or territory where the offense was committed or
where any of its essential ingredients occurred.
(b) Where an offense is committed in a train, aircraft, or other public or private
vehicle in the course of its trip, the criminal action shall be instituted and tried in
the court of any municipality or territory where such train, aircraft, or other
vehicle passed during its trip, including the place of its departure and arrival.
(c) Where an offense is committed on board a vessel in the course of its
voyage, the criminal action shall be instituted and tried in the court of the first
port of entry or of any municipality or territory where the vessel passed during
such voyage, subject to the generally accepted principles of international law.
(d) Crimes committed outside the Philippines but punishable under Article 2 of
the Revised Penal Code shall be cognizable by the court where the criminal
action is first filed. (15a)
- Territorial jurisdiction
General Rule: Shall be instituted and tried in the court of the municipality or
territory where the offense was committed or where any of its essential
ingredients occurred.
- Sometimes it is hard to determine where the crime was committed
especially when it is committed on something that is in motion.
- Airplane: when/where did the crime start? Where did the person die?
Paragraph (b)
- Including the place of its departure and arrival
- NAIA (departure) DIA (arrival) Can it be filed in Manila? Look at the
flight plan. If it passes over any portion of the city, then it can be filed
there.
Example:

- Honeymooners from Gensan to Davao. A bomb, with a detonator, was
placed on the car they used. The bomb detonated in Padada. Can they
file it in Davao? No, it was not a place of arrival. They never got there.
- Train: just follow the tracks
- Ships/vessels/yacht:
Ratio Legis:
What is the reason why the rules provide that the case should be tried in the place
where the crime was committed?
1. The interest of the public requires that to secure the best results and
effects in the punishment of crimes, it is necessary to prosecute and
punish the criminal in the very place or as near as may be where he
committed the crime.
2. Insofar as the interest of the accused is concerned, it will be
inconvenient for him to take witnesses and other evidence in another
place.
In the crime of perjury where the false sworn Petition for Reconstitution of
Lost Title was subscribed and sworn to in Pasig City and filed in Makati City
and Tagaytay, where is the proper venue of the criminal case?
Erlinda K. Ilusorio v. Maria Erlinda I. Bildner, et al., READ
G.R. No. 173935-38, December 23, 2008.
- His lawyer was from Pasig. One petition was filed in Pasig and another
in Tagaytay where the properties where located.
- False accusations in his information. Where can the informations be
filed? SC: Where the false statement was utilized. Tagaytay and Makati
even if he filed it in Tagaytay.
Sample Information (Similar Informations filed in Tagaytay):
“On or about November 4, 1999, in Pasig City, and within the jurisdiction of
this Honorable Court, the accused, conspiring and confederating together and
mutually helping and aiding one another, did then and there willfully,
unlawfully, feloniously and falsely subscribe and swear to a Petition for
Issuance of a New Owner’s Duplicate Copy of Condominium Certificate of
Title No. 21578before Rafael Arsenio S. Dizon, a notary public in and for Pasig
City, duly appointed, qualified and acting as such, and in which Petition said
accused subscribed and swore to, among other things, facts known to them to
be untrue, that is: That the Petitioners claim that the title was lost, which fact
was material matter and required by law to be stated in said Petition, when in
truth and in fact as the said accused very well knew at the time they swore to
and signed the said petition for Issuance of a New Owner’s Duplicate Copy of
Condominium Certificate of Title No. 21578, that said statement appearing in
paragraph 4 of said Petition:
“4. Pending registration of the mortgage document with the Registry of Deeds
of Makati City, the petitioners had their respective offices, renovated and by
reason thereof, documents were moved from their usual places and thereafter,
sometime in the early part of the second quarter of this year, when petitioners
were ready to have the mortgage documents registered, the said owner’s
duplicate copy of CCT No. 21578 could no longer be located at the places
where they may and should likely be found despite earnest and diligent efforts
of all the petitioners to locate the same;” was false and untrue because the
said title was in the possession of the complainant, Erlinda K. Ilusorio, and the
above false statement was made in order to obtain a New Owner’s Duplicate
Copy of Condominium Certificate of Title No. 21578, to the damage and
prejudice of complainant Erlinda K. Ilusorio.”
Held:
The allegation in each of the four similarly-worded Informations that perjury was
committed in Pasig is neither controlling nor sufficient to show that the Pasig MeTC
has jurisdiction over them. The purported perjurious petition quoted in each of the
Informations in fact indicates that, with respect to the CCT of the Registry of Deeds
of Makati the TCTs of the Registry of Deeds of Tagaytay, venue of the criminal
action arising therefrom is in Makati and Tagaytay, respectively.
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
28
Perjury is committed as follows
Article 183, Revised Penal Code. False Testimony in other cases and perjury
in solemn affirmations. – The penalty of arresto mayor in its maximum period
to prision correccional in its minimum period shall be imposed upon any
person who, knowingly making untruthful statements and not being included in
the provisions of the next preceding articles, shall testify under oath, or make
an affidavit, upon any material matter before a competent person authorized to
administer an oath in cases in which the law so requires.
x x x (Italics in the original; underscoring supplied
There are thus four elements to be taken into account “in determining whether
there is a prima facie case” of perjury, viz.:
(a) that the accused made a statement under oath or executed an affidavit
upon a material matter; (b) that the statement or affidavit was made before a
competent officer, authorized to receive and administer oath; (c) that in the
statement or affidavit, the accused made a willful and deliberate assertion of a
falsehood; and (d) that the sworn statement or affidavit containing the falsity is
required by law or made for a legal purpose. (Citation omitted)
It is the deliberate making of untruthful statements upon any material matter,
however, before a competent person authorized to administer an oath in cases in
which the law so requires,] which is imperative in perjury.
Venue, in criminal cases, being jurisdictional, the action for perjury must be
instituted and tried in the municipality or territory where the deliberate making of an
untruthful statement upon any matter was made, in this case, in Makati and
Tagaytay.
It was in Makati and Tagaytay where the intent to assert an alleged falsehood
became manifest and where the alleged untruthful statement finds relevance or
materiality in deciding the issue of whether new owner’s duplicate copies of the
CCT and TCTs may issue.
Whether the perjurious statements contained in the four petitions were subscribed
and sworn in Pasig is immaterial, the gist of the offense of perjury being the
intentional giving of false statement.
Exceptions when existing laws provide otherwise: When the law specifically
provides where the particular case shall be filed.
Examples:
1. Article 360 of the Revised Penal Code on Libel allows the filing of the
case: (a) where the libelous matter was printed or first published; (b)
where the offended party resides; or (c) if he is a public officer, where
he holds office at the time of commission.
2. R.A.No.8249– Cases covered by the Sandiganbayan Law will be tried
in the places designated by the law. No matter where in the Philippines
the crime was committed it shall be tried at the Sandiganbayan
(Quezon City). A division of SB may try cases elsewhere. However, it
rarely happens because it is expensive.
3. Section 5, Article VIII of the Constitution – The Supreme Court can
order a change of venue in order to avoid a miscarriage of justice.
Atty. Europa: A hearing by SB was conducted in Leyte. He and his clients from
Davao City had to fly to Tacloban.
Rules on Venue in Libel and Defamation in Criminal Cases:
Armand Nocum, et al. v. Lucio Tan, READ CASE
G.R. No. 145022, September 23, 2005
citing earlier cases.
- a good discussion on venue of libel and defamation cases
The rules on venue in Article 360 [are] as follows:

1. Whether the offended party is a public official or a private person, the
criminal action may be filed in the Court of First Instance of the province
or city where the libelous article is printed and first published.
2. If the offended party is a private individual, the criminal action may also
be filed in the Court of First Instance of the province where he actually
resided at the time of the commission of the offense.
3. If the offended party is a public officer whose office is in Manila at the
time of the commission of the offense, the action may be filed in the
Court of First Instance of Manila.
4. If the offended party is a public officer holding office outside of Manila,
the action may be filed in the Court of First Instance of the province or
city where he held office at the time of the commission of the offense.
What are the types of offenses as to place of commission?
1. Local : Refers to an offense where all the elements were committed in
the same place or, in other words, one which was fully consummated in
one place. All of the elements were committed in one place
2. Transitory : Refers to a case where the elements of the offense were
committed in several places.
Cases on Transitory Offenses:
People v. Hon Nathaniel Gorospe, READ CASE
G.R. Nos. L-74053-54, January 20, 1988.
- SC ruled that it could be filed in either place.
- Involved BP 22 and Estafa cases.
- It will give you a good understanding where the elements of damage or
deceit happened.
As to estafa:
Estafa by postdating or issuing a bad check, may be a transitory or continuing
offense. Its basic elements of deceit and damage may arise independently in
separate places. (People vs. Yabut, L-42902, April 29, 1977, 76 SCRA 624) In this
case, deceit took place in San Fernando, Pampanga, while the damage was
inflicted in Bulacan where the check was dishonored by the drawee bank in that
place. (See People v. Yabut, supra) Jurisdiction may, therefore, be entertained by
either the Bulacan Court or the Pampanga Court. For while the subject check was
issued in Guiguinto, Bulacan, it was not completely drawn thereat, but in San
Fernando, Pampanga, where it was uttered and delivered. What is of decisive
importance is the delivery thereof. The delivery of the instrument is the final act
essential to its consummation as an obligation. (People v. Larue, 83 P. 2d 725,
cited in People vs. Yabut, supra)
As to B.P. Blg. 22:
In respect of the Bouncing Checks Case, the offense also appears to be continuing
in nature. It is true that the offense is committed by the very fact of its performance
(Colmenares v. Villar, No. L-27126, May 29, 1970, 33 SCRA 186); and that the
Bouncing Checks Law penalizes not only the fact of dishonor of a check but also
the act of making or drawing and issuance of a bouncing check. (People v. Hon.
Veridiano, II, No. L-62243, 132 SCRA 523) The case, therefore, could have been
filed also in Bulacan. As held in Que v. People of the Philippines, G.R. Nos. 75217-
18, September 11, 1987 "the determinative factor (in determining venue) is the
place of the issuance of the check." However, it is likewise true that knowledge on
the part of the maker or drawer of the check of the insufficiency of his funds, which
is an essential ingredient of the offense is by itself a continuing eventuality,
whether the accused be within one territory or another. (People v. Hon. Manzanilla,
G.R. Nos. 66003-04, December 11, 1987) Accordingly, jurisdiction to take
cognizance of the offense also lies in the Regional Trial Court of Pampanga.
Robbery and Anti-Fencing Law
People v. Hon Jose C. De Guzman,
G.R. No. 77368, October 5, 1993.
Robbery is the taking of personal property belonging to another, with intent to gain,
by means of violence against or intimidation of any person, or using force upon
anything. "Fencing," upon the other hand, is the act of any person who, with intent
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
29
to gain for himself or for another, shall buy, receive, possess, keep, acquire,
conceal, sell or dispose of, or shall buy and sell, or in any other manner deal in any
article, item, object or anything of value which he knows, or shall be known to him,
to have been derived from the proceeds of the crime of robbery or theft. The
crimes of robbery and fencing are clearly then two distinct offenses. The law on
fencing does not require the accused to have participated in the criminal design to
commit, or to have been in any wise involved in the commission of, the crime of
robbery or theft. Neither is the crime of robbery or theft made to depend on an act
of fencing in order that it can be consummated. True, the object property in fencing
must have been previously taken by means of either robbery of theft but the place
where the robbery or theft occurs is inconsequential. It may not be suggested, for
instance, that, in the crime of bigamy which presupposes a prior subsisting
marriage of an accused, the case should thereby be triable likewise at the place
where the prior marriage has been contracted.
- A stupid case
Specific rule on offenses committed in a train, aircraft, or other public or
private vehicle in the course of its trip.
Instituted and tried in the court of any municipality or territory where such train,
aircraft, or other vehicle passed during its trip, including the place of its departure
and arrival.
Example:
People v. Francisco Zafra,
October 19, 1994. The accused stole a passenger jeepney and killed the owner in
Alabang, Muntinlupa and were arrested, still riding the stolen jeepney in Calamba,
Laguna.
Held: “As accused-appellants were apprehended in Calamba while they were in
the carnapped jeepney, the information was validly filed in Calamba.”
Specific rule on offenses committed on board a vessel in the course of its
voyage.
Shall be instituted and tried in the court of the first port of entry or of any
municipality or territory where the vessel passed during such voyage, subject to
the generally accepted principles of international law.
Venue of a Criminal Case committed aboard a seagoing vessel:
- In the court of first point of entry/where it docks or any municipalities
where the ship passed.
1. First Port of Entry – where the vessel will first docks. Note: does not
include place of departure
2. Any Municipality or Territory through which the vessel passed.
Municipal waters
Example:
Wenefredo Calme v. CA, G.R. No. 116688.
August 30, 1996.
- The victim was thrown overboard.
- Case was filed in Oroqueta. Defense: Paragraph c of Section 15 should
not apply. The call that there was a man overboard while the ship was
off the coast of Siquijor.
- Issue: Section 15 was crafted because it was difficult to determine
where the crime happened. SC: The contention is wrong because the
rules are already clear. Was the ship on its voyage? Yes. You apply the
rules regardless of whether you know or not where the crime was
committed.
- It emphasizes the fact that these rules are applicable even if you know
where the crime was committed.
Petitioner and four other persons were accused of killing Edgardo Bernal by
allegedly throwing him overboard the M/V "Cebu City," an interisland passenger
ship owned and operated by William Lines, Inc., while the vessel was sailing from
Ozamis City to Cebu City on the night of May 12, 1991. The case was filed in
Oroquieta City.

Petitioner claims that the proper venue is Siquijor because, according to the
Marine Protest filed by the vessel's captain, Elmer Magallanes, the ship was 8.0
miles off Minalonan Point, Siquijor Island, when he (Capt. Magallanes) received
the report that "a passenger jumped overboard."
“The exact location where the alleged offense was committed was not duly
established. The Marine protest simply adverted that the vessel was within the
waters of Siquijor Island when the captain was informed of the incident, which does
not necessarily prove that the alleged murder took place in the same area. In any
case, where the crime was actually committed is immaterial since it is undisputed
that it occurred while the vessel was in transit. "In transit" simply means "on the
way or passage; while passing from one person or place to another. In the course
of transportation." Hence, undoubtedly, the applicable provision is par. (c) of Sec.
15 (now Section 14), Rule 100 which provides that "(w)here an offense is
committed on board a vessel in the course of its voyage, the criminal action may
be instituted and tried in the proper court of the first port of entry of any municipality
or territory through which the vessel passed during such voyage subject to the
generally accepted principles of international law."
Petitioner further contends that even if Sec. 15(c), Rule 110 governs, Oroquieta
City would still be excluded as a proper venue because the reckoning point for
determining the venue under the aforementioned paragraph is the first port of entry
or the municipalities/territories through which the ship passed after the discovery of
the crime, relying on Act No. 400.
We disagree. Obviously, Act No. 400 was amended by Sec. 15(c), Rule 110 of the
Revised Rules of Court in that under the former law, jurisdiction was conferred to
the CFI of any province into which the ship or water craft upon which the crime or
offense was committed shall come after the commission thereof, while the present
rule provides that jurisdiction is vested "in the proper court of the first port of entry
or of any municipality or territory through which the vessel passed during such
voyage . . ." This is the applicable provision and since it does not contain any
qualification, we do not qualify the same.
Specific rule on “Crimes committed outside the Philippines but punishable
under Article 2 of the Revised Penal Code.”
Shall be cognizable by the court where the criminal action is first filed. (15a)
MEMORIZE ARTICLE 2 OF THE RPC FOR EXAM
Principle of Extraterritoriality in the Revised Penal Code. First come, first
served. Anywhere in the country where the criminal action was first filed.
ARTICLE 2. Application of its provisions. — Except as provided in the treaties
and laws of preferential application, the provisions of this Code shall be enforced
not only within the Philippine Archipelago, including its atmosphere, its interior
waters and maritime zone, but also outside of its jurisdiction, against those who:
1. Should commit an offense while on a Philippine ship or airship;
2. Should forge or counterfeit any coin or currency note of the Philippine
Islands or obligations and securities issued by the Government of the
Philippine Islands;
3. Should be liable for acts connected with the introduction into these
islands of the obligations and securities mentioned in the preceding
number;
4. While being public officers or employees, should commit an offense in
the exercise of their functions; or
5. Should commit any of the crimes against national security and the law
of nations, defined in Title One of Book Two of this Code.
In these cases, the first court that takes cognizance of the case will have
jurisdiction to try it.
CONCEPT OF PRIVATE PROSECUTORS:
- As far as the criminal aspect, the offended party is not involved. He is
only a witness of the State.
- In civil aspect, he has a right to claim.
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
30
Article 100 (RPC). Civil liability of a person guilty of felony. - Every person
criminally liable for a felony is also civilly liable.
Section 16. Intervention of the offended party in criminal action.—Where
the civil action for recovery of civil liability is instituted in the criminal action
pursuant to Rule 111, the offended party may intervene by counsel in the
prosecution of the offense. (16a)
What are the rights of the offended party in relation to a criminal case?
1. To take part in the prosecution of the offense;
2. To recover civil liabilities arising out of the offense charged;
3. To appeal an adverse judgment or order affecting his claim to such civil
liability.
Can an offended party intervene in a case punished under a special law
when the said law does not provide for the civil aspect of the case?
Violation of B.P. Blg. 22
- The amount of the check will determine the maximum amount of the
fine.
- Can there be a private prosecutor?
Charmina Banal v. Tomas V. Tadeo, Jr.,
156 SCRA 325, 330 (1987).
It is the fact of damage or injury party that is the basis of civil liability in a criminal
case, thus there can be an award of civil liability in Violations of B.P. Blg. 22 even if
it is a crime against public order.
- It is not material whether the special law does not provide, what is
material is that there is monetary damage suffered by the offended
party. In BP 22, there is certainly monetary damage.
Who can be an offended party?
Can a corporation be an offended party in a criminal case? Yes.
Jose S. Ramiscal, Jr. v. Sandiganbayan,
G.R. Nos. 140576-99, December 13, 2004.
Under Section 16, Rule 110 of the Revised Rules of Criminal Procedure, the
offended party may also be a private individual whose person, right, house, liberty
or property was actually or directly injured by the same punishable act or omission
of the accused, or that corporate entity which is damaged or injured by the delictual
acts complained of. Such party must be one who has a legal right; a substantial
interest in the subject matter of the action as will entitle him to recourse under the
substantive law, to recourse if the evidence is sufficient or that he has the legal
right to the demand and the accused will be protected by the satisfaction of his civil
liabilities. Such interest must not be a mere expectancy, subordinate or
inconsequential. The interest of the party must be personal; and not one based on
a desire to vindicate the constitutional right of some third and unrelated party.
RULE 111 - PROSECUTION OF CIVIL ACTION
Section 1. Institution of criminal and civil actions.—
(a) When a criminal action is instituted, the civil action for the recovery of civil
liability arising from the offense charged shall be deemed instituted with
the criminal action unless the offended party waives the civil action, reserves
the right to institute it separately or institutes the civil action prior to the criminal
action.
- It only talks about civil liability arising out of the offense charged.
- What you are reserving is the right to file an action relating to liability
ex delicto.

The reservation of the right to institute separately the civil action shall be
made before the prosecution starts presenting its evidence and under
circumstances affording the offended party a reasonable opportunity to make
such reservation.
When the offended party seeks to enforce civil liability against the accused by
way of moral, nominal, temperate, or exemplary damages without specifying
the amount thereof in the complaint or information, the filing fees therefor
shall constitute a first lien on the judgment awarding such damages. Where the
amount of damages, other than actual, is specified in the complaint or
information, the corresponding filing fees shall be paid by the offended party
upon the filing thereof in court. Except as otherwise provided in these Rules, no
filing fees shall be required for actual damages.
No counterclaim, cross-claim or third-party complaint may be filed by the
accused in the criminal case, but any cause of action which could have been
the subject thereof may be litigated in a separate civil action. (1a)
(b) The criminal action for violation of Batas Pambansa Blg. 22 shall be
deemed to include the corresponding civil action. No reservation to file such
civil action separately shall be allowed. Upon filing of the aforesaid joint criminal
and civil actions, the offended party shall pay in full the filing fees based on the
amount of the check involved, which shall be considered as the actual
damages claimed. Where the complaint or information also seeks to recover
liquidated, moral, nominal, temperate or exemplary damages, the offended
party shall pay additional filing fees based on the amounts alleged therein.
If the amounts are not so alleged but any of these damages are subsequently
awarded by the court, the filing fees based on the amount awarded shall
constitute a first lien on the judgment.
Where the civil action has been filed separately and trial thereof has not yet
commenced, it may be consolidated with the criminal action upon application
with the court trying the latter case. If the application is granted, the trial of both
actions shall proceed in accordance with section 2 of this Rule governing
consolidation of the civil and criminal actions. (cir. 57-97)
- Section 1 of Rule 111 is one of the most drastic amendments in the
2000 Rules.
- All sources of obligations were deemed instituted in a criminal case.
(Article 1157 of the Civil Code) Why? It is possible that there are many
sources of obligations in a crime.
Article 1157. Obligations arise from:
(1) Law;
(2) Contracts;
(3) Quasi-contracts;
(4) Acts or omissions punished by law; and
(5) Quasi-delicts. (1089a)
Concept of independent civil action
1985 rules: Even if it is an independent civil action, you need to seek permission
from the court where the criminal case is being heard. You must reserve your right.
All or nothing. you waive one = you waive all = you cannot hire a private
prosecutor
Institution of criminal and civil actions. (Sec. 1, Rule 111)
MAJOR AMENDMENT
MEMORIZE : Civil liability arising from the offense charged (delicto).
- It just talks about civil liability ex delicto
TAKE NOTE: The reservation to file an action based on ex delicto only.
Under the 1985 Rules of Criminal Procedure, the civil action for the recovery of
civil liability arising out of ALL SOURCES of civil liability was deemed instituted in
the criminal case and a waiver of any of the civil actions extinguishes the others
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
31
and even the institution of, or the reservation of the right to file, any of said civil
actions separately waives the others. However, under the Revised Rules of
Criminal Procedure ONLY THE CIVIL LIABILITY ARISING OUT OF THE
OFFENSE CHARGED IS DEEMED INSTITUTED.
SOME MAJOR EFFECTS OF THE AMENDMENT
1. Actions premised on quasi-delicts and other independent civil actions may be
filed separately by the complainant/plaintiff WITHOUT ANY RESERVATION OF
THE RIGHT TO FILE A SEPARATE CIVIL ACTION. (Casupanan v. Laroya,
August 26, 2002)
2. The acquittal of the accused in the criminal case or the failure of the judge
therein to award civil liability against the accused will not bar, by res judicata, the
filing of a separate civil action based on quasi delicts. (Jose S. Cancio, Jr. v.
Emerenciana Isip, November 12, 2002) Res judicata is a principle in remedial law
that once there has already been a judgment, you cannot repeat it/bar from prior
judgment. Therefore, you can file if you can base the civil action other than liability
ex delicto.
3. The judge in a criminal case MAY NO LONGER APPLY the provisions in the
Civil Code on quasi-delicts as basis for an award of civil liability. (This is an
abandonment of the rulings in the cases of Maniago v. CA, 253 SCRA 674 and
San Idelfonso Lines v. CA, 289 SCRA 568)
Example under the 1985 Rules:
Family driver used your car at 125 kph and hit a person. When the case was filed,
there was an award of civil liability. The driver does not have 1 million pesos. Can
the civil liability be imposed against the employer? No. Article 103 (Civil Code),
the employer must be engaged in an industry. When it is a family driver, and
his services are not used in any family business, then this does not apply.
Under the 1985 rules, all sources of obligations. Maniago v. CA: Rule 103 cannot
apply but the employer can still be held liable under Article 2180. Quasi-delicts
are deemed instituted in the criminal case.
Article 2180 of the Civil Code: A superior will be liable for damages caused by the
damages of his subordinate. Among those listed are employers.
What about now? That can no longer be applied. The court no longer has
jurisdiction over quasi-delicts as a source of obligation. What is within the
jurisdiction of a court trying criminal case is only the civil liability arising out of the
offense charged. The quasi-delicts are no longer included.
4. The pendency of the criminal case will not preclude THE ACCUSED therein
from filing a separate civil action based on quasi-delict against the private
complainant.
Casupanan v. Laroya, August 26, 2002; SC said that if what you intend to file is
an independent civil action, you no longer need to make a reservation in the
criminal case. It looks like independent civil actions became independent actions
once more.
GR 78848 Sheffer vs regional trial court of Olongapo
Javier v xxx
- Supreme Court allowed counterclaim and crossclaim by the THE
ACCUSED. The accused was allowed to claim damages.
- Counter cliam- defendant claimed against plaintiff also
- Cross claim - claim pero hindi muslim
- Solidary liable, demanda nung inutangan, surety can claim against
principal debtor.
- Cross claim - surety’s claim against principal debtor
Casupanan case: Even if the criminal case is still pending, the accused can still
file a separate civil action based on other source of obligation. First, that source of
obligation is no longer part of what is covered by the criminal case. Second, we
prohibited a counter claim and cross claim. LUOY si accused.
When is the claim for civil liability ARISING out of the offense charged NOT
deemed instituted under the new Rules?

1. The offended party waives the civil action;
2. He reserves the right to institute it separately;
3. He institutes the civil action prior to the criminal action;
4. He institutes the civil action after the criminal action but before presentation of
prosecutions evidence and he duly informs the court where the criminal case is
pending of the institution of the civil action. (Yakult v. CA 190 SCRA 357)
Note: Again, the civil action referred to here is one ARISING OUT OF THE
OFFENSE CHARGED.
Revenue generation is the power of Congress.
Tax is for revenue generation while Fees are for regulations.
Docket (Filing) Fees Rule:
There is NO FILING FEE for claims for ACTUAL DAMAGES in criminal cases.
Why does the SC collect fees? Difference of fees from taxes. Tax is for revenue
generation; Fee is for regulation, there are payments to cover expenses.
These are fees that are imposed by the Courts when a civil case is filed. If you will
not pay the docket fee, the case may be dismissed because the court has not
acquired jurisdiction.
In criminal cases
General Rule: Those with actual damages do not have docket fees.
Exception: When the offended parties seeks to enforce liability by way of moral,
nominal, temperate, and exemplary damages. If the actual amount is not included
in the complaint, you will not yet pay the docket fee.
When there has been an award in the case and it was executed, you will first
remove from the proceeds what is supposed to be paid. The balance will go to the
offended party.
When the amount of damages other than actual damages, the offended party shall
pay the appropriate filing fees.
Instances where there is a filing fee for actual damages based on the amount
of the check. In BP 22 cases, there are credit cooperatives that do not require
collaterals but the borrower is required to issue a post-dated cheque. When they
fail to pay, they will file a case in violation of BP 22. They already have reproduced
complaints. SC: Anak ng tokwa, ginawa tayong collection agency. Dapat may
bayad.
Trust Receipts Law. If you violate it = estafa case. In the jewelry business, they
ask the buyers to sign a trust receipt. When they fail to pay = estafa will be filed.
Exception:
If the Rules provide otherwise. Example: B.P. Blg. 22 cases and recently Estafa
Cases
Claims for OTHER (moral, nominal, temperate, or exemplary) will be assessed
filing fees upon filing of the case in court ONLY when the amounts thereof are
specified in the complaint or information. If the amounts are not specified then the
filing fees will be first lien on the judgment based on whatever is awarded by the
court.
Distinguish rules on docket fees in criminal cases from the rules in civil
cases.
1. In civil cases, docket fees are levied on ALL FORMS OF DAMAGES while in
criminal cases no docket fees are charged on ACTUAL DAMAGES.
2. In civil cases, the amount of the claims must be stated in the Complaint or
Counterclaim so that the proper docket fees can be computed and paid. In criminal
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
32
cases in general, even if the amount of the damages are not stated in the
Information or Complaint, these can still be proven and the docket fees on these
claims will be a lien on the judgment.
Another Amendment:
“No counterclaim, cross-claim or third-party complaint may be filed by the
accused in the criminal case, but any cause of action which could have been
the subject thereof may be litigated in a separate civil action. (1a)” This
abandons the Rulings in Shafer v. RTC of Olongapo, 167 SCRA 376, and Javier v.
IAC, 171 SCRA 376.
BATAS PAMBANSA BLG. 22 (incorporation of Circ. 57-97 into the rules)
When it comes to BP 22, you cannot file a separate civil action.
Exception to the rule that no filing fees are assessed on ACTUAL DAMAGES in
criminal cases. In B.P. 22 cases, filing fees are based on the amount of the check
which is considered as the actual damages claimed.
As to other kinds of damages the applicable rule is the same as in other criminal
cases.
The rules now require MANDATORY consolidation of the claim for civil
liability in B.P. 22 cases but if the civil case was filed ahead, consolidation will be
done only if the trial of the civil case has not yet commenced and there must be an
application for consolidation in the court trying the criminal case.
There are important consequences:
Interesting Case:
Anita Cheng v. Spouses William Sy and Tessie Sy, G.R. No. 174238, July 7,
2009. READ
- SC made a pro havice ruling. The ruling or disposition in this case
applies only in this case. It is important to realize when reading this to
take attention on how the SC made its ratio and discussed the issue.
- The case was decided under the new rules already.
- Estafa and BP 22 cases were filed. The Court dismissed the BP 22
cases. The Order did not make any pronouncement as to the civil
liability of the accused.
- Later on, Sps. Sy filed a SEPARATE civil case. The accused moved for
the dismissal of the civil case since the failure of the court to give an
award insofar as the criminal case is concerned, will bar the separate
civil action because of RES JUDICATA.
- SC: Pinagbigyan sila. The unfamiliarity of the public prosecutor with the
new rules should not bind the private complainant.
- SC pretty much agreed with what the accused was saying. Normally,
the failure to appeal the lack of any award in the BP 22 case WOULD
BAR any separate civil action.
- It is important because it seems that the SC will bar in the future any
requests to the contrary. If you do not agree = APPEAL. Otherwise, a
separate civil action will be barred.
Facts:
Petitioner Anita Cheng filed two estafa cases before the RTC, Branch 7, Manila
against respondent spouses William and Tessie Sy (Criminal Case No. 98- 969952
against Tessie Sy and Criminal Case No. 98-969953 against William Sy) for
issuing to her Philippine Bank of Commerce (PBC) Check Nos. 171762 and 71860
for P300,000 each, in payment of their loan, both of which were dishonored upon
presentment for having been drawn against a closed account.
Meanwhile, based on the same facts, petitioner, on January 20, 1999, filed against
respondents two cases for violation of B.P. Blg. 22 before the Metropolitan Trial
Court (MeTC), Branch 25, Manila (Criminal Case Nos. 341458-59).
On March 16, 2004, the RTC, Branch 7, Manila dismissed the estafa cases for
failure of the prosecution to prove the elements of the crime. The Order dismissing
Criminal Case No. 98-969952 contained no declaration as to the civil liability of
Tessie Sy. On the other hand, the Order in Criminal Case No. 98-969953

contained a statement, “Hence, if there is any liability of the accused, the same is
purely ‘civil,’ not criminal in nature.”
Later, the MeTC, Branch 25, Manila, dismissed, on demurrer, the B.P. Blg. 22
cases in its Order dated February 7, 2005 on account of the failure of petitioner to
identify the accused respondents in open court. The Order also did not make any
pronouncement as to the civil liability of accused respondents.
On April 26, 2005, petitioner lodged against respondents before the RTC, Branch
18, Manila, a complaint for collection of a sum of money with damages (Civil Case
No. 05-112452) based on the same loaned amount of P600,000 covered by the
two PBC checks previously subject of the estafa and B.P. Blg. 22 cases.
In the assailed Order dated January 2, 2006, the RTC, Branch 18, Manila,
dismissed the complaint for lack of jurisdiction, ratiocinating that the civil action to
collect the amount of P600,000 with damages was already impliedly instituted in
the B.P. Blg. 22 cases in light of Section 1, par. (b) of Rule 111 of the Revised
Rules of Court.
Issues:
1. Will Section1 of Rule11 requiring the mandatory consolidation of the civil
aspect of the case with the B.P. 22 case be given RETROACTIVE EFFECT
such that the failure of the complainants to appeal the civil aspect of the
dismissed B.P. 22 case will bar them from filing a separate civil action?
2. Considering that the reason of the dismissal in this case was the failure of
the prosecutor to have the complainant identify the accused in the case and
since they were not represented by a private prosecutor, will the negligence
of the public prosecutor be binding upon the complainant?
Ruling:
On the First Issue:
Petitioner is in error when she insists that the 2000 Rules on Criminal Procedure
should not apply because she filed her B.P. Blg. 22 complaints in 1999. It is now
settled that rules of procedure apply even to cases already pending at the time of
their promulgation. The fact that procedural statutes may somehow affect the
litigants’ rights does not preclude their retroactive application to pending actions. It
is axiomatic that the retroactive application of procedural laws does not violate any
right of a person who may feel that he is adversely affected, nor is it constitutionally
objectionable.
The reason for this is that, as a general rule, no vested right may attach to, nor
arise from, procedural laws. Indeed, under the present revised Rules, the criminal
action for violation of B.P. Blg. 22 includes the corresponding civil action to recover
the amount of the checks. It should be stressed, this policy is intended to
discourage the separate filing of the civil action. In fact, the Rules even prohibits
the reservation of a separate civil action, i.e., one can no longer file a separate civil
case after the criminal complaint is filed in court. The only instance when separate
proceedings are allowed is when the civil action is filed ahead of the criminal case.
Even then, the Rules encourages the consolidation of the civil and criminal cases.
Thus, where petitioner’s rights may be fully adjudicated in the proceedings before
the court trying the B.P. Blg. 22 cases, resort to a separate action to recover civil
liability is clearly unwarranted on account of res judicata, for failure of petitioner to
appeal the civil aspect of the cases. In view of this special rule governing actions
for violation of B.P. Blg. 22, Article 31 of the Civil Code is not applicable.
Be it remembered that rules governing procedure before the courts, while not cast
in stone, are for the speedy, efficient, and orderly dispensation of justice and
should therefore be adhered to in order to attain this objective.
On the Second Issue:
Faced with the dismissal of the B.P. Blg. 22 cases, petitioner’s recourse pursuant
to the prevailing rules of procedure would have been to appeal the civil action to
recover the amount loaned to respondents corresponding to the bounced checks.
Hence, the said civil action may proceed requiring only a preponderance of
evidence on the part of petitioner. Her failure to appeal within the reglementary
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
33
period was tantamount to a waiver altogether of the remedy to recover the civil
liability of respondents.
However, due to the gross mistake of the prosecutor in the B.P. Blg. 22 cases, we
are constrained to digress from this rule. It is true that clients are bound by the
mistakes, negligence and omission of their counsel. But this rule admits of
exceptions – (1) where the counsel’s mistake is so great and serious that the client
is prejudiced and denied his day in court, or (2) where the counsel is guilty of gross
negligence resulting in the client’s deprivation of liberty or property without due
process of law. Tested against these guidelines, we hold that petitioner’s lot falls
within the exceptions. It is an oft-repeated exhortation to counsels to be well-
informed of existing laws and rules and to keep abreast with legal developments,
recent enactments and jurisprudence. Unless they faithfully comply with such duty,
they may not be able to discharge competently and diligently their obligations as
members of the Bar.
Further, lawyers in the government service are expected to be more conscientious
in the performance of their duties as they are subject to public scrutiny. They are
not only members of the Bar but are also public servants who owe utmost fidelity to
public service. Apparently, the public prosecutor neglected to equip himself with
the knowledge of the proper procedure for B.P. Blg. 22 cases under the 2000
Rules on Criminal Procedure such that he failed to appeal the civil action impliedly
instituted with the B.P. Blg. 22 cases, the only remaining remedy available to
petitioner to be able to recover the money she loaned to respondents, upon the
dismissal of the criminal cases on demurrer.
By this failure, petitioner was denied her day in court to prosecute the respondents
for their obligation to pay their loan. Moreover, we take into consideration the trial
court’s observation when it dismissed the estafa charge in Criminal Case No. 98-
969953 that if there was any liability on the part of respondents, it was civil in
nature.
Hence, if the loan be proven true, the inability of petitioner to recover the loaned
amount would be tantamount to unjust enrichment of respondents, as they may
now conveniently evade payment of their obligation merely on account of a
technicality applied against petitioner.
Under OCA Circular 21-03, docket fees are NOW also assessed on estafa
cases UPON filing of the information in court.
SUSPENSION OF CIVIL ACTION. (Sec. 2, Rule 111)
Section 2. When separate civil action is suspended.—After the criminal
action has been commenced, the separate civil action arising therefrom cannot
be instituted until final judgment has been entered in the criminal action.
- This means that if you want to file a separate civil action, you have to
wait for the criminal case to be finished. In other words, wala ng civil
action sa criminal case. So, you have to wait for the final judgment in
the criminal case before you can file a separate civil action.
- What if you already filed a civil case? It will be suspended. The
criminal case is always a priority.
- Why would you separate it? There is no practical reason.
If the criminal action is filed after the said civil action has already been
instituted, the latter shall be suspended in whatever stage it may be found
before judgment on the merits. The suspension shall last until final judgment is
rendered in the criminal action.
Nevertheless, before judgment on the merits is rendered in the civil action, the
same may, upon motion of the offended party, be consolidated with the criminal
action in the court trying the criminal action.
- Remedy is to have the cases consolidated “Motion for
Consolidation”, shall be filed in both courts. Ibabalik ang civil case as
part of the criminal case.
- What will happen to the evidence presented in the civil case?
In case of consolidation, the evidence already adduced in the civil action
shall be deemed automatically reproduced in the criminal action without
prejudice to the right of the prosecution to cross-examine the witnesses

presented by the offended party in the criminal case and of the parties to
present additional evidence.
- Atty Europa: typographical error: “without prejudice to the right of the
prosecution to cross-examine the witness presented in the criminal
case and of the parties to present additional evidence”
- Sino ang kakampi ng prosecution in the criminal case? Offended
Party. So, why would he cross-examine the witnesses of the
offended party?
- What is the basis? A constitutional right of the accused. Right of the
accused to confront all witnesses presented against him.
The consolidated criminal and civil actions shall be tried and decided jointly.
During the pendency of the criminal action, the running of the period of
prescription of the civil action which cannot be instituted separately or whose
proceeding has been suspended shall be tolled. (n)
The extinction of the penal action does not carry with it extinction of the civil
action. However, the civil action based on delict shall be deemed extinguished if
there is a finding in a final judgment in the criminal action that the act or
omission from which the civil liability may arise did not exist. (2a)
- When is the evidence under the Constitution to warrant the
conviction?
- The evidence is proof of guilt beyond reasonable doubt. Requires
moral certainty that the person charged is guilty of the offense
charged. Moral certainty is that the evidence should be enough and
the judge should be convinced to such a degree that even after
sentencing the accused, the judge would still be able to sleep
soundly at night.
- As far as civil liability is concerned, only what is called a
PREPONDERANCE OF EVIDENCE.
- The judge may still award civil liability even if he acquits the accused
in the criminal case.
- Did not exist: A is charged of having killed B. It turned out that it was
actually C who killed B and not A. A will be acquitted. You CANNOT
make him liable for the civil liability.
- If the acquittal was based on reasonable doubt = no civil award
Suspension of a civil action based on liability ex delicto.
Note: This applies only to the civil aspect arising out of the offense charged
(based on Art. 100 of the RPC and related articles)
If the offended party reserves the right to file a separate civil action, it cannot be
filed until the criminal case is finished.
If he filed the separate civil action ahead of the criminal case, then the civil case
will be suspended until the criminal case is finished. The prescriptive period of the
suspended action will be tolled until there is a final judgment in the criminal case
while the criminal case is still ongoing.
Option:
The offended party can ask for the consolidation of the separate civil action with
the criminal case only if there has been no judgment yet in the civil case.
In case of such a consolidation, the evidence already adduced in the civil action
shall be deemed automatically reproduced in the criminal action but the
accused/defense shall have the right to cross-examine the witnesses of the
offended party in the civil case and both parties may present additional evidence.
Note:
The provision stating “without prejudice to the right of the prosecution to
cross-examine the witness presented by the offended party in the criminal
case and of the parties to present additional evidence” MUST BE A
TYPOGRAPHICAL ERROR.
This should be “without prejudice to the right of the accused/defense to
cross-examine the witness presented by the offended party in the civil case.”
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
34
Otherwise, it would not make sense. Why would the prosecution cross- examine
the witnesses of the offended party when they are on the same side?
If the consolidation cannot be done under the Rules on Criminal Procedure,
it may be allowed under the Rules of Civil Procedure
Naguiat v. IAC, 164 SCRA 505. Atty. Europa: This is no longer applicable
Violation of P.D. No. 957 cannot be consolidated, under Section 2 of Rule 111,
with civil action for specific performance to deliver titles because the civil action
“did not arise out of the act complained of in the criminal case.”
However, consolidation can be done under the Rules of Civil Procedure which
allow consolidation of cases with similar questions of fact and law.
General Rule:
Consolidation Is Optional Except:
1. Article 360 of the RPC or defamation
2. Cases cognizable by the Sandiganbayan, you cannot file a separate
civil action
3. B.P. Blg. 22 cases. (SC Circ No. 57-97), Section 1 paragraph b of Rule
111
These are cases where the law imposes MANDATORY CONSOLIDATION.
“The extinction of the penal action does not carry with it extinction of the
civil action. However, the civil action based on delict shall be deemed
extinguished if there is a finding in a final judgment in the criminal action
that the act or omission from which the civil liability may arise did not exist.”
Old Rule:
Extinction of the penal action does not carry with it extinction of the civil unless the
extinction proceeds from a declaration in a final judgment that the fact from which
the civil liability might arise did not exist.
Remedios Nota Sapiera, Petitioner v. CA and Ramon Sua, Respondents, G.R.
No. 128927, September 14, 1999.
The judgment of acquittal extinguishes the liability of the accused for damages only
when it includes a declaration that the fact from which the civil liability might arise
did not exist. Thus, the civil liability is not extinguished by acquittal where:
(a) the acquittal is based on reasonable doubt;
(b) where the court expressly declares that the liability of the accused is not
criminal but only civil in nature; and (Even if not expressly declared if based on
an exempting circumstance.)
(c) where the civil liability is not derived from or based on the criminal act of
which the accused is acquitted. This is no longer within the jurisdiction of the
criminal court to award because of Section 1, Rule 111. IF the civil liability is
not based on the criminal act = not within the jurisdiction = cannot award it
Plus some others based on criminal law:
(d) acquittal is based on an exempting circumstance.
Note:
“IF ACQUITTAL IS BASED ON AN JUSTIFYING CIRCUMSTANCE except STATE
OF NECESSITY then there is NO CIVIL LIABILITY.”
Note:
People v. Salao,
284 SCRA 493
“The civil liability referred to in this Rule is the civil liability arising from crime (ex
delicto). It is not the civil liability for quasi delict which is allowed to be brought
"separately and independently" of the criminal action by Art. 33 of the Civil Code.
The civil liability based on such cause of action is not extinguished even by a

declaration in the criminal case that the criminal act charged has not happened or
has not been committed by the accused. Indeed, because the offended party does
not intervene in the criminal prosecution, it is entirely possible that all the
witnesses presented in the civil action may not have been presented by the public
prosecutor in the criminal action with the result that the accused in the criminal
case may be acquitted. This is what happened in the recent case of Heirs of
Guaring v. Court of Appeals where, because the only survivor in a motor car
accident whose testimony proved to be pivotal in the civil case was not called to
testify in the criminal prosecution of the driver of the other vehicle, the latter was
acquitted on reasonable doubt.”
marker
35
Section 4. Effect of death on civil actions. —The death of the accused after
arraignment and during the pendency of the criminal action shall extinguish the
civil liability arising from the delict. However, the independent civil action
instituted under section 3 of this Rule or which thereafter is instituted to enforce
liability arising from other sources of obligation may be continued against the
estate or legal representative of the accused after proper substitution or against
said estate, as the case may be. The heirs of the accused may be substituted
for the deceased without requiring the appointment of an executor or
administrator and the court may appoint a guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative or representatives to
appear and be substituted within a period of thirty (30) days from notice.

INDEPENDENT CIVIL ACTIONS (Sec. 3, Rule111)
Section 3. When civil action may proceed independently. —In the cases
provided in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the
independent civil action may be brought by the offended party. It shall proceed
independently of the criminal action and shall require only a preponderance of
evidence.
In no case, however, may the offended party recover damages twice for the
same act or omission charged in the criminal action. (3a)
A final judgment entered in favor of the offended party shall be enforced in the
manner especially provided in these rules for prosecuting claims against the
estate of the deceased. If the accused dies before arraignment, the case shall
be dismissed without prejudice to any civil action the offended party may file
against the estate of the deceased. (n)
Section 5. Judgment in civil action not a bar.—A final judgment rendered in
a civil action absolving the defendant from civil liability is not a bar to a criminal
action against the defendant for the same act or omission subject of the civil
action. (4a)

Is it a judicial legislation? NO. Bakit daw di sya judicial legislation? Gicopy lang
daw from civil code - This can also involve the law on succession and special proceedings
- If the accused dies before FINAL JUDGMENT (no appeal or SC
RESERVATION IS NO LONGER REQUIRED IN INDEPENDENT CIVIL decision) any civil liability arising out of the offense charged will be
ACTIONS. EXTINGUISHED.
- Death = substitution of parties
DMPI Employees Credit Cooperative, Inc. v. Hon. Alejandro Velez G.R. No. - On the criminal case :
129282, November 29, 2001. - On the civil case : extinguished if rendered before death
- If there is a final judgment before death = liability of the accused or his
“Under the present rule, only the civil liability arising from the offense charged is estate
deemed instituted with the criminal action unless the offended party waives the civil - Final judgment but execution has not started = submit the final
action, reserves his right to institute it separately, or institutes the civil action prior judgment in the Estate Court. Rule 86 on the Rules on Special
to the criminal action. Proceedings shall apply. It will be treated as a proven claim. Mini-case
inside the bigger case
There is no more need for a reservation of the right to file the independent
civil actions under Articles 32, 33, 34 and 2176 of the Civil Code of the
An entirely new provision inserted that was based on the case of PEOPLE OF
Philippines "The reservation and waiver referred to refers only to the civil
THE PHILIPPINES v. Bayotas, 236 SCRA 239.
action for the recovery of the civil liability arising from the offense charged.
This does not include recovery of civil liability under Articles 32, 33, 34 and 2176 of
“[T]he death of the accused pending appeal of his conviction extinguishes his
the Civil Code of the Philippines arising from the same act or omission which may
criminal liability as well as the civil liability ex delicto. The criminal action is
be prosecuted separately even without a reservation.’ “
extinguished inasmuch as there is no longer a defendant to stand as the
accused,the civil action instituted therein for recovery of civil liability ex delicto is
What are the effects of the removal of the reservation requirement for
ipso facto extinguished, grounded as it is on the criminal case. Corollarily, the
independent civil actions?
claim for civil liability survives notwithstanding the death of the accused, if the
same may also be predicated on a source of obligation other than delict.”
Neplum, Inc. v. Orbeso,
G.R. No. 141986, July 11, 2002, 3rd Division.
People of the Philippines. v. Pedro Abungan, September 28, 2000 also in
ABS-CBN Broadcasting Corp. Et Al vs. Office of the Ombudsman Et Al. G.R.
“At the outset, we must explain that the 2000 Rules on Criminal Procedure deleted
No. 133347. October 15, 2008.
the requirement of reserving independent civil actions and allowed these to
proceed separately from criminal ones. Thus, the civil actions referred to in Articles
1. Death of the accused pending appeal of his conviction extinguishes his
32, 33, 34 and 2176 of the Civil Code shall remain "separate, distinct and
criminal liability as well as the civil liability based solely thereon. As
independent" of any criminal prosecution based on the same act. Here are some
opined by Justice Regalado, in this regard, “the death of the accused
direct consequences of such revision and omission:
prior to final judgment terminates his criminal liability and only the civil
liability directly arising from and based solely on the offense committed,
1. The right to bring the foregoing actions based on the Civil Code need
i.e., civil liability ex delicto in senso strictiore.”
not be reserved in the criminal prosecution, since they are not deemed
2. Corollarily, the claim for civil liability survives notwithstanding the death
included therein.
of (the) accused, if the same may also be predicated on a source of
2. The institution or waiver of the right to file a separate civil action arising
obligation other than delict. Article 1157 of the Civil Code enumerates
from the crime charged does not extinguish the right to bring such
these other sources of obligation from which the civil liability may arise
action.
as a result of the same act or omission:
3. The only limitation is that the offended party cannot recover more than
a. Law
once for the same act or omission.
b. Contracts
c. Quasi-Contracts
EFFECT OF THE DEATH OF THE ACCUSED ON THE CIVIL LIABILITY (Sec. 4, d. ....
Rule 111) e. Quasi-contracts

_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL

3. Where the civil liability survives, as explained in Number 2 above, an
action for recovery therefor may be pursued but only by way of filing a
separate civil action and subject to Section 1, Rule 111 of the 1985
Rules on Criminal Procedure as amended. This separate civil action
may be enforced either against the executor/administrator or the estate
of the accused, depending on the source of obligation upon which the
same is based as explained above.
4. Finally, the private offended party need not fear a forfeiture of his right
to file this separate civil action by prescription, in cases where during
the prosecution of the criminal action and prior to its extinction, the
private offended party instituted together therewith the civil action. In
such case, the statute of limitations on the civil liability is deemed
interrupted during the pendency of the criminal case, conformably with
the provisions of Article 1155 of the Civil Code, that should thereby
avoid any apprehension on a possible privation of right by prescription."
PREJUDICIAL QUESTION (Secs. 6 and 7, Rule 111)
Section 6. Suspension by reason of prejudicial question. — A petition for
suspension of the criminal action based upon the pendency of a prejudicial
question in a civil action may be filed in the office of the prosecutor or the court
conducting the preliminary investigation. When the criminal action has been
filed in court for trial, the petition to suspend shall be filed in the same criminal
action at any time before the prosecution rests. (6a)
Section 7. Elements of prejudicial question. — The elements of a prejudicial
question are:
(a) the previously instituted civil action involves an issue similar or intimately
related to the issue raised in the subsequent criminal action, and
(b) the resolution of such issue determines whether or not the criminal action
may proceed. (5a)
- A motion to suspend proceedings may be filed even during preliminary
investigation.
- If it is already in court the deadline for filing a motion to suspend the
criminal case is before the prosecution rests.
Major Change:
Old Elements: (copied from the Civil Code)
a) The civil action involves an issue similar or intimately related to the
issue raised in the criminal action;
b) The resolution of such issue is determinative of whether or not the
criminal action may proceed.
There must be some issue in the civil case that will determine whether or not the
criminal case will proceed.
Changes were introduced in the 2000 Rules because of abuse.
For example: A criminal case was filed and then the lawyer would design a civil
case purposely to create a prejudicial question. Once filed in court = have the
criminal court suspended.
New Elements:
a) the previously instituted civil action involves an issue similar or
intimately related to the issue raised in the subsequent criminal action;
and
b) the resolution of such issue determines whether or not the criminal
action may proceed.
Remember:
A motion to suspend proceedings may be filed even during the conduct of
preliminary investigation. If the criminal case is still in the Prosecutor’s Office, you
can file a Motion to Suspend the criminal case.
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
36
If it is already in court, the deadline for filing a Motion to Suspend the criminal case
is before the prosecution rests.
Where and when may prejudicial questions be raised?
During preliminary investigation (whether by a public prosecutor or an MTC) or in
court if the case has already been filed in court. However, the issue must be raised
before the prosecution rests.
Importance why civil action comes first - the intention is to stop what was
discussed earlier.
A Civil Action MUST be a PREVIOUSLY INSTITUTED Civil Action to give rise
to a Prejudicial Question
Problem: How to determine whether the civil ation is a previously instituted civil
action. To determine whether a civil action is considered as a previously instituted
civil action
- Dates of the filing of the information of the criminal and civil cases, is
material
- Civil case filed first = a previously instituted civil action, otherwise it is
not
- Basic: If the civil case date of filing came before the filing of the criminal
information before the court
Atty. Europa: There is a problem because criminal cases, for the most part, are not
filed in court immediately. In a criminal case filed at the prosecutor’s office for the
conduct of a preliminary investigation, during the process of PI, a subpoena will be
issued to the respondent. He knows that a criminal case has been instituted
against him.
What if the case is still pending preliminary investigation and the respondent’s
lawyer files a civil case? (intended to create a civil question)
Rule 110 Section 1. Refers to the institution of criminal action. When is it deemed
instituted?
- Filing before the prosecutor’s office for purposes of preliminary
investigation or in cases of municipalities for the preparation of
information is already institution of the criminal case.
- The word instituted as far as the elements of prejudicial questions are
concerned, should refer to the to the Rule 110 Section 1. Or where it is
based on the filing before the prosecutor.
BUTTT the above is only Atty. Europa’s opinion!
- For now: The measures are still the dates of filing of criminal case and
civil case.
- The basis is what was filed BEFORE THE COURT, not in any other
office.
Dreamwork Construction, Inc. vs. Cleofe S. Janiola, Et Al G.R. No. 184861,
June 30, 2009
On December 1, 2000, the 2000 Rules on Criminal Procedure, however, became
effective and the above provision was amended by Sec. 7 of Rule 111, which
applies here and now provides:
SEC. 7. Elements of prejudicial question.—The elements of a prejudicial question
are: (a) the previously instituted civil action involves an issue similar or intimately
related to the issue raised in the subsequent criminal action, and (b) the resolution
of such issue determines whether or not the criminal action may proceed.
(Emphasis supplied.)
Petitioner interprets Sec. 7(a) to mean that in order for a civil case to create a
prejudicial question and, thus, suspend a criminal case, it must first be established
that the civil case was filed previous to the filing of the criminal case. This,
petitioner argues, is specifically to guard against the situation wherein a party
would belatedly file a civil action that is related to a pending criminal action in order
to delay the proceedings in the latter.

On the other hand, private respondent cites Article 36 of the Civil Code which
provides:
Art. 36 (Civil Code). Pre-judicial questions which must be decided before any
criminal prosecution may be instituted or may proceed, shall be governed by rules
of court which the Supreme Court shall promulgate and which shall not be in
conflict with the provisions of this Code. (Emphasis supplied.)
Private respondent argues that the phrase “before any criminal prosecution may be
instituted or may proceed” must be interpreted to mean that a prejudicial question
exists when the civil action is filed either before the institution of the criminal action
or during the pendency of the criminal action. Private respondent concludes that
there is an apparent conflict in the provisions of the Rules of Court and the Civil
Code in that the latter considers a civil case to have presented a prejudicial
question even if the criminal case preceded the filing of the civil case.
We cannot agree with private respondent.
First off, it is a basic precept in statutory construction that a “change in phraseology
by amendment of a provision of law indicates a legislative intent to change the
meaning of the provision from that it originally had.” In the instant case, the phrase,
“previously instituted,” was inserted to qualify the nature of the civil action involved
in a prejudicial question in relation to the criminal action. This interpretation is
further buttressed by the insertion of “subsequent” directly before the term criminal
action. There is no other logical explanation for the amendments except to qualify
the relationship of the civil and criminal actions, that the civil action must precede
the criminal action.
Additionally, it is a principle in statutory construction that “a statute should be
construed not only to be consistent with itself but also to harmonize with other laws
on the same subject matter, as to form a complete, coherent and intelligible
system.” This principle is consistent with the maxim, interpretare et concordare
leges legibus est optimus interpretandi modus or every statute must be so
construed and harmonized with other statutes as to form a uniform system of
jurisprudence.
In other words, every effort must be made to harmonize seemingly conflicting laws.
It is only when harmonization is impossible that resort must be made to choosing
which law to apply.
In the instant case, Art. 36 of the Civil Code and Sec. 7 of Rule 111 of the
Rules of Court are susceptible of an interpretation that would harmonize
both provisions of law. The phrase “previously instituted civil action” in Sec.
7 of Rule 111 is plainly worded and is not susceptible of alternative
interpretations. The clause “before any criminal prosecution may be
instituted or may proceed” in Art. 36 of the Civil Code may, however, be
interpreted to mean that the motion to suspend the criminal action may be
filed during the preliminary investigation with the public prosecutor or court
conducting the investigation, or during the trial with the court hearing the
case.
This interpretation would harmonize Art. 36 of the Civil Code with Sec. 7 of Rule
111 of the Rules of Court but also with Sec. 6 of Rule 111 of the Civil Code, which
provides for the situations when the motion to suspend the criminal action during
the preliminary investigation or during the trial may be filed.
Joselito R. Pimentel vs. Maria Chrysantine L. Pimentel, Et Al G.R. No. 172060.
September 13, 2010
“The rule is clear that the civil action must be instituted first before the filing of the
criminal action. In this case, the Information for Frustrated Parricide was dated 30
August 2004. It was raffled to RTC Quezon City on 25 October 2004 as per the
stamped date of receipt on the Information.
The RTC Quezon City set Criminal Case No. Q-04-130415 for pre-trial and trial on
14 February 2005. Petitioner was served summons in Civil Case No. 04-7392 on 7
February 2005. Respondent's petition in Civil Case No. 04-7392 was dated 4
November 2004 and was filed on 5 November 2004. Clearly, the civil case for
annulment was filed after the filing of the criminal case for frustrated parricide. As
such, the requirement of Section 7, Rule 111 of the 2000 Rules on Criminal
Procedure was not met since the civil action was filed subsequent to the filing of
the criminal action.
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
37
- In this case the Supreme Court used the dates of the filing of the
Information in court vis a vis the filing of the complaint in the civil case
to determine if the civil case is a previously instituted action.
Nota Bene: The SC also ruled in this case that an action for annulment of
marriage under Art. 36 of the Family Code is NOT a prejudicial question to a
pending case for frustrated parricide. Thus:
- There are more instances where it is not a prejudicial question in
bigamy
Other recent cases on prejudicial questions:
a. NOVATION CASE - Land Bank of the Phils. Vs. Ramon P. Jacinto
(G.R. No. 154622. August 3, 2010)- an action for Declaration of
Novation of a Credit Line Agreement is NOT a prejudicial question to
criminal charges for Violation of BP 22.
b. ANNULMENT OF JUDGEMENT - Krizia Katrina Ty- De Zuzuarregui vs.
Joselito C. Villarosa, Et Al (G.R. No. 183788. April 5, 2010)- a pending
action for annulment of judgment in the Court of Appeals involving the
determination of whether or not some persons are biological heirs of the
decedent IS A PREJUDICIAL QUESTION to a criminal case for
falsification based on alleged false statements about the very same
question of filiation.
- Falsification of document, the issue was weather x is an heir
Yes, there is a prejudicial question.
c. ACTION FOR RESCISSION - Teodoro Reyes vs. Ettore Rossi G.R. No.
159823, February 18, 2013 (BERSAMIN, J.) An action for rescission of
a contract of sale is not a prejudicial question that will warrant the
suspension of the criminal proceedings commenced to prosecute the
buyer for violations of the Bouncing Checks Law (Batas Pambansa Blg.
22) arising from the dishonor of the checks the buyer issued in
connection with the sale.
d. INDEPENDENT CIVIL ACTION BASED OF FRAUD - Rafael Consing
Jr. vs. People of the Philippines G.R. No. 161075, July 15, 2013
(BERSAMIN, J).: An independent civil action based on fraud initiated by
the defrauded party does not raise a prejudicial question to stop the
proceedings in a pending criminal prosecution of the defendant for
estafa through falsification. This is because the result of the
independent civil action is irrelevant to the issue of guilt or innocence of
the accused.
What is a MEMORANDUM CHECK? If it is dishonored, will there be a
violation of BP 22? One issued as a guarantee for loan. There is no intention to
encash such check. Yes, there will be a violation of BP 22.
You must be familiar with Nitapan and Magno cases on BP 22.
General Rule: Prejudicial question between civil case and criminal case.
No prejudicial question between an administrative case and a criminal case.
Exception: Case of San Miguel
NOTA BENE: An exceptional case on prejudicial question involving an
administrative case:
Generally, there can be a prejudicial question only between a civil case and a
criminal case.
- only between criminal case and a civil case
- There usually is no prejudicial question when the other case is
administrative, such as a labor case.
However, in (exception)
San Miguel Properties, Inc. vs. Sec. Hernando Perez

G.R. No. 166836, September 4, 2013 (BERSAMIN, J:)
- Actions involving land developers as against land owners is within the
jurisdiction of the HLURB.
- The laws involved were civil law.
“The pendency of an administrative ease for specific performance brought by the
buyer of residential subdivision lots in the Housing and Land Use
Regulatory .Board (IILURH) to compel the seller to deliver the transfer certificate of
title (TCTs) of the fully paid Jots is properly considered a ground to suspend a
criminal prosecution for violation of Section 25 of Presidential Decree No. 957 on
tile ground of a prejudicial question. The administrative determination is a logical
antecedent of the resolution of the criminal charges based on non-delivery of the
TCTs.”
- action involving developer
- It is in the jurisdiction of the HLURB (Now department of housing)
Alfredo Ching v. Court of Appeals, **g
G.R. No. 110844. April 27, 2000
Civil action for nullity of documents is not a PQ in a case for estafa.
“Verily, under the prevailing circumstances, the alleged prejudicial question in the
civil case for declaration of nullity of documents and for damages, does not juris et
de jure determine the guilt or innocence of the accused in the criminal action for
estafa. Assuming arguendo that the court hearing the civil aspect of the case
adjudicates that the transaction entered into between the parties was not a trust
receipt agreement, nonetheless the guilt of the accused could still be established
and his culpability under penal laws determined by other evidence. To put it
differently, even on the assumption that the documents are declared null, it does
not ipso facto follow that such declaration of nullity shall exonerate the accused
from criminal prosecution and liability.”
Isabela Marbella Bobis v. Isagani D. Bobis, G.R. No. 110844. April 27, 2000
A civil action for declaration of nullity of marriage is not a prejudicial
question in a criminal case for bigamy.
“In the case at bar, respondent's clear intent is to obtain a judicial declaration of
nullity of his first marriage and thereafter to invoke that very same judgment to
prevent his prosecution for bigamy. He cannot have his cake and eat it too.
Otherwise, all that an adventurous bigamist has to do is to disregard Article 40 of
the Family Code, contract a subsequent marriage and escape a bigamy charge by
simply claiming that the first marriage is void and that the subsequent marriage is
equally void for lack of a prior judicial declaration of nullity of the first. A party may
even enter into a marriage aware of the absence of a requisite — usually the
marriage license and thereafter contract a subsequent marriage without obtaining
a declaration of nullity of the first on the assumption that the first marriage is void.
Such scenario would render nugatory the provisions on bigamy.”
“(P)arties to a marriage should not be permitted to judge for themselves its nullity,
only competent courts having such authority. Prior to such declaration of nullity, the
validity of the first marriage is beyond question. A party who contracts a second
marriage then assumes the risk of being prosecuted for bigamy. “
Going Back to the General Rule:
Normally, a criminal case will have precedent over a civil case.
CRIMINAL CASES WILL HAVE PRECEDENCE OVER CIVIL EXCEPT:
1. Independent Civil Actions;
2. When the civil action presents a prejudicial question;
3. Where the civil action is consolidated with the criminal action;
4. When the civil action is not one intended to enforce the civil liability
arising from the offense. (Naguiat v. IAC 164 SCRA 505 )
RULE 112 - PRELIMINARY INVESTIGATION
Administrative Matter No. 05-8-26-SC
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
38
Section 1 Preliminary investigation defined; when required. — Preliminary
investigation is an inquiry or proceeding to determine whether there is sufficient
ground to engender a well-founded belief that a crime has been committed and
the respondent is probably guilty thereof, and should be held for trial. Except as
provided in Section 6 of this Rule, a preliminary investigation is required to be
conducted before the filing of a complaint or information for an offense where
the penalty prescribed by law is at least four (4) years, two (2) months and one
(1) day without regard to the fine. (1a)
A summary proceeding to determine whether or not there is probable cause
to proceed with filing criminal charges against the respondent.
Note: AMENDED BY A.M. No. 05-8-26-SC (RE: Amendment of Rules 112 and
114 of the Revised Rules on Criminal Procedure by removing the conduct of
preliminary investigation from the judges of the first level courts)
Preliminary investigation is an inquiry or proceeding to determine whether there
is sufficient ground to engender a well-founded belief that a crime has been
committed and the respondent is probably guilty thereof, and should be held for
trial.
PI is required if the imposable penalty for the offense exceeds four years and two
months.
- Respondent, not accused, during the preliminary investigation
Note: The “4 y 2 m” guideline is a major amendment because the 1985 Rules
required PI for all RTC cases and this was heavily affected when R.A. No. 7691
expanded the jurisdiction of the MTCs. The amendment, restored the situation
prior to R.A. No. 7691.
- In preliminary investigation, the person being questioned is still a
respondent, not an accused yet.
PURPOSE OF PRELIMINARY INVESTIGATION:
People of the Philippines v. Court of Appeals, G.R. No. 126005, January 21,
1999.
Citing Ledesma v. Court of Appeals, 151 SCRA 462
“The primary objective of a preliminary investigation is to free the respondent
from the inconvenience, expense, ignominy and stress of defending
himself/herself in the course of a formal trial, until the reasonable probability
of his or her guilt in a more or less summary proceeding by a competent
office designated by law for that purpose. Secondarily, such summary
proceeding also protects the state from the burden of the unnecessary
expense and effort in prosecuting alleged offenses and in holding trials
arising from false, frivolous or groundless charges.”
Primary purpose: To free the respondent from the inconvenience, expense,
ignominy, and stress from defending himself/herself in the course of a formal trial
until the reasonable probability of his/her guilt in a more or less summary
proceeding by a competent office designated by law for that purpose.
Secondary purpose: It also protects the interests of the State from the burden of
unnecessary expense and effort of prosecuting alleged offenses and in holding
trials arising from false, frivolous, or groundless charges.
IN WHAT CASES WILL IT BE REQUIRED? 4 years, 2 months, and 1 day UP
1) Before filing of a complaint or information where the penalty prescribed
is at least 4 years, 2 months, and 1 day. It was the maximum threshold
of the jurisdiction of the MTC.
IS LACK OF Preliminary Investigation A JURISDICTIONAL DEFECT? No. In
fact, it is waivable.
The case of Larranaga. Warrantless arrest. They refused to enter a plea.
Sanciangco, Jr. v. People, 149 SCRA 1.
Doromal v. Sandiganbayan, 177 SCRA 354 (1989)

as cited in Pilapil v. Sandiganbayan, 221 SCRA 349.
"The absence of preliminary investigation does not affect the court's jurisdiction
over the case. Nor do they impair the validity of the information or otherwise
render it defective, but, if there were no preliminary investigations and the
defendants, before entering their plea, invite the attention of the court to their
absence, the court, instead of dismissing the Information, should conduct such
investigation, order the fiscal to conduct it or remand the case to the inferior court
so that the preliminary investigation may be conducted . . ."
“Lack of jurisdiction is not waivable but absence of preliminary investigation
is waivable. In fact, it is frequently waived.”
Is a new Preliminary investigation required if there is an amendment of the
Information? Generally, NO. But if it amounts to substitution or the intended
amendment will amount to a new charge, then a new preliminary investigation is
required.
Remember the case of Teehankee v. Madayag.
If the change in an Information is only formal and thereby does not affect the
defense of the accused, a new P.I. is not required.
THE TEST OF PROBABLE CAUSE
Probable cause in whether or not to file or to institute a criminal case against the
accused. Enough evidence for a reasonable man to reach a particular conclusion.
Teresita Domalanta, et al. v. COMELEC, et al.,
G.R. No. 125586, June 29, 2000.
“Probable cause is a reasonable ground of presumption that a matter is, or may
be, well founded, such a state of facts in the mind of the prosecutor as would lead
a person of ordinary caution and prudence to believe or entertain an honest or
strong suspicion, that a thing is so. The term does not mean "actual or positive
cause" nor does it import absolute certainty. It is merely based on opinion and
reasonable belief. Thus, a finding of probable cause does not require an inquiry
into whether there is sufficient evidence to procure a conviction. It is enough that it
is believed that the act or omission complained of constitutes the offense charged.
Precisely, there is a trial for the reception of evidence of the prosecution in support
of the charge.”
- Probable cause is enough evidence for a reasonable man to reach a
conclusion.
- A crime was committed and it was probably committed by the person
charged.
Who may conduct Preliminary Investigations? (Sec. 2, Rule 112)
Section 2 Officers authorized to conduct preliminary investigations. —
The following may conduct preliminary investigations:
(a) Provincial or City Prosecutors and their assistants;
(b) National and Regional State Prosecutors; and
(c) Other officers as may be authorized by law.
Their authority to conduct preliminary investigations shall include all crimes
cognizable by the proper court in their respective territorial jurisdictions. (2a)
a) Provincial or City Prosecutors and their assistants;
b) National and Regional State Prosecutors; and
c) Other officers as may be authorized by law.
Before with : (b) Judges of the Municipal Trial Courts and Municipal Circuit Trial
Courts;
Note:
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
39
MTC, MTCC, MCTC Judges cannot conduct preliminary investigations anymore
under the amendments of the rules in A.M. No. 05-8-26-SC which took effect last
October 3, 2005.
- before they were authorized
- Before section 5 used to contain this, but now section 5 contains
procedure for issuance of warrants
What is the scope of their authority?
All crimes cognizable by the proper court in their respective territorial jurisdictions.
Cudia v. CA, 284 SCRA 173 (1998). READ CASE
City Prosecutor of Angeles City filed an Information for Illegal Possession of
Firearms committed in Mabalacat, Pampanga.
Held: If the person who signed the information is not authorized to do so, the entire
proceedings will be null and void even if the accused participated actively in the
proceedings.
- This is considered a stray decision by atty. jikjik
Other officers :
Criminal Violations of the Omnibus Election Code
Preliminary Investigation to be conducted by the COMELEC.
- The law department of COMELEC does this.
- But the COMELEC may also delegate this to city and provincial
prosecutors.
Office of the Ombudsman
- Violations of public officers
- Particularly cases cognizable by the Sandiganbayan
- But this does not necessarily mean that these are the cases that can be
investigated preliminarily by the Ombudsman, for violations of public
officers
May the Office of the Ombudsman investigate a public official even if the
offense is not in relation to his public office? Yes, when it involves cases
involving public officers, particularly those involving Sandiganbayan.
Deloso v. Domingo, G.R. No. 90591, November 21, 1990.
- RA 6770 or the Ombudsman Act is sufficiently broad to allow the office
of the investigation even if the crime committed was not in relation to
public office.
- Natividad v. Felix: The Supreme Court said that the phrase “in relation
to public office” will be important only in determining whether or not the
SB has jurisdiction over the case.
“The clause "any [illegal] act or omission of any public official" is broad enough to
embrace any crime committed by a public official. The law does not qualify the
nature of the illegal act or omission of the public official or employee that the
Ombudsman may investigate. It does not require that the act or omission be
related to or be connected with or arise from, the performance of official duty.
Since the law does not distinguish, neither should we. The reason for the creation
of the Ombudsman in the 1987 Constitution and for the grant to it of broad
investigative authority, is to insulate said office from the long tentacles of
officialdom that are able to penetrate judges' and fiscals' offices, and others
involved in the prosecution of erring public officials, and through the exertion of
official pressure and influence, quash, delay, or dismiss investigations into
malfeasances and misfeasances committed by public officers.”
“In Relation to Public Office” is material in determining the jurisdiction of the
Sandiganbayan but it is NOT a limit to the investigative powers of the Office of the
Ombudsman.
- It does not matter that the case was (in relation to public office) in order
for Ombudsman to investigate, it is only important when determining the
jurisdiction of the Sandiganbayan.

Natividad v. Felix, G.R. No. 111616, February 4, 1994.
As we held in Aguinaldo v. Domagas (G.R. No. 98452, En Banc Resolution of
September 26, 1991) and recently, Sanchez v. Demetriou (G.R. Nos. 111771- 77,
November 9, 1993), such authority of the Ombudsman "is not an exclusive
authority but rather a shared or concurrent authority in respect of the offense
charged," in other words, concurrent with similarly authorized agencies of the
government. Accordingly, the Ombudsman may take over the investigation of
such case at any stage from any investigative agency of the Government.
A careful scrutiny of Section 15 (1) of the Ombudsman Act of 1989 will reveal that
the word "may" is used in regard to the Ombudsman's assumption of its primary
jurisdiction over cases cognizable by the Sandiganbayan. The word "may," being
generally permissive and since it operates to confer discretion, it follows that the
Ombudsman's investigatory powers are but directory in nature.
There is an overlapping of the jurisdiction of the DOJ prosecution service
with the jurisdiction of the office of the Ombudsman.
- Like when Delima was SOJ - there was a MOA between the DOJ and
the Ombudsman, to lessen the friction. They agreed that when it is a
case cognizable by the Sandiganbayan, even if it is filed with the
prosecutor’s office, the prosecutor’s office will not conduct the
preliminary investigation but forward it to the nearest Office of the
Ombudsman.
- But if not, the Office of the Ombudsman has a choice whether they will
conduct the investigation themselves or to refer it to the nearest
prosecutor.
PROCEDURE FOR PRELIMINARY INVESTIGATION
- (When subscribed signed and placed under oath - subscribed where?
Any public prosecutor, authorized to take oath, but if there are none,
then any notary public)
- No rule that the investigating official should be the one to subscribe
- Public prosecutor and ordinary notary public has different Jurats
- Overlapping between the authority of the state prosecutor and with the
jurisdiction of the Ombudsman
- De Lima: Memorandum of Agreement where they agreed that when it is
a case cognizable by Sandiganbayan, the prosecutor’s office will not
conduct preliminary investigation. If not, the Office of the Ombudsman
has a choice.
REMEDY FOR FILING A MOTION FOR PRODUCTION or MODES OF
DISCOVERY
In criminal cases, it used to be a big issue whether or not a respondent during PI
has the right to ask for the production of evidence against him from the
complainant.
Example: Webb v. De Leon
IMPORTANT CHANGES IN THE PROCEDURE FOR PI. (Sec. 3, Rule 112)
IMPORTANT THAT YOU REMEMBER THIS
Section 3 Procedure. — The preliminary investigation shall be conducted in
the following manner:
(a) The complaint shall state the address of the respondent and shall be
accompanied by affidavits of the complainant and his witnesses, as well
as other supporting documents to establish probable cause. They shall be
in such number of copies as there are respondents, plus two (2) copies for
the official file. The affidavits shall be subscribed and sworn to before any
prosecutor or government official authorized to administer oath, or, in their
absence or unavailability, before a notary public, each of whom must
certify that he personally examined the affiants and that he is satisfied that
they voluntarily executed and understood their affidavits.
- Also called a denuncia or denouncement
- It shall be under oath
- Kanino dapat magpa notarize? Before any prosecutor or government
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
40
official authorized to administer an oath.
Reality: Public Prosecutor
- Prosecutors in some offices that all affidavits relating to the case
must be subscribed before them. There is no legal basis
nakasanayan lang.
- Jurat: It is different between an ordinary lawyer and a public
prosecutor.
- Public Prosecutor: “I hereby attest x x x ” a lot of lawyers do not
know where it came from. each of whom must certify that he
personally examined the affiants and that he is satisfied that
they voluntarily executed and understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the investigating
officer shall either dismiss it if he finds no ground to continue with the
investigation, or issue a subpoena to the respondent attaching to it a copy
of the complaint and its supporting affidavits and document.
The respondent shall have the right to examine the evidence submitted by
the complainant which he may not have been furnished and to copy them
at his expense. If the evidence is voluminous, the complainant may be
required to specify those which he intends to present against the
respondent, and these shall be made available for examination or copying
by the respondent at his expense.
Objects as evidence need not be furnished a party but shall be made
available for examination, copying or photographing at the expense of the
requesting party.
- Documentary evidence are pieces of evidence are being presented
as an evidence of its content. The respondent has the right to ask for
a copy of the documentary evidence. Motion for Production or
Modes of Discovery
- Objects as evidence are pieces of evidence that are addressed to
the senses of the court (for the court to see, smell, touch). For
example, the case was murder and one of the crucial evidences is
the gun. You can file a Motion for Inspection or Motion for Technical
Examination.
- Land title. It depends. What if the case is one for theft and it is the
title that was stolen? It is object evidence. It is being presented as
evidence of what was stolen.
- Take not of the purpose for which it is being offered.
- Technical examination on guns: to know if there are fingerprints of
the accused
- If voluminous, you can file a Motion for the complainant to specify
which evidence he intends to utilize.
(c) Within ten (10) days from receipt of the subpoena with the complaint and
supporting affidavits and documents, the respondent shall submit his counter-
affidavit and that of his witnesses and other supporting documents relied upon
for his defense. The counter-affidavits shall be subscribed and sworn to and
certified as provided in paragraph (a) of this section, with copies thereof
furnished by him to the complainant. The respondent shall not be allowed to file
a motion to dismiss in lieu of a counter-affidavit.
- File the counter-affidavit and furnish a copy to the respondent.
- The respondent shall not be allowed to file a motion to dismiss in lieu
of a counter-affidavit. (Bawal ang motion to dismiss during the PI.
You should include this in your counter-affidavit)
- The ability to prepare a good counter-affidavit is an art form. It
depends on your ability to frame it that would be sufficient to
convince the prosecutor that the case should be dismissed. It is very
important that you learn how to prepare a good counter-affidavit
and/or to decide if you should file a counter-affidavit or not.
(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit
counter-affidavits within the ten (10) day period, the investigating officer shall
resolve the complaint based on the evidence presented by the complainant.
- This is where the problem comes. Some lawyers intentionally
indicate the wrong address so that there will be failure to notify the
person. If your client is able to prove that the complainant knows his

address then that is falsification of public documents.
- Atty. Europa: It happened to my client. They were neighbors. We
filed a counter-affidavit and a separate complaint for falsification of
public documents just to show the prosecutor that there was a
malicious intent to mislead the prosecutor and to purposely cause
the failure of notice to the complainant.
- If the client really does not know the address, you can indicate that
you really do not know the address. What will happen? The
prosecutor can actually already resolve the case.
(e) The investigating officer may set a hearing if there are facts and issues to
be clarified from a party or a witness. The parties can be present at the
hearing but without the right to examine or cross-examine. They may,
however, submit to the investigating officer questions which may be
asked to the party or witness concerned (take note).
The hearing shall be held within ten (10) days from submission of the counter-
affidavits and other documents or from the expiration of the period for their
submission. It shall be terminated within five (5) days.
- Clarificatory Hearing. The prosecutor has questions for him to be
able to resolve the case.
- Atty. Europa: A lawyer wanted to cross-examine his client during the
clarificatory hearing. He presented the rules.
- No direct examination or cross-examination of the opposing party but
you can submit questions to the public prosecutor. It is the decision
of the public prosecutor if he will ask the questions.
- A Manual for Prosecutors but DOJ does not give copies because
they may be used as evidence against them. If you are resourceful,
you can get a copy.
(f) Within ten (10) days after the investigation, the investigating officer shall
determine whether or not there is sufficient ground to hold the respondent for
trial. (3a)
- The prosecutor will issue his resolution. Take note that an
investigating prosecutor may only recommend. It is the head of the
office that will approve or disapprove.
“The respondent shall have the right to examine the evidence submitted by the
complainant which he may not have been furnished and to copy them at his
expense. If the evidence is voluminous, the complainant may be required to
specify those which he intends to present against the respondent, and these shall
be made available for examination or copying by the respondent at his expense.
Objects as evidence need not be furnished to a party but shall be made available
for examination, copying, or photographing at the expense of the requesting party.”
This provision came from Webb v. De Leon, 247 SCRA 652.
- Webb: His assertion that he was actually in the United States when the
Vizconde massacre happened.
- The defense learned that the NBI asked the FBI for confirmation if
Hubert Webb was in the US at that time. There was a certification
issued by FBI to the NBI stating that, according to immigration records,
was at the US at that time.
- “Star witness”
- State witness: A witness for the State
- Jessica Alfaro executed 2 affidavits and there were material
inconsistencies. They refused to give a copy.
- SC: The rules on PI do not specifically mention that
We uphold the legal basis of the right of petitioners to demand from their
prosecutor, the NBI, the original copy of the April 28, 1995 sworn statement of
Alfaro and the FBI Report during their preliminary investigation considering their
exculpatory character, and hence, unquestionable materiality to the issue of their
probable guilt. The right is rooted on the constitutional protection of due process
which we rule to be operational even during the preliminary investigation to a
potential accused. It is also implicit in [S]ection (3)(a) of Rule 112 which requires
during the preliminary investigation the filing of a sworn complaint which shall ‘. . .
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
41
state the known address of the respondent and be accompanied by affidavits of
the complainant and his witnesses as well as other supporting documents. . ."
‘DENUNCIA”
Will a delay in the resolution of the preliminary investigation violate the right
of the respondent to speedy disposition of cases?
The Tatad Ruling
(Tatad v. Sandiganbayan, 159 SCRA 70, 82, March 21, 1988)
The delay of three years was already violative of the right of the respondent to
speedy disposition of cases and right to due process in view of the simplicity of
the issues in the cases.
How should the Tatad Doctrine be applied?
Socrates v. Sandiganbayan,
G.R. Nos. 116259-60, February 20, 1996.
“We have only to reiterate the declaration made in Tatad to the effect that in the
application of the constitutional guaranty of the right to speedy disposition of cases,
particular regard must also be taken of the facts and circumstances peculiar to
each case. It is palpably clear that the application of the Tatad doctrine should not
be made to rely solely on the length of time that has passed but equal concern
should likewise be accorded to the factual ambiance and considerations.
Binay v. Sandiganbayan, G.R. Nos. 120681-83, October 1, 1999.
In Tatad v. Sandiganbayan (159 SCRA 70 (1988)), the Court held that the length of
delay and the simplicity of the issues did not justify the delay in the disposition of
the cases therein. The "unexplained inaction" of the prosecutors called for the
dismissal of the cases against petitioner Tatad.
In Alvizo v. Sandiganbayan (220 SCRA 55 (1993)), the Court also ruled that there
was no violation of the right to speedy disposition. The Court took into account the
reasons for the delay, i.e., the frequent amendments of procedural laws by
presidential decrees, the structural reorganizations in existing prosecutorial
agencies and the creation of new ones by executive fiat, resulting in changes of
personnel, preliminary jurisdiction, and the functions and powers of prosecuting
agencies. The Court likewise considered the failure of the accused to assert such
right, and the lack of prejudice caused by the delay to the accused.
In Santiago v. Garchitorena, (228 SCRA 214) the complexity of the issues and the
failure of the accused to invoke her right to speedy disposition at the appropriate
time spelled defeat to her claim to the constitutional guarantee.
In Cadalin v. POEA’s Administrator (238 SCRA 722), the Court, considering also
the complexity of the cases ("not run-of-the-mill variety") and the conduct of the
parties’ lawyers, held that the right to speedy disposition was not violated therein.
Will the Tatad Ruling apply even if the respondent did not take actions to
accelerate the disposition of his case?
Elpidio C. Cervantes v. Sandiganbayan,
G.R. No. 108595. May 18, 1999
“It is the duty of the prosecutor to speedily resolve the complaint, as mandated by
the Constitution, regardless of whether the petitioner did not object to the delay or
that the delay was with his acquiescence provided that it was not due to causes
directly attributable to him.”
NOTABLE ISSUES ON THE RESOLUTION OF THE INVESTIGATING
PROSECUTOR AND IT’S REVIEW. (Sec. 4, Rule 112)
Section 4. Resolution of investigating prosecutor and its review.—If the
investigating prosecutor finds cause to hold the respondent for trial, he shall
prepare the resolution and information. He shall certify under oath in the
information that he, or as shown by the record, an authorized officer, has
personally examined the complainant and his witnesses; that there is
reasonable ground to believe that a crime has been committed and that the

accused is probably guilty thereof; that the accused was informed of the
complaint and of the evidence submitted against him; and that he was given an
opportunity to submit controverting evidence. Otherwise, he shall recommend
the dismissal of the complaint.
- If cannot be subpoenaed, it will also be indicated.
- This resolution is not sent to the parties but to the head of the office.
Within five (5) days from his resolution, he shall forward the record of the case
to the provincial or city prosecutor or chief state prosecutor, or to the
Ombudsman or his deputy in cases of offenses cognizable by the
Sandiganbayan in the exercise of its original jurisdiction. They shall act on the
resolution within ten (10) days from their receipt thereof and shall immediately
inform the parties of such action.
- Whatever is approved will be sent out.
No complaint or information may be filed or dismissed by an investigating
prosecutor without the prior written authority or approval of the provincial or city
prosecutor or chief state prosecutor or the Ombudsman or his deputy.
- After the signature of the investigating prosecutor, there is “approved
by”. What if he refuses to approve?
- Crespo ruling essentially says that filing a Petition for Review once the
Where the investigating prosecutor recommends the dismissal of the complaint
but his recommendation is disapproved by the provincial or city prosecutor or
chief state prosecutor or the Ombudsman or his deputy on the ground that a
probable cause exists, the latter may, by himself, file the information against the
respondent, or direct another assistant prosecutor or state prosecutor to do so
without conducting another preliminary investigation.
- For example the City Prosecutor finds that there is no basis for
dismissal. He may return the recommendation or forward it to a
different prosecutor.
If upon petition by a proper party under such rules as the Department of Justice
may prescribe or motu proprio, the Secretary of Justice reverses or modifies the
resolution of the provincial or city prosecutor or chief state prosecutor, he shall
direct the prosecutor concerned either to file the corresponding information
without conducting another preliminary investigation, or to dismiss or move for
dismissal of the complaint or information with notice to the parties. The same
rule shall apply in preliminary investigations conducted by the officers of the
Office of the Ombudsman. (4a)
- You can file a Motion for Reconsideration
- File a Petition for Review
- 2000 NPS (National Prosecution Service) on Appeals,
Department Order no. 70. Last year DOJ adopted parts of the
efficient rules on paper rules so you need to file soft copy also. They
dismiss cases if you don’t
- Where do you appeal? At the DOJ Secretary’s Office.
- Department Order 70-A : If the offense charge is cognizable by the
RTC, then your appeal is supposed to be to the DOJ Sec. If it is
cognizable by MTC, your appeal should be to the Regional
Prosecutor.
Example: A case for attempted murder was filed against A. The finding is slight
physical injuries. Difference: intent to kill. Where will the complainant file the
petition for review? Case as filed and not as found. Attempted murder should
be the basis and not slight physical injuries.
Will the filing of petition for review stop the filing of information in court?
- No.
If the information has been filed in Court, will that bar you from filing a
petitioner for review?
- No.
But under Department Order no., 70 one of the requirements if you file a
petition for review, where the Information has already been filed in court, it
should be accompanied by a Motion filed in court to defer the proceedings.
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
42
Problem: Once the information is filed in court, that case can continue. Filing a
petition for review might seem useless.
What will be the result?
What if the DOJ Secretary reverses the finding of probable cause? Can the
Secretary of DOJ order the Judge to dismiss the case? No.
Crespo v. Mogul (GR No. L-53373)
The supreme court made clear distinction of the authority to make a
determination of probable cause to file case and the authority to make a
determination of probable cause to issue warrant
SC: The authority to make a decision is executive in nature. It belongs to whoever
is conducting the preliminary investigation. However, the authority to make a
decision whether or not there is a probable course is judicial in nature and belongs
to the court.
As a consequence of this Mogul ruling - once the case is filed in court, it is the
court who has the last say on its disposition. It is only the Court that can dismiss it.
The Secretary of Justice has absolutely no authority to order the judge to dismiss
the case.
Information has been filed in court is already useless because the Secretary
of Justice does not have the authority to order the judge to dismiss the case.
Roberts Case IMPORTANT CASE
The Mogul ruling never removed the Secretary of Justice’s power to review
SOJ has full authority to review findings of his subordinates
What will happen if the case is already filed in court and a petition for review
is filed with the SOJ and the SOJ decides to reverse the finding of the
probable cause?
If upon petition by a proper party under such rules as the Department
of Justice may prescribe or motu proprio, the Secretary of Justice
reverses or modifies the resolution of the provincial or city prosecutor
or chief state prosecutor, he shall direct the prosecutor concerned
either to file the corresponding information without conducting another
preliminary investigation, or to dismiss or move for dismissal of the
complaint or information with notice to the parties. (Section 4, Rule 112)
He shall direct the prosecutor concerned either to file the corresponding
information without conducting another preliminary investigation or to
dismiss or move for the dismissal of the complaint
- It will be the judge who will review whether or not that motion shall be
granted.
- The prosecutors are under the control and supervision of the SOJ. They
will be ordered to file a Motion in court to withdraw or dismiss the case.
Then it will be the judge who will decide whether or not that motion will
be granted.
- If the investigating office found that there was no probable cause, you
raise it with DOJ and if the SOJ found that there is probable cause, the
SOJ will order the prosecution to file the Information.
Another problem: When the Information has been filed with DOJ, pending the
petition for Review, the proceedings will continue. What if by the time that there is
a resolution, the case is already in trial. It is unlikely for the judge to dismiss the
case.
SC remedy: The pendency of the petition for review is now one of the
grounds to request for the suspension of arraignment (Rule 116 Section 11).
This suspension is only for 60 days. If the case is filed in court, the arraignment
may be suspended. Take note: Only the arraignment
Atty. Europa: I have not encountered any case that they were able to resolve it in
60 days.

For example, you are the counsel for the accused and you filed a motion to
suspend arraignment. What if the prosecution opposes your action?
If the prosecution opposes - Department Order no. 70 says that the trial
prosecutor is required to assist in getting a determent..
The trial prosecutor is a part of DOJ.
If private prosecutor - par 1 Section 5 of Rule 110 = the private prosecutor is under
the control and supervision of the public prosecution. The authority of the private
prosecutor stems from the authority of the public prosecutor. It is the public
prosecutor who is given direct control and supervision of the criminal case. The
authority of the private prosecutor cannot exceed the authority of the public
prosecutor.
“Really knowing what the rules say will afford you many options.”
What if you are not satisfied with the ruling of the Secretary of DOJ? Where
do you appeal?
The alter ego doctrine. The SOJ is the alter ego of the president, it is the OP that
seats above all departments, you can file a petition of review with the OP.
Guluhin natin
In 1998, OP issued Order no. 58: if the imposable penalty is less than reclusion
perpetua to death, the OP will not accept petitions for review from the Office of
the SOJ anymore. The availability of filing a petition for review from the Office of
SOJ to the President has been, since then, only in cases where the penalty is
reclusion perpetua to death.
Di ka pa rin masaya. Maghanap ka nalang ng iba. Where do you go? Rule 43 of
the Rules of Court. Petitions for review from quasi-judicial and administrative
bodies.
CA can reverse OP
Guluhin pa!!!!! Bwisit
What about cases where the imposable penalty is reclusion perpetua? CA
will dismiss the case since the SOJ is not among the list under Rule 43.
Court of appeals Rule 43 - the SOJ is not under Rule 43
- Your remedy is only up to SOJ only
Latest Case: You cannot file a petition for review under Rule 43 but you can file a
Petition for Certiorari under Rule 65 but only on the ground of grave abuse of
discretion on the part of the SOJ.
What if a case is filed in court where it should have gone through preliminary
investigation but it was filed in court without a preliminary investigation or
where the preliminary investigation was defective? Will it render the
information void? Is it jurisdictional? NO
Remember the answer is no . NO, no no no no no
It is even waivable
What if there was a preliminary investigation but the preliminary
investigation was so tagal my goodness.
Tatad v. Sandiganbayan READ THE ORIGINAL CASE
Senator Tatad was the one who read the proclamation of the Martial Law. Love-
hate relationship with Marcos.
E year prelim investigation, before filed before sandigan, the information was
questioned, because tatad says he was denied his right to speedy disposition of
cases, diba, now, so that does that mean that just because it took 3 years, the SC
said no. It is a mere lapse of time.
Is the mere lapse of time that should be considered? No.
The SC provided guidelines. It is not the mere lapse of time but also dependent on
many cases.
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
43
Socrates
Binay
Remember: If the respondent did not do anything, it does not bar the Tatad ruling
because it is the prosecutor’s duty for the speedy resolution of the case.
Will the lack of certification invalidate an Information? Sec. 4, Rule112
requires that in preparing the resolution and information when a prosecutor finds
probable cause, he shall “certify under oath in the information that he, or as shown
by the record, an authorized officer, has personally examined the complainant and
his witnesses; that there is reasonable ground to believe that a crime has been
committed and that the accused is probably guilty thereof; that the accused was
informed of the complaint and of the evidence submitted against him; and that he
was given an opportunity to submit controverting evidence”
- Is it not an essential element of the information.
- It is only a formal defect.
Alvizo v. Sandiganbayan, 220 SCRA 45.
The lack of a certification will not invalidate the information because the
certification is not an essential part of the information. It is merely a formal defect.
Note: Resolutions of investigating prosecutors are forwarded for approval, within
five days, to:
Provincial Prosecutor If PI is conducted by the Provincial Prosecutor’s Office
City Prosecutor If PI is conducted by the City Prosecutor’s Office
Chief State Prosecutor If PI is conducted by the Regional State Prosecutors’
Office
Ombudsman or his In cases of offenses cognizable by the
Deputy Sandiganbayan in the exercise of its original
jurisdiction
Note: The amendment to include the Ombudsman or his deputy is intended to
avoid conflicts of jurisdiction since the authority of the Office of the Ombudsman to
conduct PIs is concurrent with the prosecutors.
OMB: There are many levels of review.
SC: That is no longer an excuse nor acceptable.
Under OMB, you can divide their process of investigation into two: fact-finding
phase and preliminary investigation. OMB can conduct investigation moto proprio.
Once they have enough basis to start a preliminary investigation, there would be
an officer who, in essence, will be the complainant.
Issue: Whether or not that fact-finding phase should be included in evaluating
whether or not the Tatad ruling should apply.
Supreme Court: No, it should not be counted.
If OMB conducts the investigation, where do you file your appeal?
Normally, a criminal case also has an administrative aspect. For criminal aspect -
Supreme Court; for administrative aspect - Court of Appeals
Without TRO, it can still be implemented.
Atty. Europa: Appeared as counsel for an officer of the Bureau of Immigration.
There was probable cause to file a criminal case and administrative liability
ordering her dismissal. I wanted to file a Motion for Reconsideration. I filed a
petition for certiorari questioning only the immediately executory aspect of the
ruling in the administrative case but informed that I already filed a motion for
reconsideration in the criminal and administrative cases.
It was not implemented. It was pending with the CA. MR was denied. I also filed a
petition for certiorari to the Supreme Court to appeal the criminal aspect of that
same joint resolution of the OMB.
Petition for certiorari, review, and certiorari (CA). I also filed a Manifestation.

What happens if a resolution of dismissal is disapproved?
“Where the investigating prosecutor recommends the dismissal of the complaint
but his recommendation is disapproved by the provincial or city prosecutor or chief
state prosecutor or the Ombudsman or his deputy on the ground that a probable
cause exists, the latter may, by himself, file the information against the respondent,
or direct another assistant prosecutor or state prosecutor to do so without
conducting another preliminary investigation.”
What happens in case a resolution is reversed by the Secretary of Justice?
If upon petition by a proper party under such rules as the Department of Justice
may prescribe or motu propio, the Secretary of Justice reverses or modifies the
resolution of the provincial or city prosecutor or chief state prosecutor, he shall
direct the prosecutor concerned either to file the corresponding information without
conducting anther preliminary investigation, or to dismiss or move for dismissal of
the complaint or information with notice to the parties. The same rule shall apply in
preliminary investigations conducted by the officers of the Office of the
Ombudsman. (4a)
Section 5. When warrant of arrest may issue.—(a) By the Regional Trial
Court .—Within ten (10) days from the filing of the complaint or information, the
judge shall personally evaluate the resolution of the prosecutor and its
supporting evidence. He may immediately dismiss the case if the evidence on
record clearly fails to establish probable cause.
If he finds probable cause, he shall issue a warrant of arrest, or a
commitment order if the accused has already been arrested pursuant to a
warrant issued by the judge who conducted the preliminary investigation or
when the complaint or information was filed pursuant to section 7 of this Rule.
In case of doubt on the existence of probable cause, the judge may order
the prosecutor to present additional evidence within five (5) days from notice
and the issue must be resolved by the court within thirty (30) days from the
filing of the complaint of information.
(b) By the Municipal Trial Court.—When required pursuant to the second
paragraph of section 1 of this Rule, the preliminary investigation of cases falling
under the original jurisdiction of the Metropolitan Trial Court, Municipal Trial
Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court may be
conducted by either the judge or the prosecutor. When conducted by the
prosecutor, the procedure for the issuance of a warrant of arrest by the judge
shall be governed by paragraph (a) of this section. When the investigation is
conducted by the judge himself, he shall follow the procedure provided in
section 3 of this Rule. If his findings and recommendations are affirmed by the
provincial or city prosecutor, or by the Ombudsman or his deputy, and the
corresponding information is filed, he shall issue a warrant of arrest. However,
without waiting for the conclusion of the investigation, the judge may issue a
warrant of arrest if he finds after an examination in writing and under oath of the
complainant and his witnesses in the form of searching questions and answers,
that a probable cause exists and that there is a necessity of placing the
respondent under immediate custody in order not to frustrate the ends of
justice.
(c) When warrant of arrest not necessary.—A warrant of arrest shall not issue if
the accused is already under detention pursuant to a warrant issued by the
municipal trial court in accordance with paragraph (b) of this section, or if the
complaint or information was filed pursuant to section 7 of this Rule or is for an
offense penalized by fine only. The court shall then proceed in the exercise of
its original jurisdiction. (6a)
Section 7. Records.—(a) Records supporting the information or complaint.—
An information or complaint filed in court shall be supported by the affidavits
and counter-affidavits of the parties and their witnesses, together with the other
supporting evidence and the resolution on the case. (b) Record of preliminary
investigation.—The record of the preliminary investigation, whether conducted
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
44
by a judge or a prosecutor, shall not form part of the record of the case.
However, the court, on its own initiative or on motion of any party, may order
the production of the record or any of its part when necessary in the resolution
of the case or any incident therein, or when it is to be introduced as an
evidence in the case by the requesting party. (8a)
Once filed, the court will determine if there is probable cause to issue a
warrant of arrest.
ISSUANCE OF WARRANT OF ARREST
By RTC or MTC upon Filing of an Information
For single sala courts, there is no raffle.
For multiple sala courts, there will be a raffle.
An information is not filed alone. It shall be supported by affidavits and counter
affidavits, the information does not stand alone - there should be finding of
probable cause.
Importance of the inclusions of affidavit and counter affidavits in the
Information
- Dutch case. After I filed my first motion, the case was set for hearing in
Agusan. I found out that only the affidavits of the complainants were
attached to the information together with the resolution of the
prosecutor finding probably cause and the resolution denying my
motion for reconsideration.
- When the case was called, I filed a motion to reconsider the finding of
probable cause.
- “Your Honor, the public prosecutor filed the information together with
the affidavit but did not include the counter-affidavit of my client whand
all the affidavits of our witnesses as well as very material documentary
evidence that we also attached. That is in violation of the Rules (Section
7, Rule 112)”. The prosecutor only afforded the court with one-sided
view of the case.
- By omitting clients counter affidavits, the prosecution denied the court
the opportunity to have a complete evidence.
- Section 5, Rule 112: The Court shall personally evaluate the resolution
of the prosecutor and its supporting evidence.
- The evidence does not only include the case for the prosecution but
also the counter of the defendants
Section 2 Article II of the 1987 Constitution
- Determination of probable cause requires personal evaluation made by
the judge.
- The judge cannot just simply rely on the resolution of the prosecutor
and the certification made by the prosecutor
- Crespo: The determination of probable cause to issue a warrant of
arrest is totally separate from the determination of probable cause that
is executive in nature.
- The judge must , including the information and resolution, include the
evidence of the accused.
“Within ten (10) days from the filing of the complaint or information, the judge shall
personally evaluate the resolution of the prosecutor and its supporting evidence.
He may immediately dismiss the case if the evidence on record clearly fails to
establish probable cause.
If he finds probable cause, he shall issue a warrant of arrest, or a commitment
order if the accused has already been arrested pursuant to a warrant issued by the
judge who conducted the preliminary investigation or when the complaint or
information was filed pursuant to section 7 of this Rule.
In case of doubt on the existence of probable cause, the judge may order the
prosecutor to present additional evidence within five (5) days from notice and
the issue must be resolved by the court within thirty (30) days from the filing of the
complaint of information.”

Prior to the 2000 Rules, there was no option to immediately dismiss the case. It is
possible that there will be a case in limbo. It is filed in court but the judge refuses to
issue a warrant of arrest.
Chester De Joya v. Placido C. Marquez,
G.R. No. 162416, January 31, 2006.
“Probable cause to issue a warrant of arrest pertains to facts and circumstances
which would lead a reasonably discreet and prudent person to believe that an
offense has been committed by the person sought to be arrested. It bears
remembering that "in determining probable cause, the average man weighs facts
and circumstances without resorting to the calibrations of our technical rules of
evidence of which his knowledge is nil. Rather, he relies on the calculus of
common sense of which all reasonable men have an abundance." Thus, the
standard used for the issuance of a warrant of arrest is less stringent than that
used for establishing the guilt of the accused. As long as the evidence presented
shows a prima facie case against the accused, the trial court judge has sufficient
ground to issue a warrant of arrest against him.”
NO WARRANT OF ARREST IS NECESSARY IF:
1. Accused is already in detention due to:
a. Warrantless arrest and subsequent inquest
investigation;
b. Accused was already arrested based on a warrant
issued by an MTC judge during preliminary
investigation. (NOT APPLICABLE ANYMORE)
2. Cases where the penalty is purely fine;
3. Cases covered by the Summary Rules. Note in cases covered by the
Summary rules, a warrant is issued only if the accused fails to appear
during arraignment despite notice.
Some Notes:
The requirement that the judge, upon filing of the information, shall personally
evaluate the resolution of the prosecutor and its supporting evidence and the
additional power of the judge to immediately dismiss a case if he finds that the
evidence on record clearly fails to establish probable cause or to require the
prosecutor to present additional evidence in case he has doubts as to the
existence of probable cause are amendments recognizing jurisprudence
establishing the following:
1. The judge may issue a warrant of arrest on the basis of the records of
the preliminary investigation but he cannot rely on the certification of the
prosecutor alone. (Soliven v. Makasiar, 167 SCRA 393, Lim v. Felix 194
SCRA 292, Teresa Ho v. People of the Philippines, 280 SCRA 365)
2. The judge is now clearly empowered to dismiss a case if he finds that
the evidence on record clearly fails to establish probable cause or to
require the prosecutor to present additional evidence in case he has
doubts as to the existence of probable cause. (This clarifies some
confusion as to what the judge is supposed to do if the prosecutor finds
probable cause to hold the accused for trial but the judge does not find
probable cause to issue a warrant of arrest.)
The Supreme Court emphasized the power of a judge to immediately dismiss
a case if the evidence on record clearly fails to establish probable cause.
Elvira O. Ong v. Jose Casim Genio,
G.R. No. 182336, December 23, 2009.
- Court clarified the judge’s authority to immediately dismiss the case
Pursuant to the aforementioned provision, the RTC judge, upon the filing of an
Information, has the following options: (1) dismiss the case if the evidence on
record clearly failed to establish probable cause; (2) if he or she finds probable
cause, issue a warrant of arrest; and (3) in case of doubt as to the existence of
probable cause, order the prosecutor to present additional evidence within five
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
45
days from notice, the issue to be resolved by the court within thirty days from the
filing of the information.
It bears stressing that the judge is required to personally evaluate the resolution of
the prosecutor and its supporting evidence. He may immediately dismiss the case
if the evidence on record clearly fails to establish probable cause. This, the RTC
judge clearly complied with in this case.
Distinguish probable cause to hold an accused for trial from probable cause
to issue a warrant of arrest. prob
People v. Court of Appeals,
G.R. No. 126005, January 21, 1999.
Probable cause for the issuance of a warrant of arrest is the existence of such
facts and circumstance that would lead a reasonably discreet and prudent person
to believe that an offense has been committed by the person sought to be
arrested. Hence, the judge, before issuing a warrant of arrest, "must satisfy himself
that based on the evidence submitted, there is sufficient proof that a crime has
been committed and that the person to be arrested is probably guilty thereof."
On the other hand, probable cause to hold an accused for trial is a reasonable
ground of presumption that a matter is, or may be well-founded, such a state of
facts in the mind of the prosecutor as would lead a person of ordinary caution and
prudence to believe, or entertain an honest or strong suspicion, that a thing is so.
The term does nor mean "actual and positive cause" nor does it import absolute
certainly. It is merely based on opinion and reasonable belief. Thus, a finding of
probable cause does not require an inquiry as to whether there is sufficient
evidence to procure a conviction. It is enough that it is believed that the act or
omission complained of constitutes the offense charged.
The determination of probable cause to hold an accused for trial is within the
authority of the prosecutor while the determination of probable cause to issue a
warrant is within the exclusive authority of the judge.
If a petition for review of the resolution of the investigating prosecutor is
filed with the DOJ, should the issuance and implementation of a Warrant of
Arrest be suspended if an Information has already been filed in court? NO
- Or is it mandatory for the judge to defer the issuance and
implementation of a warrant of arrest?
- Remember that once the case is filed, the court has the authority to
issue a decision. Pendency of a petition for review is now a ground for
requesting the suspension of the arraignment (not the entire process)
for 60 days.
Enrique V. Viudez II v. Court of Appeals,
G.R. No. 152889, June 5, 2009.
- The judge is not under any compulsion to suspend the issuance of a
warrant or deter the implementation of the warrant already issued. He
still has the authority if he desires to do that.
- Did not say that the judge has no choice.
The purpose of the mandate of the judge to first determine probable cause for the
arrest of the accused is to insulate from the very start those falsely charged with
crimes from the tribulations, expenses and anxiety of a public trial.
The function of the judge to issue a warrant of arrest upon the determination of
probable cause is exclusive; thus, the consequent implementation of a warrant of
arrest cannot be deferred pending the resolution of a petition for review by the
Secretary of Justice as to the finding of probable cause, a function that is executive
in nature. To defer the implementation of the warrant of arrest would be an
encroachment on the exclusive prerogative of the judge. It must be emphasized
that petitioner filed with the trial court a motion to suspend proceedings and to
suspend the implementation of the warrant of arrest in pursuance of a DOJ
circular, and not a motion to quash the warrant of arrest questioning the issuance
thereof. Thus, there is no contest as to the validity or regularity of the issuance of
the warrant of arrest. Petitioner merely wanted the trial court to defer the
implementation of the warrant of arrest pending the resolution by the Secretary of
Justice of the petition for review that he filed citing the provision of the DOJ NPS

Rules on Appeal that “The appellant and the trial prosecutor shall see to it that,
pending resolution of the appeal, the proceedings in court are held in abeyance.”
The above provision of the Department Circular is directed specifically at the
appellant and the trial prosecutor, giving them latitude in choosing a remedy to
ensure that the proceedings in court are held in abeyance. However, nowhere in
the said provision does it state that the court must hold the proceedings in
abeyance. Therefore, the discretion of the court whether or not to suspend
the proceedings or the implementation of the warrant of arrest, upon the
motion of the appellant or the trial prosecutor, remains unhindered. This is in
consonance with the earlier ruling 33 of this Court that once a complaint or
information is filed in court, any disposition of the case as to its dismissal, or the
conviction or acquittal of the accused, rests on the sound discretion of the said
court, as it is the best and sole judge of what to do with the case before it. In the
instant case, the judge of the trial court merely exercised his judicial discretion
when he denied petitioner's motion to suspend the implementation of the warrant
of arrest. Consequently, the CA was correct when it found no whimsicality or
oppressiveness in the exercise of the trial judge's discretion in issuing the
challenged orders.
ON THE REMEDIES OF PRELIMINARY INVESTIGATION, REINVESTIGATION,
AND PETITION FOR REVIEW PLEASE TAKE NOTE OF DEPARTMENT
CIRCULAR NO. 018 OF THE DOJ ON THE RULE ON ELECTRONIC FILING OF
PETITIONS FOR REVIEW
Parties are required to file only ONE set of original papers (petition and comment)
but must be accompanied by a CD (should be DVD) of electronic copies and
accompanied by a Declaration of Completeness
Jose Antonio C. Leviste vs. Elmo M. Alameda, Et Al READ CASE
G.R. No. 182677. August 3, 2010
Can the Resolution of the Inquest Prosecutor be the subject of a Motion for
Reconsideration?
- No. What you can only reconsider is a motion during preliminary
investigation.
- Remedy: Last paragraph of Section 5
“The accelerated process of inquest, owing to its summary nature and the
attendant risk of running against Article 125, ends with either the prompt filing of an
information in court or the immediate release of the arrested person. Notably, the
rules on inquest do not provide for a motion for reconsideration”
Can the private complainant file a Petition for Review to the Office of the
Secretary vis a vis the said Resolution?
Contrary to petitioner's position that private complainant should have appealed to
the DOJ Secretary, such remedy is not immediately available in cases subject of
inquest. Noteworthy is the proviso that the appeal to the DOJ Secretary is by
"petition by a proper party under such rules as the Department of Justice may
prescribe." 35 The rule referred to is the 2000 National Prosecution Service Rule
on Appeal, 36 Section 1 of which provides that the Rule shall "apply to appeals
from resolutions . . . in cases subject of preliminary investigation/reinvestigation."
IN CASES SUBJECT OF INQUEST, THEREFORE, THE PRIVATE PARTY
SHOULD FIRST AVAIL OF A PRELIMINARY INVESTIGATION OR
REINVESTIGATION, IF ANY, BEFORE ELEVATING THE MATTER TO THE DOJ
SECRETARY.
Can a PRIVATE COMPLAINANT move for Reinvestigation of a Criminal Case
if the Information has already been filed in Court? NO. He should be happy
that it was filed in court.
“The Court holds that the private complainant can move for reinvestigation, subject
to and in light of the ensuing disquisition.
All criminal actions commenced by a complaint or information shall be prosecuted
under the direction and control of the public prosecutor. The private complainant in
a criminal case is merely a witness and not a party to the case and cannot, by
himself, ask for the reinvestigation of the case after the information had been filed
in court, the proper party for that being the public prosecutor who has the control of
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
46
the prosecution of the case. Thus, in cases where the private complainant is
allowed to intervene by counsel in the criminal action, and is granted the authority
to prosecute, the private complainant, by counsel and with the conformity of the
public prosecutor, can file a motion for reinvestigation.
In fact, the DOJ instructs that before the arraignment of the
accused, trial prosecutors must "examine the Information vis-à-vis
the resolution of the investigating prosecutor in order to make the
necessary corrections or revisions and to ensure that the
information is sufficient in form and substance."
. . . Since no evidence has been presented at that stage, the error would appear or
be discoverable from a review of the records of the preliminary investigation. Of
course, that fact may be perceived by the trial judge himself but, again, realistically
it will be the prosecutor who can initially determine the same. That is why such
error need not be manifest or evident, nor is it required that such nuances as
offenses includible in the offense charged be taken into account. It necessarily
follows, therefore, that the prosecutor can and should institute remedial
measures[.] (emphasis and underscoring supplied)
If a case involving the same facts and parties has already been filed with the
Office of the Ombudsman, the DOJ cannot assume jurisdiction over the new
case filed.
Department of Justice vs. Hermogenes Liwag
G.R. No. 149311. February 11, 2005
- Memorandum of agreement between DOJ and OMB
Facts: On January 8, 2001, Mary Ong filed criminal cases with the Office of the
Ombudsman against PNP General Panfilo M. Lacson, PNP Colonel Michael Ray
B. Aquino, other high-ranking officials of the PNP, and several private individuals.
The Office of the Ombudsman required the respondents to file counter affidavits.
On March 9, 2001, Mary Ong and other witnesses executed affidavits before the
NBI raising the same complaints. NBI filed the case with the DOJ which also
assumed jurisdiction.
Issue: Whether or not the DOJ has jurisdiction to conduct a preliminary
investigation despite the pendency before the Ombudsman of a complaint
involving the same accused, facts, and circumstances.
Held: No. The law and the constitution gives the Office of the Ombudsman primary
jurisdiction over cases against public officers particularly in cases cognizable by
the Sandiganbayan. The Ombudsman is even given authority to take over, at any
stage, from any investigatory agency, the investigation of such cases.
The power of the Ombudsman to investigate cases cognizable by the
Sandiganbayan is not co-equal with other investigative bodies, such as the DOJ.
The Ombudsman can delegate the power but the delegate cannot claim equal
power. While the doctrine of concurrent jurisdiction means equal jurisdiction to deal
with the same subject matter, the settled rule is that the body or agency that first
takes cognizance of the complaint shall exercise jurisdiction to the exclusion of the
others.
NOTE: If the situation were reversed and the 2nd case was filed with the
Ombudsman, the latter could still take over under the doctrine of primary
jurisdiction.
NOTA BENE: This is already covered by the Memorandum of Agreement
between the DOJ and the Office of the Ombudsman, dated March 29, 2012
which took effect ONE (1) MONTH thereafter
Can a private prosecutor file a Motion for Reconsideration of an order of the
trial court granting the motion of the Provincial Prosecutor to withdraw the
information? No.
Nelson Ramirez vs. Hon. Court of Appeals and Doroteo Salazar.
G.R. No. 142384. April 4, 2005
Under Section 5, Rule 110 of the 1985 Rules on Criminal Procedure, all criminal
actions either commenced by complaint or information shall be prosecuted under

the direction and control of the prosecutor. The prosecution of a criminal case is
the responsibility of the public prosecutor and no one else. This is true even
if a private prosecutor is allowed to assist him. In the case at bar, it was the
private prosecutor who sought to have the libel case revived by filing a
motion for reconsideration. Such motion should have been dismissed by the
trial court.
In preliminary investigations, is there a requirement that the affidavits must
be subscribed before the prosecutor investigating the case? Is the
investigating prosecutor REQUIRED to conduct a clarificatory hearing where
there will be a confrontation between the parties?
AURELIO M. SIERRA, vs. JHOSEP Y. LOPEZ,
A.C. No. 7549. August 29, 2008
Rule 112, particularly Section 3 of the Rules of Court, lays down the basic
procedure in preliminary investigation
This provision of the Rules does not require a confrontation between the parties.
Preliminary investigation is ordinarily conducted through submission of affidavits
and supporting documents, through the exchange of pleadings.
In Rodis, Sr. v. Sandiganbayan 1 we ruled that —
(the New Rules on Criminal Procedure) do not require as a condition sine qua non
to the validity of the proceedings (in the preliminary investigation) the presence of
the accused for as long as efforts to reach him were made, and an opportunity to
controvert evidence of the complainant is accorded him. The obvious purpose of
the rule is to block attempts of unscrupulous respondents to thwart the prosecution
of offenses by hiding themselves or by employing dilatory tactics.
Since confrontation between the parties is not imperative, it follows that it is
not necessary that the counter-affidavit of respondent be sworn to before the
investigating prosecutor himself. It can be sworn to before another
prosecutor. In fact, this is specifically provided in paragraph (c) of Sec. 3,
which states that the "counter-affidavit shall be subscribed and sworn to and
certified as provided in paragraph (a) of this section . . ."; and paragraph (a),
provides:
the affidavits shall be subscribed and sworn to before any prosecutor or
government official or in their absence or unavailability, before a notary
public . . . Lastly, we hold that the investigating prosecutors did not abuse
their discretion when they denied the request of the complainant for the
conduct of clarificatory questioning. Under paragraph (e) of Section 3 above,
the conduct of clarificatory questioning is discretionary upon the prosecutor.
Indeed, we already held in Webb v. De Leon 2 that the decision to call
witnesses for clarificatory questions is addressed to the sound discretion of
the investigator, and the investigator alone.
CAN THE PROSECUTION OF A CRIMINAL CASE BE ENJOINED?
Can you file a petition for injunction? NO. There are considerations.
Salonga v. Cruz Paño, 134 SCRA 438 – General rule READ CASE
Brocka v. Enrile, 192 SCRA 183 (1990)
Deloso v. Desierto, G.R. No. 129939, September 9, 1999.
Roger Posadas, et al. vs. Ombudsman, et al., READ CASE
G.R. No. 131492, September 29, 2000.
General Rule: The prosecution of a criminal case MAY NOT be enjoined except in
the following circumstances:
a. To afford protection to the constitutional rights of the accused
(Hernandez v. Albano, et al., L-19272, January 25, 1967, 19 SCRA 95);
78
b. When necessary for the orderly administration of justice or to avoid
oppression or multiplicity of actions (Dimayuga, et al. v. Fernandez, 43
Phil. 304; Hernandez v. Albano, supra; Fortun v. Labang, et al., L-
38383, May 27, 1981, 104 SCRA 607);
c. When there is a prejudicial question which is sub judice (De Leon v.
Mabanag, 70 Phil. 202);
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
47
d. When the acts of the officer are without or in excess of authority (Planas
v. Gil, 67 Phil. 62);
e. Where the prosecution is under an invalid law, ordinance or regulation
(Young v. Rafferty, 33 Phil. 556; Yu Cong Eng v. Trinidad, 47 Phil. 385,
389);
f. When double jeopardy is clearly apparent (Sangalang v. People and
Alvendia, 109 Phil. 1140);
g. Where the court has no jurisdiction over the offense (Lopez v. City
Judge, L-25795, October 29, 1966, 18 SCRA 616);
h. Where it is a case of persecution rather than prosecution (Rustia v.
Ocampo, CA-G.R. No. 4760, March 25, 1960);
i. Where the charges are manifestly false and motivated by
the lust for vengeance (Recto v. Castelo, 18 L.J. (1953),
cited in Rañoa v. Alvendia, CA G.R. No. 30720-R, October
8, 1962; cf., Guingona, et al. v. City Fiscal, L-60033, April
4, 1984, 128 SCRA 577);
What happens if a person is arrested without a warrant? (Sec. 6, R112)
Section 6 When accused lawfully arrested without warrant. — When a
person is lawfully arrested without a warrant involving an offense which
requires a preliminary investigation, the complaint or information may be filed
by a prosecutor without need of such investigation provided an inquest has
been conducted in accordance with existing rules. In the absence or
unavailability of an inquest prosecutor, the complaint may be filed by the
offended party or by a peace officer directly with the proper court on the basis
of the affidavit of the offended party or arresting officer or person.
Before the complaint or information is filed, the person arrested may ask for a
preliminary investigation in accordance with this Rule, but he must sign a
waiver of the provisions of Article 125 of the Revised Penal Code, as amended,
in the presence of his counsel. Notwithstanding the waiver, he may apply for
bail and the investigation must be terminated within fifteen (15) days from its
inception.
After the filing of the complaint or information in court without a preliminary
investigation, the accused may within five (5) days from the time he learns of its
filing, ask for a preliminary investigation with the same right to adduce evidence
in his defense as provided in this Rule. (7a; sec. 2, R.A. No. 7438)
Considerations: Article 125 of the Revised Penal Code (It is not arbitrary
detention.)
If a person is arrested without a warrant, the police have a limited time within which
to FILE A CASE WITH THE COURT because Article 125 requires the delivery of
the person arrested to JUDICIAL AUTHORITIES within the periods provided
therein.
If the entire process of a preliminary investigation is utilized, all of our police
officers will end up in jail. Breakdown of the Process:
1. Arrest;
2. Recording at the police station;
3. Inquest Investigation – The fiscal will determine probable cause on the
basis of the affidavit of the arresting officer and the witnesses, whether
by affidavit or examination. Except: if the accused asks for a full
preliminary investigation and executes a waiver of his rights under
Article 125 of the RPC in the presence of his counsel in which case the
normal procedure for a preliminary investigation will be followed. Note:
The waiver of Article 79 125 of the RTC must be in the presence of the
counsel of the accused due to Section 2(e) of R.A. No. 7438;
4. The prosecutor will file the information in court;
5. Within five days from the time he learns of its filing, the accused may
ask for a preliminary investigation with the same right to adduce
evidence in his defense as provided in this Rule. (People v. Court of
Appeals, G.R. No. 116623. March 23, 1995 – the five-day period is
mandatory)
But a motion for preliminary investigation must be filed before arraignment. (Go v.
Court of Appeals, 206 SCRA 138, 153 [1992]) The right to a preliminary

investigation is waived when the accused fails to invoke it before or at the time of
entering a plea on arraignment by her failure to invoke her right to a preliminary
investigation, Pria forfeited her right to one and she can no longer invoke it for the
first time on appeal. (People v. Lazo, 198 SCRA 274, 284 [1991])
Inquest: The prosecutor will ask questions. On the basis of this, he will make a
determination of whether or not a case should be filed in court.
What is there is no inquest prosecutor? Filing does not stop the filing of the
prescriptive period under Article 125 of the RPC.
DIRECT FILING WITH THE RTC (THIS IS AN ENTIRELY NEW PROVISION)
“In the absence or unavailability of an inquest prosecutor, the complaint may
be filed by the offended party or a peace officer directly with the proper court
on the basis of the affidavit of the offended party or arresting officer or
person.
IT SEEMS THAT THE RULES NOW ALLOW A SITUATION WHERE DIRECT
FILING WITH THE RTC IS ALLOWED.
Situation:
1. A person is arrested via warrantless arrest;
2. Inquest prosecutor is absent or unavailable;
3. The complaint can be filed by the offended party or a peace officer on
the basis of the affidavit of the offended party or arresting officer or
person.
When may a criminal case be filed DIRECTLY with the courts for trial ?
1. In cases in municipalities not requiring preliminary investigation, the
complaint may be filed directly with the MTC for trial by the offended
party, peace officer, or person charged with the enforcement of the law
violated.
2. In cases cognizable by the RTC or MTC where the accused was
arrested via a warrantless arrest and no inquest prosecutor is available,
the complaint can be filed by the offended party or a peace officer on
the basis of the affidavit of the offended party or arresting officer or
person.
You can ask for a preliminary investigation but there must be a waiver of
Article 125 RPC in the presence of the counsel. The accused can still file for
bail but the investigation must be terminated within 15 days.
Last paragraph. You can still ask for a preliminary investigation.
Atty. Europa: It is not a motion for reinvestigation since there was no preliminary
investigation in the first place. The motion is a Motion for Preliminary Investigation.
The 5-day period counted when the accused learned of the investigation is
mandatory. If you file the motion after the 5-day period, it will be denied.
What can be xx - alameda case can the private complainant can file petition for
review from the xxx . answer is no, what can be
Section 5 last par can still be used . the resolution in prelim investigation, then
motion for review and xxx can now be
Private complainant move for the reinvestigation xxx -
Only with the conformity of the prosecutor
Prosecution of criminal case is the responsibility of the public prosecutor and no
one else lagi
Procedure in cases not requiring a preliminary investigation nor covered by
the Rule on Summary Procedure. (Sec. 8, Rule 112)
Section 8 Cases not requiring a preliminary investigation nor covered by
the Rule on Summary Procedure. —
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
48
(a) If filed with the prosecutor. — If the complaint is filed directly with the
prosecutor involving an offense punishable by imprisonment of less
than four (4) years, two (2) months and one (1) day, the procedure
outlined in section 3(a) of this Rule shall be observed. The
prosecutor shall act on the complaint based on the affidavits and
other supporting documents submitted by the complainant within ten
(10) days from its filing. If filed with the Municipal Trial Court.
(b) If filed with the Municipal Trial Court - If the complaint or information
is filed with the Municipal Trial Court or Municipal Circuit Trial Court
for an offense covered by this section, the procedure in section 3(a)
of this rule shall be observed. If within ten (10) days after the filing of
the complaint of information, the judge finds no probable cause after
personally evaluating the evidence, or after personally examining in
writing and under oath the complainant and his witnesses in the form
of searching questions and answers, he shall dismiss the same. He
may, however, require the submission of additional evidence, within
ten (10) days from notice, to determine further the existence of
probable cause. If the judge still finds no probable cause despite the
additional evidence, he shall, within ten (10) days from its
submission or expiration of said period, dismiss the case. When he
finds probable cause, he shall issue a warrant of arrest, or a
commitment order if the accused had already been arrested, and
hold him for trial. However, if the judge is satisfied that there is no
necessity for placing the accused under custody, he may issue
summons instead of a warrant of arrest. (9a)
(a) If filed with the prosecutor. – If the complaint is filed directly with the
prosecutor involving an offense punishable by imprisonment of less than four (4)
years, two (2) months and one (1) day, the procedure outlined in section 3(a) of
this Rule shall be observed. The prosecutor shall act on the complaint based on
the affidavits and other supporting documents submitted by the complainant within
ten (10) days from its filing.
(b) If filed with the Municipal Trial Court – If the complaint or information is filed
with the Municipal Trial Court or Municipal Circuit Trial Court for an offense
covered by this section, the procedure in section 3 (a) of this Rule shall be
observed. If within ten (10) days after the filing of the complaint or information, the
judge finds no probable cause after personally evaluating the evidence, or after
personally examining in writing and under oath the complainant and his witnesses
in the form of searching questions and answers, he shall dismiss the same. He
may, however, require the submission of additional evidence, within ten (10) days
from notice, to determine further the existence of probable cause. If the judge still
finds no probable cause despite the additional evidence, he shall, within ten (10)
days from its submission or expiration of said period, dismiss the case. When he
finds probable cause, he shall issue a warrant of arrest, or a commitment order if
the accused had already been arrested, and hold him for trial. However, if the
judge is satisfied that there is no necessity for placing the accused under custody,
he may issue summons instead of a warrant of arrest. (9a)
REVISED RULE ON SUMMARY PROCEDURE
November 15, 1991
B. Criminal Cases:
(1) Violations of traffic laws, rules and regulations;
(2) Violations of the rental law;
(3) Violations of municipal or city ordinances;
(4) Violations of B.P. Blg. 22 (Bouncing Checks Law);6
(5) All other criminal cases where the penalty prescribed by law for the offense
charged is imprisonment not exceeding six months, or a fine not exceeding one
thousand pesos (P1,000.00), or both irrespective of other imposable penalties,
accessory or otherwise, or of the civil liability arising therefrom: Provided, however,
That in offenses involving damage to property through criminal negligence, this
Rule shall govern where the imposable fine does not exceed ten thousand pesos
(P10,000.00).
Thus, the foregoing procedure is generally applicable to cases punishable with a
penalty from six months and one day to four years and two months.

RULE 113 - ARREST
Section 1. Definition of arrest.—Arrest is the taking of a person into custody
in order that he may be bound to answer for the commission of an offense. (1)
This defect is waivable.
Cf., Jurisdiction over the person of the accused:
The Courts will acquire jurisdiction over the person of the accused through the
arrest or voluntary submission of the accused.
Rule 113 deals with the provisions or procedure relating to the arrest of persons
accused of criminal offenses.
Relevance of the Constitution
Considering that the arrest of a person will necessarily involve a distraint of his
personal liberty, the provisions of the Bill of Rights, particularly on the right of all
persons to be secure in their persons and property will necessarily come into play.
Section 2 of Article III of the 1987 Constitution
SECTION 2. The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures of whatever nature and
for any purpose shall be inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and the persons
or things to be seized.
NORMALLY, a person will be arrested by virtue of a warrant of arrest. The
exceptions are the cases where warrantless arrest are allowed.
Under the constitution, as we have already discussed, there are requirements for
the issuance of a warrant of arrest:
1. Issued by a judge;
2. probable cause;
3. premised upon the judge’s personal evaluation of the affidavits of
witnesses and evidence;
4. particularly describing the person to be seized.
Pangandaman v. Casar,
159 SCRA 599, April 14, 1988.
“A warrant is issued against fifty (50) "John Does" not one of whom the
witnesses to the complaint could or would identify, it is of the nature of a general
warrant, one of a class of writs long proscribed as unconstitutional and once
anathematized as "totally subversive of the liberty of the subject." Clearly violative
of the constitutional injunction that warrants of arrest should particularly describe
the person or persons to be seized, the warrant must, as regards its unidentified
subjects, be voided.”
An invalid arrest will mean that the Court did not acquire jurisdiction over the
person of the accused.
- What is dangerous about warrant against 50 or even just a single john
doe, if without description is It leaves to the arresting officer who to
arrest.
- Even if the name is indicated, there are still instances wherein the
police arrests the wrong person. Mistaken identity
- Shotgun Warrant - anyone may be arrested
This defect is waivable. Even if the initial arrest is invalid, if there is failure on the
part of the accused to assert that defect prior to arraignment, then that effect shall
be waived.
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
49
Remember, in the case of Ilagan v. Enrile (part of Davao history). Which
involves three lawyers in davao city who were arrested during martial law. A
petition for habeas corpus was filed.
- 3 lawyers of Davao City who were arrested during the Martial Law
- Even if the arrest was initially invalid, SC ruled that the habeas corpus
is no longer available. When they were arraigned, the defect was
waived and cured on the issuance of the Commitment Order.
- Landmark Case in Constitutional Law
However in People of the Philippines v. Salvatierra, 276 SCRA 55.
Appellant is estopped from questioning the legality of his arrest considering that he
never raised this before entering his plea. Any objection involving a warrant of
arrest or the procedure in the acquisition of jurisdiction over the person of an
accused must be made before he enters his plea, otherwise, the objection is
deemed waived. This is the first time that appellant is raising this issue as he did
not even move for the quashal of the information before the trial court on the
ground of illegal arrest. Consequently, any irregularity attendant to his arrest, if
any, had been cured by his voluntary submission to the jurisdiction of the trial court
when he entered his plea and participated during the trial. Verily, the illegal arrest
of appellant is not a sufficient cause for setting aside a valid judgment rendered
upon a sufficient complaint and where the trial was free from error.
PEOPLE OF THE PHILIPPINES v. ROLANDO ZASPA,
September 21, 2000.
“any objection regarding the regularity of an arrest must be made before the
accused enters his plea otherwise, the defect shall be deemed cured by the
voluntary submission by the accused to the jurisdiction of the trial court. “
Section 2. Arrest; how made.—An arrest is made by an actual restraint of a
person to be arrested, or by his submission to the custody of the person making
the arrest. No violence or unnecessary force shall be used in making an arrest.
The person arrested shall not be subject to a greater restraint than is necessary
for his detention. (2a)
Section 3. Duty of arresting officer.—It shall be the duty of the officer
executing the warrant to arrest the accused and deliver him to the nearest
police station or jail without unnecessary delay. (3a)
Execution of a warrant of arrest (Sec 4, Rule 113)
Section 4. Execution of warrant.—The head of the office to whom the warrant
of arrest was delivered for execution shall cause the warrant to be executed
within ten (10) days from its receipt. Within ten (10) days after the expiration of
the period, the officer to whom it was assigned for execution shall make a report
to the judge who issued the warrant. In case of his failure to execute the
warrant, he shall state the reasons therefor. (4a)
If a person arrested for theft and he submits to the arrest, is it fair to
handcuff him?
- The use of handcuffs is still a valid and reasonable degree of restraint.
- He might change his mind and become violent, putting the lives of the
arresting officers in danger.
The head of the office to whom the warrant of arrest was delivered for execution
shall cause the warrant to be executed within ten (10) days from its receipt. Within
ten (10) days after the expiration of the period, the officer to whom it was assigned
for execution shall make a report to the judge who issued the warrant. In case of
his failure to execute the warrant, he shall state the reason therefore. (4a)
What is the lifetime of a warrant of arrest? It does not have an expiration
date.
Malaloan v. CA,
May 6, 1994
- It is indefinite until the same is enforced or recalled by the Judge.

“In our jurisdiction, no period is provided for the enforceability of warrants of
arrest, and although within ten days from the delivery of the warrant of arrest for
execution a return thereon must be made to the issuing judge, said warrant does
not become functus officio but is enforceable indefinitely until the same is enforced
or recalled.”
Atty. Europa:
- Manned the radio programs of the IBP. “True Case”
- A listener was arrested fro BP 22 case. The warrant of arrest was
issued a year before.
- Some decided cases state that, the warrant still be valid for as long as
it is not revoked
- 10 day period does not define the lifetime of the warrant
1. It is implemented
2. It is recalled
Unless these happen, the warrant is still valid despite the lapse of period
under Section 4, Rule 113.
People v. Cesar G. Givera,
G.R. No. 132159, January 18, 2001.
“Accused-appellant claims that his arrest at the East Avenue Medical Center on
May 4, 1996 was made without a warrant. This is not true. He was arrested by
virtue of a warrant issued by the court on April 27, 1995. However, as the records
show, the warrant of arrest was returned unserved by the arresting officer on June
7, 1995 as accused-appellant could not be found. He was finally found only on
May 4, 1996. Now, no alias warrant of arrest is needed to make the arrest. Unless
specifically provided in the warrant, the same remains enforceable until it is
executed, recalled or quashed. The ten-day period provided in Rule 113, Section 4
is only a directive to the officer executing the warrant to make a return to the court.”
WARRANTLESS ARRESTS (Sec. 5, Rule 113)
Section 5. Arrest without warrant; when lawful. —A peace officer or a
private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to
believe based on personal knowledge of facts or circumstances that the person
to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is temporarily
confined while his case is pending, or has escaped while being transferred from
one confinement to another. In cases falling under paragraphs (a) and (b)
above, the person arrested without a warrant shall be forthwith delivered to the
nearest police station or jail and shall be proceeded against in accordance with
section 7 of Rule 112. (5a)
When may a person be arrested without a warrant?
Under Section 5 of Rule 113:
a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
b) When an offense has just been committed and he has probable cause
to believe based on personal knowledge of facts or circumstances that
the person to be arrested has committed it; and
c) When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or is
temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.
Plus
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
50
d) If a person lawfully arrested escapes or is rescued, any person may
immediately pursue or retake him without a warrant at any time and in
any place within the Philippines (Sec. 13, Rule 113)
e) For the purpose of surrendering the accused, his bondsmen may arrest
him without a warrant. (Sec. 23, Rule114)
f) An accused released on bail may be re-arrested without the necessity
of a warrant if he attempts to depart from the Philippines without
permission of the court where the case is pending. (Sec. 23, Rule 114)
“OR A PRIVATE PERSON” or citizen’s arrest
In the situations covered by Section 5, even a private citizen can cause a
CITIZEN’s ARREST.
- Once in the custody of the police, the arrested person is under their
custody.
“When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense.”
IN FLAGRANTE DELICTO
What is meant by “in his presence”?
- General understanding is that he saw the commission of the offense
- If you stretch it, in his presence means it is within his perception, not
only his field of sight,
People of the Philippines v. Sucro March 18, 1991, 195 SCRA 388,
repeated in People v. Evaristo 216 S 431
as stated in People of the Philippines v. Joselito del Rosario, April 14, 1999.
“It must be recalled that del Rosario was arrested by SP04 De Leon during the
police raid at the place of "Jun" Marquez at Brgy. Dicarma on 14 May 1996. In
People vs. Sucro44 [G.R. No. 93239, 18 March 1991, 195 SCRA 388.] we held
that when a police officer sees the offense, although at a distance, or hears
the disturbances created thereby, and proceeds at once to the scene thereof,
he may effect an arrest without a warrant on the basis of Sec. 5, par. (a), Rule
113, since the offense is deemed committed in his presence or within his view. In
essence, Sec. 5, par. (a), Rule 113, requires that the accused be caught in
flagrante delicto or caught immediately after the consummation of the act. The
arrest of del Rosario is obviously outside the purview of the aforequoted rule since
he was arrested on the day following the commission of the robbery with
homicide.”
“When an offense has just been committed and he has probable cause to
believe based on personal knowledge of facts or circumstances that the
person to be arrested has committed it.”
also known as ARREST EFFECTED IN HOT PURSUIT
“just been committed” (problem with the interpretation)
- SC has not laid down the rules or timeline when the phrase has just
been committed applies
People v. Manlulu,
G.R. No. 102140 April 22, 1994.
Nineteen (19) hours later is no longer “just been committed.”
- Atty. Europa’s rule of thumb.
What is meant by “personal knowledge of facts”?
- must be based on probable cause
- Gulo-gulo ang codal
People of the Philippines. v. Anthony Escordial
G.R. No. 138934-35, January 16, 2002.
Posadas v. Ombudsman, 341 SCRA 388, 397
citing People v. Doria, 301 SCRA 668, 709 (1991).

Personal knowledge of facts in arrests without a warrant under Section 5(b) of Rule
113 must be based upon "probable cause" which means "an actual belief or
reasonable grounds of suspicion." The grounds of suspicion are reasonable
when, in the absence of actual belief of the arresting officers, the suspicion that the
person to be arrested is probably guilty of committing the offense is based on
actual facts, i.e., supported by circumstances sufficiently strong in themselves to
create the probable cause of guilt of the person to be arrested. A reasonable
suspicion therefore must be founded on probable cause, coupled with good faith
on the part of the peace officer making the arrest.
Probable Cause to justify a warrantless arrest?
People of the Philippines v. Doria, READ CASE (Concurring opinion of
Justice Panganiban, he is fond of citing jurisprudential history)
January 22, 1999
“[P]robable cause means an actual belief or reasonable grounds of suspicion. The
grounds of suspicion are reasonable when, in the absence of actual belief of the
arresting officers, the suspicion that the person to be arrested is probably guilty of
committing the offense, is based on actual facts, i.e., supported by circumstances
sufficiently strong in themselves to create the probable cause of guilt of the person
to be arrested. A reasonable suspicion therefore must be founded on probable
cause, coupled with good faith on the part of the peace officers making the arrest.”
People of the Philippines v. Nasario Molina,
G.R. No. 133917. February 19, 2001
Comprehensive discussion of situations relating to “probable cause.”
“When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is temporarily
confined while his case is pending, or has escaped while being transferred
from one confinement to another.”
No explanation needed.
Question
- a prisoner in maa jail, and a girl friend helped him escape by throwing a
rope over the wall,. They were able to escape but they were caught
before they were able to leave maa. Can they be arrested?
- What about the girlfriend? Assisting in the escape is a crime under
the RPC.
- is she in flagrante delicto?
Remember: ALL LAWS ARE CORRELATED. “When you study law, do not just
look at the leaves but you should be able to see the forest.” Gisabi ito ni mam G
din
- look at the law with a macro view not a micro view
- Example: discussing prejudicial question, general rule : it can only exist
between civil and criminal case. Cases in admin or quasi judicial bodies
do not have prejudicial question in criminal case. But if in labor, where
the question is the existence of employer-employee relationship, and
there is a criminal case where such fact is important -
- Atty. europa’s case the labor case went to ca under rule 65 which is a
special civil action- an original action - at that point “previously instituted
civil action” was not a factor. -
Interesting case on the authority of a police officer to effect a warrantless
arrest.
People of the Philippines v. Jose Rayray, (stupid case)
G.R. No. 90628, February 1, 1995.
“We cannot yield to appellant's view that just because Lt. Ancheta was assigned in
Baguio City he could not arrest persons caught in the act of committing a crime in
some other place, especially so where he was the intended victim. A policemen
cannot callously set aside his essential duty of apprehending criminal offenders
and of keeping peace and order on the shallow excuse that he is not in his place of
assignment. His responsibility to protect the public by apprehending violators of the
law, especially one caught in flagrante delicto is not limited by territorial
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
51
constraints. It follows him wherever he goes. Moreover, Sec. 5, par. (a), Rule 113,
of the Revised Rules on Criminal Procedure authorizes a warrantless arrest,
otherwise called a citizen's arrest, "when, in his presence, the person to be
arrested has committed, is actually committing, or is attempting to commit an
offense." Thus, although officially assigned in Baguio City, Lt. Ancheta’s act of
arresting accused-appellant (after the latter offered to sell him marijuana in San
Fernando, La Union) is justified not only by his duty as a law enforcer but also by
Sec. 5 of Rule 113, which authorizes instances of warrantless or citizens' arrests.”
- Rule: in flagrante delicto is not limited by territorial constraints
Atty. Europa
- A prejudicial question can only exist between a criminal case and a civil
case.
- There was a case when a criminal violation of labor code was filed
against the client. The criminal case was filed first and then the labor
case was filed. The criminal case was still at the fiscal’s office. A labor
case cannot be a prejudicial question.
- Natalo sa LA, appealed with the NLRC. Natalo sa NLRC, appealed with
the CA. The mode of raising the decision is Certiorari under Rule 65. At
that point, the criminal case was about to start prosecutions’ evidence. I
filed a motion to suspend proceedings by reason of a prejudicial
question. The issue of determining EER will determine whether or not
the criminal aspect will proceed.
- I am just trying to protect my client’s rights.
- A petition for certiorari is a SPECIAL civil action. It is not before an
administrative body. The petition for Certiorari is an ORIGINAL action
and NOT a mode of APPEAL.
- Therefore, it is a subject matter of a special civil action.
- However, this no longer applies. There is now a prohibition on
previously instituted civil action.
Marker
WHEN MAY AN ARREST BE EFFECTED? (Sec. 6, Rule 113)
Section 6. Time of making arrest.—An arrest may be made on any day and at
any time of the day or night. (6)
An arrest may be made on any day and at any time of the day or night.
Why is this important? It means that there are no holidays when making an arrest.
“You cannot arrest anyone past 5 pm because they can no longer post a bail.” Is
there a basis for this claim?
There was an issuance prohibiting any arrest after 5 pm. This does not have
any legal basis. Before, they would intentionally arrest people after 5 pm.
ANY DAY, ANY TIME OF THE DAY
Section 7. Method of arrest by officer by virtue of warrant.—When making
an arrest by virtue of a warrant, the officer shall inform the person to be arrested
of the cause of the arrest and the fact that a warrant has been issued for his
arrest, except when he flees or forcibly resists before the officer has opportunity
to so inform him, or when the giving of such information will imperil the arrest.
The officer need not have the warrant in his possession at the time of the arrest
but after the arrest, if the person arrested so requires, the warrant shall be
shown to him as soon as practicable. (7a)
Under present law, there is no prohibition against arrests made on Fridays or
weekends or at night. In effecting an arrest with a warrant, what must the person to
be arrested be informed of? (Sec. 7, Rule 113)
General Rule: Person to be arrested must be informed:
1. The cause of the arrest;
2. The fact that a warrant has been issued for his arrest.

Except: (when the police officer cannot inform the person to be arrested)
1. When the person to be arrested flees;
2. He forcibly resists before the arresting officer had opportunity to inform
him;
3. When giving the information will imperil the arrest.
“The officer NEED NOT HAVE THE WARRANT in his possession at the time
of the arrest but after the arrest, if the person arrested so requires, the
warrant shall be shown to him as soon as practicable.”
EXCEPT FOR VIOLENT INSTANCES/OFFENDERS
- Atty. Europa’s favorite policeman. “May utang ako sa kanya kasi
bayaran ko sana.”
- If he had given the information beforehand, it would impreile the arrest.
The accused might hide and run away.
REMEMBER: “The officer need not have the warrant in his possession at the
time of the arrest but after the arrest, if the person arrested so requires, the
warrant shall be shown to him as soon as practicable.”
- It might be better to have the warrant on hand to avoid complications.
- It’s better but the rules does not require it. He is only required to show it
as soon as practicable after the arrest.
- If a policeman is in abreeza mall and he sees the criminal there, and he
called to confirm in the PS. He can go ahead and make the arrest.
- For as long as the police officer knows that a warrant has been issued
for a particular person, then he can proceed with the arrest.
If you are a lawyer, people will believe you. Wrong knowledge can be very
dangerous.
Diosdado Mallari v. Court of Appeals,
G.R. No. 110569, December 9, 1996.
“At this juncture, the Court would like to stress that this is not a case of a
warrantless arrest but merely an instance of an arrest effected by the police
authorities without having the warrant in their possession at that precise moment.
Finding as it does, this Court deems it unnecessary to delve into the applicability of
Section 5, Rule 113 of the Rules of Court and on the merits of both the petitioner's
and the Office of the Solicitor General's arguments with respect thereto. The
applicable provision is not Section 5, Rule 118 of the Rules of Court on warrantless
arrests, but Section 7, Rule 113 which provides as follows:
"Sec. 8. Method of Arrest by officer by virtue of warrant. — When making an arrest
by virtue of a warrant the officer shall inform the person to be arrested of the cause
of the arrest and the fact that a warrant has been issued for his arrest, except
when he flees or forcibly resists before the officer has opportunity so to inform him
or when the giving of such information will imperil the arrest. The officer need not
have the warrant in his possession at the time of the arrest but after the arrest, if
the person arrested so requires, the warrant shall be shown to him as soon as
practicable." (Emphasis supplied)
In effecting an arrest without warrant by a peace officer, what must the
person to be arrested be informed of? (Sec. 8, Rule 113)
Section 8. Method of arrest by officer without warrant.—When making an
arrest without a warrant, the officer shall inform the person to be arrested of his
authority and the cause of the arrest, unless the latter is either engaged in the
commission of an offense, is pursued immediately after its commission, has
escaped, flees, or forcibly resists before the officer has opportunity to so inform
him, or when the giving of such information will imperil the arrest. (8a)
General Rule: Person to be arrested should be informed of:
1. The authority of the person making the arrest;
2. The Cause of the arrest.
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
52
Except:
1. When the person to be arrested is then ENGAGED IN THE
COMMISSION OF THE OFFENSE; A policeman’s first job is to STOP
the commission of an offense.
What if the crime of rape? He should stop the commission of the
offense first and then inform the accused.
2. He is being pursued immediately after the commission;
3. He is being pursued immediately after escaping or fleeing;
4. He forcibly resists before the officer has opportunity to inform him;
5. When the giving of such information will imperil the arrest.
People of the Philippines v. Larry Mahinay READ CASE
G.R. No. 122485, February 1, 1999.
- Gives you a breakdown of the entire process of an arrest
- “Read him his rights”
- The police officer must carry a card that lists the right of the accused
- The requirement is usually to read, so that the rights made known to
the accused is complete
- It is important because informing the accused of his rights will have an
effect in the validity of the arrest
- There should be a meaningful transmission of the information, not just
a prefunctory rattling of the list his rightsxxx
- Private persons cannot enforce the warrant
Stone Hill v. Diokno Case
If the arrest is illegal = the search in relation to the arrest is illegal = anything
gathered from that illegal search is inadmissible as evidence in any proceeding
and for any purpose
If search is illegal = the evidence becomes fruit of the poisonous tree
It is high-time to educate our law-enforcement agencies who neglect either by
ignorance or indifference the so-called Miranda rights which had become
insufficient and which the Court must update in the light of new legal
developments:
1. The person arrested, detained, invited or under custodial investigation
must be informed in a language known to and understood by him of the
reason for the arrest and he must be shown the warrant of arrest, if any;
Every other warnings, information or communication must be in a
language known to and understood by said person;
2. He must be warned that he has a right to remain silent and that any
statement he makes may be used as evidence against him;
3. He must be informed that he has the right to be assisted at all times
and have the presence of an independent and competent lawyer,
preferably of his own choice;
4. He must be informed that if he has no lawyer or cannot afford the
services of a lawyer, one will be provided for him; and that a lawyer may
also be engaged by any person in his behalf, or may be appointed by
the court upon petition of the person arrested or one acting in his
behalf;
5. That whether or not the person arrested has a lawyer, he must be
informed that no custodial investigation in any form shall be conducted
except in the presence of his counsel or after a valid waiver has been
made;
6. The person arrested must be informed that, at any time, he has the right
to communicate or confer by the most expedient means — telephone,
radio, letter or messenger — with his lawyer (either retained or
appointed), any member of his immediate family, or any medical doctor,
priest or minister chosen by him or by any one from his immediate
family or by his counsel, or be visited by/confer with duly accredited

national or international non- government organization. It shall be the
responsibility of the officer to ensure that this is accomplished;
7. He must be informed that he has the right to waive any of said rights
provided it is made voluntarily, knowingly and intelligently and ensure
that he understood the same;
8. In addition, if the person arrested waives his right to a lawyer, he must
be informed that it must be done in writing AND in the presence of
counsel, otherwise, he must be warned that the waiver is void even if he
insist on his waiver and chooses to speak;
9. That the person arrested must be informed that he may indicate in any
manner at any time or stage of the process that he does not wish to be
questioned with warning that once he makes such indication, the police
may not interrogate him if the same had not yet commenced, or the
interrogation must cease if it has already begun;
10. The person arrested must be informed that his initial waiver of his right
to remain silent, the right to counsel or any of his rights does not bar
him from invoking it at any time during the process, regardless of
whether he may have answered some questions or volunteered some
statements;
11. He must also be informed that any statement or evidence, as the case
may be, obtained in violation of any of the foregoing, whether
inculpatory or exculpatory, in whole or in part, shall be inadmissible in
evidence.
In effecting an arrest without warrant by a private person, what must the
person to be arrested be informed of? (Sec. 9, Rule 113)
Section 9. Method of arrest by private person. —When making an arrest, a
private person shall inform the person to be arrested of the intention to arrest
him and the cause of the arrest, unless the latter is either engaged in the
commission of an offense, is pursued immediately after its commission, or has
escaped, flees, or forcibly resists before the person making the arrest has
opportunity to so inform him, or when the giving of such information will imperil
the arrest. (9a)
General Rule: Person to be arrested should be informed of:
1. The intention of the private person of arresting him;
2. The Cause of the arrest.
Except:
1. When the person to be arrested is then ENGAGED IN THE
COMMISSION OF THE OFFENSE;
2. He is being pursued immediately after the commission;
3. He is being pursued immediately after escaping or fleeing;
4. He forcibly resists before the officer has opportunity to inform him;
5. When the giving of such information will imperil the arrest.
OFFICER MAY SUMMON ASSISTANCE. (Sec. 10, Rule 113)
Section 10. Officer may summon assistance. —An officer making a lawful
arrest may orally summon as many persons as he deems necessary to assist
him in effecting the arrest. Every person so summoned by an officer shall assist
him in effecting the arrest when he can render such assistance without
detriment to himself. (10a)
There is no obligation for a person to assist if it will endagner him. Daming
pakielamera sa Pilipinas.
Basis: Natural obligation to maintain order.
History of this provision
U.S. v. Silvestre Pompeya,
G.R. No. 10255, August 6, 1915.
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
53
- Explains the concept of posse comitatus or the power of the county
- All able-bodied men available shall assist in making the arrest.
“This ancient obligation of the individual to assist in the protection of the peace and
good order of his community is still recognized in all well-organized governments in
the "posse comitatus" (power of the county, poder del condado). (Book 1 Cooley's
Blackstone's Commentaries, 343; Book 4, 122) Under this power, those persons in
the state, county, or town who were charged with the maintenance of peace and
good order were bound, ex officio, to pursue and to take all persons who had
violated the law. For that purpose they might command all the male inhabitants of
a certain age to assist them. This power is called "posse comitatus" (power of the
county). This was a right well recognized at common law. Act No. 1309 is a
statutory recognition of such common-law right. Said Act attempts simply to
designate the cases and the method when and by which the people of the town
(pueblo) may be called upon to render assistance for the protection of the public
and the preservation of peace and good order. It is an exercise of the police power
of the state.”
When can an officer making an arrest break into any building or enclosure?
(Sec. 11, Rule 113)
Section 11. Right of officer to break into building or enclosure.—An officer,
in order to make an arrest either by virtue of a warrant, or without a warrant as
provided in section 5, may break into any building or enclosure where the
person to be arrested is or is reasonably believed to be, if he is refused
admittance thereto, after announcing his authority and purpose, (11a)
1. He has announced his authority to effect the arrest;
2. He has announced his purpose in making the arrest;
3. He is refused admittance after the foregoing announcements.
- Do they need to hear a refusal of admittance? No.
- Reasonable opportunity to respond before he can break into
the enclosure
Right to break out from building or enclosure. (Sec. 12, Rule 113)
Section 12. Right to break out from building or enclosure. —Whenever an
officer has entered the building, or enclosure in accordance with the preceding
section, he may break out therefrom when necessary to liberate himself. (12a)
Atty. Europa: A funnier provision. When an officer was locked inside the building
or enclosure.
Section 13. Arrest after escape or rescue.— If a person lawfully arrested
escapes or is rescued, any person may immediately pursue or retake him
without a warrant at any time and in any place within the Philippines. (13)
Additional instance wherein a person can be arrested even without a
warrant.
Difference with Section 5 (last part). Once nasa Ma-a City Jail and he escapes.
From the time he is arrested until he was transferred to Ma-a City Jail, Section 13
Article 113 is the applicable provision.
3 situations in Section 5. 3 more. This is one of them.
Right of attorney or relative to visit person arrested (Sec. 14, Rule 113)
Section 14. Right of attorney or relative to visit person arrested.— Any
member of the Philippine Bar shall, at the request of the person arrested or of
another acting in his behalf, have the right to visit and confer privately with such
person in the jail or any other place of custody at any hour of the day or night.
Subject to reasonable regulations, a relative of the person arrested can also
exercise the same right. (14a)

Take note: at any hour of the day or night he shall not be denied access to his
counsel. If relative, subject to reasonable regulations.
Remember that our Constitution that it prohibits an arrested person to be in
communicado.
If you go to a jail, bring a copy of the Rules of Court.
This provision should be cross-referenced with R.A. No. 7438.
Section 2, R.A. No. 7438 (took effect on July 7, 1992).
“f. Any person arrested or detained or under custodial investigation
shall be allowed visits by or conferences with any member of his
immediate family, or any medical doctor or priest or religious
minister chosen by him or by any member of his immediate family
or by his counsel, or by any national non-governmental organization
duly accredited by the Commission on Human Rights of by any
international non-governmental organization duly accredited by the
Office of the President. The person's "immediate family" shall
include his or her spouse, fiancé or fiancée, parent or child, brother
or sister, grandparent or grandchild, uncle or aunt, nephew or niece,
and guardian or ward.”
Note: A fiancé or fiancée is considered as “immediate family.”
Section 4
“SECTION 4. Penalty Clause. — a) Any arresting public officer or employee, or
any investigating officer, who fails to inform any person arrested, detained or under
custodial investigation of his right to remain silent and to have competent and
independent counsel preferably of his own choice, shall suffer a fine of Six
thousand pesos (P6,000.00) or a penalty of imprisonment of not less than eight (8)
years but not more than ten (10) years, or both. The penalty of perpetual absolute
disqualification shall also be imposed upon the investigating officer who has been
previously convicted of a similar offense.
The same penalties shall be imposed upon a public officer or employee, or anyone
acting upon orders of such investigating officer or in his place, who fails to provide
a competent and independent counsel to a person arrested, detained or under
custodial investigation for the commission of an offense if the latter cannot afford
the services of his own counsel.
b) Any person who obstructs, prevents or prohibits any lawyer, any member of the
immediate family of a person arrested, detained or under custodial investigation, or
any medical doctor or priest or religious minister chosen by him or by any member
of his immediate family or by his counsel, from visiting and conferring privately with
him, or from examining and treating him, or from ministering to his spiritual needs,
at any hour of the day or, in urgent cases, of the night shall suffer the penalty of
imprisonment of not less than four (4) years nor more than six (6) years, and a fine
of four thousand pesos (P4,000.00).”
People v. Wilfredo Rodriguez, READ CASE
G.R. No. 129211, October 2, 2000.
“In People v. De la Cruz, 279 SCRA 245 (1997), we declared as inadmissible the
extrajudicial confession of accused where the interrogation started at 9:00 A.M.
and his lawyer arrived only at 11:00 A.M. Jurisprudence is clear that an accused
under custodial investigation must continuously have a counsel assisting him from
the very start thereof. In this case, Rodriguez and appellant were in the hands of
the police for about four days without the assistance of counsel. In People v.
Compil, 244 SCRA 135, 142 (1995) we held that:
The operative act, it has been stressed, is when the police investigation is no
longer a general inquiry into an unsolved crime but has begun to focus on a
particular suspect who has been taken into custody by the police to carry out a
process of interrogation that lends itself to eliciting incriminatory statements, and
not the signing by the suspect of his supposed extrajudicial confession. Thus in
People v. de Jesus (213 SCRA 345 [1992]) we said that admissions obtained
during custodial investigation without the benefit of counsel although later reduced
to writing and signed in the presence of counsel are still flawed under the
Constitution.
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
54
So flagrant a violation of the constitutional right to counsel of the accused cannot
be countenanced. In People v. Olivarez, Jr., 299 SCRA 635, 650 (1998). we
explained that:
The purpose of providing counsel to a person under custodial investigation is to
curb the uncivilized practice of extracting confession even by the slightest coercion
as would lead the accused to admit something false. What is sought to be avoided
is the "evil of extorting from the very mouth of the person undergoing interrogation
for the commission of an offense, the very evidence with which to prosecute and
thereafter convict him." These constitutional guarantees have been made available
to protect him from the inherently coercive psychological, if not physical,
atmosphere of such investigation.”
Benjamin Sayaboc or Sabayoc Case READ CASE
- One important case that every law student should read and go over for
a better understanding to understand what the rights of a person
arrested are.
- Perfunctory reading of rights is not enough since there should be a
meaningful transmission of information.
- For the entire period of the examination, the lawyer never interrupted.
- In effect, there was a denial of the Constitutional right to a competent
counsel.
RULE 114 - BAIL
Section 1. Bail defined. - Bail is the security given for the release of a person
in custody of the law, furnished by him or a bondsman, to guarantee his
appearance before any court as required under the conditions hereinafter
specified. Bail may be given in the form of corporate surety, property bond,
cash deposit, or recognizance. (1a)
Basis: Constitutional Provision on the RIght to Bail.
Section 13, Article III, 1987 Constitution.
SECTION 13. All persons, except those charged with offenses punishable by
reclusion perpetua when evidence of guilt is strong, shall, before conviction,
be bailable by sufficient sureties, or be released on recognizance as may be
provided by law. The right to bail shall not be impaired even when the privilege
of the writ of habeas corpus is suspended. Excessive bail shall not be required.”
A bondsman is someone who puts up bail for the accused. If the accused puts up
his own bail, he is his own bondsman. Purpose: To guarantee his appearance.
Traditional Exception : The Right to Bail does not apply to military personnel
under Court Martial
This is the only time the exception exists
In other words, it is violation of articles of war
Jose Comendador v. Renato S. De Villa, G.R. No. 95020, August 20, 1991.
- It discussed the ratio for the exception.
- Justification for the traditional exception: SPIDERMAN : With great
power comes great responsibility.
- ratio for the exception : military personnel are not given the right to bail,
- unique structure of the military - the position they are given,
they are given firearms, and given special training, and they
are paid by the government from taxes paid by the people
- National security
- In essence SPIDERMAN
“We find that the right to bail invoked by the private respondents in G.R. Nos.
95020 has traditionally not been recognized and is not available in the military, as
an exception to the general rule embodied in the Bill of Rights. This much was
suggested in Arula, where we observed that "the right to a speedy trial is given
more emphasis in the military where the right to bail does not exist."

The justification for this exception was well explained by the Solicitor General as
follows:
The unique structure of the military should be enough reason to exempt military
men from the constitutional coverage on the right to bail.
Aside from structural peculiarity, it is vital to note that mutinous soldiers operate
within the framework of democratic system, are allowed the fiduciary use of
firearms by the government for the discharge of their duties and responsibilities
and are paid out of revenues collected from the people. All other insurgent
elements carry out their activities outside of and against the existing political
system.
xxx xxx xxx
National security considerations should also impress upon this Honorable Court
that release on bail of respondents constitutes a damaging precedent. Imagine a
scenario of say 1,000 putschists roaming the streets of the Metropolis on bail, or if
the assailed July 25, 1990 Order were sustained, on 'provisional" bail. The sheer
number alone is already discomforting. But, the truly disquieting thought is that
they could freely resume their heinous activity which could very well result in the
overthrow of duly constituted authorities, including this Honorable Court, and
replace the same with a system consonant with their own concept of government
and justice.
The argument that denial from the military of the right to bail would violate the
equal protection clause is not acceptable. This guaranty requires equal treatment
only of persons or things similarly situated and does not apply where the subject of
the treatment is substantially different from others. The accused officers can
complain if they are denied bail and other members of the military are not. But they
cannot say they have been discriminated against because they are not allowed the
same right that is extended to civilians.”
THE RIGHT TO BAIL IS BECAUSE OF THE PRESUMPTION OF INNOCENCE
OF THE PERSON. THIS IS THE REMEDY TO ALLOW YOU TO SECURE YOUR
PROVISIONAL LIBERTY WHILE THE CASE IS GOING ON. In cases where there
is reason to hold you and the evidence of guilt is strong, then you can be denied
bail.
Purpose and Nature of Bail
Panderanga V. Court of Appeals, READ CASE
247 SCRA 741 (1995)
Reiterated in Go, et ak. V. Judge Benjamin A. Bognolan
A.M. No. RJT-99-1464, July 26, 1999.
- Elements of jurisdiction in criminal cases
- Tuliao case (General rule): When it comes to bail, you should be
allowed to seek your provisional liberty only when you are in custody.
- Exception: Applications for bail. It usually means physical custody.
- The person was in the hospital. The lawyer filed a motion for bail and he
cannot appear because he was at the hospital. The judge denied the
petition.
- SC: Theory of Constructive Custody. It is enough for the court to
send someone to verify that he is there. He was within the reach of the
court.
“Section 13, Article III of the Constitution lays down the rule that before conviction,
all indictees shall be allowed bail, except only those charged with offenses
punishable by reclusion perpetua when the evidence of guilt is strong. In
pursuance thereof, Section 4 of Rule 114, as amended, now provides that all
persons in custody shall, before conviction by a regional trial court of an offense
not punishable by death, reclusion perpetua or life imprisonment, be admitted to
bail as a matter of right.
The right to bail, which may be waived considering its personal nature and which,
to repeat, arises from the time one is placed in the custody of the law, springs from
the presumption of innocence accorded every accused upon whom should not be
inflicted incarceration at the outset since after the trial he would be entitled to
acquittal, unless his guilt be established beyond reasonable doubt.”
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
55
The person seeking to be admitted to bail must first be in the CUSTODY OF
THE LAW
Manigbas v. Luna, 98 Phil. 466 (1956)
Necito C. Hilario v. Julian C. Ocampo III Adm. Case No. 3066, December 3,
2001.
“Bail is defined as the "security given for the release of a person in custody of the
law." By its definition, bail requires that a person must first be arrested or deprived
of liberty before it can be availed of: Thus, although the posting thereof is
tantamount to submission to the jurisdiction of the court, it presupposes that the
accused is under detention or in the custody of law. Indeed, it would be absurd and
incongruous to grant bail to one who is free. In this case, respondent deemed it
appropriate for the accused to file the corresponding bail bonds, even when the
latter had not yet been arrested or placed under custody.”
Guillerma Delos Santos-Reyes v. Judge Camilo O. Montesa, Adm. Matter No.
RTJ-93-983, August 7, 1995.
“From the above recitals of the factual and procedural antecedents of the criminal
cases before the trial court, it is obvious that the accused filed their petitions to
grant bail and to reduce bail, motion to reinstate petition to grant bail and urgent
motion to quash warrants of arrests before the court acquired jurisdiction over their
persons either through the effective service and enforcement of the warrants of
arrest or their voluntary surrender, i.e., before they were placed in the custody of
the law or otherwise deprived of their liberty. Such being so, the trial court, initially,
denied correctly the petition for grant of bail but subsequently disregarded law and
jurisprudence when it favorably acted on the motion to reinstate the petition for
grant of bail and set the motion for hearing on 6 April 1991, directing, for that
purpose the Department of Justice and the Office of the Provincial Prosecutor to
forward to it the records of the preliminary investigation.
In this jurisdiction it is settled that a person applying for bail should be in the
custody of the law or otherwise deprived of his liberty x x x”
Theory of Constructive Custody.
An exception to the General Rule that an accused has to be arrested or has to
voluntarily surrender before he can be admitted to bail.
Paderanga v. Court of Appeals 247 SCRA 741 (1995). Santiago v. Vasquez
217 SCRA 633.
“It should be stressed herein that petitioner, through his counsel, emphatically
made it known to the prosecution and to the trial court during the hearing for bail
that he could not personally appear as he was then confined at the nearby
Cagayan Capitol College General Hospital for acute costochondritis, and could not
then obtain medical clearance to leave the hospital. The prosecution and the trial
court, notwithstanding their explicit knowledge of the specific whereabouts of
petitioner, never lifted a finger to have the arrest warrant duly served upon him.
Certainly, it would have taken but the slightest effort to place petitioner in the
physical custody of the authorities, since he was then incapacitated and under
medication in a hospital bed just over a kilometer away, by simply ordering his
confinement or placing him under guard.
The undeniable fact is that petitioner was by then in the constructive custody of the
law. Apparently, both the trial court and the prosecutors agreed on that point since
they never attempted to have him physically restrained. Through his lawyers, he
expressly submitted to physical and legal control over his person, firstly, by filing
the application for bail with the trial court; secondly, by furnishing true information
of his actual whereabouts; and, more importantly, by unequivocally recognizing the
jurisdiction of the said court. Moreover, when it came to his knowledge that a
warrant for his arrest had been issued, petitioner never made any attempt or
evinced any intent to evade the clutches of the law or concealed his whereabouts
from the authorities since the day he was charged in court, up to the submission of
his application for bail, and until the day of the hearing thereof.”
TYPES OF BAIL:
Corporate Surety

Refers to the type of bail, similar to an insurance contract whereby a bonding
company will issue a bond in the amount fixed by the court which will be forfeited if
the bonding company fails in its obligation to warrant compliance with the
conditions of bail.
- Bonding company must be accredited by the SC
- Make sure that the company is among the list of accredited bonding
companies.
- The process of renewal happens once a year and the renewal is
simultaneous.
- You cannot get back the premiums.
Property Bond
Refers to a situation where property is put up by the accused or somebody else to
warrant compliance with the conditions of bail. If such conditions are violated, the
said property will be sold at public auction and the proceeds thereof, up to the
amount of bail fixed by the court will be forfeited in favor of the government.
- There is a computation done by court based on zonal value, market
value in the tax declaration to determine the amount of property that
can be put up as bond.
- There will be a Bail Undertaking to be signed by the accused and/or
the owner of the property. It will be annotated in the title. Correct term:
Annotated at the memorandum of encumbrances which is usually found
at the back of the title.
Cash Bond
Refers to the type of bail whereby the accused or somebody else will actually
deposit the amount fixed by the court as bail to warrant compliance with the
conditions of bail. If these conditions are violated, the money can be forfeited.
- After finality of judgment, you can get that back.
Recognizance
Refers to the type of bail where a person is released in his own custody or to the
custody of a responsible person. This type of bail is allowable only in the cases
when specific provisions of the law or the rules allow it.
- A special kind.
- The type of bail where the accused will be released on his word of
honor.
- Never forget: It is allowable only in the cases where the specific
provision of the rules or the law allow it.
Victory Liner v. Reynaldo B. Bellosillo, A.M. No. MTJ-00-1321, March 10,
2004.
Requiring bail to be posted in cash and in the amounts of P50,000.00 and
P350,000.00 in cases of reckless imprudence resulting to homicide amounts to a
denial of the constitutional right to bail. The decision to post a surety bond or cash
as bail belongs to the accused and the court cannot require him to post cash.
- Court cannot make that kind of condition. It is only upto them to fix the
amount.
- The determination of what type of bail to put up is left to the defense -
the accused. It would be a violation of the accused’s right to bail.
Why would a judge require that it must be in cash? There are situations
wherein you cannot blame the court to not being amenable to accepting other
forms of bonds. This is to further avoid dealing with fake bonding companies.
Conditions of the bail; requirements. (Sec. 2, Rule 114)
Section 2. - Conditions of bail; requirements - All kinds of bail are subject to
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
56
the following conditions:
(a) The undertaking shall be effective upon approval, and unless cancelled,
shall remain in force at all stages of the case until promulgation of the judgment
of the Regional Trial Court, irrespective of whether the case was originally filed
in or appealed to it;
(b) The accused shall appear before the proper court whenever required
by the court or these Rules; most important warranty of the accused
(c) The failure of the accused to appear at the trial without justification and
despite due notice shall be deemed a waiver of his right to be present thereat.
In such case, the trial may proceed in absentia; and
- Trial in absentia when there is notice to the accused and lawyer and
they failed to appear without any valid reason.
- Can the accused complain later on? No, if there is record that he
was notified.
(d) The bondsman shall surrender the accused to the court for execution of the
final judgment.
- This is basically a promise that if the judgment becomes final, the
bondmas will present the accused so that the sentence can be
implemented.
The Court has the right to restrict the travel of the accused
Ricardo Manotoc, Jr. v. Court of Appeals, 142 SCRA 149, May 30, 1986.
Ricardo C. Silverio v. Court of Appeals, 195 SCRA 760 (1991).
Imelda Marcos v. Sandiganbayan, 247 SCRA 127 (1995).
“A court has the power to prohibit a person admitted to bail from leaving the
Philippines This is a necessary consequence of the nature and function of a bail
bond. The condition imposed upon petitioner to make himself available at all times
whenever the court requires his presence operates as a valid restriction on his
right to travel. As we have held in People v. Uy Tuising, 61 Phil. 404 (1935). " . . .
the result of the obligation assumed by appellee (surety) to hold the accused
amenable at all times to the orders and processes of the lower court, was to
prohibit said accused from leaving the jurisdiction of the Philippines, because,
otherwise, said orders and processes will be nugatory, and inasmuch as the
jurisdiction of the courts from which they issued does not extend beyond that of the
Philippines they would have no binding force outside of said jurisdiction." Indeed, if
the accused were allowed to leave the Philippines without sufficient reason, he
may be placed beyond the reach of the courts.”
- SC repeatedly explained that the Courts in our country has every right
to make sure that the accused is within the reach of the jurisdiction of
our courts.
- Even if the Court does not include this statement, it is as if it is written
there because our rules require that a person who is out on bail needs
the permission of the court before he can leave the country.
- How to get the permission? File a Motion for Permission to travel
abroad.
COJUANGCO v. SANDIGANBAYAN
- He was the CEO and Chairman of the Board of San Miguel.
- The company operates in many countries
- As the head of that company Cojuangco would have to travel to these
places

Section 3. No release or transfer except on court order or bail.—No
person under detention by legal process shall be released or transferred
except upon order of the court or when he is admitted to bail. (3a)
Once arrested, an Order of Commitment shall be issued.
- He should only be detained where he was ordered to be detained.
WHEN IS BAIL A MATTER OF RIGHT (Sec. 4, Rule 114) ONE OF THE MOST
IMPORTANT PROVISIONS
When is bail a matter of right, a matter of discretion, when it should be denied
Section 4. Bail, a matter of right; exception. - All persons in custody shall be
admitted to bail as a matter of right, with sufficient sureties, or released on
recognizance as prescribed by law or this Rule (a) before or after conviction by
the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in
Cities, or Municipal Circuit Trial Court, and (b) before conviction by the Regional
Trial Court of an offense not punishable by death, reclusion perpetua, or life
imprisonment. (4a)
1. BEFORE conviction by the MTC; matter of right
2. AFTER conviction by the MTC; matter of right if he appeals
3. BEFORE conviction by the RTC except if the offense charged is
punishable by reclusion perpetua, life imprisonment, or death, where
the evidence of guilt is strong; matter of right (if evidence of guilt
is strong, it is not a matter of right, in fact, it shall be denied)
4. BEFORE conviction by the RTC in cases punishable by death,
reclusion perpetua or life imprisonment where the court has already
ruled that the evidence of guilt is NOT STRONG. matter of right
WHEN IS BAIL A MATTER OF DISCRETION? (Sec. 5, Rule 114)
Section 5. Bail, when discretionary.—Upon conviction by the Regional Trial
Court of an offense not punishable by death, reclusion perpetua, or life
imprisonment, admission to bail is discretionary. The application for bail may be
filed and acted upon by the trial court despite the filing of a notice of appeal,
provided it has not transmitted the original record to the appellate court.
However, if the decision of the trial court convicting the accused changed the
nature of the offense from non-bailable to bailable, the application for bail can
only be filed with and resolved by the appellate court.
Should the court grant the application, the accused may be allowed to continue
on provisional liberty during the pendency of the appeal under the same bail
subject to the consent of the bondsman. If the penalty imposed by the trial court
is imprisonment exceeding six (6) years, the accused shall be denied bail, or his
bail shall be cancelled upon a showing by the prosecution, with notice to the
accused, of the following or other similar circumstances:
(a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has
committed the crime aggravated by the circumstance of reiteration;
(b) That he has previously escaped from legal confinement, evaded sentence,
or violated the conditions of his bail without valid justification;
(c) That he committed the offense while under probation, parole, or conditional
pardon;
(d) That the circumstances of his case indicate the probability of flight if
released on bail; or
(e) That there is undue risk that he may commit another crime during the
pendency of the appeal. The appellate court may, motu proprio or on motion of
any party, review the resolution of the Regional Trial Court after notice to the
adverse party in either case. (5a)
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
57
Remember: If the penalty is reclusion perpetua to death : It is never a
DISCRETION. In fact, it shall be DENIED.
When is it a matter of discretion?
1. AFTER conviction by the RTC if the penalty IMPOSED is six years or
low
2. AFTER conviction by the RTC even if the penalty imposed is greater
than six years if none of the conditions under par. 3 of Section 5 are
present except if the penalty imposed is death, reclusion perpetua, or
life imprisonment.
WHEN MUST BAIL BE DENIED. (Secs. 5 and 7, Rule 114)
1. BEFORE conviction by the RTC if the offense charged is
punishable by reclusion perpetua, life imprisonment, or death,
where the evidence of guilt is strong;
2. AFTER conviction by the RTC where the penalty imposed is
greater than six years and any of the following conditions are
present:
a. That the accused is a recidivist, quasi-recidivist, or habitual
delinquent, or has committed the crime aggravated by the
circumstance of reiteration;
b. That the accused has previously escaped from legal
confinement, evaded sentence, or violated the conditions of
his bail without valid justification;
c. That the accused committed the offense while under
probation, parole, or conditional pardon;
d. That the circumstances of the case indicate the probability of
flight if released on bail; or
e. That there is undue risk that the accused may commit
another crime during the pendency of the appeal.
3. AFTER conviction by the RTC if the penalty imposed is death,
reclusion perpetua, or life imprisonment.
The conviction of the accused rebuts the presumption of innocence
Do not forget: However, if the decision of the trial court convicting the accused
changed the nature of the offense from non-bailable to bailable, the application for
bail can only be filed with and resolved by the appellate court.
- If the accused was charged with murder and the court convicted him of
homicide. He can apply for bail at the Appellate Court.
Francisco Yap, Jr. v. CA.
G.R. No. 141529, June 6, 2001.
The importance attached to conviction is due to the underlying principle that bail
should be granted only where it is uncertain whether the accused is guilty or
innocent, and therefore, where that uncertainty is removed by conviction it would,
generally speaking, be absurd to admit to bail. After a person has been tried and
convicted the presumption of innocence which may be relied upon in prior
applications is rebutted, and the burden is upon the accused to show error in the
conviction. From another point of view it may be properly argued that the
probability of ultimate punishment is so enhanced by the conviction that the
accused is much more likely to attempt to escape if liberated on bail than before
conviction.
CAPITAL OFFENSE
Section 6. Capital offense, defined.—A capital offense is an offense which,
under the law existing at the time of its commission and of the application for
admission to bail, may be punished with death. (6a)

CAPITAL OFFENSE IF PUNISHABLE BY DEATH
What is the etymology of the term CAPITAL PUNISHMENT? CAPUT or head
1987 Constitution was ratified where the death penalty was effectively abolished
but left the loophole for the Congress to reenact it.
Italy does impose the death penalty.
Section 7. Capital offense or an offense punishable by reclusion perpetua
or life imprisonment, not bailable. — No person charged with a capital
offense, or an offense punishable by reclusion perpetua or life imprisonment,
shall be admitted to bail when evidence of guilt is strong, regardless of the
stage of the criminal prosecution. (7a)
THE APPLICATION FOR BAIL. (Sec. 8, Rule 114)
Applies to situations where the accused is charged with non-bailable offenses. This
is the remedy of the accused in order that he can be admitted to bail.
Once the motion is filed, then a hearing will be set.
Take note that under this motion, it is the prosecution that has the burden of
proving that the evidence of guilt is strong.
Section 8. Burden of proof in bail application. — At the hearing of an
application for bail filed by a person who is in custody for the commission of an
offense punishable by death, reclusion perpetua, or life imprisonment, the
prosecution has the burden of showing that evidence of guilt is strong. The
evidence presented during the bail hearing shall be considered automatically
reproduced at the trial but, upon motion of either party, the court may recall any
witness for additional examination unless the latter is dead, outside the
Philippines, or otherwise unable to testify. (8a)
Once an application for bail has been filed in cases, punishable by death, reclusion
perpetua, or life imprisonment THE BURDEN OF EVIDENCE shifts to the
prosecution to prove that the evidence of guilt is strong.
Note:
What is discretionary on the part of the court in a hearing under Section 8 is
only the determination of whether or not the evidence of guilt is strong.
Important:
Where the imposable penalty is death, reclusion perpetua or life imprisonment and
the accused files an application for bail, the court’s discretion is limited to
determining whether or not the evidence of guilt is strong.
If the evidence of guilt is strong the court MUST DENY bail. On the other hand if
the evidence of guilt is not strong the court MUST GRANT bail.
Steps to be taken by the judge when there is an application for bail.
Basco v. Rapatalo, 269 SCRA 220.
"(1) Notify the prosecutor of the hearing of the application for bail or require him to
submit his recommendation;
"(2) Conduct a hearing of the application for bail regardless of whether or not the
prosecution refuses to present evidence to show that the guilt of the accused is
strong for the purpose of enabling the court to exercise its sound discretion;
"(3) Decide whether the evidence of guilt of the accused is strong based on the
summary of evidence of the prosecution;
"(4) If the evidence of the guilt of the accused is not strong, discharge the accused
upon the approval of the bail bond. Otherwise, petition should be denied."
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
58
What if the prosecutor will say that I will not object? Can the court already grant the
application for bail? No. The hearing is mandatory.
Hearing is MANDATORY
Borinaga v. Tamin
26 SCRA 206 (1993);
Cardines v. Rozete, 242 SCRA 557 (1995).
“[T]he prosecution must be given an opportunity to present its evidence within a
reasonable time whether the motion for bail of an accused who is in custody for a
capital offense be resolved in a summary proceeding or in the course of a regular
trial. If the prosecution is denied such an opportunity, there would be a violation of
procedural due process.”
Joselito V. Narciso v. Flor Marie Sta. Romana-Cruz, G.R. No. 134504, March
17, 2000.
“When the penalty prescribed by law is death, reclusion perpetua or life
imprisonment, a hearing must be conducted by the trial judge before bail can be
granted to the accused. Absent such hearing, the order granting bail is void for
having been issued with grave abuse of discretion” EVEN IF THE PETITION FOR
BAIL HAS THE PROSECUTOR’S CONFORMITY.
People v. Cresenia C. Reyes,
G.R. Nos. 101127-31, August 7, 1992.
If the accused in a case where the imposable penalty is death, reclusion perpetua,
or life imprisonment is granted bail pending trial, such will be cancelled, and the
accused placed in confinement upon conviction for the crime charged.
Modifying Circumstances Shall NOT be considered in determining the right to bail
UNLESS admitted by the prosecution
Jojo Pastor Bravo, Jr. v. Hon. Melecio B. Borja,
G.R. No. L-65228, February 18, 1985.
- Before the Juvenile Law of Pangilinan
- The information indicated that the accused was a minor. Argument: it
shall be bailable since in minority, it is automatic to impose a penalty of
one to two degrees lower.
- SC: Modifying circumstances cannot be considered unless considered
or admitted by the prosecution or a matter of record.
“Petitioner's posture hardly finds support in the law. Under Section 5 of Rule 114 of
the Rules of Court, a capital offense is "an offense which, under the law existing at
the time of its commission, and at the time of the application to be admitted to bail,
may be punished by death." It his clear from this provision that the capital nature of
an offense is determined by the penalty prescribed by law, with reference to which
it is relatively easy to ascertain whether the evidence of guilt against the accused is
strong. Moreover, when the Constitution or the law speaks of evidence of guilt, it
evidently to refers to a finding of innocence or culpability, regardless of the
modifying circumstances.”
“Where it has been established without objection that the accused is only 16 years
old, it follows that, if convicted, he would be given "the penalty next lower then that
prescribed by law," which effectively rules out the death penalty. The Constitution
withholds the guaranty of bail from one who is accused of a capital offense where
the evidence of guilt is strong. The obvious reason is that one who faces a
probable death sentence has a particularly strong temptation to flee. This reason
does not hold where the accused has been established without objection to be a
minor who by law cannot be sentenced to death.”
Can a judge fix the amount of bail upon motion of the accused in a case for
murder if in a prior denial of a demurrer to evidence there was a finding that
there was sufficient evidence to convict for homicide but not for murder?
People v. Luis B. Plaza, READ CASE
G.R. No. 176933, October 2, 2009.

- The accused filed a demurrer for evidence (motion filed after the
prosecution has terminated the presentation of evidence. Arguing that
the evidence presented is not enough to justify prosecution. The case
should already be dismissed)
- Judge denied demurrer for evidence. The judge noted that there was
evidence presented to establish the crime of homicide, not murder.
- The new judge did not set a new hearing - he granted outright the
application for bail.
- Issue: Is it proper? Yes.
- There is already finding of court that the evidence of guilt for murder is
not strong, and that it is only for homicide which is a bailable offence.
- Under Section 8, the prosecution shall present evidence to convince the
Court that the evidence on the guilt is strong.
- The prosecution has already presented the evidence, there is nothing
else that should be heard under section 8.
- Prosecution’s argument: The judge cannot grant bail because it shall be
the appellate court that shall grant bail, citing Section 5. When the
judgment of the court changes the nature from non-bailable to bailable,
it shall be granted by the appellate court. “When the judgment changes
the nature” There is no judgment yet in this case, it will still go on for the
reception of defense’s evidence.
“Since Judge Tan concurred with the assessment by Judge Buyser of the
prosecution evidence when he denied the Demurrer and the latter's statement that
the evidence was sufficient to convict respondent of Homicide, holding a summary
hearing merely to determine whether respondent was entitled to bail would have
been unnecessary as the evidence in chief was already presented by the
prosecution.”
In the same case, will not Section 5 of Rule 114 which provides that “if the decision
of the trial court convicting the accused changed the nature of the offense from
non-bailable to bailable, the application for bail can only be filed with and resolved
by the appellate court.” be violated if bail is fixed?
The People's recourse to Section 5, 14 Rule 114 of the Revised Rules of Criminal
Procedure to support its contention that respondent should be denied bail is
unavailing, for said Section clearly speaks of an application for bail filed by the
accused after a judgment of conviction has already been handed down by the trial
court.
Things to be considered in determining the amount of bail. (Sec. 9, Rule 114)
Section 9. Amount of bail; guidelines.—The judge who issued the warrant or
granted the application shall fix a reasonable amount of bail considering
primarily, but not limited to, the following factors: (a) Financial ability of the
accused to give bail; (b) Nature and circumstances of the offense; (c) Penalty
for the offense charged; (d) Character and reputation of the accused; (e) Age
and health of the accused; (f) Weight of the evidence against the accused; (g)
Probability of the accused appearing at the trial; (h) Forfeiture of other bail; (i)
The fact that the accused was a fugitive from justice when arrested; and (j)
Pendency of other cases where the accused is on bail. Excessive bail shall not
be required. (9a)
What happens in reality or in court is not in full accord with Section 9. Section 9
emphasizes that it is supposed to be the judge who will determine the amount
of bail.
In reality, when the public prosecutor files x x x the judge will make a determination
based on the factors mentioned, now the doj gives out a recommendation - in
practice
In 2000, the DOJ came out with a bail bond guide, and that has been changed
over the years, but there is always a bail bond guide. There are very few instances
where a judge will not abide by the recommendation:
Normally, upon the filing of information, the Clerk of Court issues the warrant of
arrest indicating the amount of bail. More often than not, it is the recommended bail
by the public prosecutor.
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
59
Why is it important to remember these things? The determination of the
amount of bail is within the discretion of the Court. Even if a warrant was issued
and there was amount of bail required,
Considerations in determining the amount of bail according to rule 114
section 9:
(a) Financial ability of the accused to give bail;
(b) Nature and circumstance of the offense;
(c) Penalty for the offense charged;
(d) Character and reputation of the accused;
(e) Age and health of the accused
(f) Weight of the evidence against the accused;
(g) Probability of the accused appearing at the trial;
(h) Forfeiture of other bail;
(i) The fact that the accused was a fugitive from justice when arrested; and
(j) Pendency of other cases where the accused is on bail.
Some notes:
- Property bons (ROD - annotation , return to court)
- The bond may be cancelled if he did not follow the procedure under sec
11
- Bondsman
- Every surety must be worth the amount.
- Justification of surety: affidavit that xxx
- These are usually already part of the forms that the accused will sign
and fill up
Section 9. Amount of bail; guidelines.—The judge who issued the warrant or
granted the application shall fix a reasonable amount of bail considering
primarily, but not limited to, the following factors:
(a) Financial ability of the accused to give bail;
(b) Nature and circumstances of the offense;
(c) Penalty for the offense charged;
(d) Character and reputation of the accused;
(e) Age and health of the accused;
(f) Weight of the evidence against the accused;
(g) Probability of the accused appearing at the trial;
(h) Forfeiture of other bail;
(i) The fact that the accused was a fugitive from justice when arrested; and
(j) Pendency of other cases where the accused is on bail.
Excessive bail shall not be required. (9a)
Section 10. Corporate surety.—Any domestic or foreign corporation, licensed
as a surety in accordance with law and currently authorized to act as such, may
provide bail by a bond subscribed jointly by the accused and an officer of the
corporation duly authorized by its board of directors. (10a)
Section 11. Property bond, how posted.—A property bond is an undertaking
constituted as lien on the real property given as security for the amount of the
bail. Within ten (10) days after the approval of the bond, the accused shall
cause the annotation of the lien on the certificate of title on file with the Registry
of Deeds if the land is registered, or if unregistered, in the Registration Book on
the space provided therefor, in the Registry of Deeds for the province or city
where the land lies, and on the corresponding tax declaration in the office of the
provincial, city and municipal assessor concerned. Within the same period, the
accused shall submit to the court his compliance and his failure to do so shall
be sufficient cause for the cancellation of the property bond and his re-arrest
and detention. (11a)
Section 12. Qualifications of sureties in property bond.—The qualifications
of sureties in a property bond shall be as follows: (a) Each must be a resident
owner of real estate within the Philippines; (b) Where there is only one surety,
his real estate must be worth at least the amount of the undertaking; (c) If there
are two or more sureties, each may justify in an amount less than that
expressed in the undertaking but the aggregate of the justified sums must be
equivalent to the whole amount of the bail demanded. In all cases, every surety
must be worth the amount specified in his own undertaking over and above all

just debts, obligations and properties exempt from execution. (12a)
Section 13. Justification of sureties.—Every surety shall justify by affidavit
taken before the judge that he possesses the qualifications prescribed in the
preceding section. He shall describe the property given as security, stating the
nature of his title, its encumbrances, the number and amount of other bails
entered into by him and still undischarged, and his other liabilities. The court
may examine the sureties upon oath concerning their sufficiency in such
manners it may deem proper. No bail shall be approved unless the surety is
qualified. (13a)
Section 14. Deposit of cash as bail.—The accused or any person acting in his
behalf may deposit in cash with the nearest collector of internal revenue or
provincial, city, or municipal treasurer the amount of bail fixed by the court, or
recommended by the prosecutor who investigated or filed the case. Upon
submission of a proper certificate of deposit and a written undertaking showing
compliance with the requirements of section 2 of this Rule, the accused shall be
discharged from custody. The money deposited shall be considered as bail and
applied to the payment of fine and costs while the excess, if any, shall be
returned to the accused or to whoever made the deposit. (14a)
- BIR, Provincial/City/Municipal Treasury
- Now: OCC or the Court’s own account
- Always specify to whom the money belongs to.
Section 15. Recognizance.—Whenever allowed by law or these Rules, the
court may release a person in custody on his own recognizance or that of a
responsible person. (15a)
ON RECOGNIZANCE:
What are the instances when recognizance is allowed by the law and the
rules?
Roberto Espiritu v. Eduardo Jovellanos,
October 16, 1997 280 SCRA 579.
a) when the offense charged is for violation of an ordinance, a light
felony, or a criminal offense, the imposable penalty for which does not
exceed 6 months imprisonment and/or P2,000 fine, under the
circumstances provided in R.A. No. 6036;
b) where a person has been in custody for a period equal to or more
than the minimum of the imposable principal penalty, without
application of the Indeterminate Sentence Law or any modifying
circumstance, in which case the court, in its discretion, may allow his
release on his own recognizance; For example the imposable penalty is
six months and 1 day to 6 years or prision correccional, if the person
has been imprisoned for 6 months and 1 day, he can already apply for
release on recognizance.
Remember this concept. People shall be released in recognizance.
They no longer need to be in jail.
c) where the accused has applied for probation, pending resolution of the
case but no bail was filed or the accused is incapable of filing one; and
d) in case of a youthful offender, held for physical and mental examination,
trial, or appeal, if he is unable to furnish bail and under the
circumstances envisaged in P.D. No. 603, as amended. (Art. 191)
R.A. No. 7610
“SECTION 25. Rights of Children Arrested for Reasons Related to Armed
Conflict. — Any child who has been arrested for reasons related to armed conflict,
either as combatant, courier, guide or spy is entitled to the following rights;
a) Separate detention from adults except where families are
accommodated as family units;
b) Immediate free legal assistance;
c) Immediate notice of such arrest to the parents or guardians of the child;
and
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
60
d) Release of the child on recognizance within twenty-four (24) hours to
the custody of the Department of Social Welfare and Development or
any responsible member of the community as determined by the court.”
- This falls under diversion because of the Juvenile Law of Pangilinan.
Atty. Europa: I am in favor of protecting the interests of the child. However, the law
was released before the infrastructure of DSWD.
P.D. No. 603
ARTICLE 191. Care of Youthful Offender Held for Examination or Trial. — A
youthful offender held for physical and mental examination or trial or pending
appeal, if unable to furnish bail, shall from the time of his arrest be committed to
the care of the Department of Social Welfare or the local rehabilitation center or a
detention home in the province or city which shall be responsible for his
appearance in court whenever required: Provided, That in the absence of any such
center or agency within a reasonable distance from the venue of the trial, the
provincial, city and municipal jail shall provide quarters for youthful offenders
separate from other detainees. The court may, in its discretion, upon
recommendation of the Department of Social Welfare or other agency or agencies
authorized by the Court, release a youthful offender on recognizance, to the
custody of his parents or other suitable person who shall be responsible for his
appearance whenever required.
SUPREME COURT CIRCULAR NO. 20-79
R.A. No. 6036
SECTION 1. Any provision of existing law to the contrary notwithstanding, bail shall
not be required of a person charged with violation of a municipal or city ordinance,
a light felony and/or a criminal offense the prescribed penalty for which is not
higher than six months imprisonment and/or a fine of two thousand pesos, or both,
where said person has established to the satisfaction of the court or any other
appropriate authority hearing his case that he is unable to post the required cash
or bail bond, except in the following cases:
a) When he is caught committing the offense in flagrante;
b) When he confesses to the commission of the offense unless the
confession is later repudiated by him in a sworn statement or in open
court as having been extracted through force or intimidation;
c) When he is found to have previously escaped from legal confinement,
evaded sentence, or jumped bail;
d) When he is found to have previously violated the provisions of Section 2
hereof;
e) When he is found to be a recidivist or a habitual delinquent or has been
previously convicted for an offense to which the law or ordinance
attaches an equal or greater penalty or for two or more offenses to
which it attaches a lighter penalty;
f) When he commits the offense while on parole or under conditional
pardon; and
g) When the accused has previously been pardoned by the municipal or
city mayor for violation of municipal or city ordinance for at least two
times.
SECTION 2. Instead of bail, the person charged with any offense contemplated by
Section 1 hereof shall be required to sign in the presence of two witnesses of good
standing in the community a sworn statement binding himself, pending final
decision of his case, to report to the Clerk of the Court hearing his case periodically
every two weeks. The Court may, in its discretion and with the consent of the
person charged, require further that he be placed under the custody and subject to
the authority of a responsible citizen in the community who may be willing to
accept the responsibility. In such a case the affidavit herein mentioned shall
include a statement of the person charged that he binds himself to accept the
authority of the citizen so appointed by the Court. The Clerk of Court shall
immediately report the presence of the accused person to the Court. Except when
his failure to report is for justifiable reasons including circumstances beyond his
control to be determined by the Court, any violation of this sworn statement shall
justify the Court to order his immediate arrest unless he files bail in the amount
forthwith fixed by the Court.

Where a person is charged with any offense contemplated by R.A. No. 6036
(copy attached), the Judge should as therein provided order the release of
the accused on recognizance instead of requiring bail.
One more thing on RECOGNIZANCE: Adapt the Robin Hood method. For
those who can pay, charge them more amount so that you will have more
resources to provide for those who cannot afford.
When you accept legal aid cases, most can be settled or agree to plead guilty to a
lesser offense. Then you will file an application for probation = accused can apply
bail for recognizance.
Never give into the temptation of getting the accused admitted to bail on
your recognizance.
Atty. Europa: I had a similar experience wherein the accused no longer showed up.
I had the staff of Seagull Resort to find the accused. There was already a threat to
deny the recognizance.
YOU DO IT BECAUSE IT IS THE RIGHT THING TO DO. IF YOU HAVE THE
RIGHT RESOURCES, THEN HELP THOSE WHO ARE IN NEED.
SEC. 16 OF THE REVISED RULE ON SUMMARY PROCEDURE.
Section 16. Bail, when not required; reduced bail or recognizance.-—No
bail shall be required when the law or these Rules so provide. When a person
has been in custody for a period equal to or more than the possible maximum
imprisonment prescribed for the offense charged, he shall be released
immediately, without prejudice to the continuation of the trial or the proceedings
on appeal. If the maximum penalty to which the accused may be sentenced is
destierro, he shall be released after thirty (30) days of preventive imprisonment.
A person in custody for a period equal to or more than the minimum of the
principal penalty prescribed for the offense charged, without application of the
Indeterminate Sentence Law or any modifying circumstance, shall be released
on a reduced bail or on his own recognizance, at the discretion of the court.
(16a)
SECTION 16. Arrest of accused. — The court shall not order the arrest of the
accused except for failure to appear whenever required. Release of the person
arrested shall either be on bail or on recognizance by a responsible citizen
acceptable to the court.
If you reached the minimum = you can be release on recognizance
If you exceed the maximum = you should still be released
SEC. 16. OF RULE 114
“When a person has been in custody for a period equal to or more than the
possible maximum imprisonment prescribed for the offense charged, he shall be
released immediately, without prejudice to the continuation of the trial or the
proceedings on appeal. If the maximum penalty to which the accused may be
sentenced is destierro, he shall be released after thirty (30) days of preventive
imprisonment.” A person in custody for a period equal to or more than the
minimum of the principal penalty prescribed for the offense charged, without
application of the Indeterminate Sentence Law or any modifying circumstance,
shall be released on a reduced bail or on his own recognizance, at the discretion of
the court. (16a)
WHERE SHOULD BAIL BE FILED. (Sec. 17, Rule 114)
General Rule: Bail must be filed with the court where the case is pending.
Section 17 Bail, where filed. —
a. Bail in the amount fixed may be filed with the court where the case is
pending, or, in the absence or unavailability of the judge thereof,
with any regional trial judge, metropolitan trial judge, municipal trial
judge, or municipal circuit trial judge in the province, city, or
municipality. If the accused is arrested in a province, city, or
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
61
municipality other than where the case is pending, bail may be filed
with any regional trial court of said place, or, if no judge thereof is
available, with any metropolitan trial judge, municipal trial judge or
municipal circuit trial judge therein.
b. Where the grant of bail is a matter of discretion, or the accused
seeks to be released on recognizance, the application may be filed
only in the court where the case is pending, on trial or appeal.
c. Any person in custody who is not yet charged in court may apply for
bail with any court in the province, city or municipality where he is
held, (17a)
All First Level Courts shall continue with the preliminary investigation of cases
pending with them and terminate them not later than December 31, 2005.
Upon the date of effectivity of these amendments, First Level Courts shall no
longer accept new cases for preliminary investigation, which fall under the
exclusive jurisdiction of courts of other levels.
These amendments shall take effect on October 3, 2005 following their
publication in a newspaper of general circulation not later than September 15,
2005.
General Rule: Must be filed in the court where the case is pending.
Exceptions:
1. If the judge of the court where the case is pending is absent or
unavailable bail may be filed with any regional trial judge,
metropolitan trial judge, municipal trial judge, or municipal circuit
trial judge in the province, city or municipality. You go to the office
of the Executive Judge.
Atty. Europa: It has been a practice that when a warrant is issued in Manila, then it
is brought to Davao.
2. If the accused is arrested in a province, city, or municipality other than
where the case is pending, bail may also be filed with any regional trial
court of said place, or if no judge thereof is available, with any
metropolitan trial judge, municipal trial judge, or municipal circuit trial
judge therein.
3. Any person in custody who is not yet charged in court may apply for
bail with any court in the province, city, or municipality where he is held.
What is the situation here? A warrantless arrest. You can file a petition
in court to allow you to post bail while the case is under the prosecutor’s
office.
Atty. Europa: I look for the offense charged in the bail bond guide.
Remember that before the 2000 Rules came out, posting bail would
amount to a waiver of any defect in the arrest, preliminary investigation,
or inquest investigation. That was a problem.
One of the most important amendments in the 2000 Rules that makes
this a practical reality is Section 27 of Rule 114.
- section 26 of rule 11 4
- Waiver after arraignment
- It makes the turn exception a practical reality
Exception to the exception:
Where the grant of bail is a matter of discretion, or the accused seeks to be
released on recognizance, the application may only be filed in the court where
the case is pending.
If an accused learns of the issuance of a warrant of arrest against him, can
that accused post bail with the court where he is at that time even if he has
not yet been arrested?

Divina Luz P. Aquino-Simbulan v. Nicasio Bartolome, et al., A.M. No. MTJ-05-
1588, June 5, 2009. IMPORTANT CASE (a lot of people do not know this case)
- The old practice shall not be followed. You shall first go to the police
station.
- You have to be arrested first before you can go to court and post
bail
Section 17 of Rule 114 provides
Sec. 17. Bail, where filed. — (a) Bail in the amount fixed may be filed with the court
where the case is pending, or, in the absence or unavailability of the judge thereof,
with another branch of the same court within the province or city. If the accused is
arrested in a province, city or municipality other than where the case is pending,
bail may be filed also with any regional trial court of said place, or, if no judge
thereof is available, with any metropolitan trial judge, municipal trial judge or
municipal circuit trial judge therein. . .
The OCA's Report revealed that the accused Rosalina Mercado was not arrested.
The proper procedure, according to the above-cited rules, would have been to file
her bail bond with the RTC Branch 41, San Fernando, Pampanga where her case
was pending. Had complainant Judge been absent or was unavailable at that time,
the accused could have filed for bail with another branch of the RTC in Pampanga
or in San Fernando City. However, the accused filed her surety bond with the MTC
of Sta. Maria, Bulacan, where it was approved by respondent Judge.
Not only did respondent Judge erroneously order the release of the accused, but
he also failed to require submission of the supporting documents needed in the
application for a bond.
Section 18. Notice of application to prosecutor. —In the application for bail
under section 8 of this Rule, the court must give reasonable notice of the
hearing to the prosecutor or require him to submit his recommendation. (18a)
Section 19. Release on bail.—The accused must be discharged upon
approval of the bail by the judge with whom it was filed in accordance with
section 17 of this Rule. When bail is filed with a court other than where the case
is pending, the judge who accepted the bail shall forward it, together with the
order of release and other supporting papers, to the court where the case is
pending, which may, for good reason, require a different one to be filed. (19a)
Section 20. Increase or reduction of bail. —After the accused is admitted to
bail, the court may, upon good cause, either increase or reduce its amount.
When increased, the accused may be committed to custody if he does not give
bail in the increased amount within a reasonable period. An accused held to
answer a criminal charge, who is released without bail upon filing of the
complaint or information, may, at any subsequent stage of the proceedings and
whenever a strong showing of guilt appears to the court, be required to give bail
in the amount fixed, or in lieu thereof, committed to custody. (20a)
PROCEDURE FOR THE FORFEITURE OF BAIL. (Sec. 21, Rule 114)
Atty. Europa: A funny provision.
Section 21. Forfeiture of bail.—When the presence of the accused is required
by the court or these Rules, his bondsmen shall be notified to produce him
before the court on a given date and time.
If the accused fails to appear in person as required, his bail shall be declared
forfeited and the bondsmen given thirty (30) days within which to produce their
principal and to show cause why no judgment should be rendered against them
for the amount of their bail. Within the said period, the bondsmen must:
(a) produce the body of their principal or give the reason for his non-production;
and
(b) explain why the accused did not appear before the court when first required
_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL
62
to do so.
Failing in these two requisites, a judgment shall be rendered against the
bondsmen, jointly and severally, for the amount of the bail. The court shall not
reduce or otherwise mitigate the liability of the bondsmen, unless the accused
has been surrendered or is acquitted. (21a)
- It should not stop with the Order of Forfeiture
- There is a huge amount of money that is not supposed to be used by
the government, only because there is no judgment yet.
If the accused puts up his own bail, he is his own bondsman.
CANCELLATION OF BAIL. (Sec. 22, Rule 114)
Section 22. Cancellation of bail.—Upon application of the bondsmen, with
due notice to the prosecutor, the bail may be cancelled upon surrender of the
accused or proof of his death. The bail shall be deemed automatically cancelled
upon acquittal of the accused, dismissal of the case, or execution of the
judgment of conviction. In all instances, the cancellation shall be without
prejudice to any liability on the bail. (22a)
Upon application of the bondsmen, with due notice to the prosecutor, the bail may
be cancelled upon surrender of the accused or proof of his death.
The bail shall be deemed automatically cancelled upon acquittal of the accused,
dismissal of the case, or execution of the judgment of conviction.
In all instances, the cancellation shall be without prejudice to any liability on the
bail. (22a)
Section 23. Arrest of accused out on bail. —For the purpose of surrendering
the accused, the bondsmen may arrest him or, upon written authority endorsed
on a certified copy of the undertaking, cause him to be arrested by a police
officer or any other person of suitable age and discretion.
An accused released on bail may be re-arrested without the necessity of a
warrant if he attempts to depart from the Philippines without permission of the
court where the case is pending. (23a)
- The bondsman takes the place of the jailer. What if during that time,
ayoko na? He must surrender the accused to the court. What if he
refuses to surrender? Have him arrested through an execution of
Authority of the Bail Undertaking authorizing the police or anyone to
surrender the accused in court.
- In American movies, Bounty Hunter, their job is to arrest people who
jump bail.
- 2nd paragraph : Concept of a Hold Departure Order. You can ask
the Bureau of Immirgration to arrest him on the basis of Section 23
paragraph 2 even if there is no HDO.
Section 24. No bail after final judgment; exception. — No bail shall be
allowed after a judgment of conviction has become final. If before such finality,
the accused applies for probation, he may be allowed temporary liberty under
his bail. When no bail was filed or the accused is incapable of filing one, the
court may allow his release on recognizance to the custody of a responsible
member of the community. In no case shall bail be allowed after the accused
has commenced to serve sentence. (24a)
Section 25. Court supervision of detainees.— The court shall exercise
supervision over all persons in custody for the purpose of eliminating
unnecessary detention. The executive judges of the Regional Trial Courts shall
conduct monthly personal inspections of provincial, city, and municipal jails and
the prisoners within their respective jurisdictions. They shall ascertain the
number of detainees, inquire on their proper accommodation and health and
examine the condition of the jail facilities. They shall order the segregation of
 63
sexes and of minors from adults, ensure the observance of the right of
detainees to confer privately with counsel, and strive to eliminate conditions
inimical to the detainees. In cities and municipalities to be specified by the
Supreme Court, the municipal trial judges or municipal circuit trial judges shall
conduct monthly personal inspections of the municipal jails in their respective
municipalities and submit a report to the executive judge of the Regional Trial
Court having jurisdiction therein. A monthly report of such visitation shall be
submitted by the executive judges to the Court Administrator which shall state
the total number of detainees, the names of those held for more than thirty (30)
days, the duration of detention, the crime charged, the status of the case, the
cause for detention, and other pertinent information. (25a)

- Basically goes through the requiremento on additional burden on all

executive judges to always conduct visitation

POSTING BAIL IS NOT A WAIVER OF ILLEGALITY OF THE ARREST OR

LACK OF PRELIMINARY INVESTIGATION (Sec. 26-NEW PROVISION) - ONE
OF THE MOST IMPORTANT AND PRACTICAL AMENDMENTS

Section 26. Bail not a bar to objections on illegal arrest, lack of or irregular
preliminary investigation.—An application for or admission to bail shall not
bar the accused from challenging the validity of his arrest or the legality of the
warrant issued therefor, or from assailing the regularity or questioning the
absence of a preliminary investigation of the charge against him, provided that
he raises them before entering his plea. The court shall resolve the matter as
early as practicable but not later than the start of the trial of the case, (n)

This abandons the ruling of the Supreme Court in the case of People v. Timon, 281
SCRA 597 (1997) and similar cases that “an application for bail constitutes a
waiver of right of the accused to question whatever irregularities and defects
attended the arrest”

This principle was reiterated as lately as the case of People v. Carmen Lacson,
G.R. No. 126174, August 29, 2000.

_________________________________________________
CRIMINAL PROCEDURE · ATTY. CAESAR EUROPA · 2020
AMPATUAN · GANADE · MASAPOL